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Triable Issues of Fact in Lawsuit Against Bus Company and Property Owner for Slip and Fall on a Speed Bump

In reversing Supreme Court and reinstating the complaint, the Second Department determined there were triable questions of fact whether plaintiff was negligently allowed to step off a bus onto a speed bump, causing her to fall, and whether the property owner (JQ) allowed a dangerous condition (speed bump) to exist:

The [bus company] defendants failed to establish, prima facie, that they fulfilled the duty to alighting passengers to stop at a place where they may safely disembark and leave the area … . Triable issues of fact exist as to whether the driver was aware, or reasonably should have been aware, of the presence of a speed bump in the subject location, whether the speed bump constituted a dangerous condition, and whether the driver should have stopped the bus at the designated stop or another location not adjacent to a speed bump … . There is also a triable issue of fact as to whether the driver failed to see that which should have been seen through the reasonable use of one’s senses and was, therefore, negligent… . The injured plaintiff’s failure to positively state whether sand on the speed bump contributed to her fall was not fatal to her cause of action, because the evidence was sufficient to permit a finding based on logical inferences from the record, and not speculation alone, that the placement of the bus was a proximate cause of the accident, regardless of whether there was sand on the speed bump … .

The JQ defendants, as owners and operators of the office complex, which was open to the public, had a nondelegable duty to provide the public with reasonably safe premises and a safe means of ingress and egress … . This duty may not be delegated by the owner to its agents or employees, or to an independent contractor … . The plaintiffs need not establish that the JQ defendants had notice of the alleged dangerous condition, as it was allegedly created by the JQ defendants or their agent … . The JQ defendants failed to establish, prima facie, that they did not create a dangerous condition on the premises in placing the speed bump, or causing it to be placed, in the subject location. There are triable issues of fact as to whether the speed bump constituted a dangerous condition or was readily visible to a disembarking bus passenger, given its location near the bus stop, and given the conflicting testimony as to whether the speed bump was painted yellow … . Furthermore, triable issues of fact exist as to whether the circumstances were such as to render the subject speed bump a trap for the unwary … . Some visible hazards, because of their nature or location, are likely to be overlooked. The facts here do not warrant concluding as a matter of law that the speed bump was so obvious that it would necessarily have been noticed by any careful observer, so as to make any warning superfluous… . Grizzell v JQ Assoc LLC, 2013 NY Slip Op 06544, 2nd Dept 10-9-13

 

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Primary Assumption of Risk Prohibited Suit by Student Softball Player Injured When Struck by the Ball

The Second Department determined an eighth-grade experienced softball player assumed the risk of being hit by the ball, noting that the supervisor’s temporary absence from the field was not the proximate cause of the injury.  The court provided a thorough explanation of the primary assumption of risk doctrine:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . Since the determination of the existence and scope of a duty of care requires “an examination of plaintiff’s reasonable expectations of the care owed him [or her] by others” …, the plaintiff’s consent does not merely furnish the defendant with a defense, it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence” … . It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred “so long as he or she is aware of the potential for injury of the mechanism from which the injury results”… . Cruz v Longwood Cent Sch Dist, 2013 NY Slip Op 06541, 2nd Dept 10-9-13

 

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ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT).

The Second Department, reversing Family Court, determined the attorney for a child with Down syndrome and profound disabilities could continue to make medical and foster care decisions for the child after the child turned 18. Therefore, Family Court’s sua sponte appointment of a guardian was unnecessary:

We disagree with the Family Court’s determination to deny the child’s motion to relieve the guardian ad litem. Family Court Act §§ 1016, 1087, and 1090(a), and 22 NYCRR 7.2(d)(3), read in conjunction with each other, authorize the attorney for the child to represent the child’s interests in this matter, substitute its judgment for that of the child, and provide consent for the child to remain in foster care, thereby rendering the appointment of a guardian ad litem unnecessary … . Matter of Elliot Z. (Joseph Z.), 2018 NY Slip Op 06547, Second Dept 10-3-18

FAMILY LAW (ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/GUARDIANS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))

Failure to Inquire About Defendant’s Understanding of Intoxication Defense Required Vacation of Guilty Plea

The Second Department determined defendant’s guilty plea should be vacated because the defendant could not recall the events due to his intoxication and the court made no inquiry about whether the defendant was aware of the significance of his intoxication (a possible intoxication defense):

The defendant pleaded guilty to assault in the second degree (see Penal Law § 120.05). At the plea allocution, the defendant indicated that he had a very limited recollection of the incident, but admitted his guilt based on photographs, police reports, and witness statements. The County Court acknowledged that the defendant could not recollect the incident because he had been drinking alcoholic beverages at the time of the assault, and that the defendant’s alleged intoxication at the time of the incident could negate the intent element of the crime of assault in the second degree (see Penal Law §§ 15.25, 120.05). While defense counsel stated that he had discussed “a possible intoxication defense” with the defendant and that the defendant understood it, the court made no inquiry of the defendant to ensure that he was aware of the significance of his claim of intoxication … . The court’s failure to conduct any such inquiry of the defendant requires vacatur of the defendant’s plea of guilty… . People v Jiminez, 2013 Slip Op 06386, 2nd Dept 10-2-13

 

Papers Sufficient to Require Suppression Hearing—No Need to Allege Expectation of Privacy Where Police Act Illegally

In finding defendant’s papers were sufficient to require a suppression hearing (re: the suppression of a gun), the Second Department noted that the defendant was not required to demonstrate he had a legitimate expectation of privacy in the area the gun was found because the motion alleged the gun was seized as a result of illegal police conduct:

A motion to suppress evidence must state the grounds of the motion and contain sworn allegations of fact supporting such grounds (see CPL 710.60[1]…). “It is fundamental that a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue” (…see CPL 710.60[3][b],,,). In testing the sufficiency of a defendant’s factual allegations, a court should consider “(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” … .

Here, the allegations in the defendant’s papers, when considered in the context of the information provided by the People, raised a factual dispute requiring a hearing … . Contrary to the People’s contention, the defendant’s motion papers contained the requisite sworn allegations of fact … . Moreover, the defendant was not required to demonstrate that he had a legitimate expectation of privacy in the area where the gun was found …, since, under both the defendant’s and the People’s versions of events, the dispositive issue was whether the gun was recovered as a direct result of unlawful police action …. In light of the foregoing, the County Court should not have denied suppression without conducting a hearing. Accordingly, we remit the matter to the County Court, Suffolk County, for a hearing and a new determination thereafter of that branch of the defendant’s motion which was to suppress physical evidence.  People v Jennings, 2013 NY Slip Op 06384, 2nd Dept 10-2-13

 

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Police Violated Defendant’s Constitutional Rights by Pushing Door Open and Entering Apartment When Defendant Answered the Door—The “Payton” Violation (a Warrantless Arrest Inside Home) Mandated Suppression of Defendant’s Statement

Over a two-justice dissent, the Second Department determined defendant was arrested pursuant to a Payton violation (a warrantless arrest inside defendant’s home) and his subsequent statement should have been suppressed. The police were at defendant’s door with the complainant who told the police defendant had assaulted her.  When defendant opened the door, the complainant identified him as the assailant.  The defendant tried to shut the door, but the police pushed their way in and arrested him. The trial court felt there was no Payton violation the defendant’s attempt to shut the door after the identification was akin to “fleeing” or “exigent circumstances.”  The Second Department, in a full-fledged opinion by Justice Balkin, disagreed and wrote:

In Payton v New York (445 US 573), the United States Supreme Court announced a clear and easily applied rule with respect to warrantless arrests in the home: “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant” (Payton v New York, 445 US at 590). The rule under the New York Constitution is the same (see NY Const, art 1, § 12; People v Levan, 62 NY2d 139, 144). Payton and Levan require suppression of the defendant’s statement under the clear, undisputed facts of this case.

Certainly, if the defendant’s encounter with the police had begun outside his home, or even on the threshold of it, the defendant could not have avoided arrest by fleeing into his home (see United States v Santana, 427 US 38, 43). But, contrary to the hearing court’s characterization, the defendant’s attempt to close his door was not “akin” to “fleeing”; he had never left the constitutionally protected interior of his home in the first place, even partially, so he did not flee “into” his home … . People v Gonzales, 2013 NY Slip Op 06381, 2nd Dept 10-2-13

 

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Hospital Not Necessary Party in Malpractice Action Where Liability Vicarious

The Second Department determined a hospital which may be vicariously liable in a medical malpractice action was not a necessary party to the action:

The Supreme Court did not err in concluding that the nonparty Victory Memorial Hospital (hereinafter the hospital) was not a necessary party to this action. Contrary to the appellants’ contention, even if it were shown that the hospital would be vicariously liable for any negligence of the individual defendants, or that it had a contractual obligation to indemnify those individual defendants for damages recovered from them in this action, those factors would not render the hospital a necessary party to this action (see CPLR 1001[a]…). Complete relief may be accorded to the parties in this action without the presence of the hospital, as a plaintiff may proceed against any or all joint-tortfeasors, and a judgment for or against one tortfeasor does not operate as a merger or bar of a claim against other tortfeasors … . Accordingly, the Supreme Court properly denied those branches of the motion and cross motion which were pursuant to CPLR 3211(a)(10) to dismiss the complaint for failure to join a necessary party.  Smith v Pasqua, 2013 NY slip Op 06356, 2nd Dept 10-2-13

 

Action Abandoned, Should Not Have Been Restored

In determining an action had been abandoned and should not have been restored, even though there had been a stipulation to restore the action, the Second Department wrote:

Where, as here, an action has been marked “off” the trial calendar, and more than one year has passed without its restoration to the trial calendar, the action shall be deemed abandoned and shall be dismissed (see CPLR 3404). A plaintiff subsequently seeking to restore an action to the trial calendar must demonstrate the existence of a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant … .

Although the stipulation to restore this action provides some indication that the plaintiff did not intend to abandon it when it was first marked “off,” and there was sporadic activity over the period, in excess of five years, between the automatic dismissal and the motion to restore the action to the trial calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed pursuant to CPLR 3404… . Saint Mary Byzantine Catholic Church v Kalin, 2013 NY Slip Op 06355, 2nd Dept 10-2-13

 

Plaintiff Should Have Been Granted Extension to Serve Summons and Complaint Three Days After 120-Day Period Expired

The Second Department determined plaintiff should have been granted an extension of time to serve the summons and complaint where the statute of limitations ran out between the commencement of the action and the service.  The Second Department further determined that service of one copy of the summons and complaint upon an officer of defendant corporation (MBRI) was valid for both the corporation and the officer:

The defendants contend that MBRI was never served with a copy of the summons and complaint. We disagree. Service of one copy of a summons and complaint upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, where, as here, there was simultaneous compliance with CPLR 311(a)(1) and CPLR 308(1) … .Here, MBRI was served pursuant to CPLR 311(a)(1) when the plaintiff’s process server delivered the summons and complaint to the individual defendant, an officer of MBRI. Accordingly, the method employed to serve MBRI was proper and, thus, that branch of the defendants’ cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against MBRI for lack of personal jurisdiction should have been denied.

In this case, where the statute of limitations expired between the time that the action was commenced and the time that the copy of the summons and complaint was served, that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon MBRI nunc pro tunc to September 11, 2011, should have been granted in the interest of justice … . The copy of the summons and complaint was served only 3 days after the 120-day time period of CPLR 306-b had expired, the plaintiff promptly sought relief after receiving the answer, and there was no demonstrable prejudice to MBRI attributable to the delay in service … .  Fernandez v Morales Bros Realty Inc, 2013 NY Slip Op 06345, 2nd Dept 10-2-13

 

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Wife’s Encumbrance of Marital Property in Violation of Court Order and Knowledge of the Court Order by Mortgage-Holder’s Agent Precluded Payout to Mortgage-Holder from Surplus Foreclosure Sale Proceeds

The Second Department determined the holder of a mortgage (Marie Holdings), which was undertaken by the wife in violation of the matrimonial court’s order not to encumber the marital residence, was not entitled to any of the surplus proceeds after a foreclosure sale of the property.  The facts that the wife violated the matrimonial court’s order and the attorney who was the agent for the mortgage holder knew of the court-order were determinative:

“The surplus funds of a foreclosure sale stand in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land” … . Accordingly, “[s]urplus money takes the place of the equity of redemption and only one who had a vested estate or interest in the land sold under foreclosure which was cut off by the foreclosure sale is entitled to share in the surplus money with priority in each creditor determined by the filing date of his lien or judgment” … . * * *

Contrary to Marie Holdings’ contention, the matrimonial court had authority to determine that the husband was entitled to the surplus funds as part of the equitable distribution of the marital property … . Thus, notwithstanding the secured interest Marie Holdings acquired in the marital home by virtue of the mortgage the wife gave to it, because the wife undertook the mortgage in violation of the restraining order … , and because Marie Holdings’ agent knew or should have known of the restraining order, its interest in the surplus funds was properly limited to the wife’s interest therein … . The matrimonial court, in its discretion, divested the wife of that interest based upon her conduct. Emigrant Mtge Co Inc v Biggio, 2013 NY slip Op 06344, 2nd Dept 10-2-13

 

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