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Question of Fact Whether City Had Notice of Pothole in Bicycle-Injury Case; Big Apple Pothole Map May Have Provided Notice

The Second Department affirmed the denial of defendant’s motion for summary judgment in a pothole bicycle-injury case.  The court determined that there was a question of fact about exactly where the pothole was and whether it was indicated on the Department of Transportation’s Big Apple Pothole map:

…”[W]here a municipality has enacted a prior written notice statute such as Administrative Code of the City of New York § 7-201(c)(2), it may not be subjected to liability for injuries arising from a defective roadway unless it has received timely prior written notice of the defective condition” … . A Big Apple map submitted to the Department of Transportation may serve as prior written notice of a defective condition … .

Here, the defendants failed to establish, prima facie, that they did not have prior written notice of the alleged defect. Where, as here, “there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff’s fall, and whether the alleged defect is designated on the map, the question should be resolved by the jury”… Chia v City of New York, 2013 NY slip Op 05873, 2nd Dept 9-18-13

 

Question of Fact Whether ¾ Inch Height Differential Was “Trivial”

In a slip and fall case, the Second Department reversed Supreme Court and determined there was a question of fact whether a defect, a ¾” height differential in a walkway, was “trivial:”

“Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law” … . “In determining whether a defect is trivial, the court must examine all of the facts presented including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury'” … . There is no “minimal dimension test” or per se rule that a defect, in order to be actionable, must be a certain height or depth … .

Here, in support of their motion, the Jamaica Seven defendants submitted evidence, including photographs, which showed that the bricks within the section of the entranceway where the plaintiff tripped were depressed below the adjacent public sidewalk, causing a height differential of at least 3/4 of an inch. This evidence, including the plaintiff’s deposition testimony, was insufficient to demonstrate as a matter of law that the alleged defect was trivial and, therefore, not actionable… . Cardona-Torres v City of New York, 2013 NY Slip Op 05870, 2nd Dept 9-18-13

 

Primary Assumption of Risk Precluded Lawsuit

The Second Department determined Supreme Court should have granted defendant’s motion for summary judgment based on the doctrine of primary assumption of risk. Plaintiff was an experienced boxer and was injured when he stepped into a gap (about which he was aware) under the canvas surface of the boxing ring:

The doctrine of primary assumption of risk provides that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This includes risks associated with any open and obvious conditions of the playing field, including risks arising from “less than optimal conditions” … . Thus, “when an experienced athlete . . . is aware of the existence of a particular condition on the premises where the activity is to be performed, and actually appreciates or should reasonably appreciate the potential danger it poses, yet participates in the activity despite this awareness, he or she must be deemed to have assumed the risk of injury which flows therefrom” … . Baccari v KCOR, Inc, 2013 NY Slip Op 05865, 2nd Dept 9-18-13

 

Plaintiff Unable to Identify Cause of Fall

In reversing Supreme Court, the Second Department determined a slip and fall action against defendant (Trump Village) should have been dismissed because the plaintiff could not identify the cause of her fall:

” [A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation'” … . Although “[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident, . . . mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” … . Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation … . Ash v city of New York, 2013 NY Slip Op 05864, Second Dept 9-18-13

 

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Out-Of-Possession Landlord Not Liable for Slip and Fall

In affirming the grant of summary judgment to an out-of-possession landlord in a slip and fall case, the Second Department explained:

“An out-of-possession landlord’s duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that it was not contractually obligated to maintain the subject parking lot, that it did not endeavor to maintain the subject parking lot, and that it did not owe the plaintiff a duty by virtue of any applicable statute or regulation … . Castillo v Wil-Cor Realty Co, Inc, 2013 NY Slip Op 05871, 2nd Dept 9-18-13

 

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Reinstatement of Charge Against Teacher After Dismissal of Charge in Arbitration Proper; Interlocutory Ruling by Arbitrator was “Final” in Effect/Courts Can Impose Higher Level of Scrutiny when Arbitration Mandated by Statute

The Second Department affirmed Supreme Court’s reinstatement of a charge against a teacher (Hogan) which had been dismissed by the arbitrator. The Second Department explained the criteria for court review of an interlocutory ruling of an arbitrator, noting that more scrutiny is appropriate in an arbitration mandated by statute:

Initially, we reject Hogan’s contention that the petition should have been dismissed because courts do not have the authority to review an interlocutory award dismissing one of the charges in an arbitration proceeding brought pursuant to Education Law 3020-a. As a general rule, a court lacks authority to entertain a petition to review an interlocutory ruling of an arbitrator on a procedural matter … . Here, however, the award sought to be reviewed is not one which involves “only a very limited procedural question” … . Rather, the award dismissed the most serious disciplinary charge preferred against Hogan, and the only one of the three charges which alleged that he was guilty of misconduct. The award is final as to that charge, and, if allowed to stand, would prevent the District from adducing evidence in support of the alleged misconduct at the hearing. Under these circumstances, the award dismissing Charge No. 1 can be viewed as a final determination subject to review under CPLR 7511 … .

Furthermore, the Supreme Court properly granted the District’s petition and reinstated Charge No. 1 against Hogan. Where, as here, the obligation to arbitrate arises through statutory mandate (see Education Law § 3020-a), the arbitrator’s determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily … . The award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious … . Matter of Board of Educ of Hauppauge Union Free Sch Dist v Hogan, 2013 NY Slip Op 05816, 2nd Dept 9-11-13

 

Child Should Not Have Been Removed from Foster Parents in Favor of Maternal Uncle

In reversing Family Court’s determination the child should move to the home of her maternal uncle rather than remain with her foster parents for adoption, the Second Department wrote:

Once parental rights have been terminated, there is no presumption favoring the child’s biological family … . Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart … . Here, as the children never shared a household, the Family Court erred in concluding that this consideration outweighed the benefit to Orianne of remaining in her foster home, where she has resided since infancy … . The record clearly reflects that Orianne has bonded with her foster family, and is healthy, happy, and well provided for … . Accordingly, the Family Court erred in determining that it was in Oriane’s best interests to move to the home of her maternal uncle rather than remain with her foster parents for the purpose of adoption, which, the record indicates, is the foster parents’ intent… . Matter of Ender MZ-P…, 2013 NY Slip Op 05829, 2nd Dept 9-11-13

 

Grant of Custody to Maternal Grandparents Rather than Parent Reversed

In reversing Family Court’s grant of custody to maternal grandparents, the Second Department wrote:

“In a custody proceeding between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances” … . “For a third-party nonparent to gain custody of a child, he or she must first prove that extraordinary circumstances exist such that a parent has relinquished his or her superior right to custody” … . “Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody” … .  * * *

We agree with the Family Court that the petitioners, the maternal grandparents of the subject children, satisfied their burden of demonstrating the existence of “extraordinary circumstances,” necessitating a determination as to the best interests of the children … . However, considering the totality of the circumstances in this case .., we find that the Family Court’s determination awarding … custody … to the maternal grandparents is not supported by a sound and substantial basis in the record. The mother’s testimony indicated that, at the time of the hearing, she had abstained from drug use for more than 2½ years. The mother’s testimony also indicated that there were no recent incidents of domestic violence between her and Tardo [the father of one of the children]. Indeed, the Family Court noted in its order that the mother and Tardo are now “clean and sober,” three years having passed between their last instances of drug use and the date of the order, and that “there have been no reports of aggression.” The Family Court placed undue emphasis on the forensic evaluation, which was completed almost two years prior to the court’s determination. Additionally, while the Family Court did acknowledge the nature of James’s wishes, we conclude that the court failed to adequately consider those preferences … . We further note that the attorney for the children supports the mother’s position on appeal, at least insofar as advocating for the mother to have joint custody of both children. Matter of Noonan v Noonan, 2013 NY Slip Op 05824, 2nd Dept 9-11-13

 

 

Maintenance Should Not Have Been Granted in Absence of Proof of Standard of Living and Need for Maintenance

The Second Department determined Supreme Court abused its discretion by awarding maintenance in the absence of evidence of the parties’ standard of living and the plaintiff’s need for maintenance:

…[T]he Supreme Court’s award of maintenance to the plaintiff was an improvident exercise of its discretion since the award was made in the absence of any evidence of the parties’ standard of living during the marriage, and in the absence of evidence that the plaintiff, who is otherwise self-supporting, needs maintenance to sustain his pre-divorce standard of living. Additionally, the defendant’s reasonable needs preclude an award of maintenance to the plaintiff. Under these circumstances, the plaintiff should not have been awarded maintenance… .  Lucere v Lucere, 2013 NY Slip Op 05801, 2nd Dept 9-11-13

 

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In Personal Injury Case, Court Should Not Have Granted Mistrial When Objection Sustained, Lawyer Admonished and Curative Instruction Given

The Second Department reversed Supreme Court’s grant of a mistrial in a slip and fall case.  Plaintiff was injured playing basketball. Plaintiff objected to remarks made by defense counsel in summation which erroneously implied that the doctrine of primary assumption of risk applied.  The trial judge sustained the objection, admonished the lawyer, and gave a curative instruction. After the verdict for the defendant, Supreme Court granted plaintiff’s motion for a mistrial:

The Supreme Court erred in, in effect, granting the plaintiffs’ application for a mistrial since the court had previously properly sustained objections to the subject summation comments, openly admonished counsel, and provided curative instructions, thereby correcting any possible prejudice resulting from the subject summation comments … . Richardson v City of New York, 2013 NY slip Op 05810, 2nd Dept 9-11-13

 

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