You are here: / Second Department

Tag Archive for: Second Department

, ,

E-Mail Met All Criteria for a Stipulation of Settlement Including the “Subscribed Writing” Requirement

In a full-fledged opinion by Justice Sgroi, the Second Department determined an e-mail message satisfied the criteria of CPLR 2104 as a binding and enforceable stipulation of settlement.

The e-mail, written by plaintiff’s counsel, read:

“Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. Please have your client executed [sic] the attached Medicare form as no settlement check can be issued without this form.

“You also agreed to prepare the release, please included [sic] the following names: Xerox Corporation, Gelco Corporation, Mitchell G. Maller and Sedgwick CMS. Please forward the release and dismissal for my review. Thanks Brenda Greene.”

The court determined the phrase “Thanks Brenda Greene” rendered the e-mail a subscribed writing:

…[W]e hold that where, as here, an email message contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement. Forcelli v Gelco Corp, 2013 NY Slip Op 05437, 2nd Dept 7-24-13

 

, ,

Review Criteria for Municipal Disability Hearing Explained

The Second Department, in an Article 78 proceeding, explained the review criteria where there has been a disability hearing (re: a firefighter) held by a municipality pursuant to General Municipal Law 207-a:

Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence (see CPLR 7803[4]…). Substantial evidence means more than a “mere scintilla of evidence,” and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides … .

When there is conflicting evidence or different inferences may be drawn, “the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists”… .. Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 207-a determination, a municipality is “free to credit one physician’s testimony over that of another” … . Thus, even if “conflicting medical evidence can be found in the record,” the municipality’s determination, based on its own expert’s conclusions, may still be supported by substantial evidence… . Matter of Solano v City of Mount Vernon, 2013 NY Slip Op 05322, 2nd Dept 7-17-13

 

Labor Law 240(1) Action Not Implicated by Portion of Ceiling Falling

The Second Department determined a Labor Law 240(1) action should have been dismissed.  As plaintiff was attempting to paint the ceiling while standing on a ladder, a portion of the ceiling fell, causing injury.  In explaining why section 240 does not apply to the facts, the court wrote:

Labor Law § 240(1) requires property owners and contractors to provide workers with “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection” to the workers (Labor Law § 240[1]). The purpose of the statute is to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured”…. “With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'”… . Thus, to recover damages for violation of the statute, a “plaintiff must show more than simply that an object fell causing injury to a worker” … . The plaintiff must show that, at the time the object fell, it was “being hoisted or secured” (id. at 268) or “required securing for the purposes of the undertaking”… . Flossos v Waterside Redevelopment Co LP, 2013 NY Slip Op 05297, 2nd Dept 7-17-13

 

, ,

Firefighter Rule Prohibiting Negligence Suit by Injured Police Officer Applied/Action Under Municipal Law 205-e Allowed

In a full-fledged opinion by Justice Leventhal, the Second Department determined a police officer who was injured when she fell off the back of a flat bed truck while loading police barricades could not sue in negligence (based on the firefighter rule) but could sue under General Municipal Law 205-e based on an alleged violation of Labor Law 27-a (which imposes a general duty to provide a safe work environment):

Re: the applicability of the firefighter rule:

…[T]he firefighter rule provides that “[p]olice and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment” …. The rule bars a police officer’s or a firefighter’s recovery ” when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury'” … * * *

While loading a flatbed truck may not be a task that is typically associated with police work, the alleged accident occurred while the plaintiff was on a police vehicle, loading police barriers, and while she was assigned to the barrier truck detail, a location and job detail to which she was exposed solely as a result of her duties as a police officer… .  * * *

Re: the viability of the General Municipal Law 205-e cause of action:

As observed by the Court of Appeals, the Legislature has, on several occasions, “sought to ameliorate the harsh effects of the [firefighter] rule” …. To that end, in 1935, the Legislature first enacted General Municipal Law § 205-a, which created a cause of action for firefighters who, while in the line of duty, are injured as a result of violations of statutes or regulations (see General Municipal Law § 205-a; L 1935, ch 800, § 2; L 1936, ch 251, § 1). In 1989, the Legislature enacted General Municipal Law § 205-e in direct response to Santangelo v State of New York (71 NY2d 393), which ,,,had extended the firefighter rule to police officers… .  * * *

…[T]he plaintiff has alleged that the defendants’ Labor Law § 27-a(3)(a)(1) violation is a predicate for her General Municipal Law § 205-e cause of action. Section 205-e does not stand alone and must be predicated on a violation of a separate legal requirement. …[T]he Court of Appeals, in addressing the various amendments to General Municipal Law § 205-e, has stated “that we should apply this provision expansively’ so as to favor recovery by police officers whenever possible”… .

Since section 27-a provides an objective standard by which the actions or omissions of a public employer, such as the City, can be measured for purposes of liability, Labor Law § 27-a(3)(a)(1) can serve as a predicate for a section 205-e claim… .  Gammons v City of New York, 2013 NY Slip Op 05298, Second Dept 7-17-13

 

,

Children Were Not “Dependent on Court;” They Therefore Did Not Meet Criteria for Statutory Path to Lawful Permanent Residency in US

In a full-fledged opinion by Justice Cohen, the Second Department determined that two children born in Hong Kong, and living with their father in New York, did not meet the “dependency-on-the-family-court” requirement such that they could petition for special immigrant juvenile status (SJIS) pursuant to 8 USC1101 (which provides undocumented children with a gateway to lawful permanent residency in the US).  The court explained:

In New York, a child may request that the Family Court, recognized as a juvenile court (see 8 CFR 204.11[a]), issue an order making special findings and a declaration so that he or she may petition the United States Citizenship and Immigration Services for SIJS … . Specifically, the findings of fact must establish that: (1) the child is under 21 years of age; (2) the child is unmarried; (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by a State or juvenile court; (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis; and (5) it is not in the child’s best interests to be returned to his or her home country (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c]). With the declaration and special findings, the eligible child may then seek the consent of the Department of Homeland Security for SIJS (see 8 USC § 1101[a][27][J][iii]).  * * *

The requirement that a child be dependent upon the juvenile court or, alternatively, committed to the custody of an individual appointed by a State or juvenile court, ensures that the process is not employed inappropriately by children who have sufficient family support and stability to pursue permanent residency in the United States through other, albeit more protracted, procedures. In this case, there has been no need for intervention by the Family Court to ensure that the appellants were placed in a safe and appropriate custody, guardianship, or foster care situation, and the appellants have not been committed to the custody of any individual by any court….

While the appellants met all of the other requirements for SIJS, the Family Court correctly determined that the dependency requirement had not been satisfied. A child becomes dependent upon a juvenile court when the court accepts jurisdiction over the custody of that child, irrespective of whether the child has been placed in foster care or a guardianship situation… . The Family Court has only granted applications for SIJS special findings where dependency upon the court was established by way of guardianship, adoption, or custody.  Matter of Hei Ting C, 2013 NY Slip Op 05310, 2nd Dept 7-17-13

 

Attorney for Child Could File Abuse Petition After Abuse Petition Withdrawn by Department of Social Services

The Second Department determined that the attorney for the child had the power to file a child abuse petition after the Department of Social Services withdrew its petition:

Although the primary responsibility for initiating a child neglect or abuse proceeding “has been assigned by the Legislature to child protective agencies” … , Family Court Act § 1032 also permits such a proceeding to be initiated by “a person on the court’s direction.” “The requirement for court approval or authorization for proceedings prompted by those other than child protective agencies indicates the Legislature’s concern that judicial proceedings touching the family relationship should not be casually initiated and imposes upon the courts the obligation to exercise sound discretion before permitting such petitions to be filed” … . Contrary to the appellant’s contentions, the record demonstrates that the attorney for the child was in fact authorized by the Family Court to file a new abuse petition on behalf of Amber A., and that the Family Court’s decision to authorize him to do so was a provident exercise of its discretion… .  Matter of Amber A, 2013 NY Slip Op 05308. 2nd Dept 7-17-13

 

,

Executor’s Motion to Be Substituted for Decedent in Negligence Action Too Late

In affirming the dismissal of an executor’s motion to be substituted as a party in a negligence action (on behalf of the decedent), the Second Department explained:

CPLR 1021 provides, in pertinent part, “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate.” CPLR 1021 requires a motion for substitution to be made within a reasonable time … . The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit….

The Supreme Court providently exercised its discretion in denying the appellant’s motion pursuant to CPLR 1015 for leave to substitute himself as a party plaintiff and granting the defendant’s cross motion pursuant to CPLR 1021 to dismiss the complaint, in light of the 21-month delay in obtaining preliminary letters testamentary, the further one-year delay in seeking substitution, the failure to demonstrate a reasonable excuse for the delays, the absence of any affidavit of merit, and the prejudice to the defendant… .  Terpis v Regal Hgts Rehabilitation & Health Care Ctr Inc, 2013 NY Slip Op 05200, 2nd Dept 7-10-13

 

,

Notice to Admit Improperly Sought Admission at Heart of Case

The Second Department determined Supreme Court abused its discretion when it denied defendant’s motion for a protective order pursuant to CPLR 3103(a).  The plaintiff had sought a notice to admit that a vehicle owned by the defendant and operated by defendant’s employee ‘was in contact with the plaintiff.”  The Second Department wrote:

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial”…. Here, the plaintiff’s notice to admit improperly sought the defendant’s admission concerning a matter that went to the heart of the controversy in this case…. Moreover, ” the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial'” …. Accordingly, the Supreme Court should have granted the defendant’s motion for a protective order. Ramcharran v NY Airport Services LLC, 2013 NY Slip Op 05195, 2nd Dept 7-10-13

 

, ,

Prosecutor Need Not Accept Defendant’s Stipulation in Lieu of DNA Test

The Second Department affirmed Supreme Court’s denial of an Article 78 petition seeking prohibition with respect to an order that petitioner allow a buccal swab for DNA testing.  The petitioner argued that his offer to stipulate his DNA matched the DNA on two firearms should preclude the test. The Second Department held that a prosecutor was under no obligation to accept the offer to stipulate:

“[A] court order to obtain a [bodily] sample of a suspect may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable”…. “In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other” …. Here, the petitioner … contends that the People’s motion should have been denied on the ground that his offer to stipulate that his DNA matched the DNA recovered from the two firearms at issue provided a less intrusive method of obtaining the evidence. However, the law is manifestly clear that the People are under no obligation to accept an offer by a defendant to stipulate to a fact or to an element of a charged crime …, and “the decision as to whether to decline or accept such a stipulation lies wholly within the prosecutor’s discretion”…. Accordingly, since the petitioner has failed to demonstrate a clear legal right to the extraordinary remedy of prohibition, his petition is denied … .  Matter of Johnson v Shillingford, 2013 NY slip Op 05212, 2nd Dept 7-10-13

 

,

Therapeutic Dog Allowed In Court to Support Alleged Child Victim of Sexual Offenses During Trial Testimony

The Second Department, in a full-fledged opinion by Justice Sgroi, determined that the “courts of this State should permit the presence of a therapeutic ‘comfort dog’ in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim.”  The defendant was charged with predatory sexual assault against a child.  The alleged victim was his daughter who 15 years old at the time of trial.  It was alleged that the victim twice became pregnant by the defendant and the defendant arranged for abortions in both instances.  The Second Department found support for its determination in Executive Law section 642-a (procedures making the judicial process less threatening to child victims).  The Second Department rejected defendant’s arguments that the presence of the dog violated his right to due process of law and right of confrontation.  People v Tohom, 2013 NY Slip Op 05234, 2nd Dept 7-10-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy