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THE ALLEGATIONS BY THE CHILDREN WERE SUFFICIENTLY CORROBORATED TO SUPPORT A FINDING FATHER COMMITTED DOMESTIC ABUSE AND THEREBY NEGLECTED THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined the allegations made by the children about father’s violence against mother were sufficiently corroborated to support a neglect finding against father:

… [A] preponderance of the evidence established that the father neglected the children by perpetrating acts of domestic violence against the mother in their presence … .. The out-of-court statement of the oldest child, Roland M., was sufficiently corroborated. “The out-of-court statements of siblings may properly be used to cross-corroborate one another” … . “However, such out-of-court statements must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations” … “and be independent from and consistent with the other sibling’s out-of-court statement” (Matter of Ashley G. [Eggar T.], 163 AD3d at 965). Roland M.’s statement was corroborated by the out-of-court statement of his sister, Rosalee M., that she witnessed the father drag the mother out the door and choke her. Roland M.’s statement was also corroborated by the ORT received by the petitioner, which reported that Roland M. called the authorities during the domestic violence incident, that during the incident the father strangled the mother with his hands, that Roland M. had to intervene, and that the father was being charged with strangulation in the second degree … …

… [T]he evidence was sufficient to establish that the father’s acts of domestic violence against the mother in the children’s presence impaired, or created an imminent danger of impairing, the children’s physical, mental, or emotional condition … . Matter of Roland M. (Manuel M.), 2024 NY Slip Op 01011, Second Dept 2-28-24

Practice Point: The issue here was whether the domestic abuse allegations by the children were sufficiently corroborated. The Appellate Division held that they were, giving some insight into what constitutes sufficient corroboration in this context.

 

INDEMNIFICATION IS ONLY AVAILABLE IF THE PARTY SEEKING IT IS NOT NEGLIGENT (VICARIOUS LIABILITY); A PARTY WHO IS PARTIALLY NEGLIGENT MAY ONLY SEEK CONTRIBUTION, NOT INDEMNIFICATION, FROM OTHER TORT-FEASORS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the third-party complaint against defendant seeking indemnification should have been dismissed because the third-party plaintiff could not be vicariously liable for the negligence of the defendant. Where a party is partially liable based on its own negligence, only contribution from other tort-feasors, not indemnification, is available:

“The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, that is, the defendant’s role in causing the plaintiff’s injury is solely passive, and thus its liability is purely vicarious” … . However, “where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy” … . De Heras v Avant Gardner, LLC, 2024 NY Slip Op 00999, Second Dept 2-28-24

Practice Point: Indemnification is only available to a party who is vicariously liable for the negligence of another. A party who is partially negligence can only seek contribution, not indemnification, from other tort-feasors.

 

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PLAINTIFF DID NOT MAKE A SUFFICIENTLY STRONG SHOWING TO SUPPORT DISCOVERY OF DEFENDANT’S PERSONAL TAX RETURNS; PLAINTIFF’S ATTORNEY’S FAILURE TO SUBMIT A GOOD FAITH AFFIRMATION WARRANTS DENIAL OF THE DISCOVERY MOTION; THE IMPOSITION OF SANCTIONS WAS NOT SUPPORTED BY EVIIDENCE OF DEFENDANT’S WILLFUL AND CONTUMACIOUS FAILURE TO COMPLY WITH A DISCOVERY ORDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) plaintiff did not make an adequate showing to warrant discovery of defendant’s personal tax returns; (2) plaintiff’s attorney’s affirmation did not meet the requirements of the “good faith” affirmation required by 22 NYCRR 202.7 (a), and (3) plaintiff did not make a showing sufficient to warrant discovery sanctions:

“Tax returns generally are not discoverable ‘in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources'” … . Here, [defendant] admitted that she deposited some of the rent money she collected into a personal account, which she claimed that she then used to pay expenses on the properties, whereas the plaintiff claimed that [she] used the money to pay her own personal expenses. The plaintiff failed to make a “strong showing” that [defendant’s] personal tax returns are indispensable to proving his claims and that evidence cannot be obtained from other sources, such as bank records … .

Pursuant to 22 NYCRR 202.7(a), all motions relating to disclosure must include “an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion” … . * * * “Failure to provide an affirmation of good faith which substantively complies with 22 NYCRR 202.7(c) warrants denial of the motion” … . …

“Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” … . Here, the plaintiff failed to make a clear showing of a willful and contumacious failure to comply with discovery demands. Cyngiel v Krigsman, 2024 NY Slip Op 00996, Second Dept 2-28-24

Practice Point. Before a court will order discovery of personal tax returns, the moving party must make a strong showing the information cannot be provided by other sources (not the case here).

 

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IN THIS CHILD VICTIM’S ACT (CVA) ACTION, THE COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR NEGLIGENT SUPERVISION, NEGLIGENT RECRUITMENT AND NEGLIGENT FAILURE TO WARN AGAINST BIG BROTHERS BIG SISTERS OF AMERICA (BBBS) AND FAMILY SERVICES OF WESTCHESTER (FSW) BASED ON THE ALLEGED SEXUAL CONDUCT BY A VOLUNTEER MENTOR (SECOND DEPT). ​

The Second Department determined defendant Big Brothers Big Sisters of America (BBBS)’s and defendant Family Services of Westchester (FSW)’s motions to dismiss the negligent supervision, negligent recruitment and negligent failure to warn causes of action were properly denied in this Child Victims Act (CVA) lawsuit. Plaintiff alleged he was sexually abused by a mentor associated with defendants:

… [T]he amended complaint adequately alleged that the defendants owed a duty of care to the plaintiff and that the sexual abuse by the mentor was foreseeable. Specifically, the amended complaint alleged that the mentor groomed and sexually abused the plaintiff “in connection with [the mentor’s] position as a volunteer with BBBS and FSW” and “in connection with BBBS and FSW sponsored activities.” During all relevant times, BBBS and FSW had allegedly assumed custody and control over the plaintiff “as a minor child in their care.” The amended complaint alleged that the defendants had a duty to “take reasonable measures to guard against child sexual abuse by volunteers” and that the defendants failed to ensure that there were reasonable screening or recruitment measures in place to prevent such abuse. The amended complaint further alleged that BBBS published two reports demonstrating that, while the plaintiff’s abuse was ongoing, BBBS was aware that the services it offered “attract[ed] child sexual abusers,” that the clients of BBBS were at “high risk” for potential abuse, and that the selection process used to match mentors with mentees did not appropriately incorporate child sexual abuse prevention training (internal quotation marks omitted). Moreover, the amended complaint alleged that the mentor had “dangerous propensities,” that the defendants “should have known” that the mentor had a propensity to sexually abuse children, and that oversight and monitoring of the mentor’s interactions with his prior mentees “would have revealed [the mentor’s] pattern of predatory behavior.” At the pleading stage of the litigation, where the plaintiff’s allegations are accepted as true and are accorded the benefit of every possible favorable inference, the plaintiff adequately alleged that the defendants owed the plaintiff a duty of care and that the sexual abuse by the mentor was foreseeable … . Brophy v Big Bros. Big Sisters of Am., Inc., 2024 NY Slip Op 00993, Second Dept 2-28-24

Practice Point: Here in this Child Victims Act (CVA) case, the complaint adequately alleged negligent supervision, negligent recruitment and negligent failure to warn.

 

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THE FAILURE TO SUBMIT THE RECORDS UPON WHICH THE REFEREE’S CALCULATIONS WERE BASED RENDERED THE REPORT INADMISSBILE HEARSAY IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing the confirmation of the referee’s report in this foreclosure action, determined the absence of the records relied upon for the referee’s computations rendered the report inadmissible hearsay:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “However, computations based on the review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … .

… [T]he referee’s report was improperly premised upon unproduced business records. In support of its motion, the plaintiff submitted an affidavit from an employee of the plaintiff, An Dang, which the referee relied upon in computing the amount due to the plaintiff. However, the record does not reflect that the plaintiff submitted the business records upon which An Dang or the referee relied in computing the total amount due on the mortgage, as well as payments for taxes, insurance, and other advances. Therefore, the referee’s findings were not substantially supported by the record … . U.S. Bank N.A. v Jong Shin, 2024 NY Slip Op 01029, Second Dept 2-28-24

Practice Point: In a foreclosure action, a referee’s report based upon records which were not submitted to the court is inadmissible hearsay.

 

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UNDER THE UNIQUE FACTS OF THIS MED MAL TRIAL, DEFENDANTS DID NOT ATTEMPT TO SHIFT LIABILITY TO PHYSICIANS WHO HAD BEEN AWARDED SUMMARY JUDGMENT PRIOR TO TRIAL (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Warhit, determined defendant doctor and hospital in this med mal case did not attempt at trial to shift liability to the physician-defendants who had been awarded summary judgment before trial. The opinion is fact-specific and therefore will not be summarized here. The issue is discussed in detail and relevant authority is analyzed in some depth:

The principal question presented on this appeal is whether the defendants improperly attempted at trial to shift liability to certain physician-defendants who had been awarded summary judgment prior to trial. We answer this question in the negative, and find that the Supreme Court providently exercised its discretion in denying the application of the plaintiff … , in effect, for a new trial on this ground. We further conclude that the verdict was not contrary to the weight of the evidence. Angieri v Musso, 2024 NY Slip Op 00887, Second Dept 2-21-24

Practice Point: Under the specific facts brought out at trial in this med mal case, the plaintiff did not attempt to shift liability to doctors who had been awarded summary judgment prior to trial. The issue and the relevant authority are discussed in some detail.

 

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RIDING A BICYCLE ON A PUBLIC PATH USED BY BOTH BICYCLISTS AND PEDESTRIANS IS NOT A RECREATIONAL ACTIVITY WHICH TRIGGERS THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing the Court of Claims in this bicycle-fall case, determined the assumption of the risk doctrine did not apply. Plaintiff was riding on public path which was not a designated venue for bicycling when he hit an area of broken asphalt:

… [T]he Court of Claims erred in determining that the path where the claimant’s accident occurred was a designated venue used specifically for bicycling. When the injury occurred, the claimant was engaged in a recreational bicycle ride on a paved, public surface. The claimant was not participating in an organized group event or sponsored ride. The claimant testified at trial that he could both bike and walk the path. That, in addition to the presence of pedestrians who precipitated the accident, demonstrated that the path was for public use, and not a designated venue for bicycling. Therefore, the claimant, by participating in recreational bicycling, cannot be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and therefore, the doctrine of primary assumption of risk is inapplicable to the claimant’s activity … . Alfieri v State of New York, 2024 NY Slip Op 00886, Second Dept 2-21-24

Practice Point: Riding a bicycle on a public path used by pedestrians and bicyclists is not a recreational activity which triggers the assumption of the risk doctrine.

 

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PETITIONER’S FOIL REQUEST FOR DOCUMENTS AND EVIDENCE RELATING TO HIS MURDER CONVICTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND RESPONDING TO THE REQUEST WOULD INTERFERE WITH PETITIONER’S HABEAS CORPUS PROCEEDINGS IN FEDERAL COURT; THE FEDERAL COURT HAD ISSUED A STAY-IN-ABEYANCE ORDER TO ALLOW PETITIONER TO EXHAUST HIS STATE REMEDIES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, addressing a matter of first impression, determined petitioner’s FOIL request for documents and evidence related to his murder prosecution should not have been denied on the ground that granting the request would interfere with petitioner’s pending habeas corpus proceedings in federal court. The federal court issued a stay-and-abeyance order in the habeas corpus action to allow petitioner to exhaust his state remedies. Because the stay-and-abeyance order is in effect, the Second Department held that responding to the FOIL request would not interfere with the habeas corpus proceedings and the petition to compel production of the requested records should have been granted:

On July 12, 2020, the petitioner made a request to the Kings County District Attorney (hereinafter the District Attorney), pursuant to the Freedom of Information Law …, for “any and all material” related to the matter of People v Sarkodie, Indictment No. 2544/13, “including, but not limited to, any and all recordings, whether video or audio, DD-5’s, medical reports, witness statements, police memo books, crime scene investigative reports, evidence vouchers, and ballistics reports.” … On December 13, 2020, the petitioner’s counsel filed a second habeas corpus petition in the EDNY, which was consolidated with the petitioner’s pro se habeas petition In the federal habeas proceeding, the petitioner alleged both exhausted and unexhausted state law claims.

By order dated December 23, 2020 (hereinafter the stay-and-abeyance order), the EDNY acknowledged that the federal habeas proceeding “contains unexhausted claims that are not plainly meritless.” Accordingly, the EDNY “f[ound] a stay to be appropriate and h[eld] the Petition [*2]in abeyance” to allow the petitioner to “exhaust his unexhausted claims and perfect the petition … .  * * *

… [T]he District Attorney failed to establish that the records sought were exempt from disclosure pursuant to Public Officers Law § 87(2)(e)(i), since the District Attorney failed to establish that disclosure would interfere with the pending federal habeas proceeding … . Matter of Sarkodie v Kings County Dist. Attorney, 2024 NY Slip Op 00908, Second Dept 2-21-24

Practice Point: A FOIL request for documents and evidence related to defendant’s murder conviction should not have been denied on the ground that responding to the request would interfere with petitioner’s habeas corpus proceedings in federal court  The federal court had issued a stay-and-abeyance order to allow petitioner to exhaust his state remedies. Therefore, the petition to compel production of the sought documents and evidence should have been granted.

 

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THERE ARE QUESTIONS OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE; THE PURSUED CAR STRUCK PLAINTIFF’S CAR; THE ACTION AGAINST THE OFFICER AND THE TOWN SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action against a town police officer (Cunningham) and the town alleging the officer acted in reckless disregard for the safety of others during a high speed chase should not have been dismissed. The car which was pursued by Cunningham struck plaintiff’s (Kolvenbach’s) car:

… [T]he Town defendants failed to eliminate all triable issues of fact as to whether Cunningham acted with reckless disregard for the safety of others and whether such conduct was a proximate cause of Kolvenbach’s injuries … . In support of the Town defendants’ motion, they submitted, among other things, transcripts of the deposition testimony of Cunningham and other witnesses who testified that, on the day at issue, Cunningham pursued Williams at high speeds on damp roads through a main thoroughfare, and that Williams’ vehicle narrowly avoided colliding with other vehicles at earlier points during the pursuit. Thus, contrary to the determination of the Supreme Court, there are triable issues of fact as to whether Cunningham acted in reckless disregard of the safety of others in continuing the pursuit … . There also remain triable issues of fact as to whether Cunningham activated the siren on his police vehicle … and whether he violated police protocols by failing to update his supervisors on the progress of the pursuit via his police radio … . Kolvenbach v Cunningham, 2024 NY Slip Op 00900, Second Dept 2-21-24

Practice Point: This case demonstrates what may constitute “reckless disregard for the safety of others” by a police officer during a high-speed chase which may result in municipal liability for injuries caused by the pursued vehicle.

 

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THE COUNTERCLAIM FOR LOST PROFITS DID NOT DEMONSTRATE “LOST PROFITS” AS CONSEQUENTIAL DAMAGES WAS CONTEMPLATED BY THE PARTIES AT THE TIME THE CONTRACT FOR THE SALE OF GOODS WAS ENTERED; THE MOTION TO DISMISS THE COUNTERCLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the defendant’s counterclaim for lost profits should not have been converted to a summary judgment motion and the counterclaim must be dismissed because defendant did not demonstrate consequential damages for lost profits was contemplated by the parties when the contract for the sale of goods was entered. The contract was for the sale of military ordnance (target practice rounds) for the Mexican Navy. In its counterclaim, the defendant alleged the goods were not timely delivered and were not accepted by the Mexican Navy:

Lost profits are a form of consequential damages that a buyer, such as the defendant, may recover if “the seller at the time of contracting had reason to know [of them] and which could not reasonably [have been] prevented by cover or otherwise” (UCC 2-715[2][a] …). “To determine whether consequential damages were reasonably contemplated by the parties, ‘the nature, purpose and particular circumstances of the contract known by the parties should be considered, as well as what liability the defendant fairly may be supposed to have assumed consciously, or to have warranted the plaintiff reasonably to suppose that it assumed, when the contract was made'” … . In order to recover consequential damages, a pleading party is required to allege that the damages were foreseeable and within the contemplation of the parties at the time the contract was made … . “[W]here the damages reflect a loss of profits on collateral business arrangements, they are only recoverable when (1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties” … .

Here, the defendant’s allegations, even as supplemented by an affidavit from its president, failed to sufficiently allege that consequential damages as lost future profits resulting from the cancellation of the defendant’s contract with the Mexican Navy due to the plaintiff’s breach of contract were within the plaintiff’s contemplation at the time of entering into the contract for the sale of goods (see UCC 2-715[2][a] …). Island Ordnance Sys., LLC v Amerimex, Inc., 2024 NY Slip Op 00897, Second Dept 2-21-24

Practice Point: With respect to a contract for the sale of goods controlled by the UCC, a claim for lost profits must specifically allege “lost profits” as an element of consequential damages was contemplated by the parties at the time the contract was entered, not the case here.

 

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