You are here: / Second Department

Tag Archive for: Second Department

,

Erroneous Admission of Hearsay and Expert Testimony Re: ANSI Standards Required Reversal of Million Dollar Verdict in Slip and Fall Case

In reversing a million dollar verdict in a slip and fall case, the Second Department determined that a hearsay statement (“oh my God, someone else fell”) and expert testimony about the floor mats not complying with American National Standards Institute [ANSI] standards should not have been admitted:

…[T]he security guard’s statement did not qualify as a present sense impression or an excited utterance. The statement was not admissible as a present sense impression because it is clear that the statement was not made as the security guard perceived the happening of the accident, and there was no evidence that corroborated his statement… . Regarding the excited utterance exception, the plaintiff was required to demonstrate that “at the time of the statement the declarant was under the stress of excitement caused by an external event sufficient to still [his] reflective faculties and had no opportunity for deliberation”… . Here, the plaintiff failed to meet that burden. Therefore, it was error to admit the hearsay testimony concerning the out-of-court statement of the security guard.

The Supreme Court also erred in allowing the plaintiff’s expert to testify, in effect, that the defendants’ conduct regarding the placement of mats was negligent because it allegedly did not comply with regulations promulgated by the American National Standards Institute (hereinafter ANSI). “[ANSI] standards do not constitute statutes, ordinances, or regulations”… . Although the court did not charge the jury regarding ANSI standards, by permitting such testimony, it allowed the jury to improperly speculate that the defendants’ conduct should be measured against a higher standard of care than is required under the common law… . Gonzalez v City of New York, 2013 NY slip Op 05614, 2nd Dept 8-14-13

 

,

Police Officer Not Injured by “Recognized Hazard”—No Recovery Under Municipal Law/Labor Law—Officer Injured by Suspect After Mace Canister Failed

In dismissing a Municipal Law/Labor Law cause of action brought by a police officer against the city after she was injured by a suspect when her mace canister failed, the Second Department explained:

Although Labor Law § 27-a(3) may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law § 205-e …, the plaintiff failed to allege that her injuries resulted from a “recognized hazard[ ]” within the meaning of the Labor Law (Labor Law § 27-a[3][a][1]…).  Blake v City of New York, 2013 NY Slip Op 05608, 2nd Dept 8-14-13

 

,

Extrinsic Evidence Properly Considered to Determine Intent of Parties Re: Ambiguous Deed

In an action to quiet title, the Second Department determined a deed was ambiguous on its face and extrinsic evidence was therefore admissible to ascertain the intent of the parties:

Real Property Law § 240(3) provides that “[e]very instrument creating [or] transferring . . . real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.” Where the language used in a deed is ambiguous such that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances … . Moreover, ” courts may as a matter of interpretation carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear . . . However, such an approach is appropriate only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part'” … .  Here, …the 1989 deed purporting to convey the subject property to IDI was ambiguous on its face. Under such circumstances, it was proper for the court to look to extrinsic evidence in order to effectuate the intent of the parties.  Al’s Atl Inc v Shatma, LLC, 2013 NY Slip Op 05604, 2nd Dept 8-14-13

 

Three-Step Analysis for Child Support Under Child Support Standards Act

The Second Department explained the three step analysis for the determination of child support obligations pursuant to the Child Support Standards Act (the parents in this case had a combined annual income of more than $700.000.00):

Under the first step of the analysis, a court must determine the parties’ combined parental income … . …Under the second step of the analysis, pursuant to Domestic Relations Law § 240(1-b)(c)(1), we multiply so much of the combined parental income up to $80,000.00—which was the “statutory cap” in effect on the date of the 2008 Judgment …—by the applicable statutory child support percentage, or 29% for the parties’ three children (see Domestic Relations Law § 240 [1-b][c][2]…). We then allocate the resulting amount … between the parties according to their pro rata share of the combined parental income (see Domestic Relations Law § 240 [1-b][c][2]). The third step in the analysis applies where, as here, the combined parental income exceeds the applicable statutory limit of $80,000.00. In this situation, “courts [have] the discretion to apply the [sub]paragraph (f)’ factors, or to apply the statutory percentages, or to apply both in fixing the basic child support obligation on parental income over $80,000” … . As applicable here, the subparagraph (f) factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed had the marriage or household not been dissolved (see Domestic Relations Law § 240[1-b][f][1][3]). These factors further the objectives of the CSSA, which include “the assurance that both parents would contribute to the support of the children” and that the court consider “the total income available to the parents and the standard of living that should be shared with the child” … .  Beroza v Hendler, 2013 NY Slip Op 05607, 2nd Dept 8-14-13

 

Criteria for Determining Whether Relocation of Custodial Parent is in Best Interests of the Children Explained

The Second Department explained the criteria for determining whether relocation of the custodial parent would be in the best interests of the children as follows:

In determining whether relocation is appropriate, the court must consider a number of factors, including the child’s relationship with each parent, the effect of the move on contact with the noncustodial parent, and each parent’s motives for seeking or opposing the move … . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

…The Family Court found credible the mother’s testimony at trial that, if she were permitted to relocate with the children to Florida, the children’s quality of life would be significantly improved on a day-to-day basis because the cost of living would be less than it is in New York, where she was struggling financially, and the mother would have several close family members in the vicinity of her new home to offer her support. Significantly, it was undisputed that the mother was the children’s primary caregiver, and that the father was minimally involved in the children’s lives.  Matter of Davis v Ogden, 2013 NY Slip Op 05626, Second Dept 8-14-13

 

Work Accident and Auto Accident Cases Should Be Consolidated Because Plaintiff Alleged Auto Accident Injuries Exacerbated by Work-Related-Accident Injuries

The Second Department determined two actions should be consolidated.  Plaintiff was injured in an auto accident and alleged that those injuries were exacerbated by a work-related accident:

Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the … . In view of [plaintiff’s] allegations that certain injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly… . Cieza v 20th Ave Realty Inc, 2013 NY Slip Op 05610, 2nd Dept 8-14-13

 

Amendment of Bill of Particulars After Four Years of Discovery Should Not Have Been Allowed

The Second Department determined Supreme Court should not have allowed plaintiff to amend his bill of particulars to include aggravation of a preexisting condition because the request came after four years of discovery during which plaintiff had affirmatively stated his injuries did not include aggravation of preexisting condition:

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” (…see CPLR 3025[b]…). “However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious’” … .Under the circumstances of this case, including the fact that, during four years of discovery, the plaintiff affirmatively maintained that his injuries did not include the aggravation of a pre-existing condition, as well as the lateness of his request for leave to amend, the prejudice to the defendants, and the lack of any reasonable excuse for the delay, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion for leave to amend his bill of particulars … .  Rodgers v New York City Tr Auth, 2013 NY Slip Op 05623, 2nd Dept 8-14-13

 

“Law of the Case” Doctrine Did Not Apply—Dismissal of Affirmative Defense Did Not Constitute Full Litigation of the Issue

In a property-line dispute, the Second Department reversed Supreme Court ruling that the location of the fence on plaintiff’s property was the “law of the case.”  The “law of the case” doctrine was imposed by Supreme Court based on the dismissal of the title insurance company’s affirmative defense which claimed the fence was on defendant’s land.  The Second Department wrote:

“The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” …  The doctrine “applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision” …, “and to the same questions presented in the same case” … . “Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a full and fair’ opportunity to litigate the initial determination” … .  Contrary to the determination of the Supreme Court, the prior order …which granted [the] motion pursuant to CPLR 3211 to dismiss …, did not necessarily resolve the issue of whether the fence was located on the plaintiffs’ property or the defendants’ property, as the parties did not have an opportunity to fully litigate that issue… . Ramanathan v Aharon, 2013 NY Slip Op 05621, 2nd Dept 8-14-13

 

Criteria for Avoiding Dismissal After Failure to Comply with 90-Day Notice to Serve and File Note of Issue Explained

The Second Department explained the criteria for avoiding dismissal for failure to comply with a 90-day notice to serve and file a note of issue:

Here, the defendant … did not serve a 90-day demand, but relied instead on an order dated June 13, 2008, which instructed the plaintiffs that the failure to serve and file a note of issue within 90 days would result in dismissal of the action pursuant to CPLR 3216. This order had the same effect as a valid 90-day notice pursuant to CPLR 3216 … .To avoid the sanction of dismissal, the plaintiffs were initially required to comply with the order dated June 13, 2008, either by serving and filing a timely note of issue or by moving, before the default date, to vacate the order or to extend the 90-day period pursuant to CPLR 2004 … . Having failed to pursue either of the foregoing options, the plaintiffs were obligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid the sanction of dismissal (see CPLR 3216[e]…).  Griffith v Wray, 2013 NY Slip Op 05615, 2nd Dept 8-14-13

 

Criteria for Disclosure from Nonparty Witness

The Second Department explained the criteria for disclosure from a nonparty witness:

A party seeking disclosure from a nonparty witness must demonstrate that the disclosure sought is material and necessary, and must set forth the “circumstances or reasons” why disclosure is “sought or required” from such nonparty witness (CPLR 3101[a][4]…). Here, the plaintiff failed to demonstrate that additional testimony from the nonparty witnesses or the information sought would be material and necessary to the prosecution of this case (see CPLR 3101[a]…).  Dicenso v Wallin, 2013 NY Slip Op 05612, 2nd Dept 8-14-13