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Allegations Not Supported by Record Could Not Defeat Plaintiff-Pedestrian’s Motion for Summary Judgment/Plaintiff’s Mental Health Records Discoverable Where Plaintiff Alleges Anxiety and Mental Anguish After Being Struck by Defendant’s Van

Plaintiff was struck by defendants’ van as she was crossing a street.  In opposing the plaintiff’s motion for summary judgment, defendants claimed plaintiff was crossing when the signal was flashing the “don’t walk” icon, was talking on a cell phone, and “jumped” in front of defendants’ van.  In determining Supreme Court should have granted plaintiff’s motion for summary judgment, the Second Department wrote:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that she entered the crosswalk after exercising reasonable care and was walking within the crosswalk with the pedestrian crossing signal in her favor, and the defendant Kilakos was negligent in failing to yield the right of way (see Traffic Rules and Regs of City of NY [34 RCNY] § 4-03[a][1][i]; [c][1], [2];…). The assertions made by the defendants in opposition lacked an evidentiary basis in the record and, thus, failed to raise a triable issue of fact …. Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability.

The Second Department also determined Supreme Court properly granted defendants’ cross motion to compel the disclosure of plaintiff’s mental health records because she sought damages for anxiety, mental anguish and loss of enjoyment of life. Moreira v MK Travel & Transp, Inc, 2013 NY Slip Op 03645, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS, PEDESTRIANS

Allegation Plaintiff Abruptly Changed Lanes and Stopped in Front of Defendant Precluded Summary Judgment in Rear-End Collision Case​

In a rear-end collision case, the Second Department determined the allegation that the plaintiff abruptly changed lanes and came to a sudden stop in front of defendant raised a question of fact about plaintiff’s negligence:

Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law by demonstrating that his vehicle was fully stopped at a red traffic light when it was hit in the rear by the defendants’ vehicle…. In opposition, the defendants raised triable issues of fact as to whether the plaintiff was negligent in the operation of his vehicle, and whether his alleged negligence caused or contributed to the accident, through the affidavit of the defendant driver Roni J. Jaquez. Jaquez averred that the plaintiff’s vehicle abruptly changed lanes, directly in front of his vehicle, and then came to a sudden stop. … Markesinis v Jaquez, 2013 NY Slip Op 03641, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS

Speculation About Cause of Fall Required Dismissal of Complaint​

In determining the plaintiff’s resort to speculation about the cause of her fall required dismissal of the complaint, the Second Department wrote:

“In a slip-and-fall case, 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” …. Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the plaintiff and her husband, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation …. Although the plaintiff claimed that a bar connected to the bottom step of the bus caused her to trip, she acknowledged that she did not see this bar before her fall, that she did not know which foot made contact with the bar, and that she only assumed that she had tripped on the bar after she regained consciousness and went looking for the source of the fall. Deputron v A&J Tour, Inc, 2013 NY Slip Op 03629, 2nd Dept, 5-22-13

 

 

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Sudden Unexpected Action by Student Did Not Support Action Based on Negligent Supervision

In determining a student’s special education aide, who was standing nearby when the 8-year-old student suddenly placed his fingers inside the hinged side of a bathroom door (thereby immediately suffering injury), could not be liable for negligent supervision, the Second Department wrote:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” …. “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another” …. Moreover, “[w]here an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendant[ ] is warranted” … .  Gilman v Oceanside Union Fee Sch Dist, 2013 NY Slip Op 03634, 2nd Dept, 5-22-13

 

 

Differences Between Civil and Criminal Contempt Explained

In sending the case back to Supreme Court for a hearing on the issue of whether defendant is guilty of civil and/or criminal contempt (re: the violation of a court order), the Second Department explained the differences between the two types of contempt as follows:

“Civil contempt (see Judiciary Law § 753) has as its aim the vindication of a private party to litigation'” …. In order to prevail on a motion to hold a party in contempt, the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party’s rights … .”It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party …. “The burden of proof is on the proponent of the contempt motion, and the contempt must be established by clear and convincing evidence” … .

“[U]nlike a civil contempt proceeding, [in a criminal contempt proceeding,] proof of guilt must be established beyond a reasonable doubt” …. “The purpose of criminal contempt (see Judiciary Law § 750) is to vindicate the authority of the court. No showing of prejudice to the rights of a party to the litigation is needed since the right of the private parties to the litigation is not the controlling factor'” … .However, “[a]n essential element of criminal contempt is willful disobedience. Knowingly failing to comply with a court order gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance” … .  Gomes v Gomes, 2013 NY Slip Op 03454, 2nd Dept, 5-15-13

 

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Elements of Retaliatory Termination Described

The Second Department explained the elements of retaliatory termination as follows:

Pursuant to Executive Law § 296, it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices …. To make a prima facie showing of retaliation under Executive Law § 296, a claimant is required to show that (1) the claimant was engaged in protected activity, (2) the claimant’s employer was aware that he or she participated in such activity, (3) the claimant suffered an adverse employment action based upon his or her activity, and (4) there was a causal connection between the protected activity and the adverse action …. Once this initial showing is made, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions. Assuming the defendant meets this burden, the claimant would then have the obligation to show that the reasons put forth were merely a pretext … .  Adeniran v State of New York, 2013 NY Slip Op 03441, 2nd Dept, 5-15-13

 

 

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Existence of Brady Material Concerning Law Suit Against Interrogating Officer for Eliciting a False Confession Required Hearing on Motion to Vacate Judgment of Conviction

The defendant claimed that his confession was involuntary because he was physically abused by the interrogating officer (O’Leary). After his conviction for depraved indifference murder the defendant brought a motion to vacate the conviction on the ground that the interrogating officer had been sued for allegedly extracting a false confession and the prosecution did not provide that “Brady” material to him.  In reversing the trial court’s denial of the motion to vacate and remitting the matter for a hearing, the Second Department wrote an exhaustive overview of the law concerning “Brady” material in New York.  Although rather long, the court’s explanation is provided here because of its clarity:

A defendant is entitled, under the state and federal constitutions, “to discover favorable evidence in the People’s possession material to guilt or punishment”)…. Indeed, the law requires that Brady material be produced whether or not the defendant requests any such evidence …. To establish a Brady violation, the “evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued” because the evidence was material … .

Here, the allegedly suppressed evidence clearly fell within the ambit of the prosecutor’s Brady obligation because it constituted impeachment evidence…. Moreover, the People’s failure to disclose the existence of the civil action may have denied the defendant the opportunity to conduct an investigation leading to additional exculpatory or impeaching evidence , for instance, providing a basis for the disclosure of police personnel records otherwise unavailable … .

“In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a reasonable possibility’ that it would have changed the result of the proceedings” ….”Absent a specific request by defendant for the document, materiality can only be demonstrated by a showing that there is a reasonable probability’ that it would have changed the outcome of the proceedings” …. Here, the record does not demonstrate that the defendant made a specific request for the allegedly suppressed information. Nevertheless, we find that there was a “reasonable probability” that disclosure of the lawsuit would have changed the outcome of the defendant’s trial. The primary evidence at trial establishing the defendant’s identity as the murderer was his confession. The other evidence tying him to the crime was weak, consisting of testimony that he was seen with the victim shortly before she disappeared. Since the credibility of the detectives who obtained the defendant’s confession was of central importance in the case, the nondisclosure was material … .

Accordingly, a hearing is necessary to determine whether the District Attorney’s office had sufficient knowledge of the suit against O’Leary so as to trigger its obligations under Brady. Evidence subject to disclosure under Brady includes evidence “known only to police investigators and not to the prosecutor”…, and, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in th[is] case, including the police” … ;This rule is based upon the principle that “[t]he government cannot with its right hand say it has nothing while its left hand holds what is of value” …. Here, the attorney’s affirmation submitted in opposition to the defendant’s motion, which was based only on a review of files, is insufficient to establish that no one to whom the obligation under Brady extended, other than perhaps O’Leary himself …, had knowledge of the civil action at any time during which the prosecution’s Brady obligation was ongoing.   People v Garrett, 2013 NY Slip Op 03498, 2nd Dept, 5-15-13

 

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SORA Applies to Out of State Sex Offense

In affirming Supreme Court’s determination that petitioner (who pled nolo contendre to a sex offense in Florida and was registered as a sex offender in Florida) must register as a sex offender in New York (upon moving to New York), the Second Department wrote:

SORA provides that any “sex offender” must comply with its provisions (see Correction Law § 168-f). A “sex offender” is defined as “any person who is convicted” of a “sex offense” (Correction Law § 168-a[1], [2]). The definition of a “sex offense” with respect to an offense committed in another jurisdiction is “a conviction of [i] an offense in any other jurisdiction which includes all of the essential elements of any such crime” that constitutes a “sex offense” under SORA (Correction Law [*2]§ 168-a[2][d][i]). The statute also provides that a “sex offense” includes a “conviction of . . . [ii] a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (Correction Law § 168-a[2][d][ii]). Matter of Kasckarow v Board of Examiners of Sex Offenders of State of NY, 2013 Slip Op 03485, 2nd Dept, 5-15-13

 

 

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UCC Four-Year Statute of Limitations Applied to Breach of Warranty Cause of Action​

The Second Department affirmed Supreme Court’s determination that a guarantee which stated “if any defects in manufacturing, materials or workmanship occurred within 10 years the product would be repaired, replaced or purchase price refunded” was not a warranty which extended to future performance within the meaning of UCC 2-725[2]. The four-year UCC statute of limitations therefore applied to the warranty cause of action.  In addition, the Second Department affirmed the dismissal of the “fraudulent concealment” cause of action.  The Court’s discussion of the law concerning those two issues follows:

A cause of action alleging breach of warranty is governed by a four-year statute of limitations (see UCC 2-725[1]…). Generally, a breach of warranty action accrues “when tender of delivery is made” (UCC 2-725[2];…). As an exception to this general rule, the UCC provides that “where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance,” then “the cause of action accrues when the breach is or should have been discovered” (UCC 2-725[2];…). “A warranty of future performance is one that guarantees that the product will work for a specified period of time”… . However, “[w]arranties to repair or replace [a] product in the event that it fails to perform, without any promise of performance, do not constitute warranties of future performance” … . * * *

In pleading a cause of action to recover damages for fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b];…) A cause of action sounding in fraud must allege that the defendant knowingly misrepresented or concealed a material fact for the purpose of inducing another party to rely upon it, and that the other party justifiably relied upon such misrepresentation or concealment to his or her own detriment…. “A cause of action to recover damages for fraudulent concealment requires, in addition to allegations of scienter, reliance, and damages, an allegation that the defendant had a duty to disclose material information and that it failed to do so”… Schwatka v Super Millwork, Inc, 2013 NY Slip Op 03470, 2nd Dept, 5-15-13

 

 

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Contribution and Indemnification Unavailable in Breach of Contract Action; Notice of Claim Requirement Under Education Law Never Triggered by Denial of Payment

In a complicated breach of contract action arising out of construction projects for defendant school district, the Second Department determined contribution and indemnification were unavailable for purely economic loss from breach of contractual obligations (CPLR 1401, 1403, 3019).  In addition, the Second Department determined that the need to file a notice of claim pursuant to Education Law 3813 was never triggered by a denial of payment.  On the notice of claim issue, the Second Department wrote:

Education Law § 3813(1) requires a party to serve a notice of claim upon a school district within three months after the accrual of such claim as a condition precedent to the commencement of an action …. Claims arising out of a breach of contract accrue when “payment for the amount claimed was denied” (Education Law § 3813[1]). A denial of payment is only deemed to occur “upon an explicit refusal to pay” or when a party should have viewed its claim as having been constructively rejected …. Where no express or constructive denial of payment has been made, the obligation to serve a notice of claim is not triggered…. Here, the District failed to demonstrate that it expressly or constructively denied payment to PGA for its continued work on the projects. Thus, the District did not establish its prima facie entitlement to judgment …based upon PGA’s failure to serve a notice of claim in accordance with Education Law § 3813(1)… .  Capstone Enters of Port Chester, Inc v Board of Educ Irvington Union Free Sch Dist, 2013 NY Slip Op 03448, 2nd Dept, 5-15-13

 

 

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