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Excessive Corporal Punishment Constituted Neglect and Derivative Neglect

In affirming Family Court’s determination that excessive corporal punishment constituted neglect and derivative neglect, the Second Department wrote:

Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect (…Penal Law § 35.10; Family Ct Act § 1012[f][i][B]). The Family Court’s finding of neglect as to the child Briana M., based upon the mother’s use of excessive corporal punishment, is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]). The evidence demonstrated that the mother struck then-eight-year-old Briana with a belt numerous times, causing marks on her back and arms … .

The evidence, which established that the mother inflicted excessive corporal punishment on Briana, was sufficient to support the Family Court’s determination that the children Matthew M. and Alexis M. were derivatively neglected… . Matter of Matthew M (Fatima M), 2013 NY slip Op 05573, 2nd Dept 8-7-13

 

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Family Offense of Disorderly Conduct Established

The Second Department determined the family offense of disorderly conduct had been established by a fair preponderance of the evidence:

…[T]he petitioner established, by a fair preponderance of the evidence …, that the appellant, who …made verbal threats to the petitioner in the hallway of the Family Court building and physically blocked the petitioner’s car from exiting the parking lot of the Family Court, engaged in threatening behavior that recklessly created a risk of causing public inconvenience, annoyance, or alarm (see Penal Law § 240.20…… . Matter of Banks v Opoku, 2013 NY slip Op 05568, 2nd Dept 8-7-13

 

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Criteria for Accountant’s Liability to Third Parties in Absence of Contractual Relationship Explained

In finding that the complaint did not state a cause of action against an accountant for negligent misrepresentations made to third parties with no contractual relationship, the Second Department explained:

In certain circumstances, accountants may be held liable for negligent misrepresentations made to third parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant… . In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: “(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance”… . Signature Bank v Holtz Rubenstein Reminick LLP, 2013 NY Slip Op 05564, 2nd Dept 8-7-13

 

Proof Requirements for Lack of Constructive Notice of Dangerous Condition Explained

The Second Department reiterated the summary-judgment proof-requirements for a lack of constructive notice of a hazardous condition in a slip and fall case:

A defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … . A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case … . Here, the defendant failed to establish, prima facie, that it lacked constructive notice of the hazardous condition which allegedly caused the plaintiff’s fall because it offered no evidence as to when the subject stairway was last cleaned or inspected.. .  Campbell v New York City Tr Auth, 2013 NY Slip Op 05553, 2nd Dept 8-7-13

 

Homeowner’s Exception Did Not Apply

Plaintiff lost fingers operating a table saw which was alleged not to have had a blade guard.  In determining the homeowner’s exception to the Labor Law 241(6) cause of action did not apply, the Second Department wrote:

With respect to the cause of action pursuant to Labor Law § 241(6), the appellant claimed the homeowners’ exemption for owners of one and two-family homes who did not supervise the work. In order to receive the protection of the homeowners’ exemption, a defendant must satisfy two prongs: that the work was conducted at a dwelling that is a residence for only one or two families, and the defendant did not direct or control the work … . Summary judgment on this issue was properly denied, as the evidence described above raised a triable issue of fact as to whether the appellant supervised or controlled the work and, further, there was a triable issue of fact as to whether the appellant intended to use the subject house as rental property… .  Murillo v Porteus, 2013 NY slip Op 05517, 2nd Dept 7-31-13

 

Losing Balance On Ladder Did Not Support Labor Law 240(1) Cause of Action

Plaintiff was standing on the second highest rung of a ladder when he lost his balance and fell.  In reversing Supreme Court’s grant of summary judgment to the plaintiff on his Labor Law 240(1) cause of action, the Second Department explained:

” Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'” … . ” To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries'” .. . “The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided” … . There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries … . Where a plaintiff falls off the ladder because he or she lost his or her balance, and there is no evidence that the ladder from which the plaintiff fell was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach … . To impose liability under such circumstances would make a defendant an insurer of the workplace, a result which the Legislature never intended in enacting Labor Law § 240(1) … .  Hugo v Sarantakos, 2013 NY Slip Op 05512, 2nd Dept 7-31-13

 

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Cause of Action Alleging Retaliation for Sexual Harassment Complaint in Violation of New York City Human Rights Law Dismissed

The Second Department affirmed the dismissal of a complaint alleging that defendant Prison Health Service (PHS) retaliated against the plaintiff after she made a sexual harassment complaint.  The retaliation was alleged to have violated the New York City Human Rights Law (NYCHRL).  Plaintiff claimed she was subjected to excessive demands for her professional credentials and health clearance forms and the denial of overtime work.  In explaining the proof requirements, the Second Department wrote:

…”In assessing retaliation claims that involve neither ultimate actions nor materially adverse changes in terms and conditions of employment, it is important that the assessment be made with a keen sense of workplace realities, of the fact that the chilling effect’ of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities” … .

… [T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct (see Administrative Code of City of NY § 8-107[7]…). Once the plaintiff has met this initial burden, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions … . Then, if the defendant meets this burden, the plaintiff has the obligation to show that the reasons put forth by the defendant were merely a pretext… .  Brightman v Prison Health Serv Inc, 2013 NY Slip Op 05510, 2nd Dept 7-31-13

 

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DNA Reports Did Not Violate Right to Confrontation; Reports Admissible as Business Records

In finding DNA-profile reports generated by the City of New York’s Medical Examiner did not violate defendant’s right to confrontation, the Second Department wrote:

The reports contained no conclusions, interpretations, comparisons, or subjective analyses, and “consisted of merely machine-generated graphs” and raw data … . Accordingly, the reports were not “testimonial” in nature … .

Further, a foundation for the admission of these reports as business records was established through the testimony of an assistant director employed by the Office of the Chief Medical Examiner of the City of New York (see CPLR 4518[a]…), who also conducted the actual analysis and interpretation of the data contained in the reports at issue.  People v Fucito, 2013 NY Slip Op 05538, 2nd Dept 7-31-13

 

Absence of Adequate Reason for Errata Sheet (CPLR 3116(a)) Altering Deposition Testimony Precluded Its Acceptance

Plaintiff was injured when he fell while using a ladder at the plumbing business where he worked. The ladder was owned by plaintiff’s employer and the property was owned by an out-of-possession landlord.  During his deposition, plaintiff said he had no idea why the ladder slid out from under him when he attempted to step on a shelf.  In reversing Supreme Court and dismissing the complaint, the Second Department determined plaintiff’s post-deposition errata sheet could not be considered in opposition to the defendant’s motion for summary judgment because plaintiff did not provide an adequate reason for the alteration of his deposition testimony:

In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been “nervous” during his deposition. CPLR 3116(a) provides that a “deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them.” Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall… . In the absence of the proposed alterations, the injured plaintiff’s deposition testimony was insufficient to raise a triable issue of fact with respect to the defectiveness or inadequacy of the ladder so as to warrant the denial of summary judgment. Likewise, in opposition to the defendants’ prima facie showing that the trust was an out-of-possession landlord with no duty to repair or maintain the ladder or the floor, the plaintiffs failed to raise a triable issue of fact. Ashford v Tannenhauser, 2013 NY Slip Op 05508, 2nd Dept 7-31-13

 

Absence of 90-Day Demand to Serve a Note of Issue Precluded Dismissal of Lawsuit Based on Gross Laches (12-Year Delay)

In a full-fledged opinion by Justice Chambers, the Second Department determined that the doctrine of laches was not available to dismiss a pre-note-of-issue case which had been dormant for 12 years.  In this slip and fall case, the incident occurred in 1992, issue was joined, plaintiffs served a bill of particulars, but plaintiffs failed to appear at a June 1996 status conference. The action was “marked off” the calendar and later marked “disposed.”  In October, 2008, the plaintiffs moved restore the action to the active pre-note-of-issue calendar. Supreme Court denied the motion to dismiss based on laches “concluding that it lacked the power to dismiss the … complaint.”  The Second Department affirmed, explaining:

At the outset, we note that we summarized the law applicable to the issue in this case in Lopez v Imperial Delivery Serv. (282 AD2d 190), where we explained the interplay among three case management devices: CPLR 3404, 22 NYCRR 202.27, and CPLR 3216. In Lopez, we made clear that none of these devices applies to a pre-note-of-issue case where, as here, there has been no order dismissing the complaint pursuant to 22 NYCRR 202.27, and the defendant has never made a 90-day written demand on the plaintiff to serve and file a note of issue pursuant to CPLR 3216… . In this case, the [defendant] attempts to avoid the holding in Lopez by relying on the doctrine of laches as the basis for dismissing the complaint. * * *

…[T]he Court of Appeals concluded in Airmont Homes that dismissal for either gross laches or failure to prosecute was not available in the absence of compliance with CPLR 3216 (see Airmont Homes v Town of Ramapo, 69 NY2d at 902). To allow dismissal under the circumstances of this case based on the doctrine of laches would be tantamount to permitting dismissal for general delay, which the courts lack inherent authority to do, and which is inconsistent with the legislative intent underlying CPLR 3216 [which requires a 90-day demand to serve and file a note of issue]. …

Although an extensive delay in prosecuting an action may, at times, prejudice a defendant’s ability to defend against a suit, a defendant has the statutory means of avoiding such prejudicial delay by serving a 90-day demand … . Laches, which is an equitable doctrine, does not provide an alternate route to dismissal where a defendant has not served the 90-day demand statutorily required to prompt resumption of the litigation … .  Arroyo v Board of Educ of City of NY, 2013 NY Slip Op 05507, 2nd Dept 7-31-13