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Objection to Verification of Answer Too Late 

The Second Department determined plaintiff waited too long before objecting to an insufficient verification in the answer:

A party must “give[ ] notice with due diligence” that he or she intends to treat a pleading as a nullity pursuant to CPLR 3022 on the ground that the pleading was served with an insufficient verification (CPLR 3022;…). Here, the plaintiff …waived any claim that the verification accompanying the answer of the defendant …was defective by waiting approximately eight months after the answer was filed to object to it (see CPLR 3022; …).   Cherubin Antiques, Inc v Matiash, 2013 NY Slip Op 03449, 2nd Dept, 5-15-13

 

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Plaintiff Unable to Demonstrate Freedom from Comparative Negligence as a Matter of Law; Plaintiff’s Motion for Summary Judgment in Automobile Accident Case Denied

In affirming the denial of plaintiff’s motion for summary judgment on liability in an automobile-accident case, the Second Department explained the plaintiff failed to demonstrate freedom from comparative negligence as a matter of law:

“There can be more than one proximate cause [of an accident] and, thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” …. While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield…, the operator traveling with the right-of-way still has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles…. The issue of comparative fault is generally a question for the trier of fact … .

Here, the plaintiff failed to submit evidence eliminating a triable issue of fact as to whether she contributed to the happening of the accident…. Since the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law, her motion was properly denied regardless of the sufficiency of the defendant’s papers in opposition… .  Regans v Baratta, 2013 NY Slip Op 03468, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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Passenger in Car of Which Plaintiff Lost Control in Snowy Conditions Entitled to Summary Judgment

In finding Supreme Court should have granted summary judgment in favor of the passenger-plaintiff, who was injured when the driver-defendant lost control of his car and struck a fence, the Second Department wrote:

The plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidence that this was a one-car accident which occurred when Rajput [defendant] lost control of the vehicle he was driving…. “An innocent passenger . . . who, in support of [his or] her motion for summary judgment, submits evidence that the accident resulted from the driver losing control of the vehicle, shifts the burden to the driver to come forward with an exculpatory explanation” ….
In opposition, the defendants failed to raise an issue of fact sufficient to defeat summary judgment. Since Rajput acknowledged in his affidavit that it was snowing heavily at the time of his accident, and that he was aware of wet and icy road conditions, the emergency doctrine is inapplicable …. Furthermore, the affidavit, which failed to specify at what speed Rajput was actually driving before his vehicle skidded, was insufficient to establish that he was driving with reasonable care, and thus raise a triable issue of fact as to whether the skid was unavoidable … .  Mughal v Rajput, 2013 NY Slip Op 03466, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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Assumption of Risk Extends to Construction of Baseball Field

Plaintiff, while playing baseball, fell on a concrete pathway adjacent to the outfield while running to catch a ball.  The Second Department determined the doctrine of primary assumption of risk applied to risks associated with the construction of the playing field:

…[T]he Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them based on the doctrine of primary assumption of risk. That doctrine extends to those risks associated with the construction of the playing field and any open and obvious condition thereon…, as well as risks involving less than optimal playing conditions …. The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the plaintiff assumed the risk of injury by voluntarily participating in the softball game, thereby consenting to the commonly appreciated risks which are inherent in and arise out of the sport generally and flow from such participation, including those open and obvious risks associated with the construction of and conditions upon the playing field … .  Mattas v Town of Hempstead, 2013 NY Slip Op 03464, 2nd Dept, 5-15-13

 

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Pre-Deposition Motion to Dismiss in Rear-End Collision Case Not Premature

In reversing the denial of summary judgment to the plaintiff in a rear-end collision case, the Second Department determined the pre-deposition motion for summary judgment should not have been dismissed as premature:

The Supreme Court erred in concluding that the plaintiffs’ motion was premature. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]; … .The defendant’s contention that the plaintiffs’ motion was premature because the plaintiffs had not yet been deposed at the time the plaintiffs’ motion was filed did not establish what information the defendant hoped to discover at the plaintiffs’ depositions that would relieve him of liability in this case. “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” … .  Cajas-Romero v Ward, 2013 NY Slip Op 03446, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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No Demonstration Burst Water Pipe Could Have Been the Result of Negligent Inspection or Maintenance; Municipality Immune from Negligent Design

In affirming Supreme Court’s grant of summary judgment to the defendant town with respect to damages allegedly caused by a burst storm water pipe, the Second Department determined plaintiffs did not raise a question of fact concerning negligent inspection or maintenance:

“A municipality is immune from liability arising out of claims that it negligently designed [a] sewerage system” or storm drainage system”… . However, a municipality is not immune from liability arising out of claims that it negligently maintained its storm drainage system…. For the plaintiffs to recover under a theory of negligent inspection or maintenance of the storm drainage system, the plaintiffs must demonstrate that the defendants had ” notice of a dangerous condition or ha[d] reason to believe that the pipes ha[d] shifted or deteriorated and [were] likely to cause injury,’ that the [defendants] failed to make reasonable efforts to inspect and repair the defect,’ and that such failure caused the plaintiffs’ injuries”….  Bilotta v Town of Harrison, 2013 NY Slip Op 03444, 2nd Dept, 5-15-13

 

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Proof of Regular Cleaning Negated Constructive Notice Allegation​

In determining the defendant’s motion for summary judgment in a slip and fall case should have been granted, the Second Department explained defendant had met its burden on the issue of (the absence of) constructive notice by proof of regular weekly cleaning:

In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition… . ” To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell'”… .  A defendant’s submission of evidence of its general cleaning practices is generally insufficient to meet its burden on the issue of lack of constructive notice … . Here, however, the defendant submitted an affidavit from its superintendent indicating that each and every Monday, he would mop the entire building, including the stairwell where the plaintiff allegedly fell, and that this mopping would always occur between the hours of 3:00 p.m. and 4:00 p.m. This affidavit was specific enough to satisfy the defendant’s initial burden. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Armijos v Vrettos Realty Corp, 2013 NY Slip Op 03443, 2nd Dept,. 5-15-13

 

 

Review Criteria for Actions by Zoning Boards of Appeal

In upholding Supreme Court’s annulment of the village Zoning Board of Appeal’s denial of petitioner’s application for a site capacity variance, the Second Department described the review criteria as follows:

Generally, local zoning boards have broad discretion in deciding applications… . “Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure” …. “[A] determination will not be deemed rational if it rests entirely on subjective considerations, such as general community opposition, and lacks an objective factual basis” …. “Conclusory findings of fact are insufficient to support a determination by a zoning board of appeals, which is required to clearly set forth how and in what manner the granting of the variance would be improper” … .  Matter of Luburic v Zoning Bd of Appeals of Vil of Irvington, 2013 NY Slip Op 03333, 2nd Dept, 5-8-13

 

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Statute of Frauds Precluded Real Property-Related Action; Equitable Part Performance Doctrine Not Applicable

The Second Department determined the statute of frauds barred the real-property-related action and, since the action was brought “at law,” the equitable “part performance” doctrine could not be applied:

Here, the County established, prima facie, that there is no extant writing subscribed by the County or its agent referencing an alleged oral agreement involving real property, as described by the plaintiff (see General Obligations Law § 5-703[3];…). In opposition, the plaintiff failed to raise a triable issue of fact. “Part performance by the party seeking to enforce [a] contract [for the sale of real property] may be sufficient in some circumstances to overcome the statute of frauds, but only in an action for specific performance” (…see General Obligations Law § 5-703[4];…). Since, here, the action is pleaded as one at law, and seeks only money damages, without any specific prayer for equitable relief, the plaintiff cannot rely on the doctrine of part performance to defeat the statute of frauds defense …. Accordingly, the Supreme Court should have granted the County’s motion for summary judgment dismissing the complaint, based on the statute of frauds. Zito v County of Suffolk, 2013 NY Slip Op 03324, 2nd Dept, 5-8-13

 

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Anticipatory Repudiation Cause of Action Stated;Four-Year UCC Statute of Limitations Applied

In a full-fledged opinion by Justice Leventhal, the Second Department determined that the plaintiff had pled a valid “anticipatory repudiation” cause of action and that the four-year UCC statute of limitations applied.  The case concerned the return (for a refund) of drugs when the expiration date is close or has passed.  The plaintiff brought the action when it learned the refund would not be offered in full. Regarding the anticipatory repudiation and statute of limitations issues, Justice Leventhal wrote:

Here, the complaint alleges that, when the defendants refused to accept the plaintiff’s attempt to return the unsold merchandise, the defendants anticipatorily repudiated their respective return policies by unambiguously stating that they would not accept the returns. The complaint asserts that the defendants’ anticipatory repudiation occurred before the plaintiff tendered the unsold merchandise to the defendants and before the plaintiff attempted to return the merchandise to the manufacturer in accordance with standard industry practice. When a party repudiates a contract prior to the time designated for performance and before all of the consideration has been fulfilled, the nonrepudiating party can seek to recover damages …. * * *

The general rule applicable to actions to recover damages for breach of contract is that a six-year statute of limitations begins to run when a contract is breached or when one party fails to perform a contractual obligation …. However, UCC 2-725(1) provides that “[a]n action for breach of any contract for sale [of goods] must be commenced within four years after the cause of action has accrued” (see CPLR 203[a]). QK Healthcare, Inc v InSource, Inc, 2013 NY Slip Op 03312, 2nd Dept, 5-8-13

 

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