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Liability Criteria Re: Tenant for Slip and Fall on Abutting Public Sidewalk Explained

In dismissing a cause of action in a slip and fall case against a tenant based upon the alleged condition of an abutting public sidewalk (in which a pair of metal doors leading to the basement of the rented premises were set), the Second Department explained the relevant legal principles as follows:

An owner or occupier of land which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition…, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting owner or lessee “ either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty’”…. To recover from a tenant which occupies premises abutting a sidewalk under the theory that the tenant has a special use of the sidewalk, the tenant must be in exclusive possession and control of the alleged special-use area…, and the plaintiff must demonstrate that the special use caused the defective condition which proximately caused his or her injuries….  O’Toole v City of Yonkers, 2013 NY Slip Op 04585, 2nd Dept, 6-19-13

 

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Amendment to Notice of Claim to Add Second Hospital Should Have Been Allowed

In reversing Supreme Court’s denial of petitioner’s application to amend the notice of claim (to add a second hospital) in a wrongful death action against the New York City Health & Hospitals Corporation, the Second Department wrote:

The petitioner’s decedent … was severely beaten on November 10, 2010. He was taken first to Queens Center Hospital and soon thereafter transferred to Elmhurst Hospital for surgery, which took place the same day. The decedent died at Elmhurst Hospital a few days later. The petitioner alleged that the respondents’ employees either did not begin the surgery soon enough or did not perform the surgery correctly. In either event, all of the acts and omissions alleged to have been negligent took place on November 10, 2010. The petitioner’s original notice of claim did not mention Elmhurst Hospital, but the petitioner timely sought leave to amend the notice of claim to, inter alia, add allegations regarding the treatment at Elmhurst Hospital. The Supreme Court denied the relief sought by the petitioner.  All of the conduct alleged to have been negligent took place at the two named hospitals on the same day. Moreover, the respondents’ records noted the decedent’s transfer from Queens Center Hospital to Elmhurst Hospital and detailed all of the treatment rendered that day. The respondents could not have been prejudiced by the proposed amendment of the notice of claim and, under the circumstances, there was no need to treat that amendment as the assertion of a new claim (see General Municipal Law § 50-e[6];…).  Matter of Bingsen Xu v New York City Health & Hosps Corp, 2013 NY 04601, 2nd Dept, 6-19-13

 

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Plaintiff’s Lack of Knowledge About Contract Breaches Did Not Toll Statute of Limitations

The Second Department determined plaintiff’s lack of knowledge about alleged annual breaches of contract by the village for which he served as police commissioner was not the result of fraud and, therefore, the 18-month statute of limitations for each breach was not tolled:

Pursuant to CPLR 9802, “no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued.” Where the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment…. Here, as the Village correctly contends, the causes of action alleging breach of contract accrued at the end of each year that the plaintiff allegedly was not paid in accordance with his contract…. Since this action was not commenced until September 28, 2011, the Village established, prima facie, that the action was time-barred to the extent that the plaintiff sought to recover damages accruing prior to March 28, 2010, that is, 18 months prior to the commencement of the action…. In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations had been tolled or was otherwise inapplicable, or whether he actually commenced the action within the applicable limitations periods…. Contrary to the plaintiff’s contention, his lack of knowledge that the several breaches had occurred did not toll the running of the limitations period… Reid v Incorporated Vil of Flora Park, 2013 NY Slip Op 04321, 2nd Dept, 6-12-13

 

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Submission of Intentional and Depraved Indifference Murder to Jury in Conjunctive Rather than Alternative Okay

The Second Department determined the trial court did not err when it submitted intentional murder and depraved indifference murder to the jury in the conjunctive, rather than the alternative, because more than one potential victim was present:

The defendant, relying on People v Molina (79 AD3d 1371), contends that the submission of the counts of intentional murder (and attempted murder) and depraved indifference murder to the jury in the conjunctive, rather than in the alternative, violated his right to due process. However, the defendant’s contention is without merit. “Where, as here, more than one potential victim was present at the shooting, a defendant may be convicted of both counts because he or she may have possessed different states of mind with regard to different potential victims”…. To the extent that the Appellate Division, [3rd] Department, held differently in Molina, we disagree and decline to follow that holding. People v Dubarry, 2013 NY Slip Op 04354, 2nd Dept, 6-12-13

 

Relationships Among Subtenancy, Prime Tenancy and Landlord Explained

The Second Department explained the relationships among a subtenancy, the prime tenancy and the landlord as follows:

“As a general rule, where a landlord and prime tenant enter into an agreement to voluntarily terminate the paramount lease, the subtenant becomes the immediate tenant of the original lessor, and the interest of the subtenant and terms of the sublease continue as if no termination had occurred”…. “However, because a sublease is dependent upon and limited by the terms and conditions of the paramount lease from which it is carved, a subtenancy may be terminated by the expiration of the term of the prime tenant, or a re-entry by the landlord for a condition broken”….  380 Yorktown Food Corp v 380 Downing Dr, LLC, 2013 NY Slip Op 04327, 2nd Dept, 6-12-13

 

Criteria for Award of Support for Education

The Second Department explained the criteria for the award of support for a child’s college education as follows:

“Unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory'”…. “Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child’s college education is dependent upon the exercise of the court’s discretion in accordance with Domestic Relations Law § 240(1-b)(c)(7)’ …, and an award will be made only “as justice requires”‘”…. “[A] court must give due regard to the circumstances of the case and the respective parties, as well as both the best interests of the child and the requirements of justice” ….  Silverstein v Silverstein, 2013 NY Slip Op 04323, 2nd Dept, 6-12-13

 

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Family Court Should Have Granted Father’s Motion to Vacate a Fact-Finding Order

In an abuse and neglect proceeding, the Second Department reversed Family Court’s denial of father’s motion to vacate a fact-finding order after a hearing at which father was not present:

If a parent is not present, the court may proceed to hear a petition pursuant to Family Court Act article 10 if the child is represented by counsel (see Family Ct Act § 1042). However, a timely motion to vacate the resulting fact-finding order shall be granted upon an affidavit showing, inter alia, a potentially meritorious defense to the petition unless the court finds that the parent willfully refused to appear at the hearing….  Under the circumstances presented, the appellant adequately demonstrated that his failure to appear was not willful…. Moreover, the father demonstrated a potentially meritorious defense to the petitions …. Matter of Mark W, 2013 NY Slip Op 04347, 2nd Dept, 6-12-13

 

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Child’s Out-of Court Statements Sufficiently Corroborated

In affirming Family Court, the Second Department determined the child’s out-of-court statements were sufficiently corroborated:

At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act § 1046[b][i]). A child’s out-of-court statements may form the basis for a finding of abuse or neglect if they are sufficiently corroborated by other evidence tending to support their reliability…. The Family Court has considerable discretion in deciding whether a child’s out-of-court statements describing incidents of abuse or neglect have been reliably corroborated ….  Contrary to the appellant’s contention, the Family Court’s determination that he sexually abused the subject child is supported by a preponderance of the evidence. The subject child’s out-of-court statement regarding the acts of sexual abuse upon her was corroborated by an expert in clinical and forensic psychology, with a specialization in child abuse, who evaluated the subject child and concluded that she exhibited behavior indicative of sexual abuse… .  Matter of Emani W, 2013 NY Slip Op 04346, 2nd Dept, 6-12-13

 

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Doctrine of Collateral Estoppel Re: Related Criminal Convictions Properly Applied

The Second Department determined Family Court properly applied the doctrine of collateral estoppel in an abuse proceeding based upon father’s criminal convictions:

The Family Court properly granted that branch of the motion of the ACS which was for summary judgment on the issue of the father’s derivative abuse. The ACS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable…. “A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct”…. The father’s convictions of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and endangering the welfare of a child were based upon the same acts alleged to constitute sexual abuse as set forth in Family Court Act article 10 petitions (see Family Ct Act § 1012[e][iii]).  Matter of Angelica M, 2013 NY Slip Op 04339, 2nd Dept, 6-12-13

 

Evidence of Mother’s Mental Illness, Without More, Did Not Justify Neglect Finding

The Second Department determined mother’s mental illness alone did not support a finding of neglect:

…[T]he Administration for Children’s Services (hereinafter the ACS), adduced evidence at the fact-finding hearing which established that the mother suffered from bipolar disorder at the time each of the two subject children were born. “A finding of neglect may be predicated upon proof that a child’s physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent’s mental illness”…. However, “proof of mental illness alone will not support a finding of neglect”; the evidence “must establish a causal connection between the parent’s condition, and actual or potential harm to the children”…. Here, the ACS failed to establish, by a preponderance of the evidence, the existence of a causal connection between the mother’s bipolar disorder and actual or potential harm to the subject children … .   Matter of Alexis SG…, 2013 NY Slip Op 04336, 2nd Dept, 6-12-13