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A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT AND SERVIENT PROPERTY; HERE THE CRITERIA FOR A DEEDED EASEMENT WERE NOT MET; BUT THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs did not demonstrate they had a deeded easement over the disputed land, but did demonstrate they had a prescriptive easement, although the extent of the easement must be determined at trial:

“An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it . . . and a grant of the land carries with it the grant of the easement” … . “An easement appurtenant occurs when [an] easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate” … . However, “[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so called ‘stranger to the deed,’ does not create a valid interest in favor of that third party” … . Thus, “[f]or an easement by grant to be effective, the dominant and servient properties must have a common grantor” … .

Here, the defendant made a prima facie showing of his entitlement to judgment as a matter of law declaring that the plaintiffs do not have a deeded easement over the disputed area by “establishing that, at the time the easement was purportedly created, the grantor owned the servient property, but not the dominant property … .  * * *

… [P]laintiffs established … their predecessors in interest acquired an easement by prescription over the disputed area, which easement ran with the land when the plaintiffs purchased the property in 2018 … . Notably, the defendant learned of the purported deeded easement in 2005 and assumed that it was valid until at least July 2019. Therefore, the defendant’s relationship to the dominant estate’s use of the driveway area was one of acquiescence, rather than permission … . … Supreme Court erred in denying that branch of the plaintiffs’ cross-motion which was for summary judgment declaring that they have a prescriptive easement over the disputed area. Daniello v Wagner, 2023 NY Slip Op 06116, Second Dept 11-29-23

Practice Point: The criteria for a deeded easement and a prescriptive easement are clearly explained.

 

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THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT AMBIGUOUS AND NEED NOT BE REFORMED; THE STIPULATION WHICH WAS INCORPORATED BUT NOT MERGED INTO THE DIVORCE JUDGMENT CANNOT BE REFORMED PURSUANT TO A MOTION, A PLENARY ACTION IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation that was incorporated but not merged into the divorce judgment was not ambiguous and should not have reformed the stipulation based upon a mutual mistake. The stipulation was not ambiguous and required the husband to share his pension when he turned 62. In addition, reformation of the stipulation was not appropriate pursuant to a motion. A plenary action is required to reform stipulation which is incorporated but not merged into the judgment of divorce:

… Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62 … . Inasmuch as the language of the stipulation disclosed the parties’ intent to defer the plaintiff’s pension distribution until the defendant reached age 62, at a time he would have been eligible for regular service retirement benefits, and is not subject to more than one reasonable interpretation, the agreement is not ambiguous … .

… [T]o the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation … . In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract” … . Anderson v Anderson, 2023 NY Slip Op 06108, Second Dept 11-29-23

Practice Point: Here the judge should not have determined the stipulation incorporated but not merged into the judgment of divorce was ambiguous because it was subject to only one interpretation.

Practice Point: A stipulation which is incorporated but not merged into the judgment of divorce cannot be reformed pursuant to a motion. A plenary proceeding must be commenced.

 

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PLAINTIFF WAS INJURED DIVING UNDER A TRUCK WHEN THERE WAS AN EXPLOSION AS A BROKEN UTILITY POLE WITH LIVE ELECTRIC WIRES WAS BEING HOISTED; THE WORK WAS NOT ROUTINE MAINTENANCE SO THERE WERE QUESTIONS OF FACT PRECLUDING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE LABOR LAW 241(6) CAUSE OF ACTION; QUESTIONS OF FACT ABOUT THE CAUSE OF THE EXPLOSION AND SUPERVISORY CONTROL PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ summary judgment motion on the Labor Law 241(6) and 200 causes of action should not have been granted. Plaintiff was 150 feet away from a broken utility pole which needed to be removed. The pole was damaged when struck by a vehicle and the attached electric wires were live. Plaintiff was injured diving under a truck when there was an explosion as the pole was being hoisted:

… [T]he defendants failed to establish, prima facie, that the work they were performing at the time of the incident constituted routine maintenance or repairs not within the ambit of Labor Law § 241(6) … . The defendants’ evidentiary submissions indicated that the incident occurred while the defendants were hoisting a portion of the utility pole to enable the total replacement of the pole, which had been severely damaged after a vehicle hit the pole. Thus, the defendants’ evidentiary submissions did not demonstrate, prima facie, that the work involved merely “replacing components that require replacement in the course of normal wear and tear” …. . * * *

… [T]he defendants failed to establish, prima facie, that they had no authority to supervise or control the work being performed by the defendants’ own employees at the time of the incident … . Further, to the extent the plaintiff alleged that the incident was caused by a dangerous condition, the defendants did not address the issues of whether they created or had actual or constructive notice of a dangerous condition … . Accordingly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 200 … . Ricottone v PSEG Long Is., LLC, 2023 NY Slip Op 06155, Second Dept 11-29-23

Practice Point: Labor Law 241(6) does not apply to routine maintenance. Replacing a utility pole struck by a vehicle is not routine maintenance.

Practice Point: Where there is a question of fact about the cause of dangerous condition and whether defendant has supervisory control over the worksite, summary judgment in favor of defendant on a Labor Law 200 cause of action is precluded.

 

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THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should have been restored to the active calendar because the 90-day demand required by CPLR 3216 was never provided. The issue was properly considered for the first time on appeal because, had the issue been raised below, it could not have been ignored:

Here, the order dated June 26, 2018 … directed the filing of a note of issue by June 29, 2018, but failed to provide the plaintiff with 90 days within which to comply with that directive. Thus, the order dated June 26, 2018, did not constitute a valid 90-day demand pursuant to CPLR 3216 … . Moreover, the order dated June 26, 2018, did not contain the requisite language advising that failure to file a note of issue would be the basis for a motion to dismiss … . …

Although the plaintiff’s contentions i… are raised for the first time on appeal, they may be reached, as they involve issues of law appearing on the face of the record that could not have been avoided if they had been raised at the proper juncture … . OneWest Bank, FSB v Segal, 2023 NY Slip Op 06146, Second Dept 11-29-23

Practice Point: The failure to provide the 90-demand required by CPLR 3216 is reversible error which can be raised for the first time on appeal.

 

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PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined petitioner-reporter’s request for an unredacted telephone directory for employees of the county police department should have been granted because the county did not demonstrate the information was exempt from disclosure. In addition, petitioner should have been awarded attorney’s fees and litigation costs because petitioner had prevailed in the FOIL action. The fact that some of the requested information (names and salaries of police officers, for example) was available on a public website, to which petitioner was referred, did not warrant a finding petitioner had not prevailed:

… Supreme Court improperly, in effect, denied that branch of the petition which was to compel the production of a NCPD [Nassau County Police Department] telephone directory, without redactions, insofar as asserted against the County and the NCPD, as those respondents failed to demonstrate the applicability of an exemption to disclosure warranting redaction of the telephone directory …, which did not contain any personal telephone or cell phone numbers (see Public Officers Law § 89[2-b][b]). * * *

… [T]he petitioner substantially prevailed in this proceeding by obtaining a significant portion of the records and information responsive to the FOIL request after the commencement of the proceeding … . Contrary to the respondents’ contention, the purported public availability of the requested records and information does not preclude a determination that the petitioner substantially prevailed … . Moreover, the record reflects that the respondents did not have a reasonable basis for the initial denial of the petitioner’s FOIL request in its entirety … . Matter of Lane v County of Nassau, 2023 NY Slip Op 06139, Second Dept 11-29-23

Practice Point: Unless the municipality can show the information sought by a FOIL request is exempt from disclosure the information must be disclosed.

Practice Point: The fact that information sought in a FOIL request is available on a public website, to which the petitioner is referred, does not preclude a finding that petitioner prevailed in the FOIL proceeding.

 

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PLAINTIFF STOOD UP FROM A DESK AND TRIPPED OVER THE BOTTOM DRAWER WHICH HAD PARTIALLY OPENED; THERE WERE QUESTIONS OF FACT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND WHETHER DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence action alleging plaintiff stood up from a desk and tripped on the bottom desk drawer should not have been dismissed. The defendant did not demonstrate the condition was open and obvious and did not demonstrate it did not have actual or constructive notice of the condition:

According to the plaintiff, she was sitting behind a desk and when she got up, she tripped on the bottom desk drawer which, unbeknownst to her, had become ajar. …

A condition is open and obvious if it is “readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . …

A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s accident … .  Cosme v New York City Dept. of Educ., 2023 NY Slip Op 06026, Second Dept 11-22-23

Practice Point: Whether a condition is open and obvious depends on the totality of the circumstances. Here plaintiff alleged she didn’t know the bottom drawer of her desk had opened and she tripped over it when she stood up from the desk. There was a question of fact whether the condition was open and obvious. The fact that the defendant did not demonstrate when the desk had last been inspected raised a question of fact about whether the defendant had constructive notice of the condition.

 

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PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate she had standing to bring it:

“A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced” … . The plaintiff can establish standing by attaching a properly endorsed note to the complaint when commencing the action . However, where an endorsement is on an allonge and not on the note itself, the plaintiff must establish that the allonge was “so firmly affixed to the note so as to become a part thereof” as required by UCC 3-202(2) at the time the action was commenced … . “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … .

Here, the plaintiff failed to establish her status as holder of the note at the time the action was commenced. Although the note was executed in favor of the decedent, the copy of the note attached to the complaint contains two purported endorsements in favor of nonparties, and the plaintiff failed to show that an allonge containing an additional endorsement back to the decedent was firmly affixed to the note … . Thompson v Seay, 2023 NY Slip Op 06072, Second Dept 11-22-23

Practice Point: Where the note and the endorsements do not comply with the requirements of UCC 3-202, plaintiff has not demonstrated standing to bring the foreclosure action.

 

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A DRIVER WHO HAS THE RIGHT-OF-WAY IS ENTITLED TO ANTICIPATE OTHER DRIVERS WILL OBEY THE TRAFFIC LAWS REQUIRING THEM TO YIELD; HERE DEFENDANT ENTERED AN INTERSECTION WITH A GREEN LIGHT AND PLAINTIFF MADE A LEFT TURN IN FRONT OF HIM; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant driver demonstrated he had the right-of-way when he entered the intersection with and green light and plaint made a left turn in front of him. Defendant’s motion for summary judgment should have been granted:

“A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way” … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … .

Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he had the right-of-way, the plaintiff failed to yield the right-of-way, and the defendant did not have sufficient time to react in order to avoid the collision … . The defendant, as the driver with the right-of-way, was entitled to anticipate that the plaintiff would obey the traffic laws which required her to yield … . Smith v Trail, 2023 NY Slip Op 06070, Second Dept 11-22-23

Practice Point: A driver who fails to take evasive action can be contributorily negligent. But here defendant entered the intersection with a green light and plaintiff made a left turn in front of him. Plaintiff did not raise a question of fact whether defendant had time to take evasive action.

 

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THE UNION’S CHALLENGE TO THE DEDUCTION OF THE COST OF HEALTH INSURANCE FROM A VILLAGE POLICE OFFICER’S PAYCHECK WAS A BREACH-OF-CONTRACT ACTION FOR WHICH THE STATUTE OF LIMITATIONS BEGAN RUNNING ANEW FOR EACH PAYCHECK (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the action by the union on behalf of a village police officer challenging the deduction of health insurance costs from each paycheck was a breach-of-contract action and the statute of limitations began running anew for each paycheck:

Teamsters Local 445 (hereinafter the Union) filed a demand for arbitration of a grievance against the Village of Maybrook alleging that the Village breached the parties’ collective bargaining agreement (hereinafter CBA) by deducting a certain amount from each paycheck of Sergeant Michael Maresca for health insurance costs. The Supreme Court granted the Village’s petition to permanently stay arbitration on the ground that the claim sought to be arbitrated was barred by the four-month statute of limitations applicable to CPLR article 78 proceedings. The principal issues raised on this appeal are (1) whether the underlying claim is in the nature of CPLR article 78 seeking review of an administrative determination or in the nature of breach of contract, and (2) if the latter, whether the claim is predicated on a single breach or a series of breaches that occurred with each paycheck. … [W]e determine that the nature of the claim is breach of contract and that the claim is predicated on a series of independent alleged breaches. Since the statute of limitations began anew as to each breach, we find that the claim to be arbitrated was not wholly time-barred. We therefore modify the order appealed from by … granting the Union’s cross-motion to the extent of compelling arbitration of so much of the grievance as was not time-barred. Matter of Village of Maybrook v Teamsters Local 445, 2023 NY Slip Op 06051, Second Dept 11-22-23

Practice Point: Here the union’s challenge to the deduction of the cost of health insurance from a village police officer’s paycheck was governed by the six-year statute of limitations for a breach of contract action, not the four-month statute of limitations for an Article 78 proceeding. The statute began running anew for each paycheck.

 

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UNSUBSTANTIATED COMPLAINTS AGAINST POLICE OFFICERS ARE NOT CATEGORICALLY EXEMPT FROM FOIL REQUESTS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined “unsubstantiated complaints” against police officers are not categorically exempt from a FOIL request:

The petitioner publishes a daily newspaper in Long Island. Following the Legislature’s repeal of Civil Rights Law § 50-a, the petitioner made requests to the Nassau County Police Department (hereinafter the NCPD) pursuant to the Freedom of Information Law … to obtain certain law enforcement disciplinary records. … [T]he NCPD … withheld all documents relating to complaints that were not determined to be substantiated on the ground that such documents were categorically exempt from disclosure as an “unwarranted invasion of personal privacy” pursuant to Public Officers Law § 87(2)(b). We hold that records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy, and the NCPD is required to disclose the requested records, subject to redactions with particularized and specific justification under Public Officers Law § 87(2) … . …

Former Civil Rights Law § 50-a provided a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct … . Effective June 12, 2020, the Legislature repealed Civil Rights Law § 50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure. Matter of Newsday, LLC v Nassau County Police Dept., 2023 NY Slip Op 06050, Second Dept 11-22-23

Practice Point: Pursuant to the repeal in 2020 of Civil Rights Law 50-a, unsubstantiated complaints against police officers are not categorically exempt from FOIL requests.

 

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