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BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the condominium (Cherry Tower) premised on the failure to install window guards should have been granted. Plaintiffs’ five-year-old daughter fell from the fifth floor window and died. Defendants submitted the deed to the condominium in support of their motion to dismiss. Because plaintiffs owned the condo unit, the defendants had no duty to install window guards. However, the cause of action alleging defendants’ failure to give notice of the window-guard requirements in the NYC Administrative Code properly survived dismissal:

“The characteristics of condominium ownership are individual ownership of a unit, an undivided interest in designated common elements, and an agreement among unit owners regulating the administration and maintenance of property” … . Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the documentary evidence submitted by the Cherry Tower defendants, including the deed demonstrating that the unit owners purchased the subject apartment in 2007 and the condominium bylaws placing the responsibility to install and maintain window guards on the unit owners, conclusively demonstrates that the Cherry Tower defendants had no duty to install window guards in the subject apartment (see Administrative Code of City of NY § 27-2043.1[a]; Real Property Law § 339-ee[1] …).

However, the Supreme Court properly denied that branch of the Cherry Tower defendants’ motion which was to dismiss so much of the complaint as was based on their failure to provide the plaintiff with notice of the window guard requirements. Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the complaint sufficiently alleges that the Cherry Tower defendants failed in their responsibility to deliver the required notice to the subject apartment (see Administrative Code § 17-123[b]). Kwan v Kuie Chin Yap, 2023 NY Slip Op 05005, Second Dept 10-4-23

Practice Point: The individual owners of condominium units are responsible for the installation of window guards. Therefore the condominium itself has no duty to do so. However, in New York City, the condominium must provided the individual owners with notice of the window-guard requirement in the NYC Administrative Code.

 

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CLAIMANT ALLEGED SHE WAS SEXUALLY ABUSED BY TWO NAMED COUNSELORS FROM 1976 – 1978; THE CLAIM SUFFICIENTLY STATED A CAUSE OF ACTION PURSUANT TO THE CHILD VICTIMS ACT (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated a Child Victims Act cause of action stemming from claimant’s time in foster care from 1976 to 1978:

In August 2021, the claimant commenced this claim pursuant to the Child Victims Act (see CPLR 214-g) against the defendant, inter alia, to recover damages for negligent hiring, retention, and supervision. The claim alleged that the claimant, who had been placed in a group home for foster children when she was a child, was sexually abused by two named counselors at the facility from approximately 1976 to 1978. * * *

Court of Claims Act § 11(b) requires a claim to specify: “(1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . These statutory requirements are “strictly construed,” and a failure to comply with any of those requirements “constitutes a jurisdictional defect mandating dismissal” … . The purpose of the pleading requirements is to provide “a sufficiently detailed description of the particulars of the claim” so that the defendant can “investigate and promptly ascertain the existence and extent of its liability” … . “However, absolute exactness is not required, so long as the particulars of the claim are detailed in a manner sufficient to permit investigation” … .

Contrary to the Court of Claims’ determination, the claim set forth the nature of the claim with sufficient detail to allow the defendant to investigate the claim in a prompt manner and to assess its potential liability … . Brown v State of New York, 2023 NY Slip Op 04997, Second Dept 10-4-23

Practice Point: To state a cause of action pursuant to the Child Victims Act, the claim need only provide sufficient detail to allow a prompt investigation. Here the claimant alleged sexual while in foster care from 1976 – 1978 by two named counselors. The claim should not have been dismissed.

 

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QUESTIONS OF FACT ABOUT WHO HAD THE GREEN LIGHT AND WHETHER DEFENDANT DRIVER SAW WHAT SHOULD HAVE BEEN SEEN PRECLUDED SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact which precluded summary judgment in favor of defendants in this intersection traffic accident case. Although plaintiffs’ car was struck when attempting a left turn across defendant’s oncoming lane, there was conflicting evidence about which party had the green light and whether defendant failed to see what should have been seen:

Susan [plaintiff] testified at her deposition that she entered the subject intersection to turn left when a traffic arrow controlling the left turn was green in her favor. In contrast, Peter [defendant] testified at his deposition that the traffic light was green in his favor as he approached the subject intersection from the opposite direction. In addition, Peter testified that there was nothing obstructing his view of the intersection as he began to drive through it, and it is undisputed that he then struck the plaintiff’s vehicle on the middle portion of the passenger side door. Thus, although the defendants submitted some evidence that Susan failed to yield the right-of-way to the defendants’ vehicle at the intersection in apparent violation of Vehicle and Traffic Law § 1141, the evidence submitted by the defendants failed to eliminate triable issues of fact as to whether Peter entered the intersection against a red traffic light in violation of Vehicle and Traffic Law § 1111(d)(1) or, if the traffic light was green in his favor, failed to exercise reasonable care notwithstanding the invitation to proceed by the green light facing him … . Accordingly, the defendants did not establish, prima facie, that Susan’s failure to yield the right-of-way was the sole proximate cause of the accident and that the defendants were themselves free from fault … . Schmitz v Pinto, 2023 NY Slip Op 04983, Second Dept 10-4-23

Practice Point: There can be more than one proximate cause of a traffic accident. Although plaintiff was struck making a left turn across defendant’s lane, there were questions of fact about who had the green light, and, if defendant had the green light, whether he should have seen what was there to be seen (plaintiff’s car was struck in the middle of the passenger door).

 

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PLAINTIFF’S DECEDENT’S COUNSEL IN THIS SLIP AND FALL CASE DID NOT SEEK LETTERS OF ADMINISTRATION FOR FIVE YEARS AFTER PLAINTIFF’S DECEDENT’S DEATH; THE ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO CPLR 1021 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the slip and fall action should have been dismissed. The slip and fall occurred in 2013. The plaintiff died in 2015.and the letters of administration were issued in 2021. Plaintiff’s attorney’s failure to move for substitution of a representative within a reasonable time warranted dismissal:

CPLR 1021 provides as follows: “A motion for substitution may be made by the successors or representatives of a party or by any party . . . . If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate . . . . [I]f the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent’s estate to show cause why the action or appeal should not be dismissed” (emphasis added).

In determining reasonableness, a court should consider the plaintiff’s diligence in seeking substitution, prejudice to the other parties, and whether the action is shown to have potential merit … . Here, the unexplained, more than five-year delay in seeking letters of administration shows a lack of diligence … . Further, no demonstration of a potentially meritorious cause of action was made. Neither the attorney affirmation, complaint, bill of particulars, nor supplemental bill of particulars constituted an affidavit of merit, as counsel had no personal knowledge of the facts of this case … . Since an affidavit of merit was not submitted and no reasonable justification for the delay in petitioning for letters of administration was provided, the Supreme Court should have granted that branch of Nargis’s motion which was pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against it … . Mesniankina v 302 BBA, LLC2023 NY Slip Op 04765, Second Dept 9-27-23

Practice Point: If your client dies and you wait five years before substituting an administrator for the decedent, you risk dismissal pursuant to CPLR 1021.

 

UNLIKE THE GENERAL OBLIGATIONS LAW (DRAM SHOP ACT) CAUSES OF ACTION AGAINST A BAR WHICH SERVES A VISIBLY INTOXICATED PERSON WHO IS LATER INVOLVED IN A TRAFFIC ACCIDENT, A COMMON LAW NEGLIGENCE CAUSE OF ACTION APPLIES ONLY TO INJURIES CAUSED BY AN INTOXICATED PERSON ON DEFENDANT’S PROPERTY OR IN AN AREA UNDER DEFENDANT’S CONTROL AND SUPERVISION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the common law negligence cause of action against the bar (Catch 22) which allegedly served alcohol to the minor driver should have been dismissed. The driver was involved in an accident and plaintiff’s decedent, a passenger, was killed. The General Obligations Law causes of action premised on defendant’s allegedly serving alcohol to a visibly intoxicated person properly survived summary judgment. But the common law negligence cause of action would only apply to injuries which occurred on defendant’s property (not in a traffic accident which occurred after leaving defendant’s property):

Under a theory of common-law negligence, a landowner may be responsible for injuries caused by an intoxicated guest … . However, liability may be imposed only for injuries that occurred on a defendant’s property, or in an area under the defendant’s control, where the defendant had the opportunity to supervise the intoxicated guest and was reasonably aware of the need for such control … . There is no dispute that the motor vehicle accident at issue occurred on a public roadway hours after the decedent and [the driver] had left the area that was under the supervision and control of Catch 22, and thus, Catch 22 established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence insofar as asserted against it … . Filc v 221 Someplace Else, Ltd., 2023 NY Slip Op 04751, Second Dept 9-27-23

Practice Point: A bar which serves a visibly intoxicated person may be liable in negligence (as opposed to pursuant to the Dram Shop Act) when the intoxicated person causes injury on the bar’s property or in an area under the bar’s supervision and control. The negligence theory does not apply to traffic accidents which occur off premises.

 

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PLAINTIFF, A PASSENGER ON A BUS WHICH VEERED OFF THE HIGHWAY IN SNOWY CONDITIONS, WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff, a passenger on a bus which veered of the highway in snowy conditions, was entitled to summary judgment:

“‘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'” … . Here, the plaintiff’s affidavit and the bus driver’s admissions in a certified police accident report submitted in support of the motion … established that the bus driver lost control of the vehicle, and that the bus driver was aware of the snowy weather conditions, rendering the emergency doctrine inapplicable … . In his affidavit, the plaintiff stated that it was snowing when the bus left the bus station. Immediately before the accident, the plaintiff did not hear horns or the screeching of brakes, but did hear the bus driver state, “It’s bad.” The bus then swerved, left the roadway, and rolled over onto its passenger’s side in the center median of the highway. Additionally, the certified police accident report contains the bus driver’s statement that he lost control because of a slippery highway. Bing Kang Chen v S & F Travel, Inc., 2023 NY Slip Op 04746, Second Dept 9-27-23

Practice Point: A passenger on a bus which veers off the highway in snowy conditions is entitled to summary judgment in the absence of any evidence that something other than the snowy conditions caused the accident.

 

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PLAINTIFF’S PARKED VEHICLE WAS STRUCK FROM BEHIND BY DEFENDANT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY; THE FACT THAT PLAINTIFF MAY HAVE VIOLATED TRAFFIC RULES RE: PARKING SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT RELEVANT TO LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should have been granted. Plaintiff’s car was parked when it was struck from behind by defendant. The fact that plaintiff may have parked in a manner which violated the NYC traffic rules speaks only to plaintiff’s comparative negligence, which is not relevant at the summary judgment stage:

… [P]laintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of her affidavit, in which she averred that her vehicle was struck in the rear by the defendants’ vehicle while the plaintiff’s vehicle was parked on the shoulder of the roadway (see Vehicle and Traffic Law § 1129[a] …). In opposition to the plaintiff’s prima facie showing, the defendants failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . The defendants’ contention that the plaintiff proximately caused the accident by violating 34 RCNY 4-07(b)(1) and 4-08(e)(1) [NYC Traffic Rules re: parking] speaks to her comparative negligence, which was not the subject of this motion and is insufficient to defeat the plaintiff’s prima facie entitlement to judgment as a matter of law on the issue of liability … . Whaley v Carvana N.Y. City, 2023 NY Slip Op 04794, Second Dept 9-27-23

Practice Point: Plaintiff’s parked car was struck from behind and defendant did not offer a nonnegligent explanation for the collision. Therefore plaintiff was entitled to summary judgment on liability. The fact that plaintiff may have violated parking rules speaks to comparative negligence and is not relevant to liability.

 

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THE REFEREE’S REPORT WAS BASED ON BUSINESS RECORDS WHICH WERE NOT PRODUCED RENDERING THE AFFIDAVIT HEARSAY; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the relevant business records were produced to support the affidavit:

Here, the referee based her findings upon her review of the note and mortgage, the summons and complaint, and an affidavit of merit and amount due of the plaintiff’s employee, which listed the amounts due by month and the interest rate, as well as the taxes and insurance paid on the defendant’s account. However, as the defendant correctly contends, the affidavit “constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records [s]he purportedly relied upon in making [her] calculations” … . Moreover, while the referee’s report found that the mortgaged premises should be sold in one parcel, the referee failed to identify the documents or other sources upon which she based that finding … . Under the circumstances, the referee’s findings with respect to the total amount due and whether the subject property could be sold in one parcel were not substantially supported by the record … . Wells Fargo Bank, N.A. v Laronga, 2023 NY Slip Op 04793, Second Dept 9-27-23

Practice Point: If the referee’s report in a foreclosure action is based on business records, those records must be produced.

 

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ALTHOUGH PLAINTIFF WAS WORKING ON DEFENDANT’S PRIVATE RESIDENCE WHEN INJURED, THE HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) LIABILITY MAY NOT APPLY BECAUSE PLAINTIFF WAS EMPLOYED AS A CARPENTER BY DEFENDANT AND DEFENDANT MAY HAVE BEEN DIRECTING AND SUPERVISING THE WORK; SIMILARLY, DEFENDANT WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not eliminate questions of fact about whether the homeowner’s exemption applied to the Labor Law 241(6) cause of action and whether he was liable under the Labor Law 200 and common law negligence causes of action. Although the plaintiff was working on defendant’s private residence, plaintiff was employed as a carpenter by defendant:

Although the defendant demonstrated that the work being performed at his single-family home was directly related to its residential use … , the defendant failed to establish, prima facie, that he did not direct or control the plaintiff’s work. In support of his motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, in which the plaintiff testified that, at the time of the accident, the defendant owned a business that employed the plaintiff to perform carpentry work on decks and that the defendant instructed the plaintiff on which boards to remove and replace at the defendant’s home. The plaintiff also testified that the defendant provided all of the materials and tools that the plaintiff used for the work at the defendant’s home. Thus, the defendant’s submissions failed to eliminate triable issues of fact as to whether he directed or controlled the plaintiff’s work … . * * *

… [T]he plaintiff’s accident arose from the means and methods of the work, not from a dangerous premises condition …. . [Defendant] failed to establish his prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, since he failed to eliminate triable issues of fact as to whether he had the authority to supervise or control the plaintiff’s work … . Walsh v Kenny, 2023 NY Slip Op 04791, Second Dept 9-27-23

Practice Point: Here plaintiff was working on his employer’s (the defendant’s) private residence when injured. The defendant provided the materials and there was evidence he supervised the work. Therefore questions of fact precluded summary judgment on the Labor Law 241(6) cause of action (pursuant to the homeowner’s exemption to the Labor Law 241(6) cause of action), as well as on the Labor Law 200 and common law negligence causes of action.

 

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IN THIS FORECLOSURE ACTION, THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE WITH RPAPL 1304 WAS INSUFFICIENT; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The proof the notice of foreclosure was mailed in accordance with RPAPL 1304 was insufficient:

… [T]he testimony of the plaintiff’s sole witness at trial, Lawrence Nardi, a case manager for the plaintiff’s servicer, Select Portfolio Servicing (hereinafter SPS), was insufficient to establish a standard office mailing procedure designed to ensure that notices were properly addressed and mailed … . Moreover, while the plaintiff presented copies of 90-day notices containing a 20-digit bar code, those letters contained no language indicating that they were sent by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service … . In addition, the plaintiff failed to present any receipt or corresponding document issued by the U.S. Postal Service showing that the notice was actually sent by first-class or certified mail more than 90 days prior to commencement of the action … . Thus, the plaintiff failed to demonstrate its strict compliance with RPAPL 1304 … . U.S. Bank N.A. v Kissi, 2023 NY Slip Op 04790, Second Dept 9-27-23

Practice Point: Here the bank did not prove the notice of foreclosure was mailed in accordance with RPAPL 1304. Therefore the referee’s report should not have been confirmed.

 

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