You are here: / Second Department

Tag Archive for: Second Department

,

AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING AN ACCIDENT; THE PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE RES IPSA LOQUITUR THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ motion for summary judgment based upon the res ipsa loquitur theory of liability should have been granted. Plaintiffs’ car was inspected by defendant car dealership and the tires (wheels?) were removed and reattached. When plaintiff Kathleen Becchetti drove the car from the dealership one of the tires (wheels?) detached causing an accident:

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Regarding the second element, exclusive control is not a rigid rule and has been applied in circumstances when “the accident occurred after the instrumentality left the defendant’s control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence” … . The plaintiff does not need to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants’ conduct is more probably the cause … . The plaintiff must show that the defendant’s control was sufficiently exclusive to fairly rule out some other agency causing the purported defect … . Once the plaintiff satisfies the burden of proof on these three elements, the doctrine of res ipsa loquitur permits the factfinder to infer negligence … .

Here, the plaintiffs established, prima facie, that a tire detachment, such as the one at issue here, does not occur in the absence of negligence … . Furthermore, the plaintiffs established, prima facie, that the vehicle was in the defendants’ exclusive control at the time of the alleged act of negligence … and that the plaintiffs did not contribute to the event … . …

… [S]ince this is the type of “rare” and “exceptional” res ipsa loquitur case “in which no facts are left for determination” … , the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability. Bicchetti v Atlantic Toyota, 2023 NY Slip Op 03219, Second Dept 6-14-23

Practice Point: Here a wheel fell off plaintiffs’ car after the car was serviced, causing an accident. Although the car was not in the exclusive control of the dealership when the wheel fell off, the negligence occurred when the dealership had exclusive control. This was deemed a rare case warranting summary judgment.

 

,

WHERE DEFENDANTS AVER SPECIFIC FACTS WHICH REBUT THE STATEMENTS IN THE PROCESS SERVER’S AFFIDAVIT, AN EVIDENTIARY HEARING ON WHETHER THE DEFENDANTS WERE SERVED WITH THE SUMMONS AND COMPLAINT IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants presented sufficient facts to rebut the presumption they were properly served with the summons and complaint, requiring a hearing:

“Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served” … Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service … . “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit, and necessitates an evidentiary hearing” … . “If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue”… .

Here, the process servers’ affidavits of service constituted prima facie evidence of valid service upon the defendants at the subject New York and Florida properties … . However, since the defendants’ sworn denial of receipt of process at both properties contained specific facts to rebut the statements in the process servers’ affidavits, the presumption of proper service was rebutted and an evidentiary hearing was required … . Aikens v Kouchnerova, 2023 NY Slip Op 03218, Second Dept 6-14-23

Practice Point: A defendant’s mere denial of receipt of a summons and complaint is not enough to rebut the presumption of valid service. But where a defendant avers specific facts which rebut the statements in the process server’s affidavit, an evidentiary hearing is required.

 

,

FAILURE TO INFORM THE DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM POTENTIAL PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVALID (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the failure to inform defendant of the details of postrelease supervision rendered the plea invalid:

… [A]t the plea proceeding, the County Court mentioned that the sentence would include postrelease supervision, but did not specify the period of postrelease supervision to be imposed, nor did the court indicate the maximum potential duration of postrelease supervision that may be imposed. As the People concede, the court’s failure to so advise the defendant prevented his plea from being knowing, voluntary, and intelligent … . People v Pryor, 2023 NY Slip Op 03241, Second Dept 6-14-23

Practice Point: A guilty plea is not knowing, voluntary and intelligent unless the defendant is informed of the specific period of postrelease supervision and the maximum potential period of postrelease supervision. It is not enough simply to mention that postrelease supervision will be imposed.

 

, ,

DEFENDANT PEDIATRIC PRACTICE SUBMITTED EXPERT EVIDENCE PLAINTIFF’S ADOLESCENT SCOLIOSIS COULD NOT HAVE BEEN DIAGNOSED UNTIL A YEAR AFTER PLAINTIFF LEFT DEFENDANT’S CARE; PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS THAT ISSUE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant pediatric practice in this medical malpractice action was entitled to summary judgment. Plaintiff alleged the failure to diagnose scoliosis. Defendant submitted evidence that adolescent scoliosis could not have been diagnosed until a year after plaintiff left defendant’s care. Plaintiff’s expert’s affidavit did not address that issue:

… S.V. [defendant pediatric practice] established its prima facie entitlement to judgment as a matter of law by submitting, among other things, an affirmation of a physician board certified in orthopedic surgery. The expert opined that the care and treatment rendered by S.V.’s employees did not deviate from accepted medical practice, and that the injured plaintiff’s adolescent idiopathic scoliosis condition could not have been diagnosed until he reached adolescence, which did not occur for at least one year after he left S.V.’s care, during which time the injured plaintiff tested negative for the condition … . In opposition, the evidence submitted by the plaintiffs, including an affirmation of a physician, failed to raise a triable issue of fact. The plaintiffs’ expert failed to address the specific assertion of S.V.’s expert that the injured plaintiff did not develop adolescent idiopathic scoliosis until after he left S.V.’s care, and was otherwise speculative, conclusory, and unsupported by the record … . Lagatta v Rivera, 2023 NY Slip Op 03227, Second Dept 6-14-23

Practice Point: In this medical malpractice action, plaintiff’s expert did not address defendant’s expert’s prima facie proof on a dispositive issue. In that circumstance, defendant is entitled to summary judgment.

 

, ,

CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION; DEFENDANT, IN ITS MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT ON PROXIMATE CAUSE; THEREFORE PLAINTIFF, IN OPPOSITION, WAS NOT REQUIRED TO RAISE A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should not have been granted. Plaintiff’s decedent was diagnosed with a degenerative spine but died hours later of a heart attack:

To prevail on a motion for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing either that there was no departure from accepted community standards of practice or that any alleged departure was not a proximate cause of the plaintiff’s injuries … . “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” … . “Once a defendant makes a prima facie showing, ‘the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact’ as to the elements on which the defendant met the prima facie burden” … . “‘Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions'” … . * * *

… [T]he plaintiff raised triable issues of fact by submitting the affirmation of an expert who opined, based upon his review of, inter alia, the decedent’s medical records, among other things, that the decedent exhibited symptoms consistent with a myocardial infarction when he presented to the hospital emergency department, as well as a large scar from a prior cardiac surgery, and that the defendants departed from the accepted standard of medical care by failing to perform a cardiac workup on the decedent at that time … . Contrary to the defendants’ contention, the opinions of the plaintiff’s expert were not vague or conclusory … . Moreover, the plaintiff was not required to raise a triable issue of fact as to the element of proximate cause, as the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law as to that element … . Kielb v Bascara, 2023 NY Slip Op 03226, Second Dept 6-14-23

Practice Point: In opposition to a defense motion for summary judgment in a medical malpractice action, plaintiff need not address issues on which defendant did not make out a prima facie case. Here defendant did not make out a prima facie case on the issue of proximate cause and plaintiff, therefore, did not need to address that issue in opposition.

Similar issues and result in Lopresti v Alzoobaee, 2023 NY Slip Op 03228, Second Dept 6-14-23 (failure to diagnose testicular cancer; inadequate attempt to address proximate cause by submitting an expert affidavit with reply papers).

 

,

DEFENDANT PROPERTY OWNER DID NOT PROVE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON BLACK ICE WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate it did not have constructive notice of the black ice in the parking lot where plaintiff slipped and fell. Defendant did not submit evidence of when the area was last cleaned or inspected:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . Accordingly, a property owner seeking summary judgment in a slip-and-fall case “has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, [a] 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” … . Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged ice condition. The defendant provided no evidence regarding any specific inspection of the subject area prior to the plaintiff’s fall, and there are triable issues of fact as to whether the alleged ice condition had existed for a sufficient length of time before the accident such that the defendant could have discovered and corrected it … . Edwards v Genting N.Y., LLC, 2023 NY Slip Op 03223, Second Dept 6-14-23

Practice Point: To demonstrate a lack of constructive notice of a dangerous condition in a slip and fall case, a property owner must submit proof the area was inspected or cleaned close in time to the fall.

 

,

THE FLOOR IN THE BATHROOM WHERE PLAINTIFF SLIPPED AND FELL HAD RECENTLY BEEN MOPPED; THE DEFENDANT GROCERY STORE DID NOT PROVE THERE WAS AN ADEQUATE WARNING; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant grocery store’s motion for summary judgment in this slip and fall case should not have been granted. The bathroom floor where plaintiff fell had been mopped recently. There were questions of fact whether there was an adequate warning about the condition of the floor:

The evidence submitted by the defendants in support of the motion raised triable issues of fact as to whether Food Parade provided any warning about a potentially hazardous condition in the bathroom and whether any warning that was provided adequately gave notice that there was a hazardous condition inside the bathroom … . Darginsky v Food Parade, Inc., 2023 NY Slip Op 03222, Second Dept 6-14-23

Practice Point: Here plaintiff slipped and fell on a recently mopped floor. Defendant did not demonstrate there was an adequate warning of the condition. Defendant’s motion for summary judgment should not have been granted.

 

THE DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE THE FLOWER POT OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE CIRCUMSTANCES OF THE ACCIDENT RAISED A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate the flower pot over which plaintiff tripped was open and obvious and not inherently dangerous:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell over a white flowerpot located next to a white column on the landing of premises owned by the defendant. At her deposition, the plaintiff testified that, on the day at issue, she was standing on the landing outside the defendant’s front door speaking with the defendant, who was standing in the doorway. The plaintiff testified that when the defendant moved the outer screen door toward her, she stepped back into the object, lost her balance, and fell from the landing. …

… “[W]hether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … . “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” … . Therefore, “[w]hether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury” … .

… [T]he defendant failed to establish … the alleged condition was open and obvious and not inherently dangerous under the circumstances surrounding the accident … . Evans v Fields, 2023 NY Slip Op 03000, Second Dept 6-7-23

Practice Point: When defendant property owner opened the screen door, plaintiff stepped back, tripped on a flower pot and fell down the stairs. Under the circumstances, there is a question of fact whether the flower pot was open and obvious and not inherently dangerous.

 

,

PLAINTIFF-BANK’S MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny plaintiff-bank’s CPLR 306-b motion to extend the time for the service of the summons and complaint:

CPLR 306-b provides, in pertinent part, that “[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action . . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.”

“The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … . CPLR 306-b “empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative—the calculus of the court’s decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served” … .

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve Cruz with the summons and complaint in the interest of justice, considering, inter alia, the expiration of the statute of limitations, the meritorious nature of the plaintiff’s cause of action, the plaintiff’s prompt request for the extension, and the lack of demonstrable prejudice to [defendant]. Deutsche Bank Trust Co. Ams. v Lottihall, 2023 NY Slip Op 02999, Second Dept 6-7-23

Practice Point: The criteria for an “interest of justice,” versus a “good cause shown,” extension of time to serve the summons and complaint pursuant to CPLR 306-b explained.

 

, , ,

AFTER A DIVORCE PLAINTIFF SUED THE EX-WIFE AND HER ATTORNEYS ALLEGING FALSE ARREST, MALICIOUS PROSECUTION, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF JUDICIARY LAW 487; THOSE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the false arrest, malicious prosecution, intentional infliction of emotional distress and Judiciary Law 487 causes of action against defendant attorneys should have dismissed for failure to state causes of action:

The plaintiff and the defendant Janet P. Lezama were married … . … Lezama commenced an action for a divorce … in which she was represented by the defendants Dana Navins and Kass & Navins, PLLC … . After the divorce … , the plaintiff commenced this action against Lezama and the attorney defendants to recover damages for false arrest, malicious prosecution, negligent infliction of emotional distress, and violation of Judiciary Law § 487 based on allegations that the defendants concocted a “plan” to obtain a divorce against the plaintiff and obtain an excessive “financial settlement.” … [P]laintiff alleged that, as part of this plan, Lezama made false allegations of child abuse and criminal conduct against the plaintiff. * * *

“To be held liable for false arrest, [a civilian] defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his or her own volition” … . Similarly, to be held liable for malicious prosecution, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney” … . * * *

With respect to the intentional infliction of emotional distress cause of action, the improper conduct alleged was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . With respect to the Judiciary Law § 487 cause of action, the plaintiff failed to allege with specificity any material misstatements of fact made by the attorney defendants in the divorce action with the intent to deceive that court … . Tueme v Lezama, 2023 NY Slip Op 03036, Second Dept 6-7-23

Practice Point: The complaint did not state causes of action for false arrest, malicious prosecution, intentional infliction of emotional distress or violation of Judiciary Law 487, criteria explained.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy