You are here: / Third Department

Tag Archive for: Third Department

QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT).

The Third Department determined the defendant lessee’s motion for summary judgment in this negligence action based upon the placement of a propane heater in defendant’s store was properly denied. Plaintiff’s clothing caught fire when she stood near the stove:

… [P]laintiff relied upon a section of the then-applicable version of the Fuel Gas Code of New York State providing that an unvented room heater must be installed as directed by the manufacturer (see Fuel Gas Code of NY St § 621.1 [2007]). In turn, the manual for the heater at issue here provided, in accordance with standards established by the American National Standards Institute, that “[d]ue to high temperatures, [the] heater should be kept out of traffic” and should never be installed “in high-traffic areas.” The manual further stated that the heater was intended for supplemental use and should never be installed as a primary heat source. Plaintiff submitted defendant’s deposition testimony that he chose not to read or refer to the manual, although he was aware that it contained instructions about the safe placement of the heater. Significantly, he acknowledged that the heater was the store’s only source of heat. As for whether the heater was kept out of traffic, defendant stated that customers often spent several hours in the store during regularly-conducted gaming tournaments, that customers moving between the bathroom and certain tables and chairs used during these events would “pass right in front of the heater,” and that he had seen people walk past the heater to reach the bathroom and stand in front of it to warm themselves. While violations of rules such as the Fuel Gas Code do not establish negligence per se, they “do[] provide some evidence of negligence” … . Defendant’s testimony thus gave rise to triable issues of fact as to whether the heater’s placement violated the manufacturer’s instructions and whether defendant was negligent in placing it for use in the store. …

Viewing the facts in the light most favorable to plaintiff, as we must, we find that she demonstrated the existence of a triable issue of fact as to whether defendant’s negligence was a proximate cause of her injuries … . Palmatier v Mr. Heater Corp., 2018 NY Slip Op 05250, Second Dept 7-12-18

NEGLIGENCE (QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT))/HEATERS (NEGLIGENCE, QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT))

, ,

CITY DID NOT VIOLATE THE PUBLIC USE DOCTRINE AND COMPLIED WITH THE EMINENT DOMAIN PROCEDURE LAW AND THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) IN APPROVING THE TAKING OF LAND FOR A BICYCLE-PEDESTRIAN TRAIL (THIRD DEPT).

The Third Department, in a comprehensive decision describing the relevant law and procedures, determined the city had complied with the State Environmental Quality Review Act (SEQRA), the Eminent Domain Procedure Law and the prior public use doctrine in determining the taking of a strip of land for a bicycle-pedestrian trial would not have a significant adverse impact on the environment:

… [P]etitioners have failed to demonstrate how the City’s condemnation of the Village’s property would “interfere with or destroy the public use” … . Accordingly, the prior public use doctrine will not prevent the City from condemning the Village’s property. * * *

… [T]he City … performed the steps required in the SEQRA review process and considered areas of potential environmental concern, but failed to provide an adequate written explanation for its negative declaration. Upon realizing its mistake (albeit after receiving communications from petitioners complaining about the negative declaration), and before approving the condemnation of property in relation to the project, the City held a public meeting and formally adopted the supplemental resolution to remedy the defects in the July 2017 negative declaration … . Under the circumstances, remittal to the City for further environmental review or explanation of its determination would be redundant … . …

The City did not abuse its discretion in determining the scope of the proposed taking. Although a municipality cannot use the power of eminent domain to take “‘property not necessary to fulfill [a] public purpose, it is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill that purpose'” … . Matter of Village of Ballston Spa v City of Saratoga Springs, 2018 NY Slip Op 05248, Third Dept 7-12-18

EMINENT DOMAIN (CITY DID NOT VIOLATE THE PUBLIC USE DOCTRINE AND COMPLIED WITH THE EMINENT DOMAIN PROCEDURE LAW AND THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) IN APPROVING THE TAKING OF LAND FOR A BICYCLE-PEDESTRIAN TRAIL (THIRD DEPT))/CONDEMNATION (CITY DID NOT VIOLATE THE PUBLIC USE DOCTRINE AND COMPLIED WITH THE EMINENT DOMAIN PROCEDURE LAW AND THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) IN APPROVING THE TAKING OF LAND FOR A BICYCLE-PEDESTRIAN TRAIL (THIRD DEPT))/MUNICIPAL LAW (EMINENT DOMAIN, STATE ENVIRONMENTAL QUALITY REVIEW ACT, ITY DID NOT VIOLATE THE PUBLIC USE DOCTRINE AND COMPLIED WITH THE EMINENT DOMAIN PROCEDURE LAW AND THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) IN APPROVING THE TAKING OF LAND FOR A BICYCLE-PEDESTRIAN TRAIL (THIRD DEPT))/ENVIRONMENTAL LAW (EMINENT DOMAIN, STATE ENVIRONMENTAL QUALITY REVIEW ACT, ITY DID NOT VIOLATE THE PUBLIC USE DOCTRINE AND COMPLIED WITH THE EMINENT DOMAIN PROCEDURE LAW AND THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) IN APPROVING THE TAKING OF LAND FOR A BICYCLE-PEDESTRIAN TRAIL (THIRD DEPT))/BICYCLES (CITY DID NOT VIOLATE THE PUBLIC USE DOCTRINE AND COMPLIED WITH THE EMINENT DOMAIN PROCEDURE LAW AND THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) IN APPROVING THE TAKING OF LAND FOR A BICYCLE-PEDESTRIAN TRAIL (THIRD DEPT))/PEDESTRIANS (CITY DID NOT VIOLATE THE PUBLIC USE DOCTRINE AND COMPLIED WITH THE EMINENT DOMAIN PROCEDURE LAW AND THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) IN APPROVING THE TAKING OF LAND FOR A BICYCLE-PEDESTRIAN TRAIL (THIRD DEPT))

, ,

NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the New York City Department of Corrections (NYCDOC) was a necessary party in this proceeding contesting a jail time credit calculation. Although the issue was not raised below, a necessary-party issue can be raised for the first time on appeal but may not be corrected by an appellate court:

NYCDOC is a necessary party to this proceeding “because petitioner is seeking additional credit for jail time spent in correctional facilities in New York City [under NYCDOC] and, if petitioner is successful, [NYCDOC’s] commissioner will be required, pursuant to . . . Correction Law [§ 600-a], to recompute petitioner’s jail time and deliver a certified transcript of the record of petitioner’s jail time”…

While respondent did not raise this issue in Supreme Court, it is well-established that “‘a court may always consider whether there has been a failure to join a necessary party’, including on its own motion, and for the first time on appeal” … . As this Court “may not, on its own initiative, add or direct the addition of a party[,] . . . the matter must be remitted to Supreme Court to order [NYCDOC] to be joined if [it] is subject to the jurisdiction of the court and, if not, to permit [its] joinder by stipulation, motion or otherwise and, if joinder cannot be effectuated, the court must then determine whether the proceeding should be permitted to proceed in the absence of [a] necessary part[y]” … . Matter of Velez v New York State, Dept. of Corr. & Community Supervision, 2018 NY Slip Op 05243, Third Dept 7-11-18

CIVIL PROCEDURE (NECESSARY PARTY, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/CPLR 1001 (NECESSARY PARTY, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/NECESSARY PARTY (CIVIL PROCEDURE, APPEALS, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/CRIMINAL LAW (JAIL TIME CREDIT CALCULATION, (NECESSARY PARTY, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/NEW YORK CITY DEPARTMENT OF CORRECTIONS (NYCDOC) (JAIL TIME CREDIT CALCULATION, (NECESSARY PARTY, NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))/APPEALS (NECESSARY PARTY,  NEW YORK CITY DEPARTMENT OF CORRECTIONS WAS A NECESSARY PARTY TO THIS JAIL TIME CALCULATION PROCEEDING, ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL, MATTER REVERSED AND REMITTED (THIRD DEPT))

, , , ,

CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT).

The Third Department determined that municipal code provisions requiring a rental permit and limiting the occupancy of rental units to a “family” as defined in the code were not unconstitutionally vague:

The record therefore reflects that the rental occupancy restriction was enacted to, among other things, serve a legitimate governmental interest in diminishing public nuisances created from the overcrowding of dwelling units occupied by transient residents … . Because the ordinance does not favor certain types of families over others, or restrict the size of unrelated persons living as a functionally equivalent family without also restricting the size of a traditional family, it does not suffer from the same constitutional infirmities as the ordinances in McMinn v Town of Oyster Bay (66 NY2d at 549) or Baer v Town of Brookhaven (73 NY2d 942, 943 [1989]). Moreover, the ordinance here contains objective criteria for rebutting the presumption that four or more persons living together in a single dwelling unit who are unrelated by blood, marriage or legal adoption do not constitute the functional equivalent of a traditional family … , and the occupancy restriction bears a reasonable relationship to the goals sought to be achieved by the ordinance. In light of the foregoing, plaintiffs have not established that the challenged provisions of the ordinance are unconstitutional … . Grodinsky v City of Cortland, 2018 NY Slip Op 05236, Third Dept 7-12-18

MUNICIPAL LAW (LANDLORD-TENANT, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))/LANDLORD-TENANT (MUNICIPAL LAW, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))/CONSTITUTIONAL LAW (MUNICIPAL LAW, LANDLORD-TENANT, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))

FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT).

The Third Department determined defendants’ motion for summary judgment on the “failure to warn” cause of action in this products liability case was properly denied. Plaintiff’s clothing caught fire when she stood near a propane heater manufactured and sold by defendants:

Plaintiff submitted the pertinent ANSI standard for warning labels on unvented propane heaters, which specifies certain language to be used in such warnings and establishes minimum heights for the warning’s lettering and a minimum distance at which the warnings must be legible. Plaintiff further submitted photographs of the warning label on an exemplar heater matching the one at issue here, supported by an affidavit from the professional photographer who took the pictures…. Plaintiff’s counsel asserted in his affirmation that these letter heights are significantly smaller than the ANSI standard’s minimum requirements and are therefore too small and inconspicuous to comply with that standard or to constitute an adequate warning label. * * *

… .[P]laintiff’s testimony that she did not look at the heater immediately before the accident does not establish as a matter of law that she would not have seen and read sufficiently conspicuous warnings on prior occasions and heeded them at the time of the accident. Palmatier v Mr. Heater Corp., 2018 NY Slip Op 05238, Third Dept 7-12-18

PRODUCTS LIABILITY (FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))/FAILURE TO WARN (PRODUCTS LIABILITY, FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))/PROPANE HEATER (PRODUCTS LIABILITY, FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT))

WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s plea to a superior court information (SCI), determined the SCI did not contain a charge held for the action of a grand jury or a lesser included offense. Therefore the SCI was jurisdictionally defective:

… [T]he waiver of indictment and SCI were jurisdictionally defective because the crime charged in the SCI was not “an[] offense for which . . . defendant was held for action of a grand jury” … , nor was it a lesser included offense of the crimes charged in the felony complaints. On this latter point, “a defendant may waive indictment and plead guilty to an SCI that names a different offense from that charged in the felony complaint only when the crime named in the SCI is a lesser included offense of the original charge”… . “A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense”… .

Reckless endangerment in the first degree is not a lesser included offense of either menacing a police officer or criminal possession of a weapon in the second degree because it would be entirely possible to possess or display the weapons required to commit either of the greater crimes, i.e., menacing a police officer (see Penal Law § 120.18) or criminal possession of a weapon in the second degree … , without concomitantly “recklessly engag[ing] in conduct [that] creates a grave risk of death to another person” — a required element of reckless endangerment in the first degree … . People v Hulstrunk, 2018 NY Slip Op 05234, Third Dept 7-12-18

CRIMINAL LAW (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/WAIVER OF INDICTMENT (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/SUPERIOR COURT INFORMATION (SCI)  (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/RECKLESS ENDANGERMENT  (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))/MENACING A POLICE OFFICER (WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT))

IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WHICH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT).

The Third Department affirmed defendant’s conviction and noted (1) it is not reversible error if defendant is not present at a sidebar which results in the grant of a peremptory or for cause challenge to a juror, and (2) an order of protection cannot be issued on behalf of someone who did not actually witness the crime (here a shooting):

Even if defendant was erroneously excluded from the sidebar conferences, “the error is not reversible if that potential juror has been excused for cause by the court or as a result of a peremptory challenge by the People”… . Because the record makes clear that juror Nos. 104 and 220 were dismissed for cause, remittal for a reconstruction hearing … or reversal for a new trial is not necessary … . * * *

A court may enter an order of protection for the benefit of a witness “who actually witnessed the offense for which defendant was convicted” (…see generally CPL 530.13 [4] [a]). Although Galaska testified that, on the date in question, he saw people screaming and arguing outside his apartment and the victim taking pictures, he further stated that he did not see who shot the victim and also admitted that he did not recognize any of the individuals who were arguing. Because Galaska did not witness the shooting, the order of protection issued in his favor must be vacated. People v Myers, 2018 NY Slip Op 05225, Third Dept 7-12-18

​CRIMINAL LAW (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/SIDEBARS (CRIMINAL LAW, (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/JURORS (CRIMINAL LAW, (IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WITH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))/ORDERS OF PROTECTION (CRIMINAL LAW, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT))

​

,

PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff’s claim for treble damages in this timber trespass claim should not have been dismissed. There was a question of fact whether defendant made adequate efforts to ensure the timber was not taken from plaintiff’s land:

Defendant concedes that it trespassed upon the subject property and cleared trees, rendering it liable (see RPAPL 861 … . Accordingly, in order to avoid an award of treble damages, defendant was obliged to show by clear and convincing evidence that it “had cause to believe . . . [that it had] a legal right to harvest” timber from the subject property (RPAPL 861 [2]…). Defendant endeavored to do so with the deposition of its vice-president, who stated that D’Assy represented that he had obtained permission from plaintiff to remove trees from the subject property. The vice-president acknowledged, however, that no efforts were made to confirm that D’Assy’s account was correct. He further admitted that he did not recall if this conversation with D’Assy occurred before or after the actual trespass. The foregoing proof, particularly in view of the aim of RPAPL 861 to encourage timber harvesters to be more diligent in preventing inadvertent timber trespass … , is not at all clear as to whether defendant had a good faith basis for believing that it had permission from plaintiff to remove timber from the subject property at the time it did so. Defendant therefore failed to meet its initial burden of demonstrating the absence of “factual questions with regard to whether plaintiff is entitled to treble damages pursuant to RPAPL 861” … .

Finally, plaintiff correctly points out that he is entitled not only to “‘the stumpage value or $250 per tree, or both’ for an unlawful taking” … , but also reparations for “any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation” … . Supreme Court, upon remittal, should consider all of those items in calculating its award of damages. DiSanto v D’Assy, 2018 NY Slip Op 05007, Third Dept 7-5-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (TIMBER TRESPASS, PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT))/TIMBER TRESPASS (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT))

, ,

PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court determined plaintiff, who alleged he was punched in the face by defendant bar’s employee (Bonawitz), properly pled causes of action against the bar for negligent hiring and supervision, as well as vicarious liability. Although vicarious liability requires the employee to be acting within the scope of his employment, and a negligent hiring and supervision cause of action requires that the employee act outside the scope of employment, pleading inconsistent theories in the alternative is allowed. The court noted that the “breach of the duty to keep the premises safe” cause of action was properly dismissed because it constituted an attempt to plead vicarious liability for an intentional tort as negligence to avoid the one-year statute of limitations for intentional torts:

The second cause of action alleges that the employer defendants negligently hired and supervised Bonawitz. Supreme Court dismissed this cause of action based on cases holding that, “[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondent superior, and the plaintiff may not proceed with a claim to recover damages for negligent hiring, retention, supervision, or training” … . The rationale for this rule “is that if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training” … . As is apparent from these cases, however, this rule applies where the employee is alleged to have acted negligently, not intentionally.

Plaintiff has adequately alleged that the employer defendants negligently hired, supervised and retained Bonawitz even though they knew or should have known of his propensity to assault or intentionally inflict harm on others … . Moreover, the negligence of an employer is not transformed into intentional conduct simply because the employee’s wrongful conduct was intentional … . Thus, plaintiff’s allegations of negligence were timely asserted within the applicable three-year statute of limitations (see CPLR 214 [5] …).

Plaintiff did not directly allege that Bonawitz was acting within the scope of his employment when he punched plaintiff. Even if such allegations were included, allegations of vicarious liability, though incompatible with a claim of negligent hiring and supervision, do not require dismissal because a plaintiff may plead inconsistent theories in the alternative … . McCarthy v Mario Enters., Inc., 2018 NY Slip Op 05006, Third Dept 7-5-18

​NEGLIGENCE (EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/EMPLOYMENT LAW (NEGLIGENCE, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/CIVIL PROCEDURE (STATUE OF LIMITATIONS, INTENTIONAL TORTS, ,EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/CPLR 214 (STATUE OF LIMITATIONS, INTENTIONAL TORTS, ,EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/INTENTIONAL TORTS (STATUTE OF LIMITATIONS, EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/THIRD PARTY ASSAULTS (NEGLIGENCE, EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))

, ,

ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s motion for leave to file a late notice of claim against her school based upon bullying and harassment should not have been denied. Before plaintiff turned 18, her father made a motion for leave to file a late notice of claim which was denied because of improper service. When plaintiff turned 18 she made the motion on her own behalf. Because the statute of limitations was tolled until plaintiff turned 18 (CPLR 208) her motion was timely. The Third Department determined the school had timely notice of the claim, plaintiff had introduced some evidence the school would not be prejudiced, meeting her burden, and the school’s demonstration of prejudice was speculative and otherwise inadequate:

Here, our review of the record reveals that defendant had actual knowledge of the alleged harassment, intimidation and bullying within a reasonable time … .

… [P]laintiff was initially required to “present some evidence or plausible argument that supports a finding of no substantial prejudice”… . She did so by submitting the … evidence that defendant knew of plaintiff’s claims and was able to investigate at least one of the incidents shortly after it occurred, as well as screen images taken from defendant’s website indicating that relevant school officials were still employed at the time of the motion. …

The burden thus shifted to defendant “to rebut [plaintiff’s] showing with particularized evidence” … . In this regard, defendant’s counsel asserted by affirmation that the incidents were no longer fresh in witnesses’ memories as a result of the passage of time and that any witnesses “would likely be children” who might have graduated or whose memories might have faded … . However, a finding of substantial prejudice “cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence on the record” … . Sherb v Monticello Cent. Sch. Dist., 2018 NY Slip Op 05004, Third Dept 7-5-18

​EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW,  ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/CIVIL PROCEDURE (NEGLIGENCE, EDUCATION-SCHOOL LAW, TOLLING PROVISION, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/CPLR 208 (NEGLIGENCE, EDUCATION-SCHOOL LAW, TOLLING PROVISION, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))

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