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Question of Fact Whether Wife of Decedent Had Abandoned Decedent

The Third Department determined that a question of fact had been raised about whether decedent’s wife had abandoned decedent such that she should be disqualified as surviving spouse:

A person may be disqualified from inheriting from his or her deceased spouse where the surviving “spouse abandoned the deceased spouse, and such abandonment continued until the time of death” (EPTL 5-1.2 [a] [5]).  The party asserting abandonment bears the burden of establishing that the surviving spouse departed from the marital abode and that such departure was both “unjustified and without the consent of the other spouse” ,,, .  In determining whether one spouse has abandoned the other, a court employs the same standards as are applied in the context of an action for a separation or divorce based on abandonment … . Matter of Yengle…, 516840, 3rd Dept 1-9-14

 

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Disclosure of Appraisal Documents Not Entitled to Conditional Immunity Even If Prepared Solely for Litigation/No Other Way for Claimants to Obtain Relevant Evidence

In a matter related to the taking of property for the construction of a highway, the Third Department determined the claimants were entitled to an appraisal done by the defendants, even if the documents were prepared solely in anticipation of litigation.  The claimants demonstrated that they had no other avenue to obtain the evidence relevant to their claims:

Even if the documents were prepared solely in anticipation of litigation, claimants demonstrated that the conditional immunity should not prevent disclosure because they have a substantial need and an inability to otherwise obtain the documents.  … The Court of Claims … acknowledged that the subpoenaed documents were relevant to the claim for property damage, to prove the condition of the property immediately before the construction.  Thus, even if the documents were drafted solely for litigation purposes, the appraisal and supporting documents would be subject to disclosure based on claimants’ substantial need and their lack of another source for that proof (see CPLR 3101 [d] [2]). Lerner v State of New York, 516774, 3rd Dept 1-9-14

 

Employer Reimbursed for Personal Leave Credits Used During Employee’s Disabilty

The Third Department determined that the employer should be reimbursed for the personal leave credits used by an employee during the period of disability.  The employee’s receiving full wages plus the leave time pay justified the reimbursement:

The circumstances presented here are distinguishable from Matter of Poupard v Mohonasen Cent. School Dist. (56 NY2d 764, 765 [1982]) and Matter of Jefferson v Bronx Psychiatric Ctr. (55 NY2d at 71), the cases relied on by the Board.  There, the employees charged time during disability to their accrued sick leave credits and, pursuant to their respective collective bargaining agreements, such used sick leave credits could not be restored.  Because the employees could later convert their accrued sick leave credits into retirement service credits, the loss of those credits resulted in a permanent benefit to the employers.  …

…[H]ere, the denial of reimbursement for payments related to personal leave credits would result in claimant receiving both full wages and compensation benefits for the time in question.  Such a result is disfavored and requires that reimbursement be granted to the employer… . Matter of Mott v Central New York Psychiatric Center…, 516708, 3rd Dept 1-9-14

 

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Dismissal of Slip and Fall Case at Summary Judgment Stage Was Premature Where Relevant Evidence Is Entirely Within the Control of the Defendants

The Third Department determined summary judgment granted to the village and county in a slip and fall case should have been denied.  Plaintiff tripped on patched pavement on an approach to a bridge.  There was a question of fact whether the county or the village was responsible for repairs in that area.  Because the information regarding the repairs was totally beyond the control of the plaintiff, dismissal at the summary judgment stage was premature:

…[P]laintiffs have not produced any direct evidence that either the County or the Village performed the patching that plaintiffs’ expert says caused plaintiff’s injury.  Notably, however, neither defendant produced written policies, repair logs, inspection reports or other documentation – other than the survey – to support their respective claims; both deny that any pertinent records exist and rely exclusively upon the testimony of their officials.  The pertinent facts are entirely outside plaintiffs’ knowledge and within the exclusive knowledge of the parties moving for summary judgment – a circumstance in which summary judgment is inappropriate … .  In the absence of direct evidence, plaintiffs are forced to rely solely on circumstantial evidence to oppose defendants’ summary judgment motion – that is, the inference that, given the claim of each defendant that the other bears responsibility for maintaining the bridge approach, and the dearth of evidence that any other entity has such responsibility or authority, one of them must have performed the repairs that allegedly caused plaintiff’s accident … .   In these circumstances, “[a]lthough plaintiffs clearly will bear the burden of proof on the issue at trial, they raised sufficient issues of fact in the context of [these] summary judgment motion[s] to warrant having the circumstantial evidence and defendants’ credibility concerning the [creation of the defect] tested by cross-examination and assessed by the trier of fact”… . Guimond v Village of Keeseville, 515869, 516320, 3rd Dept 1-9-13

 

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Crude Conduct Not Motivated by Petitioners’ Gender/Case of Same Sex Discrimination Not Made Out

The Third Department determined a case of “same sex” sex discrimination had not been made out.  The petitioners (Bargy and Colon) are male.  The conduct complained of related to the supervisor’s (Andross’) bringing a woman to the hotel room in which all three men were staying during a construction project and having sex with her.  After a dispute between the petitioners and the woman, the supervisor fired them:

Here, neither the written complaints nor testimony of Bargy or Colon set forth any allegations or indication of how Andross’ conduct was motivated by their gender or that their grievances to petitioner were ignored because of their gender.  The ALJ’s decision does not refer to any proof supporting a finding that complainants’ gender was relevant to, or a reason for, the conduct.  Of the recognized paths for showing same-sex discrimination, the only one even arguably applicable is harassment based on gender-stereotyping.  However, the ALJ made no such finding.  … We fully agree that Andross’ conduct was crude, coarse and grossly unprofessional; nevertheless, in the absence of proof of gender-based discrimination, such conduct does not establish a claim.  We are constrained by the record to conclude that there is not substantial evidence that the conduct was caused by or related in any relevant fashion to complainants’ gender … . Matter of Arcuri v Kirkland…, 516735, 3rd Dept 1-9-14

 

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Valid State Purpose (Conserving Drinking Water) Did Not Relieve State of Liability Re: Breach of an Agreement to Provide a Certain Amount of Water to a Hydroelectric Power Provider

The Third Department determined that a contract with a hydroelectric power provider requiring a certain amount of water to be released from a reservoir was unambiguous and therefore must be enforced.  The amount of water released was less than called for in the contract due to a drought and concerns about the drinking water supply:

The parties to the agreement intended to resolve a dispute after defendants took claimant’s predecessor’s land in eminent domain.  Claimant’s predecessor wanted to ensure that sufficient water would reach its hydroelectric generation facility and accepted a considerably smaller amount of money than it sought, in exchange for the rights associated with the water release rates from the reservoir.  These rights would be far less valuable if defendants could deviate from the operating diagram’s release rates, and avoid liability in doing so, as long as defendants supported their actions with any State purpose. Pursuant to the agreement, defendants could only avoid liability if they deviated from the operating diagram’s release rates for a State canal use or purpose.  Because defendants altered the release rate for the purpose of preserving safe drinking water during a drought – a legitimate public and State purpose (see ECL 15-0105 [5]) – and not for a canal-related purpose, defendants are liable for breaching the contract… .  Erie Boulevard Hydropower v State, 516510, 3rd Dept 1-9-14

 

Sunset Provision in a Deed Which Referred to “Restrictions” Did Not Affect “Easements” or “Reservations”

The Third Department determined that a sunset provision in a deed which referred to restrictions did not affect easements or reservations.  The provision in the deed which created an easement for utilities, therefore, was valid and enforceable:

Restrictions “restrain servient landowners from making otherwise lawful uses of their property” …, and Schedule A contains various paragraphs restricting, for example, the construction of certain kinds of buildings and the raising of animals on defendants’ property.  These are sometimes referred to as negative easements, as opposed to a reservation to the grantor of an affirmative easement to maintain utility lines on defendants’ property … .  We view the common grantor’s failure to refer to reservations in the sunset provision as a deliberate choice to avoid the termination of easements on January 1, 2005.  Johnson v Zelanis, 516184, 3rd Dept 1-9-14

 

Growling and Baring Teeth Insufficient to Raise Question of Fact About a Dog’s Vicious Propensities

The First Department noted that a dog’s growling and baring its teeth is not sufficient evidence to raise a question of fact re: the dog’s vicious propensities:

No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog’s vicious propensities … . Here, the evidence, which establishes only that defendant’s dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog’s vicious propensities. Accordingly, defendant is entitled to summary judgment dismissing the complaint.   Gervais v Laino, 2013 NY Slip Op 08819, 1st Dept 12-31-13

 

Homeowner Did Not Create Dangerous Condition (Wet Leaves on a Slope)/Condition Was Open and Obvious (No Duty to Warn)

The Third Department affirmed the grant of summary judgment to the defendants homeowners in a slip and fall case.  Plaintiff, who was following the homeowner as they walked around the house counting windows, slipped on a slope adjacent to the house which was covered with wet leaves.  The court determined defendants did not create the hazardous condition and had no duty to warn of the condition:

“Generally, landowners both owe a duty to exercise reasonable care in maintaining their property in a reasonably safe condition and have a duty to warn of a latent, dangerous condition of which the landowner is or should be aware” … . However, the landowner’s duty to warn “does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses” … .  As the movants, defendants were required to “make a prima facie showing of entitlement to judgment as a matter of law” … .

Defendants satisfied their threshold burden, as the moving parties, by establishing … that they exercised reasonable care by maintaining the premises year round and in a seasonally appropriate manner, and that they did not create the condition, which occurred as a result of natural seasonal changes.  Notably, plaintiff’s fall did not occur on a pathway, walkway or driveway but, rather, on the surface of the ground along the side of the house on the unaltered natural contour of the land in an area that was exposed to the elements; it was not foreseeable that someone would traverse on this obviously slippery terrain so as to impose an obligation on the owners to take precautions such as clearing the ground area of leaves and debris … .

Moreover, defendants’ proof established that the slippery condition of the leaf and debris-covered natural, unimproved downward slope was an open and obvious hazard, as opposed to a latent or concealed one, in that the danger “could not be overlooked by any observer reasonably using his or her ordinary senses”…. . Freeese v Bedford, 516863, 3rd Dept 12-26-13

 

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No Constructive Notice of Peeling Paint in Lead-Paint Exposure Cases

The Third Department determined summary judgment was properly granted to defendants in a lead-paint exposure case.  Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling paint in the apartment:

To raise a triable issue of constructive notice, plaintiff was required to show “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment. Plaintiff failed to make that showing with respect to the Chapman factor requiring defendants’ awareness that paint was peeling in the apartment.  Cunningham v Keehfus, 516733, 3rd Dept 12-26-13

The Third Department affirmed the same result in another lead-paint exposure case:

Here, defendant acknowledged that he knew that the building was old, was aware that young children lived in the basement apartment, had the right to enter the apartment to make repairs, and did so.  However, he testified that he “didn’t know anything about lead poisoning” before the October 1990 inspection, did not remember peeling or chipping paint in the apartment and did not know that lead hazards had twice been identified in the building before he purchased it.   This testimony was sufficient to establish on a prima facie basis that defendant did not have constructive notice of a lead hazard before October 1990, shifting the burden to plaintiff to establish triable issues of fact… .

…[T]he record includes no evidence that the prior owner told defendant about the building’s previous lead problems or that defendant otherwise had an opportunity to learn about them; the mere fact that they were acquainted does not give rise to a triable issue of fact. Nor was it shown that defendant – who testified that his education and reading skills were limited – was sophisticated in the ownership and maintenance of rental properties or otherwise experienced in areas that should have familiarized him with lead poisoning issues … Accordingly, plaintiff failed to establish the existence of a triable issue of fact as to whether defendant had constructive notice of a lead hazard before the October 1990 inspection… . Williams v Thomas, 516741, 3rd Dept 12-26-13

 

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