On the Sidewalks of New York

Tree wells are not a part of sidewalks, at least not for purposes of Administrative Code of the City of New York § 7-210, which requires owners of real property to maintain abutting sidewalks in reasonably safe condition, or so said the First Department, in Vucetovic v. Epsom Downs, Inc., which was decided on September 6, 2007.

The court noted that, pursuant to Administrative Code § 19-101[d], a "sidewalk" is "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." The court concluded that tree wells are not intended for pedestrian use, "and therefore they are not part of the sidewalk."

Two judges filed a lengthy dissent, pointing to § 7-210(b) which reads, in pertinent part, that "[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk." The dissenters concluded that the Code expressly acknowledges that an owner's duty extends beyond merely repairing sidewalk flags or removing ice and snow, and that it runs to tree wells.

Plaintiffs' decedent, a supervising engineer at Brooklyn's Woodhull Hospital, was investigating a missing fan belt in the heating and cooling system, when he fell 30 feet from a narrow beam between two catwalks.

Plaintiffs commenced an action against decedent's employer, New York City Health and Hospitals Corporation, and the City of New York, alleging, among other things, violations of Labor Law §§ 240(1) and 241(6).

The Second Department found that decedent was injured doing routine maintenance involving the replacement of a missing component, and not while involved in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," so as to fall within the protective ambit of § 240(1), in English v. City of New York, which was decided on September 4, 2007.

In addition, the court found § 241(6) inapplicable, since decedent was not working in a construction area, and the accident did not occur in connection with construction, demolition, or excavation work.

In 1989, defendant executed a promissory note in favor of plaintiff's predecessor-in-interest, Chemical Bank. On his loan application, defendant gave a Brooklyn address as his residence and stated that he had been living there for 20 years. Defendant defaulted and, in 1994, Chemical Bank commenced an action to collect on the note. A summons and complaint was allegedly served on defendant by personal delivery to defendant's aunt, at the address listed on the note. Plaintiff contends that the summons and complaint was also mailed to that address.

In 1992 defendant was arrested on an unrelated matter, and, though plaintiff was unaware of it, he was incarcerated until 2005.

When defendant failed to respond to service of the summons and complaint in this action, Chemical Bank moved for a deficiency judgment on default, which was granted in 1994, in the amount of $47,543.64. In 1997, this unsatisfied judgment was assigned to plaintiff. It was filed with the Clerk of Kings County in 1999, and became a lien upon any real property owned by defendant in Kings County. A renewal of the judgment was entered in 2005.

In 2006, plaintiff moved for an order authorizing the Kings County Sheriff to mail all required papers in aid of execution of the 1994 judgment to defendant's last known address in Brooklyn, and to his counsel. Plaintiff also sought to amend the caption in this action to substitute its name for Chemical Bank.

The First Department denied defendant's cross-motion, in which he claimed a lack of personal jurisdiction and sought to dismiss the action and to vacate the 1994 judgment, in The Cadle Company v. Nunez, which was decided on September 6, 2007. The court found the record clear that service of a copy of the summons and complaint had been made to a person of suitable age and discretion, in conformity with statutory requirements, and that after such service plaintiff mailed the summons and complaint to defendant at his last known address, in satisfaction of the jurisdictional requirements of CPLR 308(2).

The court noted that plaintiff produced the process server as its only witness at the traverse hearing, and credited his testimony. The court further noted that defendant "produced four witnesses, all of whom were interested parties. Further, their testimony was rife with contradictions and inconsistencies. For example, defendant's aunt, the relative named on the affidavit of service testified that she could not have been the brown haired woman described in the affidavit of service because her hair color is blonde. However, upon production of her passport, she admitted that her hair is and was brown."

Defendant produced three other witnesses -- two relatives and his business partner -- but the court said that their testimony was tailored to show that defendant did not have notice of the action, and the court found their testimony incredible as a matter of law.

In a dispute involving home improvements which plaintiff was hired to perform for defendants, defendants did not answer and plaintiff was given a default judgment. Defendants moved to vacate, pursuant to CPLR 5015(a)(5), on the sole ground that they never received process or other notice of the suit until after the judgment was issued and their bank account was frozen.

In opposing the motion, plaintiff alleged that service of process was effected upon defendants' doorman as a person of suitable age and discretion, followed by the requisite mailing and the filing of an affidavit of service, as permitted by CPLR 308(2). Plaintiff also offered into evidence, by affidavit, a follow-up notice advising defendants of the suit, pursuant to CPLR 3215(g).

The Second Department said that the motion to vacate was premature, and ordered a hearing to determine whether service of process had been effected, thereby resolving the jurisdictional issue, in CLE Assoc., Inc. v. Greene, which was decided on August 7, 2007. The court said that, in the absence of that hearing, it was impossible to say whether defendants had a meritorious defense and a reasonable excuse for failing to appear, both of which would be necessary for their motion to be granted.

The Second Department granted plaintiffs' motion to restore the action to active status and to extend their time to serve and file a note of issue, even though, six months earlier, a certification order provided for dismissal if plaintiffs failed to file a note of issue within 30 days, in Ratway v. Donnenfeld, which was decided on August 21, 2007.

The court said that the certification order did not constitute a 90-day demand pursuant to CPLR 3216 since it gave the plaintiffs only 30 days within which to file the note of issue, and so, with that failure of a condition precedent, the action could not have been dismissed. The court noted that, since plaintiffs were not moving to reinstate the note of issue, they were not required to demonstrate a meritorious action pursuant to 22 NYCRR 202.21[f]).

Plaintiff was granted leave to amend her bill of particulars, and to plead an additional theory of negligence which first came to light about a month after the note of issue was filed, in Cherebin v. Empress Ambulance Serv., Inc., which was decided by the First Department on August 30, 2007.

The court noted that leave to amend pleadings, including a bill of particulars, is to be freely given, absent prejudice or surprise, and that, in the absence of prejudice, mere delay is insufficient to defeat the proposed amendment. If the delay is an extended one, though, plaintiff must offer an affidavit of reasonable excuse and an affidavit of merit.

The court gave short shrift to defendant's allegations that plaintiff's new theory of liability was a surprising, substantial departure from the one articulated in the original bill of particulars, noting that the amendment is based on defendant's own records and the depositions of its own employees, all of which has been readily available to defendant since at least the time of the motion. The court did, though, grant defendant further, reasonable discovery on the new theory.

The so-called Dead Man's Statute, as codified in CPLR 4519, applies in a disciplinary context, or so said the First Department, in Matter of Zalk, which was decided on August 23, 2007. Charged with taking from his escrow account funds which, if not for his claim to them, would otherwise belong to his recently-deceased client's estate, the attorney was relying on his explanation that his client, before her death, gave him the funds remaining in his escrow account from the sale of her property, as payment for ten years of unpaid legal services.

The court noted that, "for the statute to apply, the testimony in question must be (1) upon the hearing on the merits of a special proceeding, (2) by a person interested in the event being examined as a witness in his own behalf or interest, (3) against the executor, administrator or survivor of a deceased person, (4) concerning a personal transaction or communication between the witness and the deceased person." The court found all four elements, and determined that the statute clearly applies.

Importantly, though, the court said that the Dead Man's Statute does not apply to the issue of mitigation, and that the attorney's offer of evidence of his conversation with his deceased client is admissible in the context of determining the nature of the discipline to be imposed.

There was a brief but pointed dissent which expressed puzzlement at that, and which would have found that the statute applies in every aspect of a disciplinary proceeding. The dissent characterized the attorney's evidence as "self-serving and otherwise unsupported," and would not have admitted it.

The First Department rejected plaintiff's claim for treble damages, and, what is more, reduced the jury's damages award from $400,000 to $15,000, in Glatzer v. Michael F. Hanley Moving & Stor., Inc., which was decided on August 23, 2007.

In saying that the damages awarded deviated materially from what would be reasonable compensation under the circumstances, the court noted that plaintiff's testimony was, in key respects, contradicted by an affidavit he himself had submitted, and that his testimony was riddled with inconsistencies which made it "unworthy of belief."

Plaintiff, a 40-year-old woman in her first year at the county's community college, enrolled in a backpacking course to satisfy the school's physical education requirement. Plaintiff testified that she thought it would be the least strenuous of the several courses available. In the session at issue, students were divided into two teams, and the gym instructor directed them to perform a number of activities, one of which plaintiff had never heard of, much less participated in. As part of the activity, a rope was tied to the back of two folding chairs and the instructor told the students that each team member had to go over the rope without touching it. If any team member touched the rope, the team had to start over. Team members were also instructed that each of them had to remain in physical contact with another team member while clearing the rope.

After plaintiff made several unsuccessful attempts to clear the rope on her own, she told her teammates that she could not do it and that they should continue without her. The gym instructor, who had been watching from the back of the room, approached the members of plaintiff's team, and, pointing to the other team, said, "Let me give you a hint." One member of the other team was positioned so that his left knee was on the floor and his right knee was extended and parallel to the floor. His teammates were using the upper part of his right leg as a prop to step over the rope. Plaintiff's team tried it, but, in executing the step, plaintiff lost her balance, and her foot slammed to the floor, resulting in leg and ankle fractures.

The Second Department denied defendant's summary judgment motion, in Calouri v. County of Suffolk, which was decided on August 21, 2007. The court noted that, under the doctrine of assumption of the risk, a voluntary participant is deemed to have consented to any apparent or reasonably foreseeable consequences of engaging in a sport. However, "[u]nder these circumstances, where the plaintiff was a neophyte with regard to the activity she was directed to perform, the doctrine of assumption of risk should not be applied with the same force as in the case of an experienced athlete. The relationship between the gym instructor, on the one hand, and the plaintiff, a complete novice, on the other, was such that, for all intents and purposes, the gym instructor was the plaintiff's superior whose directions she was obliged to follow. Accordingly, a triable issue of fact exists as to whether the plaintiff acted voluntarily in attempting the strategy suggested by the gym instructor and whether the doctrine of assumption of risk applies to this case."

The First Department found defendant's summary judgment motion timely, in view of a prior court order, which had been issued by another justice of coordinate jurisdiction, extending the time to make the motion, in Fernandez v. Laret, which was decided on August 23, 2007.

On the merits, the court dismissed the negligence claim based on defendant's unrebutted testimony that his car was stopped when it was struck. In addition, the court said that plaintiff's deposition, replete with internal contradictions, was clearly coached and tailored, creating only a feigned issue of fact as to whether defendant's car was moving at the time of the accident.

In New York, there is no cause of action for seduction, pursuant to Civil Rights Law § 80-a, and, if that is what it comes down to, it cannot be couched as a claim for breach of fiduciary duty or intentional infliction of emotional distress, at least according to the First Department, in Marmelstein v. Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, which was decided on August 23, 2007.

Plaintiff alleged that defendant, who she said represented himself as "an advisor, a father figure and a god," induced her to engage in a sexual relationship "as part of a course of sexual therapy which he represented would lead to her achieving her goals of marriage and children."

The court, though, noted that, while plaintiff claims that defendant held a position as fiduciary, there is no claim that he held himself out to be a professional counselor, that the parties had a professional relationship, that he was trained to be a therapist in any particular specialty or even that he was counseling her in a specific area. All she did claim was that he had had counseled her on her personal, legal and financial problems. "That plaintiff may have succumbed to defendant's persuasive power and may have been exploited by him for his own sexual gratification is insufficient to impose a legal duty on him, entitling plaintiff to the recovery of damages. She must allege more than her subjective belief in defendant's rectitude and honesty. A fiduciary duty cannot be imposed unilaterally."

The court further noted that an informal fiduciary relationship has been found to exist between friends or family members in cases where there has been a pecuniary injury. Here, however, the alleged harm was sexual exploitation, and, by statute, that is not actionable in New York.

Since the cause of action for intentional infliction of emotional distress is founded on the sexual relationship, it too is barred by § 80-a and was dismissed.