Latest decisions from the Appellate Division, Second Department

August 5, 2024 Robert Abruzzese, Courthouse Editor

The Appellate Division, Second Department addressed issues of default judgment, vicarious liability in negligence claims, property owner duties regarding open and obvious hazards, and the proper jurisdiction for estate disputes, affirming or reversing lower court decisions accordingly. Eagle photo by Rob Abruzzese

Appellate Court upholds $708,751.80 default judgment

In a recent decision, the Appellate Division, Second Department, upheld a Kings County Supreme Court ruling, affirming a $708,751.80 default judgment against Masood and Tahir Bhutta, defendants in a breach-of-contract case.

The case, initiated by Wells Fargo Vendor Financial Services, LLC, involved a financing agreement for construction equipment. The Bhutta brothers, majority owners of Big Sasco Tools Rental Corp., failed to respond to the lawsuit, leading to a default judgment in July 2019.

On Oct. 22, 2020, the Supreme Court denied the Bhuttas’ motion to vacate the judgment, a decision the Appellate Division has now affirmed. The court found that the Bhuttas did not sufficiently dispute proper service of process, and their confusion over the lawsuit’s caption was inadequate to nullify the judgment.

The Bhuttas had argued that the use of “D/B/A” (doing business as) in the case caption misled them into believing they were not being sued personally. However, the court determined this misunderstanding did not excuse their failure to respond, thereby upholding the Supreme Court’s decision.

~ Wells Fargo Vendor Financial Services, LLC v. Elslawy ~

Negligence claim against Access-A-Ride in personal injury case upheld

The Appellate Division, Second Department recently upheld a Kings County Supreme Court decision that allowed a negligence claim to proceed against Access-A-Ride and several affiliated entities. The case centers on a motor vehicle accident involving plaintiff Kenneth Waluyn, who sustained personal injuries as a passenger in a vehicle arranged through Access-A-Ride.

Waluyn’s complaint alleged that the driver, Abu Ubaidah, and vehicle owner, Choudhary Ijaz, were acting as agents or employees of Access-A-Ride, New York City Transit Authority, Metropolitan Transit Authority, MTA Bus Company, and Curb Mobility LLC. The plaintiff argued that these entities were vicariously liable under the doctrines of respondent superior and agency.

The defendants sought to dismiss the negligence claims, arguing that the complaint did not establish a valid cause of action. However, the Supreme Court denied their motion, and the Appellate Division affirmed this decision. The appellate court found that, when granting the plaintiff the benefit of every favorable inference, the complaint adequately alleged an employer-employee or principal-agent relationship. The case will proceed to further litigation to determine whether the city defendants can be held liable for the actions of Ubaidah and Ijaz.

~ Waluyn v. Access-A-Ride ~

Appellate Court upholds dismissal of personal injury lawsuit over sidewalk bicycle hazard

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision last week that dismissed a personal injury lawsuit filed by Katherine Torres against La Borinquena HDFC, Inc.

Torres had sued the defendant for damages after tripping and falling over a broken bicycle chained to a bike rack on the sidewalk abutting the defendant’s residential building in January 2020. The Supreme Court, Kings County, granted the defendant’s motion for summary judgment, applying the legal standard that property owners have a duty to maintain their property in a reasonably safe condition. However, there is no duty to protect or warn against open and obvious conditions that are not inherently dangerous.

On appeal, the Appellate Division considered whether the Supreme Court correctly applied this standard. The appellate court affirmed the lower court’s ruling, agreeing that the defendant had met its burden of showing that the condition was both open and obvious and not inherently dangerous.

The appellate court highlighted several key factors in its decision. The evidence showed that the lighting was adequate at the time of the incident, making the broken bicycle readily visible. Torres admitted to seeing the bicycle in her peripheral vision as she approached it. Additionally, there was sufficient space for Torres to walk around the bicycle without incident. The court concluded that these factors demonstrated that the condition was open and obvious and did not pose an inherent danger. Therefore, the defendant had no duty to warn or protect against it.

~ Torres v. La Borinquena HDFC, Inc. ~

Appellate Court reverses dismissal in estate dispute, transfers case to surrogate’s court

The Appellate Division, Second Department reversed a Kings County Supreme Court ruling, reviving a lawsuit involving an estate dispute and ordering the case transferred to the Surrogate’s Court.

The plaintiff, William Rafael Rodriguez, filed a lawsuit against his brother, Rafael Rodriguez, Jr., and others, seeking the turnover of funds from the sale of their late father’s property. The complaint alleged that Rafael Rodriguez, Jr. converted the funds both before and after their father’s death in 2016. Despite not responding to the complaint, Rafael Rodriguez, Jr. faced a motion from the plaintiff to convert the action to a proceeding under the Surrogate’s Court Procedure Act (SCPA) and to transfer the case to the Surrogate’s Court.

In an order dated April 3, 2019, the Kings County Supreme Court denied the plaintiff’s motion and, sua sponte, dismissed the complaint for lack of capacity to sue. The plaintiff appealed this decision, arguing that the Supreme Court erred in its judgment.

The Appellate Division held that the Supreme Court improperly dismissed the complaint on its own accord for lack of capacity to sue, a defense that must be raised by the defendants in an answer or pre-answer motion. The appellate court noted that it was an error for the Supreme Court to, in effect, sua sponte, direct dismissal of the complaint for lack of capacity to sue. The court explained that such a defense is waived if not timely raised by the defendants. Additionally, the Appellate Division determined that the case, which involves the administration of a decedent’s estate, should be handled by the Surrogate’s Court.

The appellate court ordered the case to be transferred to the Brooklyn Surrogate’s Court for further proceedings.

~ Rodriguez v. Rodriguez ~