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THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive two-judge dissent, determined plaintiff trustee (HSBC) was limited to the cure and replurchase remedy described in the contracts for these residential mortgage-backed securities, and could not sue for general contract damages:

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In these appeals stemming from four residential mortgage-backed securities (RMBS) transactions, we are asked to decide whether claims for general contract damages based on alleged breaches of a “no untrue statement” provision can withstand a motion to dismiss based on a contract provision mandating cure or repurchase as the sole remedy for breaches of mortgage loan-specific representations and warranties. We hold that, inasmuch as the claims for general contract damages at issue here are grounded in alleged breaches of the mortgage loan-specific representations and warranties to which the limited remedy fashioned by the sophisticated parties applies, plaintiffs’ claims for general contract damages should be dismissed. * * *

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.. .[I]t is readily apparent from the face of the complaints that the alleged breaches of the No Untrue Statement Provision are, in fact, based upon alleged breaches of the Mortgage Representations. … [T]he sole remedy for breaches of the Mortgage Representations is cure or repurchase. HSBC cannot “subvert this ‘exclusive remedies’ limitation” of liability by simply re-characterizing its claims … . Rather, “[r]eading the [contracts] as a harmonious and integrated whole” …  and honoring “the exclusive remedy that the[se] [sophisticated] parties fashioned” … , we conclude that the Sole Remedy Provision applies, precluding HSBC from seeking general contract damages for the particular claims challenged on this appeal. Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 2017 NY Slip Op 08622, CtApp 12-12-17

 

SECURITIES (THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP))/CONTRACT LAW (THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP))/RESIDENTIAL MORTGAGE-BACKED SECURITIES (THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP))/SOLE REMEDY PROVISIONS (THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP))

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SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT).

The Third Department determined a substitute teacher had not been given reasonable assurance of employment following the summer break and should not have been denied unemployment benefits on that ground:

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This Court has well-established precedent interpreting the identical phrase in Labor Law § 590 (10), “reasonable assurance,” regarding two successive academic years or terms to require “a representation by the employer” as to future employment . This representation often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities … .

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Here, it is uncontested that the employer never sent any letter to claimant or provided him with any other form of notice that made a representation regarding claimant’s employment after the recess. Matter of Papapietro (Commissioner of Labor), 2017 NY Slip Op 08596, Third Dept 12-7-17

 

UNEMPLOYMENT INSURANCE (TEACHERS, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/EDUCATION-SCHOOL LAW (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/LABOR LAW (UNEMPLOYMENT INSURANCE, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/TEACHERS (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/E

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CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT).

The Third Department, in a comprehensive decision too detailed to fairly summarize here, determined a club which featured semi-nude dancers was subject to sales tax for the sale of in-house currency (scrips) for access to private-room dances:

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We find no basis to disturb the Tribunal’s determination that the club’s receipts from the sale of scrip are taxable as admission charges to a place of amusement. As the Tribunal recognizes, the definition of admission charge in Tax Law § 1101 (d) (2), as well as the relevant regulation … , establish that, for the purposes of Tax Law § 1105 (f) (1), an admission charge includes any additional cost for entertainment or amusement that must be paid to gain access to the place of amusement — here, the private room … . * * *

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… [P]etitioners assert that, even if the sale of scrip is a taxable admission charge under Tax Law § 1105 (f) (1), they are exempt from the amusement tax because the purchase of scrip to pay for private dances qualifies as a charge for admission to a dramatic or musical arts performance. * * *

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… [W]ith respect to the venue requirement, it was incumbent on petitioners to establish that the private rooms constituted “a theatre, opera house, concert hall or other hall or place of assembly” (Tax Law § 1101 [d] [5]). In our view, the Tribunal properly reasoned that, based on the evidence proffered by petitioners, the private room lacked the common characteristics of the settings described in Tax Law § 1105 (f) (1)  …

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The Tribunal’s determination that “petitioners have failed to credibly depict the private dance experience in sufficient detail to establish that experience as dramatic or choreographic” is rational and supported by substantial evidence. Matter of HDV Manhattan, LLC v Tax Appeals Trib. of The State of New York, 2017 NY Slip Op 08559, Third Dept 12-7-17

 

TAX LAW (CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/SALES TAX (CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/ADMISSION CHARGES (SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/CABARETS (SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/SCRIPS (IN-HOUSE CURRENCY, SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))

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STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT).

The Third Department determined the wrongful death action against state police officers who stopped plaintiff’s decedent (for following too closely) but did not issue a traffic ticket was properly dismissed. Decedent told the officers he had had two drinks, was tired and would call his brother to take him home. The officers left decedent on the side of the road. Decedent was later found dead in his car. Although decedent’s blood alcohol content was above the legal limit, the officers testified they did not see any signs of intoxication when they spoke with decedent. The court found there was no special relationship between the decedent and the officers and the state was therefore immune from suit:

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Where, as here, a claim arises out of the performance of an act undertaken for the protection and safety of the public pursuant to general police powers … , the governmental entity is immune from liability for the negligent performance of that governmental function, unless it owed a special duty to the injured party… . As relevant here, a special duty arises when the governmental entity “voluntarily assumed a duty to the [injured party] beyond what was owed to the public generally” … . To establish a special duty through voluntary assumption, the injured party must demonstrate that the governmental agents assumed, through promises or actions, an affirmative duty to act on behalf of the injured party, that the agents knew that inaction could lead to harm, that there was some form of direct contact between the injured party and the agents and that the injured party justifiably relied on the agents’ affirmative undertaking … . Barnes v State of New York, 2017 NY Slip Op 08564, Third Dept 12-7-17

 

NEGLIGENCE (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/IMMUNITY (STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/GOVERNMENTAL IMMUNITY (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/POLICE  (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/WRONGFUL DEATH (POLICE, GOVERNMENTAL IMMUNITY,  STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/TRAFFIC STOPS (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/DRIVING WHILE INTOXICATED (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/SPECIAL RELATIONSHIP (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))

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COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT).

The Third Department determined that the defendant county’s motion for summary judgment in this road-defect action by an injured motorcyclist was properly denied. Although the county had a written notice requirement as a prerequisite for an action based upon a road defect, the Highway Law also applies and will impose liability if the county had notice of the defect:

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The general rule is that if a municipality enacts a prior written notice statute, unless such notice is duly furnished, “a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective . . . highway” … . However, where Highway Law § 139 is applicable — in the case of county roads — “[e]ven if a local law exists requiring prior written notice of a defect, a civil action may be commenced absent such notice against a municipality for injuries resulting from a defect in a highway under its care if the ‘defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence'” … . Thus, to establish entitlement to summary judgment, a county must show both that it received no prior written notice of the alleged defect and that it had no actual or constructive notice thereof … . Pasternak v Chenango, 2017 NY Slip Op 08578, Third Dept 12-7-17

 

MUNICIPAL LAW (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, ROAD DEFECTS,  COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/HIGHWAYS AND ROADS (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, ROAD DEFECTS,  COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, ROAD DEFECTS, WRITTEN NOTICE REQUIREMENT, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))

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FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff firefighter’s General Municipal Law 205-a cause of action should not have been dismissed. It was alleged that the fire which caused plaintiff’s injury was started by a warming plate that was left on when defendant left her apartment in violation of the NYC Fire Code. Although the defendant’s act was not the proximate cause of plaintiff’s injury, the General Municipal Law 205-a cause of action requires only a connection between the injury and a code violation:

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Plaintiff firefighter was injured while attempting to fight a fire that had originated in defendant’s apartment. Issues of fact exist as to whether defendant was negligent in leaving a warming tray/hot plate plugged into a timer, in the “on” position, when she left her apartment to go to a friend’s home for dinner. The Fire Marshall concluded that the fire originated in the area of the warming tray/hot plate and timer. Although the motion court correctly concluded that defendant’s alleged negligence was not a proximate cause of plaintiff’s injuries, General Municipal Law § 205-a imposes liability where there is a practical or reasonable connection between a statutory or code violation and the firefighter’s injury or death … . Plaintiff’s expert fire investigator opined that, by leaving the apartment with the electrical heating devices on, defendant delayed the discovery of the fire and allowed it to grow and spread. Accordingly, there is a sufficient connection between defendant’s alleged negligence and plaintiff’s injury … . The court also improperly found that the New York City Fire Code (Administrative Code of City of NY tit 29, ch 2) § FC 305.4 was inapplicable to the facts of this case. That section is not limited to “combustible waste,” but expressly includes “combustible material.” Moreover, while combustible waste that has economic value to a premises is considered combustible material … , combustible material is not so limited, but is any material capable of combustion. The materials in defendant’s kitchen were clearly combustible. Walsh v Michelson, 2017 NY Slip Op 08616, First Dept 12-7-17

 

MUNICIPAL LAW (FIREFIGHTERS, GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/GENERAL MUNICIPAL LAW 205-a FIREFIGHTERS (FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/FIREFIGHTERS (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/NEGLIGENCE (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER’S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))

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TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT).

The Third Department determined plaintiff lessee’s lawsuit against the lessor’s insurance carrier for denial of a claim for water damage was properly dismissed. Under New York law plaintiff could not sue the landlord’s carrier directly unless plaintiff first procured a judgment against the landlord which was not satisfied:

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… [I]t was well-established under the common law that an injured party has no direct cause of action against the insurer of a tortfeasor … . That is, an injured party, as a stranger to the policy between the insured tortfeasor and its insurer, could not, at common law, bring a claim against the tortfeasor’s insurer due to the lack of privity between the injured party and the insurer, even where the injured party had obtained a judgment against the insured … . As a result of the hardships and inequities this rule created, the Legislature created a “limited statutory cause of action on behalf of injured parties directly against insurers,” which is applicable where the injured party has obtained a judgment against an insured and the judgment has gone unsatisfied for 30 days … . It is undisputed that plaintiff has not obtained a judgment against [the landlord], which is “a condition precedent to a direct action” against [the landlord’s] insurer and, thus, plaintiff cannot avail itself of this limited statutory cause of action … . Thus, even liberally construing the complaint, accepting the facts as alleged as true and affording plaintiff the benefit of every inference, plaintiff has not stated a statutory cause of action against [the insurer]. … . As plaintiff is not a named insured under the policy and did not obtain a judgment against [the landlord], Supreme Court properly granted Cincinnati’s motion dismissing the complaint due to plaintiff’s lack of standing and failure to state a cause of action … . GM Broadcasting, Inc. v Cornelius Enters., LLC, 2017 NY Slip Op 08593, Third Dept 12-7-17

 

INSURANCE LAW (LANDLORD-TENANT, CONTRACT LAW, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/LANDLORD-TENANT (INSURANCE LAW, CONTRACT LAW,  TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, LANDLORD-TENANT, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))

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PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT).

The Third Department determined petitioner-inmate’s release on parole was properly rescinded based upon his behavior at the rescission hearing and victim impact statements. The victim’s family had not be notified of the initial parole hearing and therefore had not submitted victim impact statement prior to petitioner’s release:

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In October 1995, petitioner approached a vehicle at the end of his driveway that contained his friend Steven Sedore and petitioner’s ex-wife, who were there to pick up the daughter of petitioner and his ex-wife. Petitioner shot and killed Sedore as he sat in the vehicle, and viciously attacked his ex-wife, causing serious injuries. Petitioner ultimately pleaded guilty to manslaughter in the first degree and attempted manslaughter in the first degree and was sentenced to an aggregate prison term of 20 to 40 years. …

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… [W]e disagree with Supreme Court’s finding that respondent improperly relied upon these statements solely because they were submitted after his open release date had been set. The court based this determination upon the Court of Appeals’ decision in Matter of Costello v New York State Bd. of Parole (23 NY3d 1002 [2014]), in which the Court concluded that respondent improperly rescinded a parole release based upon information in victim impact statements that had been submitted after it had set an open release date … . … [W]e do not interpret the Court’s decision as precluding respondent from ever considering victim impact statements submitted after an open release date has been granted in determining whether parole should be rescinded … .

The victim impact statements at issue were submitted by three of Sedore’s sisters and a brother-in-law. One of the sisters had already provided an impact statement at petitioner’s sentencing hearing, but the other family members had not done so. The statements submitted by the other sisters referenced specific threats that petitioner had made to them — including during sentencing where he allegedly pointed his finger at one sister and mouthed the words “you are dead,” and also ran his finger across his throat while looking at the family. One of the sisters also stated that petitioner sent her letters and a get well card from prison when she was in the hospital, which made her feel uncomfortable knowing that “he knew everything that was going on in my life.” These incidents, which had not previously been disclosed, constitute “significant information” and provide substantial evidence supporting respondent’s rescission of parole … . Matter of Thorn v New York State Bd. of Parole, 2017 NY Slip Op 08566, Third Dept 12-7-17

 

CRIMINAL LAW (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/PAROLE (RESCISSION, PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/VICTIM IMPACT STATEMENTS (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))

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PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, upheld for the most part a preliminary injunction placing restrictions on protests by animal rights advocates against Central Park Sightseeing which operates horse-drawn carriages in New York City’s Central Park. The court found that Central Park Sightseeing was likely to prevail on its public nuisance and tortious interference with contract causes of action. The First Department modified the injunction’s “floating buffer zone” provision, paragraph 3, however:

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The court granted plaintiff’s motion for a preliminary injunction to the extent of enjoining and restraining defendants “and/or anyone else who becomes aware of this Decision and Order” from

“1. physically blocking, impeding, or obstructing any persons from seeking or taking, or providing … a lawful horse-carriage ride disembarking from Central Park South …;

“2. physically touching, pushing, shoving, or grabbing any such persons or horses;

“3. yelling or shouting at, or aggressively accosting, any such persons, or any carriage horses, from a distance of less than nine feet (… three yards…);

“4. physically blocking, impeding, or obstructing the progress of any such horse-carriage ride;

“5. handing literature to persons situated within a horse carriage; and

“6. counseling, facilitating, aiding, or abetting any other person from doing such things.”

The court made it clear that “[b]oth sides agree that defendants can protest, including picket, hold signs, hand out literature, bear witness, and raise their voices,” noting that “the content of the speech is not at issue here; the manner of delivery is.” …

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We … modify paragraph 3 of the injunction to prohibit any person from knowingly approaching within nine feet of another person in the loading/unloading zone, without that person’s consent, for the purpose of handing a leaflet or bill or displaying a sign or engaging in oral protest or education of such other person … . * * *

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The nine-foot zone represents a “conversational distance,” allowing normal communication … . Central Park Sightseeing LLC v New Yorkers for Clean, Livable & Safe Sts., Inc., 2017 NY Slip Op 08619, First Dept 12-7-17

 

CONSTITUTIONAL LAW (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/ANIMAL LAW (ANIMAL RIGHTS, PUBLIC PROTESTS, FIRST AMENDMENT, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FREE SPEECH (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/CIVIL PROCEDURE (PRELIMINARY INJUNCTION, FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/INJUNCTION  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/BUFFER ZONE  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))

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PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s (Department of Education’s, DOE’s) motion for summary judgment in this negligent supervision action should not have been granted. Plaintiff, after a confrontation in the school cafeteria, was later beaten up by the same students involved in the cafeteria confrontation. At least one of the attackers had assaulted a student before and the attackers were known to be in a gang. The Second Department determined the DOE’s proof did not sufficiently demonstrate a lack of notice or the provision of adequate security:

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Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the DOE had actual or constructive notice of the fellow students’ potential for causing harm, and whether, under the circumstances, the DOE provided adequate supervision at the end of the lunch period in the area where the assault occurred… .. The defendants failed to proffer any evidence demonstrating that the DOE lacked actual or constructive notice of any prior violent behavior by any of the infant plaintiff’s assailants. Moreover, given the witnesses’ testimony regarding the disciplinary history of one of the infant plaintiff’s assailants, there were triable issues of fact as to whether the DOE had specific knowledge of that student’s dangerous propensities … . The defendants failed to proffer sufficient evidence demonstrating the general security measures at the school, including the number of school safety officers on duty, where the school safety officers were assigned in the vicinity of the cafeteria and stairwell, and the frequency of violence in the hallways and stairwells between class periods and after lunch.

Contrary to the defendants’ contentions, they also failed to eliminate triable issues of fact as to whether inadequate security was a proximate cause of the infant plaintiff’s injuries… . In determining whether an incident occurs “in so short a span of time that even the most intense supervision could not have prevented it” … , “[t]he issue is not the speed of the punch, but the circumstances leading up to and surrounding” the incident… .. According to the infant plaintiff’s section 50-h hearing testimony, the four assailants left the cafeteria prior to the end of the lunch period and were able to block access to the stairwell when the lunch period ended. There was an absence of supervisory personnel or security in the subject stairwell when it would be expected that a large number of students would be exiting the cafeteria and using that stairwell … . “Proximate cause is a question of fact for the jury where varying inferences are possible,” and “[p]roper supervision depends largely on the circumstances surrounding the event” … . Here, the circumstances leading up to and surrounding the assault upon the infant plaintiff raised triable issues of fact as to whether adequate supervision would have prevented the assault. K.J. v City of New York, 2017 NY Slip Op 08508, Second Dept 12-6-17

 

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION,   PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENCE PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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