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PUTATIVE FATHER’S REQUEST FOR A DNA PATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT.

The Second Department, reversing Family Court, determined putative father’s request for a DNA paternity test should not have been denied:

… [T]he Orange County Department of Social Services filed a paternity petition against the appellant on behalf of the mother of the subject child, alleging him to be the father of the child, who was born in 2007. The appellant requested a genetic marker test, commonly known as a DNA test. After a hearing, the Family Court determined that the appellant was estopped from contesting paternity, in effect, denied his application for a DNA test, and entered an order of filiation adjudicating the appellant to be the father of the child.

Contrary to the Family Court’s determination, the appellant should not have been estopped from contesting his paternity of the child. Considering the lack of a relationship between the appellant and the child, there was no evidence that “the child would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being” if the DNA test were administered and it was ultimately shown that the appellant was not the biological father of the child … .

Accordingly, we cannot conclude that a genetic marker test of the appellant’s and the child’s DNA would be contrary to the best interests of the child. Commissioner of Social Servs. v Dorian E.L., 2017 NY Slip Op 05590, 2nd Dept 7-12-17

FAMILY LAW (PATERNITY, PUTATIVE FATHER’S REQUEST FOR A DNA PATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT)/PATERNITY (PUTATIVE FATHER’S REQUEST FOR A DNA PATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT)/DNA TEST (PUTATIVE FATHER’S REQUEST FOR A DNAPATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT)

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INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT.

The Second Department, reversing County Court, determined the evidence at this civil commitment hearing supported a finding defendant was not suffering from a “dangerous mental disorder,” but rather was “mentally ill,” within the meaning of the Criminal Procedure Law (CPL) 330.20:

… County Court accepted the appellant’s plea of not responsible by reason of mental disease or defect to the charge of strangulation in the second degree. After the court issued an examination order pursuant to CPL 330.20(3), the appellant was remanded to Mid-Hudson Forensic Psychiatric … , where he was evaluated by three psychiatric examiners. Two of the examiners found him to be suffering from a dangerous mental disorder, while the third determined that he was mentally ill. * * *

The opinions expressed by the People’s experts were based, in large part, upon speculation and an overly narrow focus on the appellant’s conduct during the relatively brief period of time between the instant offense and the time when the appellant began taking medication. As evidenced by the unrebutted testimony of the appellant’s experts, the appellant has had no history of relapses into violent behavior. Moreover, he had no notable history of substance or alcohol abuse, had always been compliant with treatment, both during the 18-month period he was released on bail and during his subsequent time at Mid-Hudson, and had a positive support system. Therefore, the preponderance of the record evidence did not support the conclusion of the People’s experts that the appellant suffered from a dangerous mental disorder…  Contrary to the County Court’s determination, the preponderance of the evidence adduced at the hearing demonstrated only that the appellant was mentally ill … .

Accordingly, the County Court’s findings of fact must be vacated and the matter remitted to the County Court, Orange County, for the entry of a finding that the appellant is mentally ill pursuant to CPL 330.20(1)(d), and the issuance of such further orders as may be appropriate under the Mental Hygiene Law and CPL 330.20(7). Matter of Eric F., 2017 NY Slip Op 05594, 2nd Dept 7-12-17

CRIMINAL LAW (CIVIL COMMITMENT, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)/MENTAL HYGIENE LAW (CRIMINAL LAW, CIVIL COMMITMENT, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)/MENTAL ILLNESS (CRIMINAL LAW, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)

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UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT.

The Second Department that petitioner’s request for attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA) was properly denied. Although petitioner’s application to participate in the prison’s nursery program was improperly denied and she and her child were subsequently admitted to the program by Supreme Court, the facts did not justify the award of attorneys’ fees:

In March 2015, the petitioner moved pursuant to the New York State Equal Access to Justice Act (CPLR art 86; hereinafter the EAJA) for an award of attorneys’ fees and expenses. In an order dated August 31, 2015, the Supreme Court denied the petitioner’s motion on the grounds that the respondents’ decision to deny her application for admission to the Nursery Program was “substantially justified” and that “special circumstances make an award unjust” (CPLR 8601[a]). The petitioner appeals.

Under the EAJA, “a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust” (CPLR 8601[a]). An award of attorneys’ fees under the EAJA is generally left to the sound discretion of the Supreme Court … . “The determination of whether the State’s position was substantially justified is committed to the sound discretion of the court of first instance and is reviewable as an exercise of judicial discretion” … .

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in concluding that the respondents’ position was substantially justified, notwithstanding the court’s underlying conclusion that the respondents’ determination to deny the petitioner’s application for admission to the Nursery Program should be annulled … . In particular, the evidence in support of the respondents’ position would satisfy a reasonable person that it was not “desirable for the welfare of [the] child” to remain with the petitioner for purposes of the EAJA … . Contrary to the petitioner’s contention, although the court found that the respondents failed to consider certain factors, including the petitioner’s current achievements and the supervised nature of the Nursery Program, there was no evidence in the record that the respondents “willfully ignored” those factors. Moreover, this is not a case where the respondents failed to conduct any assessment as to whether the subject child’s welfare would best be served by remaining with the petitioner … . Matter of Losurdo v New York State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 05603, 2nd Dept 7-12-17

 

CIVIL PROCEDURE LAW (EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS’ FEES, UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT)/CORRECTIONS LAW (EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS’ FEES, UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT)/ATTORNEYS (EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS’ FEES, UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT)/EQUAL ACCESS TO JUSTICE ACT (ATTORNEYS’ FEES, UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT)

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OFFICERS AND EMPLOYEES OF DEFENDANT CORPORATION, ALTHOUGH NON-SIGNATORIES, CAN ENFORCE THE ARBITRATION PROVISION OF THE CONTRACT BETWEEN PLAINTIFF AND THE CORPORATION 2ND DEPT.

The Second Department, reversing Supreme Court, determined individual defendants, who were officers and/or employees of defendant corporation McGowan Builders, Inc, could enforce the agreement to arbitrate made between plaintiff and the corporation:

Here, the alleged misconduct attributed to the individual defendants in the complaint related to their behavior as employees and officers of McGowan Builders. Since “a corporation can only act through its officers and employees” … , any breach of the agreement would necessarily have to occur as a result of some action or inaction attributable to an officer or employee of McGowan Builders. As the Court of Appeals has recognized under similar circumstances, a rule allowing corporate officers and employees to enforce arbitration agreements entered into by their corporation “is necessary not only to prevent circumvention of arbitration agreements but also to effectuate the intent of the signatory parties to protect individuals acting on behalf of the principal in furtherance of the agreement” … . Under the circumstances of this case, the individual defendants were entitled to enforce the arbitration provision contained in the subcontract agreement between McGowan Builders and the plaintiff … . Accordingly, the Supreme Court should have granted that branch of the motion of the moving defendants, including the individual defendants, which was to compel arbitration of the causes of action alleging conversion, unfair competition, and tortious interference insofar as asserted against them. Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 2017 NY Slip Op 05580, 2nd Dept 7-12-17

ARBITRATION (OFFICERS AND EMPLOYEES OF DEFENDANT CORPORATION, ALTHOUGH NON-SIGNATORIES, CAN ENFORCE THE ARBITRATION PROVISION OF THE CONTRACT BETWEEN PLAINTIFF AND THE CORPORATION 2ND DEPT)/CONTRACT LAW (ARBITRATION, OFFICERS AND EMPLOYEES OF DEFENDANT CORPORATION, ALTHOUGH NON-SIGNATORIES, CAN ENFORCE THE ARBITRATION PROVISION OF THE CONTRACT BETWEEN PLAINTIFF AND THE CORPORATION 2ND DEPT)/CORPORATION LAW (ARBITRATION, OFFICERS AND EMPLOYEES OF DEFENDANT CORPORATION, ALTHOUGH NON-SIGNATORIES, CAN ENFORCE THE ARBITRATION PROVISION OF THE CONTRACT BETWEEN PLAINTIFF AND THE CORPORATION 2ND DEPT)

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COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined that the county had not sufficiently demonstrated a deliberative decision-making process preceding the installation of a particular type of roadway guard rail. It was alleged plaintiff’s decedent’s car was launched 90 feet after striking the sloping end of the guard rail. The county’s summary judgment motion, based upon qualified immunity, should not have been granted:

We conclude that the County failed to meet its initial burden of establishing its entitlement to summary judgment based on qualified immunity … . In particular, the County failed to establish that the decision to change the end assembly of the guide rail from a Type I to a Type II end assembly was “the product of a deliberative decision-making process, of the type afforded immunity from judicial interference”… . Rather, the record reflects that the decision to change the guide rail end assembly was made after Phelps [the guard rail installer] conducted a walk-through and learned that the owners of a hay field needed a “field drive” to allow them to access County Route 41. Although the County submitted evidence that the change order completed by Phelps was signed by FRA [the engineers], there is no showing by the County that there was prior input from FRA regarding the change and, importantly, no analysis to support the decision for the change. Moreover, although the County contended on its motion that it followed the requisite standards of the New York State Department of Transportation, we note that the County’s expert erroneously combined the criteria for two separate uses of Type II end assemblies into one standard. Morris v Ontario County, 2017 NY Slip Op 05533, 4th Dept 7-7-17

NEGLIGENCE (TRAFFIC ACCIDENTS, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/MUNICIPAL LAW (TRAFFIC ACCIDENTS, HIGHWAY DESIGN, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/IMMUNITY (MUNICIPAL LAW, HIGHWAY DESIGN, TRAFFIC ACCIDENTS,  COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, HIGHWAY DESIGN, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/HIGHWAY DESIGN (MUNICIPAL LAW, TRAFFIC ACCIDENTS, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

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QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, in a full-fledged opinion by Justice Curran, over a two-justice dissent, reversing Supreme Court, determined defendant landowner was not entitled, as a matter of law, to immunity from a personal injury suit under the “recreational use immunity” provision of the General Obligations Law.  Therefore the landowner’s motion for summary judgment should not have been granted. Plaintiff was injured when the all terrain vehicle (ATV) he was driving struck a pothole on defendant’s dirt road. Pursuant to the General Obligations Law, if the road were deemed suitable for recreational use the landowner would be immune from suit. The majority concluded the road was used for two-way traffic to access homes. Therefore a question of fact had been raised about whether the road was suitable for recreational use within the meaning of the statute:

The road where the accident occurred is the sole means of access to Walker Lake Ontario Road for three homes. Defendant maintains the road by scraping and re-leveling it almost every year. It is wide enough to accommodate one car traveling in each direction. While located in a rural area, the two-lane private road is used for residential purposes, including at times for school bus access. Thus, the physical characteristics of the road are residential, as opposed to recreational in nature … . * * *

… [T]he portion of property where plaintiff fell is not the type of property that the Legislature intended to cover under General Obligations Law § 9-103… . … [C]ourts should ask whether the property “is the sort which the Legislature would have envisioned as being opened up to the public for recreational activities as a result of the inducement offered in the statute. In other words, is it a type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation?” … . Application of the statutory immunity to the road at issue would lead to its application to potentially any road in a rural area, which is inconsistent with the idea that this statute is in derogation of the common law and should therefore be narrowly construed … .

FROM THE DISSENT:

We respectfully dissent inasmuch as we conclude that defendant, the property owner, is entitled to immunity from liability under the recreational use statute (see General Obligations Law § 9-103). In particular, we disagree with the majority’s conclusion that the property at issue is not suitable for the recreational activity in which plaintiff was engaged at the time of his accident, i.e., operation of an all-terrain vehicle (ATV). We would therefore affirm the order granting defendant’s motion for summary judgment dismissing the complaint. Cummings v Manville, 2017 NY Slip Op 05530, 4th Dept 7-7-17

 

NEGLIGENCE (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/IMMUNITY (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/GENERAL OBLIGATIONS LAW (NEGLIGENCE, RECREATIONAL IMMUNITY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/RECREATIONAL USE OF PROPERTY (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

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INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT.

The Fourth Department, over a dissent, determined the initial accident was not the proximate cause of the third accident in which plaintiff was injured. In the initial accident a car driven by Sheehan struck a barrier. The Sheehan car was left in the roadway.  Plaintiff, who was not injured, got out of the Sheehan car and went to a safe area. The Sheehan car was then struck by another car driven by a non-party. Plaintiff went back to the accident scene where he was injured when there was yet another collision involving a third car driven by Gilray. The majority held that the initial accident created a condition for the accident which injured plaintiff, but was not the proximate cause of that accident:

Sheehan’s negligence, if any, ” did nothing more than to furnish the condition or give rise to the occasion by which [plaintiff’s] injury was made possible and which was brought about by the intervention of a new, independent and efficient cause’ ” … .  Prior to the Gilray accident, the situation resulting from the first accident “was a static, completed occurrence” with plaintiff and all of the passengers of Sheehan’s vehicle safely off the roadway … . The Gilray accident arose from a “new and independent cause and not as [the] consequence of [Sheehan’s] original act[]” … . “The risk undertaken by plaintiff” in returning to the roadway was created by himself … .

FROM THE DISSENT:

Under the circumstances of this case, a factfinder could reasonably conclude that a foreseeable consequence of Sheehan’s negligence in losing control, striking the barrier, and leaving the disabled vehicle obstructing the left lane of a divided roadway without activating the flashing hazard lights at night is that motorists, unable to see the vehicle at they approached, would strike it… . In determining that the situation resulting from Sheehan’s accident was a static, completed occurrence prior to Gilray’s collision, the majority fails to account for the critical facts that the disabled vehicle was not moved safely off the roadway and instead remained in a position of peril obstructing the left lane without its flashing hazard lights activated, and that plaintiff was injured while positioned near the disabled vehicle … . Plaintiff’s positioning of himself in the area of the disabled vehicle where he was susceptible to further harm is also foreseeable. The fact that plaintiff, as a passenger involved in a vehicular accident, would leave a place of safety to return to the vehicle to speak with a responding officer—particularly where, as here, plaintiff was best positioned to provide the officer with information given the condition and preoccupation of Sheehan and the other passengers—is “an entirely normal or foreseeable consequence of the situation created by [Sheehan’s] negligence”… . Serrano v Gilray, 2017 NY Slip Op 05523, 4th Dept 7-7-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT)/TRAFFIC ACCIDENTS (PROXIMATE CAUSE, INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT)/PROXIMATE CAUSE (TRAFFIC ACCIDENTS,  INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT)

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BROKER WHICH NEGOTIATED A 2001 LEASE NOT ENTITLED TO COMMISSION ON THE 2011 LEASE BETWEEN THE SAME PARTIES, 2011 LEASE WAS DEEMED A NEW LEASE, NOT A RENEWAL OF THE 2001 LEASE 4TH DEPT.

The Fourth Department determined defendant landlord’s motion for summary judgment in the action by a real estate broker seeking a commission based upon a lease should have been granted. The broker had negotiated the original lease in 2001 and was paid a commission. The question was whether the second lease in 2011 was a renewal of the original lease or a new lease, for which no commission was due. The Fourth Department held the 2011 lease was a new lease:

… [W]e agree with defendants that they met their burden on their motion by establishing that the 2011 lease was a new lease, rather than a renewal of the 2001 lease. In support of their motion, defendants submitted evidence establishing that, under the 2011 lease, HealthNow was leasing only part of the subject building, rather than the whole building as called for under the 2001 lease. In addition, the 2011 lease called for First Columbia [landlord] to make structural changes to the building to accommodate HealthNow’s [tenant’s] changing needs, and to install a backup generator at a cost in excess of $300,000. Furthermore, the rent was higher in the 2011 lease, it was not calculated in accordance with the terms for a renewal as provided in the 2001 lease, and the 2011 lease was for a term of seven years, whereas the 2001 lease called for a renewal term of five years. Finally, defendants established that the 2011 lease was not the result of any brokerage services performed by plaintiff. Baumann Realtors, Inc. v First Columbia Century-30, LLC, 2017 NY Slip Op 05546, 4th Dept 7-7-17

LANDLORD-TENANT (BROKER’S COMMISSIONS, BROKER WHICH NEGOTIATED A 2001 LEASE NOT ENTITLED TO COMMISSION ON THE 2011 LEASE BETWEEN THE SAME PARTIES, 2011 LEASE WAS DEEMED A NEW LEASE, NOT A RENEWAL OF THE 2001 LEASE 4TH DEPT)/LEASES (BROKER’S COMMISSIONS, BROKER WHICH NEGOTIATED A 2001 LEASE NOT ENTITLED TO COMMISSION ON THE 2011 LEASE BETWEEN THE SAME PARTIES, 2011 LEASE WAS DEEMED A NEW LEASE, NOT A RENEWAL OF THE 2001 LEASE 4TH DEPT)/BROKERS (REAL ESTATE, COMMISSIONS, LEASES, BROKER WHICH NEGOTIATED A 2001 LEASE NOT ENTITLED TO COMMISSION ON THE 2011 LEASE BETWEEN THE SAME PARTIES, 2011 LEASE WAS DEEMED A NEW LEASE, NOT A RENEWAL OF THE 2001 LEASE 4TH DEPT)/COMMISSIONS (REAL ESTATE BROKERS, LEASES, , BROKER WHICH NEGOTIATED A 2001 LEASE NOT ENTITLED TO COMMISSION ON THE 2011 LEASE BETWEEN THE SAME PARTIES, 2011 LEASE WAS DEEMED A NEW LEASE, NOT A RENEWAL OF THE 2001 LEASE 4TH DEPT)

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PEOPLE’S REQUEST FOR AN ADJOURNMENT WHEN TWO DEPUTIES DID NOT SHOW UP FOR A MAPP HEARING SHOULD HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing County Court, determined County Court should have granted the People’s request for an adjournment after two deputies did not show up for a Mapp hearing:

We agree with the People that the court erred in refusing to grant their request for an adjournment. It is well settled that “the decision to grant an adjournment is a matter of discretion for the hearing court”… . There are, however, well settled considerations to help guide a court in the exercise of its discretion. As relevant herein, for instance, “when [a] witness is identified to the court, and is to be found within the jurisdiction, a request for a short adjournment after a showing of some diligence and good faith should not be denied merely because of possible inconvenience to the court or others” … . Additional relevant considerations in determining whether to grant a request for an adjournment include whether it was the moving party’s first request, whether the subject witness or witnesses would offer material testimony favorable to that party, and the degree of prejudice to the nonmovant … . Here, the deputies who conducted the warrantless search were under subpoena and were identified to the court. Contrary to defendant’s contention, the court was entitled to rely on the prosecutor’s representation in open court concerning the issuance of subpoenas inasmuch as a prosecutor is an officer of the court with an ” unqualified duty of scrupulous candor’ ” … . Moreover, the request was the People’s first request for an adjournment, the testimony of the witnesses would be material and favorable to the People, and there was minimal prejudice to defendant, who had been released from custody on his own recognizance. In contrast, the People suffered severe prejudice because the refusal to grant an adjournment resulted in the suppression of all physical evidence. People v Schafer, 2017 NY Slip Op 05551, 4th Dept 7-7-17

CRIMINAL LAW (PEOPLE’S REQUEST FOR AN ADJOURNMENT WHEN TWO DEPUTIES DID NOT SHOW UP FOR A MAPP HEARING SHOULD HAVE BEEN GRANTED 4TH DEPT)/ADJOURNMENTS (CRIMINAL LAW, PEOPLE’S REQUEST FOR AN ADJOURNMENT WHEN TWO DEPUTIES DID NOT SHOW UP FOR A MAPP HEARING SHOULD HAVE BEEN GRANTED 4TH DEPT)

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ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment on the Labor Law 240(1) cause of action. Although plaintiff’s decedent fell from either a ladder or a scaffold (no witnesses) there was no evidence the ladder tipped or the scaffold was defective:

“A plaintiff is entitled to summary judgment under Labor Law § 240 (1) by establishing that he or she was subject to an elevation-related risk, and [that] the failure to provide any safety devices to protect the worker from such a risk [was] a proximate cause of his or her injuries’ ” … . Here, it is undisputed that the safety ladder used by decedent did not tip, and that the scaffolding did not collapse, tip, or shift. Decedent, himself the only witness to the accident, was unable to provide any testimony or statement concerning how the accident happened. Thus, we note that this case is unlike those cases in which the plaintiff’s version of his or her fall is uncontroverted because the plaintiff is the only witness thereto … .

It is now axiomatic that “[t]he simple fact that plaintiff fell from a ladder [or a scaffold] does not automatically establish liability on the part of [defendants]”… . Thus, we conclude that the court erred in determining that plaintiff met her initial burden on her motion by simply establishing that decedent fell from a height. We further conclude that plaintiff’s submissions raise triable issues of fact as to, inter alia, how the accident happened, from where decedent fell—the ladder or the scaffold, and whether a violation of Labor Law § 240 (1) occurred. Hastedt v Bovis Lend Lease Holdings, Inc., 2017 NY Slip Op 05522, 4th Dept 7-7-17

 

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/LADDERS (LABOR LAW-CONSTRUCTION LAW, (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

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