Page 1063 – New York Appellate Digest

/ Real Property Law

COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not have standing to enforce a covenant in an old deed prohibiting the construction of a commercial garage. The covenant was deemed to run only to the first purchaser, and did not run with the land:

… [T]he record establishes that the restrictive covenant from the 1924 deed was not part of a common development scheme created for the benefit of subdivision property owners as concerns the plaintiff and the defendants. … At the time of the conveyance, the covenant cannot be said to have benefitted any part of the land burdened by it. … When the land was conveyed to Hudson … , at least as to the lots now owned by the plaintiff …, it was still in a single piece, and Hudson, the absolute owner of it, was free to do with it as it pleased except as against … the original covenantee … . When Hudson decided to divide the property, neither of the deeds embodied any part of the restrictive covenant, or contained any reference thereto. Hudson is the common grantor of the parties, and it sold the property without restrictions. Neither the plaintiff nor [defendant] have any different title from that which they derived through the unrestricted deeds from Hudson … . Thus, the original covenant is not enforceable as between the plaintiff and [defendant] … . Fleetwood Chateau Owners Corp. v Fleetwood Garage Corp., 2017 NY Slip Op 06431, Second Dept 9-13-17

REAL PROPERTY (COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))/DEEDS (COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))/COVENANTS (DEEDS, COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))

September 13, 2017

/ Medical Malpractice, Municipal Law, Negligence

SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s request for permission to serve a late notice of claim should have been granted. Plaintiff alleged medical malpractice in the treatment of cervical cancer. The Second Department found that the medical records themselves timely alerted the defendant municipal hospital (NHCC) to the nature of the malpractice claim. Therefore the hospital was not prejudiced by the delay in filing the notice of claim:

“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” … . “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute actual knowledge of the facts constituting the claim'” … .

Here, in support of the petition, the decedent submitted medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice … . Inasmuch as the medical records, upon independent review, suggested injury attributable to malpractice, they provided NHCC with actual knowledge of the essential facts constituting the claim … . Furthermore, the petitioner made an initial showing that NHCC would not suffer any prejudice by the delay in serving a notice of claim, and NHCC failed to rebut the petitioner’s showing with particularized indicia of prejudice … . … [T]he lack of a reasonable excuse is not dispositive where there is actual notice and absence of prejudice …. . Matter of Breslin v Nassau Health Care Corp., 2017 NY Slip Op 06440, Second Dept 9-13-17

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT)/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))

September 13, 2017

/ Municipal Law, Negligence

NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined summary judgment should not have been granted to the NYC Transit Authority in this slip and fall case. The Transit Authority is responsible for the maintenance of manhole covers in city sidewalks. The evidence raised a question of fact whether the defect in the sidewalk was within the area around the manhole for which the Transit Authority is responsible:

Rules of City of New York Department of Transportation (34 RCNY) § 2-07(b) provides that owners of covers or gratings on a street, which includes the sidewalk, are responsible for monitoring the condition of the covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding surface … . In support of its motion, the Transit Authority submitted, among other things, the plaintiff’s notice of claim with photographs depicting the accident location, her testimony at a hearing held pursuant to General Municipal Law § 50-h, and her deposition testimony, which demonstrated that the alleged defective portion of the sidewalk was in close proximity to a manhole cover. Regardless of whether the Transit Authority owned the subject sidewalk, it failed to establish the absence of any triable issues of fact as to whether it owned the subject manhole cover or whether the plaintiff fell within the manhole cover owner’s zone of responsibility … . Nyack v City of New York, 2017 NY Slip Op 06445, Second Dept 9-13-17

NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/MANHOLE COVERS (SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))

September 13, 2017

/ Municipal Law, Negligence

FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT).

The Second Department determined Supreme Court properly refused to grant summary judgment dismissing a portion of the complaint which alleged inadequate lighting as a cause of plaintiff’s slip and fall. Plaintiff alleged she tripped over a rolled up mat after voting at an elementary school:

The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the municipality to investigate the claim … .

Here, the plaintiffs’ notice of claim, which set forth [plaintiff] was “caused to fall as a result of a rolled up mat” which was positioned several feet in front of the door inside Hiawatha Elementary School, included information which was sufficient to enable the defendants to investigate the claim. * * *

Here, testimony at the hearing held pursuant to General Municipal Law § 50-h, which established the lighting conditions at the time and place of [plaintiff’s] accident, supplemented the notice of claim and provided the defendants with additional information regarding the manner in which the claim arose … . Moreover, an incident report prepared by the defendants’ employee shortly after [plaintiff’s] accident noted that the area where she fell was dark due to a power loss at the building. Contrary to the defendants’ contention, the plaintiffs’ bill of particulars, which alleged, inter alia, that the occurrence and resulting injury were caused by the defendants’ negligence in “placing a rolled up mat in the walkway in a poorly lit area in front of the exit from the school” did not substantially alter the nature of the plaintiffs’ claim. * * *

Contrary to the defendants’ contention, the power outage did not relieve them of their duty to address the allegedly dangerous condition created by the loss of power which may have obscured the mat from view … . Moreover, the defendants failed to establish, prima facie, their entitlement to summary judgment on the ground that the rolled up mat was open and obvious, and not inherently dangerous as a matter of law … . Lipani v Hiawatha Elementary Sch., 2017 NY Slip Op 06436, Second Dept 9-13-17

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/LIGHTING (SLIP AND FALL, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))

September 13, 2017

/ Negligence

PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded plaintiff in this traffic accident case. Plaintiff’s decedent had run out of gas and was struck from behind by defendant. The Second Department held that plaintiff had not demonstrated freedom from comparative fault:

To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that he or she was free from comparative fault … . Here, the plaintiff failed to meet that burden, as her own evidence, which included the defendants’ expert witness disclosure, raised triable issues of fact as to whether the decedent failed to warn other drivers of the hazard posed by his stalled vehicle, including by failing to keep his headlights illuminated, and, if so, whether such failure contributed to the defendant driver’s failure to see the decedent’s vehicle before the collision … . Palmer v Ecco III Enters., Inc., 2017 NY Slip Op 06446, Second Dept 9-13-17

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))

September 13, 2017

/ Negligence

SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT).

The Second Department determined defendant corporation’s (FHGC’s) motion for summary judgment in this traffic accident case was properly granted. FHGC was re-sodding an area near the curb. FHGC’s employee signaled to defendant driver to stop. Defendant driver (Miketta) then backed down the road and struck plaintiff’s decedent. Plaintiff sued Miketta and FHGC. The court held that the order to stop merely furnished a condition for the accident to occur, but was not a proximate cause of the accident:

… “[L]iability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event’ but was not one of its causes” … .

… FHGC demonstrated its prima facie entitlement to judgment as a matter of law by presenting evidence that its employees’ conduct in performing work near the roadway merely furnished the condition or occasion for the accident, and was not a proximate cause of the decedent’s injuries. Miketta’s decision to reverse her vehicle and drive back down the one-way street, ultimately striking the decedent, was the sole proximate cause of the accident … . Goldstein v Kingston, 2017 NY Slip Op 06429, Second Dept 9-13-17

NEGLIGENCE (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT))/TRAFFIC ACCIDENTS (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT))/PEDESTRIANS (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT))

September 13, 2017

/ Civil Procedure, Employment Law, Labor Law

PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).

The Second Department determined the plaintiff home health care workers were properly certified to bring a class action suit alleging inadequate pay in violation of the minimum wage requirements of the Labor Law. The plaintiffs worked at clients’ residences in 24-hour shifts. They were paid an hourly rate for the 12 daytime hours of their 24-hour shifts and a flat rate for the 12 nighttime hours. The plaintiffs argue they were entitled to the minimum wage for each hour of their 24-hour shifts:

The plaintiffs were required to be at the clients’ residences and were also required to perform services there if called upon to do so. To interpret that regulation to mean that the plaintiffs were not, during those nighttime hours, “required to be available for work” simply because it turned out that they were not called upon to perform services is contrary to the plain meaning of “available” … . …[T]o the extent that the members of the proposed class were not “residential” employees who “live[d] on the premises of the employer,” they were entitled to be paid the minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleep and meals … . …

… [T]he plaintiffs established the existence of the five prerequisites to class certification … , and none of the factors listed in CPLR 902 warranted a denial of the motion … . Andryeyeva v New York Health Care, Inc., 2017 NY Slip Op 06421, Second Dept 9-13-17

EMPLOYMENT LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/LABOR LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CLASS ACTIONS (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/HOME HEALTH CARE WORKERS (EMPLOYMENT LAW, PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/MINIMUM WAGE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))

September 13, 2017

/ Civil Procedure, Education-School Law

AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT).

The Second Department determined the defendant college’s motion to dismiss plaintiff-student’s breach of contract complaint as time-barred was properly granted. Plaintiff-student had received a failing grade and was ultimately dismissed from the program. The plaintiff’s mechanism for redress was an Article 78 proceeding, which has a four-month statute of limitations. The fact that the plaintiff attempted to bring a timely breach of contract action was to no avail:

“Although decisions made by educational institutions as to academic issues are not completely beyond the scope of judicial scrutiny, review is restricted to special proceedings under CPLR article 78, and only to determine whether the decision was arbitrary, capricious, irrational, or in bad faith” … .

Here, the plaintiff’s complaint challenged her dismissal from Teachers College following her receipt of a failing grade in the elective course. This is an academic determination for which the plaintiff should have sought review in the context of a proceeding pursuant to CPLR article 78… . Since the plaintiff’s claims would have been barred by the four-month statute of limitations applicable to such a proceeding … , the Supreme Court properly granted Teachers College’s motion to dismiss the complaint on the ground that it was time-barred … . Hernandez v Teachers Coll., Columbia Univ., 2017 NY Slip Op 06433, Second Dept 9-13-17

EDUCATION-SCHOOL LAW (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/COLLEGES (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/CIVIL PROCEDURE (EDUCATION-SCHOOL LAW, COLLEGES, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/ARTICLE 78 (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/STATUTE OF LIMITATIONS (ARTICLE 78, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/CONTRACT LAW (EDUCATION-SCHOOL LAW, COLLEGES, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))

September 13, 2017

/ Civil Procedure, Defamation

MANY STATEMENTS MADE BY A FORMER NEW YORK ATTORNEY GENERAL CONCERNING A FORMER CEO OF AIG DEEMED ACTIONABLE IN THIS DEFAMATION SUIT (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Chambers, determined certain statements made by defendant Eliot Spitzer (former New York Attorney General) concerning Hank Greenberg (former CEO of AIG) supported defamation causes of action. The opinion went through the long list of statements alleged to be defamatory in the complaint in the context of Spitzer’s motions to dismiss. Many, but not all, of the statements were found actionable and the complaint was deemed to have adequately alleged the actionable statements were made with malice:

This appeal presents an opportunity to discuss in some detail the proper application of CPLR 3211(a)(1) and (7) in the context of an action sounding in defamation. * * *

“Since falsity is a necessary element of a defamation cause of action and only facts’ are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action'”… .Thus, “[a]n expression of pure opinion is not actionable, . . . no matter how vituperative or unreasonable it may be” … .

“A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts” … . Conversely, “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a mixed opinion and is actionable” … .

“Whether a particular statement constitutes an opinion or an objective fact is a question of law” … . “In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the context in which the statement appears signals to readers [or listeners] that the statement is likely to be opinion, not fact” … . “The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion” … . Greenberg v Spitzer, 2017 NY Slip Op 06432, Second Dept 9-13-17

September 13, 2017

/ Criminal Law, Evidence

(HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT).

The Second Department, in affirming defendant’s conviction, noted that it was error to allow the prosecutor to cross-examine a defense witness about the witness’s gang affiliation. Gang membership had no relationship to the charges:

The Supreme Court erred in allowing the prosecutor to cross-examine a defense witness regarding her possible gang affiliations since there was no connection between gang membership and the alleged crime … . It was also improper to allow the prosecutor to introduce extrinsic evidence to impeach that witness’s credibility when she denied being affiliated with a gang … . However, because there was overwhelming evidence of the defendant’s guilt and no significant probability that these errors contributed to the defendant’s convictions, the errors were harmless … . People v Chinloy, 2017 NY Slip Op 06450, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))/GANGS (CRIMINAL LAW, EVIDENCE, (HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))

September 13, 2017

Search Results

COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT).

SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT).

NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT).

FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT).

PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT).

PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).

AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT).

MANY STATEMENTS MADE BY A FORMER NEW YORK ATTORNEY GENERAL CONCERNING A FORMER CEO OF AIG DEEMED ACTIONABLE IN THIS DEFAMATION SUIT (SECOND DEPT).

(HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT).

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