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PETITIONER OPERATED AN ONSHORE PETROLEUM STORAGE FACILITY WITHOUT A LICENSE IN VIOLATION OF THE NAVIGATION LAW, LICENSE FEES AND PENALTIES PROPERLY IMPOSED UPON PETITIONER’S SOLE SHAREHOLDER.

The Third Department affirmed the respondent commissioner of environmental conservation’s determination petitioner had failed to obtain licenses and pay license fees for an onshore petroleum storage facility and failed to maintain an adequate secondary containment area for the storage tanks. The assessment of fees and penalties was upheld, as was piercing the corporate veil to impose the fees and penalties upon petitioner’s sole shareholder personally:

The applicable standard of review is whether substantial evidence supports respondent’s determination (see CPLR 7803 [4]…). Under this standard, “it is the responsibility of the administrative agency to weigh the evidence and choose from among competing inferences therefrom and, so long as the inference drawn and the ultimate determination made are supported by substantial evidence, it is not for the court to substitute its judgment for that of the administrative agency” … . Respondent is not bound by the ALJ’s factual findings and is entitled to make his own findings … . To that end, respondent’s determination will not be disturbed so long as it is supported by substantial evidence … . …

Under New York’s Navigation Law, a person is prohibited from operating a major petroleum storage facility in the absence of a license (see Navigation Law § 174 [1] [a]; [9]). Matter of Supreme Energy, LLC v Martens, 2016 NY Slip Op 08143, 3rd Dept 12-1-16

 

ENVIRONMENTAL LAW (PETITIONER OPERATED AN ONSHORE PETROLEUM STORAGE FACILITY WITHOUT A LICENSE IN VIOLATION OF THE NAVIGATION LAW, LICENSE FEES AND PENALTIES PROPERLY IMPOSED UPON PETITIONER’S SOLE SHAREHOLDER)/NAVIGATION LAW (PETITIONER OPERATED AN ONSHORE PETROLEUM STORAGE FACILITY WITHOUT A LICENSE IN VIOLATION OF THE NAVIGATION LAW, LICENSE FEES AND PENALTIES PROPERLY IMPOSED UPON PETITIONER’S SOLE SHAREHOLDER)/PETROLEUM STORAGE FACILITY (ENVIRONMENTAL LAW, NAVIGATION LAW, PETITIONER OPERATED AN ONSHORE PETROLEUM STORAGE FACILITY WITHOUT A LICENSE IN VIOLATION OF THE NAVIGATION LAW, LICENSE FEES AND PENALTIES PROPERLY IMPOSED UPON PETITIONER’S SOLE SHAREHOLDER)/CORPORATION LAW (ENVIRONMENTAL LAW, NAVIGATION LAW, PETITIONER OPERATED AN ONSHORE PETROLEUM STORAGE FACILITY WITHOUT A LICENSE IN VIOLATION OF THE NAVIGATION LAW, LICENSE FEES AND PENALTIES PROPERLY IMPOSED UPON PETITIONER’S SOLE SHAREHOLDER)/PIERCING THE CORPORATE VEIL (ENVIRONMENTAL LAW, NAVIGATION LAW, PETITIONER OPERATED AN ONSHORE PETROLEUM STORAGE FACILITY WITHOUT A LICENSE IN VIOLATION OF THE NAVIGATION LAW, LICENSE FEES AND PENALTIES PROPERLY IMPOSED UPON PETITIONER’S SOLE SHAREHOLDER)

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NOTICE OF CLAIM REQUIRED FOR WRONGFUL TERMINATION SUIT AGAINST A COUNTY, EVEN THOUGH A NOTICE OF CLAIM WOULD NOT BE REQUIRED FOR A SIMILAR SUIT AGAINST A CITY.

The Third Department determined plaintiff’s wrongful termination suit against the county was properly dismissed for failure to file a notice of claim. The court noted that the notice of claim requirement for suits against cities is more narrow and applies only to tort cases. The notice of claim requirements for suits against counties are not limited to tort actions:

County Law § 52 (1) broadly provides that “[a]ny claim . . . against a county for damage [or] injury . . . and any other claim for damages arising at law or in equity, alleged to have been caused . . . by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with [General Municipal Law § 50-e]” … . Here, plaintiff’s complaint sought damages for wrongful termination and, thus, pursuant to County Law § 52 (1), General Municipal Law § 50-e (1) (a) required service of a notice of claim within 90 days after the claim for retaliatory termination arose. It is undisputed that plaintiff failed to serve a notice of claim, entitling defendant to dismissal of the complaint … .

Plaintiff’s reliance on appellate decisions involving complaints asserting a Civil Service Law § 75-b or similar claims against cities, in which the courts have ruled that the filing of a notice of claim is not required … , is misplaced. The cases cited by plaintiff involve claims against cities to which the more narrow notice of claim provisions of General Municipal Law §§ 50-e and 50-i apply, limiting the requirement for notices of claim to “tort” claims (General Municipal Law § 50-e [1] [a]) or claims for “personal injury, wrongful death or damage to real or personal property” (General Municipal Law § 50-i [1]). Sager v County of Sullivan, 2016 NY Slip Op 08152, 3rd Dept 12-1-16

 

EMPLOYMENT LAW (NOTICE OF CLAIM REQUIRED FOR WRONGFUL TERMINATION SUIT AGAINST A COUNTY, EVEN THOUGH A NOTICE OF CLAIM WOULD NOT BE REQUIRED FOR A SIMILAR SUIT AGAINST A CITY)/MUNICIPAL LAW (NOTICE OF CLAIM REQUIRED FOR WRONGFUL TERMINATION SUIT AGAINST A COUNTY, EVEN THOUGH A NOTICE OF CLAIM WOULD NOT BE REQUIRED FOR A SIMILAR SUIT AGAINST A CITY)/WRONGFUL TERMINATION (NOTICE OF CLAIM REQUIRED FOR WRONGFUL TERMINATION SUIT AGAINST A COUNTY, EVEN THOUGH A NOTICE OF CLAIM WOULD NOT BE REQUIRED FOR A SIMILAR SUIT AGAINST A CITY)/COUNTIES (WRONGFUL TERMINATION, NOTICE OF CLAIM REQUIRED FOR WRONGFUL TERMINATION SUIT AGAINST A COUNTY, EVEN THOUGH A NOTICE OF CLAIM WOULD NOT BE REQUIRED FOR A SIMILAR SUIT AGAINST A CITY)

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CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED.

The Third Department, affirming Supreme Court, determined petitioner was not a “necessary employee” under the Civil Service Law. Therefore her position with the respondent school district was not obligated to transfer her when her position was abolished:

Mandamus to compel, sought by petitioner, is “an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought” … . Civil Service Law § 70 (2) provides, in relevant part: “Upon the transfer of a function . . . from one department or agency of the state to another department or agency of the state, . . . provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred” … . This language imposes a mandatory duty … . Thus, the ultimate issue is whether petitioner has “established a right to the relief sought which is ‘so clear as not to admit of reasonable doubt or controversy'” … . An employee is eligible for a transfer pursuant to Civil Service Law § 70 (2) only if he or she is a “necessary . . . employee[]” — i.e., if the agency or the department to which his or her duties are being transferred does not have sufficient staff at the time of the transfer to perform the duties being transferred … . Matter of Thornton v Saugerties Cent. Sch. Dist., 2016 NY Slip Op 08139, 3rd Dept 12-1-16

EMPLOYMENT LAW (CIVIL SERVICE LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)/EDUCATION LAW (EMPLOYMENT LAW, CIVIL SERVICE LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)/CIVIL SERVICE LAW (EDUCATION-SCHOOL LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)

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COUNTERCLAIMS ALLEGING ENTITLEMENT TO A NONDISCRETIONARY BONUS PRECLUDED BY TERMS OF EMPLOYEE HANDBOOK.

The First Department, over an extensive dissent, determined the terms of the employee handbook, signed by the plaintiff, precluded counterclaims alleging an oral promise to pay an annual bonus:

The operative employee handbook stating, inter alia, that bonuses were paid at the sole discretion of plaintiff, and the acknowledgment of the handbook’s terms signed by defendant, conclusively refute the counterclaims based on the alleged oral promise to pay an annual nondiscretionary bonus … .

Nor was the discretionary bonus policy modified by the alleged oral agreement. As defendant’s acknowledgment makes clear, “[N]o supervisor, manager or other representative of [plaintiff] has the authority to make any verbal promises, commitments, or statements of any kind regarding the Company’s policies, procedures, or any other issues that are legally binding on the Company.”

The quasi-contractual counterclaims based on the alleged agreement are likewise precluded by the discretionary bonus policy … .

The alleged oral promise to pay acquisition proceeds, however, was not established to be a “bonus” within the scope of the discretionary bonus policy. The complaint alleges that the promised payment was not performance-based, but was an inducement to keep defendant from quitting … . The breach of contract counterclaim based on this alleged promise is nonetheless barred because the promise was not in writing, as required by the broad language of the acknowledgment … .

The quasi-contractual counterclaims, to the extent predicated on an alleged agreement to pay acquisition proceeds, likewise fail. Such claims require an element of reasonable reliance on a promise, a reasonable expectation of compensation, or an inequity, all of which are negated where, as here, the plaintiff receives adequate compensation and signed a written acknowledgment confirming the fact that no representative of plaintiff had authority to make legally binding verbal promises … . Newmark & Co. Real Estate, Inc. v Frischer, 2016 NY Slip Op 08100, 1st Dept 12-1-16

EMPLOYMENT LAW (COUNTERCLAIMS ALLEGING ENTITLEMENT TO A NONDISCRETIONARY BONUS PRECLUDED BY TERMS OF EMPLOYEE HANDBOOK)/CONTRACT LAW (EMPLOYMENT LAW, COUNTERCLAIMS ALLEGING ENTITLEMENT TO A NONDISCRETIONARY BONUS PRECLUDED BY TERMS OF EMPLOYEE HANDBOOK)/BONUSES (EMPLOYMENT LAW, COUNTERCLAIMS ALLEGING ENTITLEMENT TO A NONDISCRETIONARY BONUS PRECLUDED BY TERMS OF EMPLOYEE HANDBOOK)

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MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE.

The Third Department reversed defendant’s murder conviction, finding it against the weight of the evidence. The victim, who died from blunt force trauma to the abdomen, was defendant’s two-year-old son. The forensic evidence placed the time of the injury during a period when defendant was not home. Contradictions in witness testimony rendered it too weak to support the conviction. The Third Department went through the trial evidence in detail. The evidence cannot be fairly summarized here. People v Taft, 2016 NY Slip Op 08123, 3rd Dept 12-1-16

CRIMINAL LAW (MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)/APPEALS (CRIMINAL LAW, MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)

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MOTION TO COMPEL COMPLIANCE WITH NON-JUDICIAL SUBPOENAS PROPERLY GRANTED, ANY OBJECTIONS WOULD HAVE TO AWAIT THE ACTUAL QUESTIONING AT THE HEARING.

The Third Department, affirming Supreme Court, determined petitioner’s motion pursuant to CPLR 2308 (b) to compel respondents to comply with non-judicial subpoenas was properly granted. Petitioner was charged by the State Liquor Authority (SLA) with improper conduct, i.e., shipping wine to customers in states that prohibit residents from receiving such shipments. Petitioner subpoenaed the SLA’s general counsel and several others on the SLA staff. It was petitioner’s position that shipping wine out of state had never before been deemed improper by the SLA. The court found the objections to the subpoenas, including an objection based upon attorney-client privilege, premature. Because the subpoenas sought only testimony, any objections would have to await the actual questioning at the hearing:

According to petitioner, the challenged subpoenas are intended to obtain information pertaining to, among other things, SLA’s past and present policies regarding out-of-state shipping, the standards applicable to the charges of improper conduct against petitioner and evidence related to penalty mitigation. CPLR 2308 (b) provides that, upon a motion to compel a respondent to comply with a non-judicial subpoena, the court “shall order compliance” if it determines that the subpoena was authorized. Here, it is undisputed that petitioner was authorized by SLA’s regulations to issue the subpoenas (see 9 NYCRR 54.3 [h]; see also CPLR 2302 [a]). Respondents nevertheless contend that their motion to quash should have been granted based upon their claims that the information sought by the subpoenas is privileged, irrelevant, beyond the scope of the administrative hearing, cumulative and burdensome. We affirm, finding no abuse of Supreme Court’s discretion in the denial of respondents’ cross motion … . Matter of Empire Wine & Spirits LLC v Colon, 2016 NY Slip Op 08145, 3rd Dept 12-1-16

CIVIL PROCEDURE (MOTION TO COMPEL COMPLIANCE WITH NON-JUDICIAL SUBPOENAS PROPERLY GRANTED, ANY OBJECTIONS WOULD HAVE TO AWAIT THE ACTUAL QUESTIONING AT THE HEARING)/SUBPOENAS (NON-JUDICIAL, TESTIMONY ONLY, MOTION TO COMPEL COMPLIANCE WITH NON-JUDICIAL SUBPOENAS PROPERLY GRANTED, ANY OBJECTIONS WOULD HAVE TO AWAIT THE ACTUAL QUESTIONING AT THE HEARING)

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BUYER NOT ENTITLED TO RETURN OF DEPOSIT, BUYER DID NOT COMPLY WITH THE MORTGAGE CONTINGENCY PROVISIONS OF THE PURCHASE AGREEMENT AND DID NOT ACT IN GOOD FAITH, APPELLATE COURT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO SELLERS.

The Second Department, reversing Supreme Court, searched the record and awarded summary judgment to the defendants-sellers in this action to recover the deposit for a home purchase. The court found the buyer did not comply with the mortgage contingency provisions of the purchase agreement and misled the sellers, not informing them of the rejection of his mortgage applications:

… [T]he Supreme Court erred in determining that the buyer had made a prima facie showing of entitlement to judgment as a matter of law. The correspondence submitted by the buyer on renewal demonstrated, among other things, that the seller agreed to the buyer’s initial request to extend the commitment date but refused to consider his request for a second extension of the commitment date until the buyer provided copies of his loan applications and declinations. Additionally, this new evidence demonstrated that when the buyer sought an extension of the commitment date, he did not advise the seller of the fact that he had already been rejected by more than one lender. Contrary to the buyer’s contention, the evidence demonstrated that the buyer failed to comply with several provisions of the mortgage contingency clause in the contract … , and acted in bad faith in obtaining an extension of the commitment date by misleading the seller about the fact that multiple lenders rejected his mortgage loan applications based on his “delinquent credit obligations” and the lenders’ inability to verify his income. * * *

This Court has the authority to search the record and award summary judgment to a nonmoving party with respect to issues that were the subject of the motion before the Supreme Court … . Under the unique and compelling circumstances of this case, and given the wealth of evidence which supports judgment in favor of the defendants, we search the record and award summary judgment to the defendants dismissing the complaint … . Kweku v Thomas, 2016 NY Slip Op 08051, 2nd Dept 11-30-16

 

REAL ESTATE (BUYER NOT ENTITLED TO RETURN OF DEPOSIT, BUYER DID NOT COMPLY WITH THE MORTGAGE CONTINGENCY PROVISIONS OF THE PURCHASE AGREEMENT AND DID NOT ACT IN GOOD FAITH, APPELLATE COURT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO SELLERS)/CONTRACT LAW (REAL ESTATE PURCHASE CONTRACT, BUYER NOT ENTITLED TO RETURN OF DEPOSIT, BUYER DID NOT COMPLY WITH THE MORTGAGE CONTINGENCY PROVISIONS OF THE PURCHASE AGREEMENT AND DID NOT ACT IN GOOD FAITH, APPELLATE COURT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO SELLERS)/APPEALS (SUMMARY JUDGMENT, BUYER NOT ENTITLED TO RETURN OF DEPOSIT, BUYER DID NOT COMPLY WITH THE MORTGAGE CONTINGENCY PROVISIONS OF THE PURCHASE AGREEMENT AND DID NOT ACT IN GOOD FAITH, APPELLATE COURT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO SELLERS)

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FALLING PLYWOOD NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLYWOOD WAS NOT BEING HOISTED AND WAS NOT REQUIRED TO BE SECURED, LABOR LAW 246 (1) CAUSE OF ACTION PROPERLY SURVIVED.

The Second Department determined plaintiff’s Labor Law 240 (1) cause of action, based upon injury caused by a falling piece of plywood, was properly dismissed because the plywood was not being hoisted and did not need to be secured. Plaintiff’s 241 (6) cause of action was properly allowed to proceed:

… [T]he Supreme Court correctly determined that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging violations of Labor Law § 240(1) by submitting the deposition transcript of [defendant’s] superintendent, which demonstrated that the plywood that fell was not being hoisted or secured and did not require securing for the purposes of the undertaking at the time it fell … . * * *

As to the Labor Law § 241(6) cause of action, which was predicated upon a violation of 12 NYCRR 23-1.7(a)(1), the Supreme Court … correctly determined that … the defendants established their prima facie entitlement to judgment as a matter of law based upon the plaintiff’s supervisor’s affidavit, in which he averred that the area where the plaintiff was working was not normally exposed to falling material or objects (see 12 NYCRR 23-1.7[a][1]…). In opposition, the plaintiff raised a triable issue of fact by submitting the plaintiff’s supervisor’s deposition testimony, in which he testified, in contradiction to his affidavit, that it was known that objects were “always” falling at the plaintiff’s worksite, and that objects fell “sometimes” and “once in a while” … . Millette v Tishman Constr. Corp., 2016 NY Slip Op 08053, 2nd Dept 11-30-16

 

LABOR LAW-CONSTRUCTION LAW (FALLING PLYWOOD NOT ACTIONABLE UNDER LABOR LAW 240 (1), NOT BEING HOISTED OR REQUIRED TO BE SECURED, LABOR LAW 246 (1) CAUSE OF ACTION PROPERLY SURVIVED)

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ALTHOUGH PLAINTIFF WAS ON A LADDER WHEN INJURED, THE INJURY WAS NOT CAUSED BY GRAVITY, LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DISMISSED, DEFENDANT DID NOT HAVE SUFFICIENT CONTROL OVER THE INJURY-PRODUCING WORK TO BE LIABLE UNDER LABOR LAW 200.

The Second Department determined plaintiff’s Labor Law 240 (1) and 200 causes of action were properly dismissed. Plaintiff was on a ladder bolting an elevated steel beam when a forklift struck another (connected) beam pinning plaintiff’s arm between the beam he was working on and the wall. The injury was deemed unrelated to the force of gravity. In addition the court found that defendant did not exercise sufficient control over the injury-producing work to be liable under Labor Law 200. However, certain Labor Law 241 (6) causes of action, alleging the injury was linked to violations of the industrial code, should not have been dismissed:

Labor Law § 240(1) ” was designed to provide exceptional protection for workers against the special hazards which stem from a work site that is either elevated or positioned below the level where materials are hoisted or secured'” … . Its purpose is “to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials” … . Merely because “a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by Section 240(1) of the Labor Law” … . * * *

To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work … . ” A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed'” … . ” [T]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence'”… . Guallpa v Canarsie Plaza, LLC, 2016 NY Slip Op 08046, 2nd Dept 11-30-16

 

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH PLAINTIFF WAS ON A LADDER WHEN INJURED, THE INJURY WAS NOT CAUSED BY GRAVITY, LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DISMISSED, DEFENDANT DID NOT HAVE SUFFICIENT CONTROL OVER THE INJURY-PRODUCING WORK TO BE LIABLE UNDER LABOR LAW 200)

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EVEN IF THE MISREPRESENTATION THE HOME WAS TO BE OWNER-OCCUPIED WAS INNOCENTLY MADE, RESCISSION OF THE FIRE INSURANCE POLICY WAS JUSTIFIED.

The Second Department determined defendant insurer properly rescinded the plaintiffs’ fire insurance policy based upon the plaintiffs’ misrepresentation the residence would be owner-occupied. The court noted that a misrepresentation can be innocently made and still trigger rescission. The court also found that the broker had no obligation to make sure the insurance application was properly filled out by the plaintiffs:

Here, [the insurer] established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiffs’ application for insurance contained a misrepresentation regarding whether the premises would be owner occupied and that it would not have issued the subject policy if the application had disclosed that the subject premises would not be owner occupied … .

In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs admit that, at the time the application was completed, they did not intend to occupy the premises. Thus, contrary to the plaintiffs’ contentions, although the application was completed prior to closing and prior to the inception of the policy, the representation therein that the premises was an owner-occupied primary residence established, in effect, a material misrepresentation of a then existing fact that the premises would be owner occupied, which was sufficient for rescission under Insurance Law § 3105 … . Joseph v Interboro Ins. Co., 2016 NY Slip Op 08050, 2nd Dept 11-30-16

 

INSURANCE LAW (EVEN IF THE MISREPRESENTATION THE HOME WAS TO BE OWNER-OCCUPIED WAS INNOCENTLY MADE, RESCISSION OF THE FIRE INSURANCE POLICY WAS JUSTIFIED)/CONTRACT LAW (INSURANCE POLICY, EVEN IF THE MISREPRESENTATION THE HOME WAS TO BE OWNER-OCCUPIED WAS INNOCENTLY MADE, RESCISSION OF THE FIRE INSURANCE POLICY WAS JUSTIFIED)/MATERIAL MISREPRESENTATION (INSURANCE POLICY, EVEN IF THE MISREPRESENTATION THE HOME WAS TO BE OWNER-OCCUPIED WAS INNOCENTLY MADE, RESCISSION OF THE FIRE INSURANCE POLICY WAS JUSTIFIED)

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