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PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT.

The First Department, with a two-justice concurring memorandum, determined conflicting testimony raised questions of fact about whether a safety harness was available and whether the scaffold was defective. Plaintiff was not wearing a harness when he attempted to move from the roof to a scaffold and fell. With respect to the scaffold, the court noted that plaintiff’s allegedly inconsistent accounts of the cause of the fall raised a question of fact:

According to plaintiff, as he attempted to swing down from the roof to the scaffold, a wire attaching the scaffold to the building snapped, causing the scaffold to swing away from the wall and resulting in plaintiff’s fall to the ground below. The foreman, however, testified that, in conversation after the accident, plaintiff had admitted to him that he fell because his foot had slipped as he stepped onto the scaffold from the roof, without mentioning any movement of the scaffold. These two versions of how the accident happened, each given by plaintiff, the sole witness to the incident, are inconsistent with each other and give rise to an issue of fact as to whether plaintiff’s fall was caused by a failure of a safety device within the purview of § 240(1). As this Court recently noted, “[W]here a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident” … . Albino v 221-223 W. 82 Owners Corp., 2016 NY Slip Op 05953, 1st Dept 9-8-16

LABOR LAW (PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT)/EVIDENCE (LABOR LAW, PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT)

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SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS.

In a proceeding related to Matter of Frank G… summarized above, the Second Department noted that the surrogacy contract did not deprive the mother of the child (Renee P.-F.) of her parental rights:

Renee P.-F.’s parental rights were not terminated by virtue of her entering into a surrogacy contract. Surrogate parenting contracts have been declared contrary to the public policy, and are void and unenforceable (see Domestic Relations Law § 122). Moreover, Domestic Relations Law § 124(1) expressly states that “the court shall not consider the birth mother’s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations.” Matter of Giavonna F. P.-G. (Frank G.–Renee P.-F.), 2016 NY Slip Op 05948, 2nd Dept 9-8-16

FAMILY LAW (SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/CONTRACT LAW (FAMILY LAW, SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/SURROGACY CONTRACT (FAMILY LAW, SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/PARENTAL RIGHTS (SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)

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PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP.

Applying the recent overruling of precedent by the Court of Appeals, the Second Department determined petitioner had the right to seek custody of children, despite the absence of a biological or adoptive relationship. The children had been carried by a surrogate, who also sought custody:

During the pendency of this appeal, the Court of Appeals, in Matter of Brooke S.B. v Elizabeth A. C.C. … , overruled Alison D. because, inter alia, its definition of “parent” had “become unworkable when applied to increasingly varied familial relationships” … . In Brooke S.B., the Court held that, where a partner to a biological parent “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70(a)” … .

Here, Joseph sufficiently demonstrated by clear and convincing evidence that he and Frank entered into a pre-conception agreement to conceive the children and to raise them together as their parents. Although the surrogacy contract is not enforceable as against Renee to deprive her of standing under Domestic Relations Law § 70 (see Domestic Relations Law § 124[1]), it is evidence of the parties’ unequivocal intention that Frank and Joseph become the parents of the children. Moreover, Frank and Joseph equally shared the rights and responsibilities of parenthood, and were equally regarded by the children as their parents. Therefore, Joseph established standing to seek custody or visitation under Domestic Relations Law § 70… . Matter of Frank G. v Renee P.-F., 2016 NY Slip Op 05946, 2nd Dept 9-8-16

 

FAMILY LAW (PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP)/CUSTODY (PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP)

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USE OF PIER 55 FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE.

The First Department, in affirming the decision of the Hudson River Park Trust to enter into a lease of Pier 55 on the Hudson River, noted that there is no case law in New York applying the public trust doctrine to state, as opposed to municipal, parkland, and, even if the doctrine applied, the lease did not violate it:

There is no case law in New York applying the public trust doctrine to state, as opposed to municipal, parkland (see Matter of Niagara Preserv. Coalition, Inc. v New York Power Auth., 121 AD3d 1507, 1511 [4th Dept 2014] … ). We need not decide whether to follow the [4th] Department because even if the doctrine applies here, the project and lease do not violate it. The Hudson River Park Act expressly authorizes the use of the park for revenue-generating events, including performing arts events (see Uncons Laws §§ 1642[c], [e]; 1643[h][ii]; 1647[10][a]), and courts have upheld the charging of fees for park facilities, provided that overall public access is not unduly constrained … . Here, beyond the performances for which Pier 55 is designed, most of the park-like pier, most of the time, will be devoted to even more fundamental “public park uses, including passive and active public open space uses” (Uncons Laws § 1643[h][ii]). Additionally, the lease requires that 51% of the performances be free or low-cost. Matter of City Club of N.Y., Inc. v Hudson Riv. Park Trust, Inc., 2016 NY Slip Op 05954, 1st Dept 9-8-16

ENVIRONMENTAL LAW (USE OF PIER 55 FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/PUBLIC TRUST DOCTRINE (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/HUDSON RIVER PARK TRUST (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/PIER 55 (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/PARKS (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/PIER 55 (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)

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CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE.

The First Department, in a full-fledged opinion by Justice Tom, determined plaintiffs (parents of students, among others) had sufficiently pled certain causes of action based upon the state’s alleged failure to adequately fund New York City public schools. The complex discussion cannot be summarized here. With respect to a municipality’s (here, the City of Yonkers’) lack of standing standing to sue the state in this context, the court explained:

The City of Yonkers maintains that it has capacity to sue …, asserting that the educational funding cuts have deprived it of a proprietary interest in the Foundation Aid monies calculated to be apportioned to it by formula pursuant to the 2007 Budget and Reform Act. This argument is unpersuasive. Contrary to Yonkers’s contention, the proprietary interest exception does not apply where a municipality has “a mere hope or expectancy” of receiving funds … , but instead “relate[s] to funds or property of a municipal corporation in its possession or to which it had a right to immediate possession” … . The Foundation Aid monies provided for under the 2007 Budget and Reform Act (codified in Education Law § 3602) are the product of a complex formula that turns on the application of numerous variables, including things like a school district’s “daily attendance figures” … . Sums allocated pursuant to the formula therefore vary from year to year. Moreover, any sums provided for by Foundation Aid must themselves be the subject of a separate budgetary appropriation; absent such appropriation, they do not exist (see State Finance Law §§ 4[1]; 40[2][a]). Thus, the Foundation Aid formula does not create any “specific sum of money” that would “create[] a proprietary interest” in any school district … . Aristy-Farer v State of New York, 2016 NY Slip Op 05960, 1st Dept 9-8-16

EDUCATION-SCHOOL LAW (CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE)/MUNICIPAL LAW (CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE)

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CAUSES OF ACTION FOR BOTH CONSTRUCTIVE AND ACTUAL FRAUDULENT CONVEYANCE STATED, ELEMENTS DESCRIBED.

The First Department determined the complaint stated causes of action for both constructive and actual fraudulent conveyance. The facts are too complex to summarize here, but the nature of the transactions is revealed in the following excerpts:

The complaint states a cause of action for constructive fraudulent conveyance against Globe Institute, the Rabinovich defendants and 878 LLC by alleging that the conveyance of Globe Institute’s assets to 878 LLC was made without the exchange of “fair consideration,” since the transaction could be viewed as resulting in part of the value of Globe Institute’s assets being paid to its shareholders indirectly, suggesting bad faith (see Debtor and Creditor Law § 272[a]). Further, while the asset purchase agreement provided for 878 LLC to assume certain liabilities of Globe Institute and to make future conditional payments to Globe Institute’s shareholders, in opposition to the motion, plaintiff presented supplementary evidence that the consideration was not a “fair equivalent” for the valuable assets transferred (see id.). The complaint also adequately alleges that the transaction rendered Globe Institute insolvent (Debtor and Creditor Law § 273) and was accomplished while Globe Institute was engaged in business (Debtor and Creditor Law § 274), and that Globe Institute and the Rabinovich defendants were aware that the transaction would prevent Globe Institute from fulfilling its obligations under its guarantee of rental payments due under Globe Alumni’s lease … .

The cause of action for actual fraudulent conveyance under Debtor and Creditor Law § 276 is also adequately pleaded against Globe Institute, the Rabinovich defendants, and 878 LLC. Although the transaction was conducted at arm’s length, plaintiff has sufficiently alleged ” badges of fraud,'” i.e., “circumstances so commonly associated with fraudulent transfers that their presence gives rise to an inference of intent,'” including (1) the parties’ structuring of the transaction so that the sole consideration promised to Globe Institute, aside from 878 LLC’s assumption of certain of Globe Institute’s liabilities, was a $1.35 million payment directly to its shareholders, the Rabinovich defendants, rather than to Globe Institute itself, (2) the exclusion of Globe Institute’s guarantee of the lease agreement from the list of assumed liabilities, although the parties knew that Globe Institute would be left as a corporate shell as result of the transaction and would therefore be unable to honor any future liabilities, (3) inadequate consideration, and (4) the transaction’s having been outside the usual course of business and hastily closed over the course of only a few days, while other potential buyers required a much longer due diligence period … . 172 Van Duzer Realty Corp. v 878 Educ., LLC, 2016 NY Slip Op 05957, 1st Dept 9-8-16

DEBTOR-CREDITOR LAW (CAUSES OF ACTION FOR BOTH CONSTRUCTIVE AND ACTUAL FRAUDULENT CONVEYANCE STATED, ELEMENTS DESCRIBED)/FRAUD  (CAUSES OF ACTION FOR BOTH CONSTRUCTIVE AND ACTUAL FRAUDULENT CONVEYANCE STATED, ELEMENTS DESCRIBED)/FRAUDULENT CONVEYANCE (CAUSES OF ACTION FOR BOTH CONSTRUCTIVE AND ACTUAL FRAUDULENT CONVEYANCE STATED, ELEMENTS DESCRIBED)

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THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED.

The Second Department, affirming the denial of a motion to dismiss counterclaims, in an action stemming from alleged damage to a party wall, explained the law of party walls:

While one who hires an independent contractor generally will not be liable for the contractor’s negligence, an exception exists where the employer has a nondelegable duty to ensure the work is safely performed … . With regard to two owners whose properties abut the same party wall, each owns so much of the wall as stands upon his or her own lot, both “having an easement in the other strip for purposes of the support of his own building” … . “Although the land covered by a party wall remains the several property of the owner of each half, . . . the title of each owner is qualified by the easement to which the other is entitled” … . “[N]either owner may subject a party wall to a use for the benefit of its own property that renders the wall unavailable for similar use for the benefit of the other property” … .

Liability may also be imposed on a property owner where, during renovation, the party wall is altered to the detriment of the adjoining property owner (Schneider v 44-84 Realty Corp. , 169 Misc 249 [Sup Ct, Bronx County 1938], affd 257 App Div 932 [1st Dept 1939]). In Schneider , the court explained that the defendant who tore down its house on one side of the party wall “could not withdraw the wall or change its condition to the injury of plaintiffs or plaintiffs’ property without being liable in damages for any injury that might accrue to the plaintiffs thereby” (id. at 252). Moreover, “[e]ven if the defendant proceeded with all skill and diligence it is still liable to the plaintiffs for any injuries sustained in consequence of the intended alterations to the wall and to the support which the building on defendant’s premises gave to the plaintiffs’ property” (id. at 253). Ehrenberg v Regier, 2016 NY Slip Op 05938, 1st Dept 9-1-16

REAL PROPERTY (THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED)/PARTY WALLS (REAL PROPERTY, THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED)

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QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED.

The First Department, over an extensive dissent, determined the motion for summary judgment dismissing the negligence cause of action against defendant property manager was properly denied. Defendant contracted with the board of a cooperative to manage the property. Plaintiff alleged defendant’s attempt to fix a minor leak caused water to damage his unit:

Regardless of which party had the burden of proof on the Espinal exception, the evidence submitted on the motion established that defendant attempted to fix the leak or leaks on several occasions and that the problem persisted and culminated in a flood of water “cascading” into plaintiff’s apartment. Plaintiff testified that the leak began on March 8, 2010, and lasted a few days. The leak started again in May 2010, and reoccurred in August 2010 and December 2010, and finally, the “big finale” of water cascading into plaintiff’s unit occurred in August 2011. Defendant attempted to fix the leaks on several occasions. Invoices dated March 10, April 13, September 28, and December 30, 2010 indicate that plumbing work was done in response to plaintiff’s complaints about water leaks. The notations in these invoices do not definitively establish whether or not defendant’s plumbers “launched a force or instrument of harm.” Thus, contrary to the dissent’s contention, the evidence raises an issue of fact as to whether defendant’s attempts to fix the water leak exacerbated the condition that led to the more serious leak that occurred in August 2011. Karydas v Ferrara-Ruurds, 2016 NY Slip Op 05941, 1st Dept 9-1-16

NEGLIGENCE (ESPINAL EXCEPTION, QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED)/CONTRACT LAW (NEGLIGENCE, ESPINAL EXCEPTION, QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED)/TORT LIABILITY ARISING FROM CONTRACT (QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED).ESPINAL EXCEPTION( QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED)

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IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE.

The First Department, over an extensive two-justice dissent, determined that, where a question of fact has been raised in an accident case about whether plaintiff was comparatively negligent, summary judgment finding defendant liable cannot be granted. Here, the plaintiff was alleged to have been injured while walking behind a sanitation truck which was backing up:

In this case, we are revisiting a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department. The precedents cited by the dissent have, in fact, acknowledged as much. After a review of the relevant precedents, we believe that the original approach adopted by this Department, as well as that followed in the [2nd] Department, which requires a plaintiff to make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability, is the correct one. …

The issue that arises in the context of a summary judgment motion brought by a plaintiff on the issue of liability is whether, as the dissent posits, the motion should be granted and the issue of contributory negligence considered during the damages portion of the case or where the defendant raises an issue of fact with respect to the plaintiff’s negligence and the plaintiff fails to show the absence of negligence on his or her part, the motion must be denied and that issue considered during the liability phase of the trial. As discussed herein, the latter is the fairer, and therefore the proper way to proceed. Rodriguez v City of New York, 2016 NY Slip Op 05943, 1st Dept 9-1-16

 

NEGLIGENCE (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/COMPARATIVE NEGLIGENCE (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/EVIDENCE (NEGLIGENCE, (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)

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INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE WAS PROHIBITED BY LAW.

The First Department, in a full-fledged opinion by Justice Gische, reversing Supreme Court, determined the insurer (Century) of plaintiff gas company (Keyspan) was not liable for pollution damage for periods of time which preceded the 16 years the policy was in place and during which pollution insurance was prohibited by law:

New York appellate courts … have not expressly ruled on the question presented here, which is: When the reason for the period of no insurance is that the insured could not have obtained insurance even if it had wanted to, is the risk attendant to the unavailability of insurance in the marketplace allocable to the existing, triggered insurance policies or to the insured? * * *

… [T]he order of the Supreme Court … which … denied defendant Century Indemnity Company’s motion for partial summary judgment declaring that Century is not responsible for any part of the costs of cleanup for periods of time when insurance was unavailable before 1953 and after 1986, should be unanimously reversed, on the law, without costs, and the motion granted, and it should be so declared. Keyspan Gas E. Corp. v Munich Reins. Am., Inc., 2016 NY Slip Op 05945, 1st Dept 9-1-16

 

INSURANCE LAW (INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE WAS PROHIBITED BY LAW)/ENVIRONMENTAL LAW (POLLUTION INSURANCE, INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE WAS PROHIBITED BY LAW)/POLLUTION INSURANCE (INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE WAS PROHIBITED BY LAW)

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