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LIABILITY UNDER CONTRACT CAN ARISE IN THE ABSENCE OF PRIVITY WHERE A PARTY IS A JOINT VENTURER OR PARTNER WITH A SIGNATORY TO THE CONTRACT.

The Third Department, reversing Supreme Court, determined there was a question of fact whether defendant Rock Solid was in a joint venture with defendant Catamount at the time Catamount entered a contract with plaintiffs. Plaintiffs sought specific performance of the contract. Supreme Court had dismissed the action against Rock Solid finding that Rock Solid was not in privity of contract with plaintiffs. However, because plaintiffs alleged Rock Solid and Catamount were joint venturers, and because Rock Solid did not address that issue in its motion for summary judgment, the motion should not have been granted:

Liability under a contract can arise in the absence of privity where it is established that the defendant is in a joint venture or partnership with a signatory to the contract (see Partnership Law § 28…). “A joint venture is an association of two or more persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge” … . “The essential elements of a joint venture are an agreement manifesting the intent of the parties to be associated as joint venturers, a contribution by the coventurers to the joint undertaking (i.e., a combination of property, financial resources, effort, skill or knowledge), some degree of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses” … .

Here, Supreme Court concluded that Rock Solid established its prima facie entitlement to summary judgment as a matter of law by demonstrating that it was not a party to the 2005 agreement … . … [T]he court failed to address whether Rock Solid satisfied its additional burden to refute plaintiffs' assertions in the complaint that Rock Solid was Catamount's joint venturer or partner. Alper Rest., Inc. v Catamount Dev. Corp., 2016 NY Slip Op 02509, 3rd Dept 3-31-16

CONTRACT LAW (LIABILITY UNDER CONTRACT CAN ARISE IN THE ABSENCE OF PRIVITY WHERE A PARTY IS A JOINT VENTURER OR PARTNER WITH A SIGNATORY TO THE CONTRACT)/JOINT VENTURES (LIABILITY UNDER CONTRACT CAN ARISE IN THE ABSENCE OF PRIVITY WHERE A PARTY IS A JOINT VENTURER OR PARTNER WITH A SIGNATORY TO THE CONTRACT)

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FAILURE TO COMPLY WITH NOTICE PROVISION OF NYC ADMINISTRATIVE CODE DID NOT TOLL STATUTE OF LIMITATIONS RE: AN ACTION SEEKING TO RECOVER THE COST OF BUILDING MODIFICATIONS REQUIRED BY THE CODE AFTER DEFENDANTS’ CONSTRUCTION OF A TALLER NEIGHBORING BUILDING.

The First Department, in a full-fledged opinion by Justice Tom, determined defendants' failure to give notice to plaintiff of their intent to increase the height of a neighboring building did not toll the statute of limitations. The suit concerned two provisions of the Administrative Code of the City of New York. One provision required notice to neighboring property owners of construction to increase the height of a building. The other required the owner of the newly constructed building to increase the height of the chimneys of surrounding buildings to bring them back into conformance with the Administrative Code. Plaintiff was seeking to recover the cost of modifying its chimney which was rendered noncompliant by defendants' now taller neighboring building. The new construction was completed in 2007. The court held defendants' failure to notify plaintiff of the new construction did not excuse plaintiff's failure to bring an action within three years of the completion of the new construction:

Pursuant to the statutory language, plaintiff's claim accrued when defendants' building (1) was erected; (2) was sited within 100 feet of plaintiff's chimney; and (3) was increased in height so that it exceeded the height of plaintiff's chimney vent. Here, all the factual circumstances required to establish a right of action occurred by January 2007, when the work on the building had been substantially completed. The January 22, 2007 temporary certificate of occupancy (CO), issued by the Department of Buildings (DOB), certified that defendants' building was 20 stories tall and “conform[ed] substantially to the approved plans and specifications[,] and to the requirements of all applicable laws, rules and regulations for the uses and occupancies specified” for the project. The approved condominium offering plan stated that the Arts Tower would consist of a cellar level and 20 additional stories. This documentary evidence is prima facie proof that as of January 20, 2007, the building was erected to a height that was 10 stories taller than plaintiff's chimney, and sited within 100 feet of the chimney, thus triggering the three-year limitations period on plaintiff's claim that defendants failed to comply with Administrative Code § 27-860(a). Moreover, plaintiff concedes that it was aware of the building's height by the time construction was substantially completed in 2007. Accordingly plaintiff's claim accrued on January 20, 2007, and this action, commenced in March 2014, is thus time-barred … . West Chelsea Bldg. LLC v Guttman, 2016 NY Slip Op 02548, 1st Dept 3-31-16

CIVIL PROCEDURE (FAILURE TO COMPLY WITH NOTICE PROVISION OF NYC ADMINISTRATIVE CODE DID NOT TOLL STATUTE OF LIMITATIONS RE: AN ACTION SEEKING TO RECOVER THE COST OF BUILDING MODIFICATIONS REQUIRED BY THE CODE AFTER DEFENDANTS' CONSTRUCTION OF A TALLER NEIGHBORING BUILDING)/ADMINSTRATIVE CODE OF THE CITY OF NEW YORK (FAILURE TO COMPLY WITH NOTICE PROVISION OF NYC ADMINISTRATIVE CODE DID NOT TOLL STATUTE OF LIMITATIONS RE: AN ACTION SEEKING TO RECOVER THE COST OF BUILDING MODIFICATIONS REQUIRED BY THE CODE AFTER DEFENDANTS' CONSTRUCTION OF A TALLER NEIGHBORING BUILDING)/BUILDING HEIGHT (NYC) (FAILURE TO COMPLY WITH NOTICE PROVISION OF NYC ADMINISTRATIVE CODE DID NOT TOLL STATUTE OF LIMITATIONS RE: AN ACTION SEEKING TO RECOVER THE COST OF BUILDING MODIFICATIONS REQUIRED BY THE CODE AFTER DEFENDANTS' CONSTRUCTION OF A TALLER NEIGHBORING BUILDING)/CHIMNEY HEIGHT (NYC) (FAILURE TO COMPLY WITH NOTICE PROVISION OF NYC ADMINISTRATIVE CODE DID NOT TOLL STATUTE OF LIMITATIONS RE: AN ACTION SEEKING TO RECOVER THE COST OF BUILDING MODIFICATIONS REQUIRED BY THE CODE AFTER DEFENDANTS' CONSTRUCTION OF A TALLER NEIGHBORING BUILDING)

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BREACH OF PHYSICIAN-PATIENT CONFIDENTIALITY CAUSE OF ACTION ALLOWED TO PROCEED AGAINST HOSPITAL AND TREATING PHYSICIAN, PLAINTIFFS’ DECEDENT’S TREATMENT AND DEATH IN THE EMERGENCY ROOM WERE FILMED WITHOUT CONSENT; ALLEGATIONS OF OUTRAGEOUS CONDUCT NOT SUFFICIENT TO SUPPORT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined plaintiffs had stated a cause of action against the hospital and treating physician for breach of physician-patient confidentiality. At the time plaintiffs' decedent was admitted to the emergency room, a television crew was filming. Without decedent's consent, his treatment and death were recorded and subsequently aired. Although the breach of confidentiality cause of action was allowed to go forward, the intentional infliction of emotional distress cause of action was not. The allegations were deemed not to meet the requirements of the “extreme and outrageous conduct” element of the tort. With respect to the breach of confidentiality, the court explained:

The elements of a cause of action for breach of physician-patient confidentiality are: (1) the existence of a physician-patient relationship; (2) the physician's acquisition of information relating to the patient's treatment or diagnosis; (3) the disclosure of such confidential information to a person not connected with the patient's medical treatment, in a manner that allows the patient to be identified; (4) lack of consent for that disclosure; and (5) damages … .  Here, the complaint alleges that decedent was a patient at the Hospital and that Schubl was his treating physician. In the complaint's fourth cause of action, decedent's estate alleges “[t]hat defendants[] unnecessarily, recklessly, willfully, maliciously and in conscious disregard of [decedent's] rights disclosed and discussed his medical condition with cast members of [the television crew] and allowed them to videotape said conversations and videotape his medical treatment for broadcast and dissemination to the public in an episode of that television show.” Asserting that the public does not have any legitimate interest in this information, the complaint states that “[d]efendants' disclosure of [decedent's] medical information constitutes a violation of physician[-]patient confidentiality and an invasion of his privacy and is a violation of State and Federal statutes protecting the privacy of medical records and information.” The complaint seeks damages for injuries and loss as determined at trial. Chanko v American Broadcasting Cos. Inc., 2016 NY Slip Op 02478, CtApp 3-31-16

PHYSICIAN-PATIENT CONFIDENTIALITY, BREACH OF BREACH OF (PHYSICIAN-PATIENT CONFIDENTIALITY CAUSE OF ACTION ALLOWED TO PROCEED AGAINST HOSPITAL AND TREATING PHYSICIAN, PLAINTIFFS' DECEDENT'S TREATMENT AND DEATH IN THE EMERGENCY ROOM WERE FILMED WITHOUT CONSENT)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (ALLEGATIONS OF OUTRAGEOUS CONDUCT NOT SUFFICIENT TO SUPPORT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION, PLAINTIFFS' DECEDENT'S MEDICAL TREATMENT AND DEATH WERE FILMED AND AIRED WITHOUT CONSENT)

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OFFICE-BASED SURGERY CENTERS, UNLIKE HOSPITALS AND AMBULATORY SURGERY CENTERS, ARE NOT ENTITLED TO REIMBURSEMENT FOR FACILITY FEES UNDER THE NO-FAULT LAW.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined an office-based surgery (OBS) center, unlike hospitals and ambulatory surgery centers (ASC), are not entitled to reimbursement for “facility fees” under the no-fault insurance law and the related regulations. The fees at issue in this case amounted to $1.3 million:

As the statutory language illustrates, the legislature capped total payments for basic economic loss, and delegated the determination of fee rates to the Chair and the Superintendent. Neither administrator has chosen to include OBS facility fees in the regulatory schedules. It is not for this Court to decide, contrary to [the OBS's] contention, whether this is a “good idea” or if it would be better for patients covered by no-fault insurance, and for the efficient management of our health care system, to require reimbursement of OBS facility fees as a means to ensure that OBS facilities continue to be viable options for patients. “These policy determinations are beyond our authority and instead best left for the legislature” … . Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 2016 NY Slip Op 02473, CtApp 3-31-16

INSURANCE LAW (OFFICE-BASED SURGERY CENTERS, UNLIKE HOSPITALS AND AMBULATORY SURGERY CENTERS, ARE NOT ENTITLED TO REIMBURSEMENT FOR FACILITY FEES UNDER THE NO-FAULT LAW)/NO-FAULT INSURANCE (OFFICE-BASED SURGERY CENTERS, UNLIKE HOSPITALS AND AMBULATORY SURGERY CENTERS, ARE NOT ENTITLED TO REIMBURSEMENT FOR FACILITY FEES UNDER THE NO-FAULT LAW)/OFFICE-BASED SURGERY CENTERS (NO-FAULT INSURANCE, OFFICE-BASED SURGERY CENTERS, UNLIKE HOSPITALS AND AMBULATORY SURGERY CENTERS, ARE NOT ENTITLED TO REIMBURSEMENT FOR FACILITY FEES UNDER THE NO-FAULT LAW)

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FIDUCIARY EXCEPTION TO THE USUAL BURDEN OF PROOF IN A CONSTRUCTIVE FRAUD ACTION DID NOT APPLY, FIDUCIARIES WERE NOT PARTIES TO THE RELEVANT DOCUMENTS AND DID NOT STAND TO BENEFIT FROM THE PROVISIONS OF THE DOCUMENTS.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissenting opinion, determined an affirmative defense alleging constructive fraud on the part of attorneys who drafted irrevocable releases of powers of appointment of trust assets was properly dismissed by the Appellate Division. The Benihana Protective Trust (BPT) was formed by Rocky, the founder of the Benihana restaurant chain. The irrevocable releases of powers of appointment allowed disposition of the trust assets only to Rocky's descendants. However, irrespective of the releases, Rocky's will attempted to pass trust assets to his wife. Rocky indicated in a deposition that he would not have signed the releases had he known they would prohibit the disposition of trust assets to his wife. Upon Rocky's death, Rocky's wife sought to have the releases declared invalid under a fiduciary constructive-fraud theory. Rocky's wife argued that the fiduciary exception to the usual constructive fraud proof requirements shifted the burden to the trust beneficiaries to prove the releases were not procured by fraud. Rejecting the applicability of the fiduciary exception, the court affirmed the Appellate Division's grant of summary judgment in favor of the trust beneficiaries:

It is a well-settled rule that “'fraud vitiates all contracts, but as a general thing it is not presumed but must be proved by the party seeking to [be] relieve[d] . . . from an obligation on that ground'” … . However, an exception to that general rule provides that where a fiduciary relationship exists between the parties, the law of constructive fraud will operate to shift the burden to the party seeking to uphold the transaction to demonstrate the absence of fraud … . * * *

[The attorneys who drafted the Releases] were clearly Rocky's fiduciaries. But that is only one part of the equation. The critical inquiry is whether they were either parties to the Releases or stood to directly benefit from their execution, such that the burden shifted to [trust beneficiaries] to demonstrate that the Releases were not procured by fraud.

Here, the only individuals who stood to benefit from Rocky's execution of the Releases were his descendants. [The attorneys] were [not] parties to the Releases [and did not] to directly benefit from their execution … . If anything, the execution of the Releases all but ensured that [the attorneys] would have no interest in, nor would receive any benefit from, the trust assets. Therefore, the Appellate Division correctly determined that, because the fiduciary exception does not apply in this case, the Surrogate had improperly shifted the burden of proof to [the trust beneficiaries] to demonstrate that the Releases were not procured by fraud. Matter of Aoki v Aoki, 2016 NY Slip Op 02474, CtApp 3-31-16

FRAUD (FIDUCIARY EXCEPTION TO THE USUAL BURDEN OF PROOF IN A CONSTRUCTIVE FRAUD ACTION DID NOT APPLY, FIDUCIARIES WERE NOT PARTIES TO THE RELEVANT DOCUMENTS AND DID NOT STAND TO BENEFIT FROM THE PROVISIONS OF THE DOCUMENTS)/ATTORNEYS (FIDUCIARY EXCEPTION TO THE USUAL BURDEN OF PROOF IN A CONSTRUCTIVE FRAUD ACTION DID NOT APPLY, ATTORNEYS WHO DRAFTED THE RELEVANT DOCUMENTS WERE NOT PARTIES AND DID NOT STAND TO BENEFIT FROM THE PROVISIONS OF THE DOCUMENTS)/TRUSTS AND ESTATES  (FIDUCIARY EXCEPTION TO THE USUAL BURDEN OF PROOF IN A CONSTRUCTIVE FRAUD ACTION DID NOT APPLY, ATTORNEYS WHO DRAFTED RELEASES OF POWERS OF APPOINTMENT WERE NOT PARTIES TO THE RELEASES AND DID NOT STAND TO BENEFIT FROM THE RELEASES)/POWERS OF APPOINTMENT  (FIDUCIARY EXCEPTION TO THE USUAL BURDEN OF PROOF IN A CONSTRUCTIVE FRAUD ACTION DID NOT APPLY, ATTORNEYS WHO DRAFTED RELEASES OF POWERS OF APPOINTMENT WERE NOT PARTIES TO THE RELEASES AND DID NOT STAND TO BENEFIT FROM THE RELEASES)

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TOWN’S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERY WHICH COULD BE REVIEWED BY A COURT.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the town board's issuing a positive declaration under the State Environmental Quality Review Act (SEQRA) and imposing a DEIS (draft environmental impact statement) requirement on a landowner seeking a nonconforming use did not raise a justiciable controversy.   Although the creation of a DEIS imposes a financial cost on the landowner, it is only the initial step in the SEQRA review process and is not, therefore, ripe for review. The landowner relied on Matter of Gordon v Rush, 100 NY2d 236, to argue review was appropriate. The court explained why Gordon did not apply:

This Court [in Gordon] concluded that the Board's administrative action was ripe for judicial review because the Board's SEQRA declaration imposed an obligation on the petitioners to prepare and submit a DEIS, after they “had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency,” and where no apparent further proceedings would remedy the injury caused by the unnecessary and unauthorized expenditures associated with conducting a DEIS … . Thus, Gordon's analysis and its import must be considered in light of the Court's recognition that the administrative action in that case was potentially unauthorized because “the Board may not have had jurisdiction to conduct its own SEQRA review,” given the existence of a prior negative declaration by a facially appropriate lead agency … . Matter of Ranco Sand & Stone Corp. v Vecchio, 2016 NY Slip Op 02477, CtApp 3-31-16

ENVIRONMENTAL LAW (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/LAND USE (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/ADMINISTRATIVE LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT, TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/ENVIRONMENTAL IMPACT STATEMENT (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)

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DEFENSE COUNSEL’S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over an extensive two-judge dissenting opinion, determined defense counsel's failure to request the reopening of the suppression hearing based upon trial testimony did not constitute ineffective assistance. The Appellate Division had previously reversed the trial court's suppression of defendant's statements. At trial the detective who took the statements from the defendant gave an account which differed from the detective's hearing testimony. The inconsistent testimony related to the second of the two statements made by the defendant during interrogation. In response to defendant's motion to vacate the judgment of conviction on ineffective-assistance grounds, the People provided an affidavit from defense counsel which explained the strategy underlying the decision to forego a request to reopen the suppression hearing. “… Counsel averred that he had believed that defendant's second statement would almost certainly be admitted into evidence at trial and that therefore he had focused on using the exculpatory preface of the first statement to cast doubt on the probative worth of defendant's more incriminating subsequent comments.” The court found the explanation of the defense strategy to be sound:

Defense counsel did not deprive defendant of the effective assistance of counsel when he decided not to move to reopen the suppression hearing … . Because the Appellate Division had rejected counsel's original arguments for suppression of the [second] statement prior to trial and cited a number of factors that remained extant throughout the proceedings in this case, counsel reasonably thought that the statement would be admitted into evidence regardless of any new developments, and instead of making what he sensibly thought was a longshot motion to reopen the hearing, he decided to use the exculpatory portion of defendant's first statement to undermine the credibility of the second statement and place it in context. People v Gray, 2016 NY Slip Op 02476, CtApp 3-31-16

CRIMINAL LAW (DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)

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FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE.

The Court of Appeals determined defendant, who was charged with criminal possession of a weapon, was not afforded effective assistance of counsel in that defense counsel did not move to suppress the weapon. The matter was remitted for a suppression hearing. The underlying facts were not addressed in the decision. People v Bilal, 2016 NY Slip Op 02475, CtApp 3-31-16

CRIMINAL LAW (FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)

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NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined the NYS Office of Parks, Recreation and Historic Preservation (OPRHP) did not exceed its authority when it prohibited smoking in seven small parks in New York City and in less than five percent of the 330,000-acre state park system. The court went through the factors outlined in Boreali v Axelrod, 71 NY2d 1, which were described as follows:

… [Under Boreali] the circumstances to be considered are whether (1) “the agency did more than balanc[e] costs and benefits according to preexisting guidelines,' but instead made value judgments entail[ing] difficult and complex choices between broad policy goals' to resolve social problems” … ; (2) “the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance' ” …; (3) “the legislature has unsuccessfully tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve” …; and (4) “the agency used special expertise or competence in the field to develop the challenged regulation[]” … .

Our statement of the relevant principles of law does not end with the articulation of the Boreali factors. Those considerations, we have observed, are not to be applied rigidly … . In fact, they “are not mandatory, need not be weighed evenly, and are essentially guidelines for conducting an analysis of an agency's exercise of power” … . Indeed, “we treat the circumstances as overlapping, closely related factors that, taken together, support the conclusion that an agency has crossed th[e] line [into legislative territory]” … . We also “center [any Boreali analysis] on the theme that it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends' “… . Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 2016 NY Slip Op 02479, CtApp 3-31-16

ADMINSITRATIVE LAW (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)/STATE PARKS (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)/SMOKING PROHIBITION (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)

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FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE.

The Second Department determined defendant's motion for summary judgment in a slip and fall case was properly denied. The defendant failed to demonstrate when the area was last cleaned and inspected. Evidence of routine maintenance is not enough:

Here, although the defendant's evening maintenance employee testified at his deposition about his regular cleaning routine for the building, he had no independent recollection of having cleaned the floor in question on the date of the plaintiff's accident. Furthermore, no deposition testimony was provided describing the condition of the floor in question on the date of the accident, including whether the maintenance employee had observed a water condition upon it. Since the defendant did not submit evidence regarding any specific inspection or cleaning of the area on the date of the accident, the defendant failed to establish that it did not have constructive notice of the alleged dangerous condition … . The defendant's submissions also failed to eliminate all triable issues of fact as to whether it created the alleged dangerous condition … . Ansari v MB Hamptons, LLC, 2016 NY Slip Op 02305, 2nd Dept 3-30-16

NEGLIGENCE (SLIP AND FALL, FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT)/SLIP AND FALL (FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT)/CONSTRUCTIVE NOTICE (SLIP AND FALL, FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT)

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