You are here: / DEFENDANT’S FAILURE TO DEMONSTRATE WHEN AREA WHERE PLAINTIFF FELL...

Search Results

/

DEFENDANT’S FAILURE TO DEMONSTRATE WHEN AREA WHERE PLAINTIFF FELL WAS LAST INSPECTED OR CLEANED REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION.

The First Department, reversing (modifying) Supreme Court, determined the defendant YMCA's failure to demonstrate when the area where plaintiff fell had last been inspected or cleaned required denial of the YMCA's motion for summary judgment:

Plaintiff alleges that she slipped and fell on a puddle of water that was on the floor of a YMCA owned and maintained by defendants. The YMCA made a prima facie showing that it did not cause or create the alleged condition, because plaintiff testified that she did not see the YMCA's employees working at the accident location prior to the incident and did not know where the water came from … . The YMCA also made a prima facie showing that it lacked actual notice of the alleged condition, because the building engineer for the premises averred that he oversaw the maintenance of the premises and did not receive complaints about water on the floor prior to the accident … . However, the YMCA failed to make a prima facie showing that it lacked constructive notice of the alleged defect. The building engineer failed to aver as to when the YMCA's employees last cleaned or inspected the accident location before the incident occurred … . Graham v YMCA of Greater N.Y., 2016 NY Slip Op 01777, 1st Dept 3-15-16

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

/ , ,

ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE, SEX OFFENDER CIVIL MANAGEMENT PETITION SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the state's petition for sex offender civil management should not have been dismissed after the article 10 probable cause hearing. Expert evidence was presented which alleged respondent suffered from antisocial personality disorder (ASPD) with psychopathy. That was sufficient to demonstrate probable cause:

“[I]n article 10 proceedings, issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury” … . Here, the State expert opined that respondent suffers from a mental abnormality within the meaning of the MHL based on a diagnosis of antisocial personality disorder (ASPD) with psychopathy. Although the factfinder at trial may or may not accept the expert's opinion, the expert's testimony at the hearing was not so deficient as to warrant dismissal of the petition at this early juncture, especially since the expert offered extensive testimony regarding the distinctions between ASPD and psychopathy, and since the Court of Appeals in Donald DD. did not state that a diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality … . Matter of State of New York v Jerome A., 2016 NY Slip Op 01788, 1st Dept 3-15-16

MENTAL HYGIENE LAW (ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR SEX OFFENDER CIVIL COMMITMENT)/SEX OFFENDERS (ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR SEX OFFENDER CIVIL COMMITMENT)

/ , ,

WIFE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN AN ACTION SEEKING THE TURNOVER OF PERSONAL PROPERTY TO ENFORCE A JUDGMENT AGAINST HUSBAND; HER SEPARATE PROPERTY, AS OPPOSED TO MARITAL PROPERTY, COULD NOT BE REACHED BY A JUDGMENT CREDITOR.

The First Department determined the wife in a divorce proceeding, Wendy, should have been allowed to intervene in an action against her husband, Hugh, by plaintiff, Pensmore, seeking the turnover and sale of personal property to enforce a money judgment. Wendy submitted proof supporting her claim that the personal property in her possession was her separate property, not marital property, and therefore could not be reached by the creditor:

As a preliminary matter, we agree with Wendy that because Hugh was not in physical possession of the property which is the subject of the turnover order, the enforcement proceeding should have been brought as a special proceeding pursuant to CPLR 5225(b). Wendy was required to have been named as a party and separately served with the petition, because she is the one in actual possession of the disputed property (CPLR 5225[b] McKinney's Practice Commentary, 5225.5). Although Pensmore did not properly name Wendy, the error could have been cured by permitting Wendy to intervene, so long as the burden of proof remained on the judgment creditor (Pensmore) to establish that the judgment debtor (Hugh) has an interest in the property that is superior to the person in actual possession (Wendy) … .

The trial court was required to hold a hearing to determine whether the personal property in Wendy's possession is her sole separate property or marital property. * * *

While … an inchoate right to equitably share in marital property cannot be protected against third party creditors of a debtor spouse … , the same rule does not hold true for separate property of the non-debtor spouse. Domestic Relations Law § 236[B] provides that “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held” is marital property (Domestic Relations Law § 236 [B][1][c]…). There is an exception, however, for “property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;” such property is the separate property of that spouse (DRL § 236 [B][1][d]…). Separate property, is not “marital property” and it is not equitably distributed in a divorce action … . Although neither spouse has a vested interest in any property that is otherwise marital until it is distributed in a divorce action, separate property, unless transmuted or commingled, retains its character as the property of the spouse who owns it both during and after the marriage … . Pensmore Invs., LLC v Gruppo, Levey & Co., 2016 NY Slip Op 01789, 1st Dept 3-15-16

FAMILY LAW (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/PERSONAL PROPERTY (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/DEBTOR-CREDITOR (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/CIVIL PROCEDURE (NON-DEBTOR SPOUSE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN ACTION TO ENFORCE JUDGMENT AGAINST DEBTOR-HUSBAND)/INTERVENE, MOTION TO (NON-DEBTOR SPOUSE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN ACTION TO ENFORCE JUDGMENT AGAINST DEBTOR-HUSBAND)

/ ,

UNDER THE FACTS, PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED.

The First Department determined defendant's pre-trial request to represent himself was properly denied because the request raised a significant potential for obstruction and diversion. The request was made after the People rested in a suppression hearing:

… [T]he court properly denied defendant's request to represent himself. Although a request to proceed pro se at trial is generally deemed timely if asserted before trial (see People v McIntyre, 36 NY2d 10, 17 [1974]), defendant here waited until after the People had rested in the suppression hearing before requesting to proceed pro se within that hearing, raising a significant “potential for obstruction and diversion” (id.). Accordingly, the court properly denied defendant's request in the absence of “compelling circumstances” (id.). We note that, over the course of the proceedings, defendant was represented by a total of seven retained or assigned attorneys, and repeatedly changed his mind about whether to represent himself. People v Franklin, 2016 NY Slip Op 01781, 1st Dept 3-15-16

CRIMINAL LAW (PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED)/PRO SE (CRIMINAL LAW, PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED)

/ ,

COMPLAINTS ALLEGING THE DELIVERY OF FUEL OIL MIXED WITH WASTE OIL SHOULD NOT HAVE BEEN DISMISSED, THE COMPLAINTS STATED BREACH OF CONTRACT AND BREACH OF WARRANTY CAUSES OF ACTION.

The First Department, in a full-fledged opinion by Justice Saxe, determined two class action complaints alleging defendants supplied heating oil of lesser quality than that called for by the contracts should not have been dismissed. The complaints alleged waste oil had been mixed with the No. 4 and No. 6 fuel oil which was ordered. Certain detrimental effects of burning the mixed fuel were alleged. The First Department held that the “no injury” products liability cases relied upon by the motion court did not apply. Rather the case presented breach of contract/warranty issues:

Plaintiffs essentially allege that, consistent with the ASTM specifications, as well as common commercial usage, and pursuant to the UCC, customers purchasing goods described as No. 4 and No. 6 fuel oil are entitled to presume that they are receiving 100% fuel oil of the specified grade, and not a product consisting of a blend of No. 4 or No. 6 fuel oil with some other types of oil that do not meet the criteria of those ASTM specifications. * * *

Under UCC 2-714(2), the measure of damages for breach of warranty is the difference between the value of the goods delivered and the value of the goods warranted … . Since we must infer from the complaint that plaintiffs received nonconforming oil deliveries of lesser value than those they contracted and paid for, causes of action for breach of contract and breach of warranty — including plaintiffs' damages — are stated in each action. BMW Group, LLC v Castle Oil Corp., 2016 NY Slip Op 01790, 1st Dept 3-15-16

CONTRACT LAW (COMPLAINTS ALLEGING THE DELIVERY OF FUEL OIL MIXED WITH WASTE OIL STATED CAUSES OF ACTION FOR BREACH OF CONTRACT AND BREACH OF WARRANTY)/UCC (COMPLAINTS ALLEGING THE DELIVERY OF FUEL OIL MIXED WITH WASTE OIL STATED CAUSES OF ACTION FOR BREACH OF CONTRACT AND BREACH OF WARRANTY)/FUEL OIL  (COMPLAINTS ALLEGING THE DELIVERY OF FUEL OIL MIXED WITH WASTE OIL STATED CAUSES OF ACTION FOR BREACH OF CONTRACT AND BREACH OF WARRANTY)

/ , ,

SIX-YEAR STATUTE OF LIMITATIONS APPLIES TO BREACH OF FIDUCIARY DUTY CLAIMS WHICH SOUND IN FRAUD.

The First Department, in a case remitted by the Court of Appeals, determined the six-year statute of limitations applied to “breach of fiduciary duty” causes of action because fraud allegations were at the heart of the claims. Where, as here, a “breach of fiduciary duty” cause of action seeks monetary damages and not equitable relief, the three-year statute of limitations usually applies. However, where, as here, allegations of fraud are central to the fiduciary duty cause of action, the six-year statute of limitations applies:

… [A] cause of action for breach of fiduciary duty based on allegations of actual fraud is subject to a six-year limitations period” … . An exception to this rule exists ” if the fraud allegation is only incidental to the claim asserted'” … . Thus, “where an allegation of fraud is not essential to the cause of action pleaded except as an answer to an anticipated defense of Statute of Limitations, courts look for the reality, and the essence of the action and not its mere name” … .

Here, although the fiduciary duty claims seek monetary relief, the six-year limitations period applies because the claims sound in fraud. Cusimano v Schnurr, 2016 NY Slip Op 01758, 1st Dept 3-15-16

 

CIVIL PROCEDURE (SIX-YEAR STATUTE OF LIMITATIONS APPLIES TO BREACH OF FIDUCIARY DUTY CLAIMS WHICH SOUND IN FRAUD)/FRAUD (SIX-YEAR STATUTE OF LIMITATIONS APPLIES TO BREACH OF FIDUCIARY DUTY CLAIMS WHICH SOUND IN FRAUD)/FIDUCIARY DUTY, BREACH OF (SIX-YEAR STATUTE OF LIMITATIONS APPLIES TO BREACH OF FIDUCIARY DUTY CLAIMS WHICH SOUND IN FRAUD)

/

PART-TIME BOOKKEEPER WAS AN EMPLOYEE

The Third Department determined claimant, a part-time bookkeeper for AIS, was an employee entitled to unemployment insurance benefits:

Here, claimant responded to a job advertisement placed by AIS, submitted a resume and was interviewed by AIS’s office manager. She was hired at an agreed-upon hourly wage and performed her duties at AIS, where she shared an office with the clinical director and was provided with a computer, bookkeeping software, an email account and a key to the office. Although she was not required to work a set schedule, claimant testified that she was expected to work a total of 24 hours per week. She was also expected to notify AIS of the specific hours that she would be working each week and submit documentation detailing her hours, which had to be reviewed and approved by the clinical director in order to receive payment. She was paid by means of a biweekly paycheck, although payroll taxes were not deducted. In addition, she was required to attend staff meetings when they dealt with business-related matters, and she interacted with both AIS personnel as well as its outside certified public accountant regarding such matters. In our view, the foregoing illustrates that AIS retained sufficient control over claimant’s work to be considered her employer… . Matter of Stewart (American Inst. for Stuttering–Commissioner of Labor), 2016 NY Slip Op 01720, 3rd Dept 3-10-16

UNEMPLOYMENT INSURANCE (PART-TIME BOOKKEEPER WAS AN EMPLOYEE)

/

CRISIS COUNSELOR WAS AN EMPLOYEE.

The Third Department determined a counselor (called a “specialist”) who worked for Crisis Care Network (CCN), a provider of crisis intervention services to employers which have experienced tragedies, was an employee entitled to unemployment insurance benefits. CCN contracts with an employer's designated employee assistance program (EAP):

… [A]fter contracting with an EAP, CCN recruits specialists from its self-created database and screens them to ensure that they have the qualifications required by the EAP. If a specialist has the proper qualifications, CCN offers that individual the assignment at a set hourly rate of pay. If accepted, as in claimant's case, the parties enter into a written agreement governing that particular assignment and CCN informs the specialist, based upon instructions from the EAP, of the date, time and location that the specialist is to report. While on assignment, the specialist must represent that he or she is from the EAP and is not permitted to solicit clients, although there is no prohibition against a specialist otherwise engaging in private practice or working for CCN's competitors. Except in very limited circumstances, CCN pays specialists within 45 days after services are rendered upon the submission of the proper paper work by the specialist regardless of whether it has yet been paid by the EAP, and CCN also provides reimbursement for travel expenses. CCN also provides voluntary training. If a specialist is unable to report to an assignment, he or she must notify CCN and cannot select a replacement. Furthermore, CCN provides specialists with informational handouts to be used on assignments, as well as professional guidelines that are based upon the expectations of the EAP, and the specialists must provide reports summarizing the counseling sessions per the requirements of the EAP. Matter of Torres (Crisis Care Network, Inc.–Commissioner of Labor), 2016 NY Slip Op 01710, 3rd Dept 3-10-16

UNEMPLOYMENT INSURANCE (CRISIS COUNSELOR WAS AN EMPLOYEE)

/

PROMOTIONAL SALES MODEL WAS AN EMPLOYEE.

The Third Department determined claimant, a promotional sales model who distributed samples of products and free merchandise for the clients of Preston, was an employee of Preston entitled to unemployment insurance benefits:

Here, Preston directed potential promotional sales models to fill out an application and to provide references. Preston established the pay rates, paid claimant directly regardless of whether a client paid Preston and, at times, reimbursed claimant for certain travel or incidental expenses. Preston determined the time, date and location of the promotional events, as well as the particular products that claimant would be required to distribute at the events … . Prior to a promotional event, Preston's managers instructed claimant to dress appropriately … and not to distribute products at the events that were not being promoted. The managers also explained what was expected of her at the event and informed her of what she should say at the events about the clients' products. If claimant could not report for a scheduled event or complete her shift, she was expected to contact a manager at Preston. Following an event, she was expected to fill out a Preston “recap form” summarizing her time spent at and information about the event, and she was required to submit the form to a manager at Preston. While claimant could and did work for other companies, she did not maintain her own business for promotional sales marketing. On occasion, Preston would contact its clients to review and critique claimant's work at the promotional events, and Preston directly handled clients' complaints … . Matter of Waggoneer (Preston Leasing Corp.–Commissioner of Labor), 2016 NY Slip Op 01707, 3rd Dept 3-10-16

UNEMPLOYMENT INSURANCE (PROMOTIONAL SALES MODEL WAS AN EMPLOYEE)

/ ,

RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED; ERROR WAS HARMLESS HOWEVER.

Although the error was deemed harmless, the First Department determined defendant’s right to confront the witness against him was violated. The witness’s grand jury testimony was read to the jury as past recollection recorded. However, because the witness asserted his fifth amendment right to avoid self-incrimination, the truth of the grand jury testimony could not be tested by cross-examination. The First Department explained the relevant law:

Provided that a proper foundation is laid, grand jury testimony may be admitted as past recollection recorded, and its admission does not violate the Confrontation Clause where the witness testifies at trial and is subject to cross-examination …, because “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements” … . However, this may not apply when a witness appears at trial but invokes the Fifth Amendment … . Not every instance in which a witness invokes the privilege against self-incrimination will give rise to a Confrontation Clause violation; rather, “the Sixth Amendment is violated only when assertion of the privilege undermines the defendant’s opportunity to test the truth of the witness’ direct testimony” … .

Here, the witness asserted his Fifth Amendment rights and refused to answer questions that had a direct bearing on testing the truth of his grand jury testimony. Thus, the witness’s extensive assertion of his Fifth Amendment rights regarding the material facts “undermine[d] the process to such a degree that meaningful cross-examination within the intent of the [Confrontation Clause] no longer exist[ed]” … .  People v Rahman, 2016 NY Slip Op 01750, 1st Dept 3-10-16

CRIMINAL LAW (RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED, WITNESS ASSERTED FIFTH AMENDMENT RIGHT TO AVOID SELF-INCRIMINATION)/EVIDENCE (CRIMINAL LAW, RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED, WITNESS ASSERTED FIFTH AMENDMENT RIGHT TO AVOID SELF-INCRIMINATION)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy