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ALLEGATION PLAINTIFF WAS TOLD NOT TO WORK ON THE DAY HE FELL FROM A SCAFFOLD PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR; THE DEFINITION OF EMPLOYEE INCLUDES PERMISSION TO WORK.

The Second Department, reversing Supreme Court, determined defendants had raised a triable issue of fact about whether plaintiff had their permission to work when plaintiff fell from a scaffold. The definition of an employee under the Labor Law includes “permission to work.” Here the defendants alleged plaintiff was specifically told not to work until certain demolition work was done:

The Labor Law defines “employee” as “a mechanic, workingman or laborer working for another for hire” (Labor Law § 2[5]), and “employed” as “permitted or suffered to work” (Labor Law § 2[7]). “To come within the special class for whose benefit absolute liability is imposed upon contractors, owners, and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent” … . Aslam v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 2016 NY Slip Op 00316, 2nd Dept 1-20-16

LABOR LAW (DEFINITION OF EMPLOYEE INCLUDES PERMISSION TO WORK, HERE ALLEGATION EMPLOYEE WAS TOLD NOT WORK RAISED ISSUE OF FACT ON LIABILITY)/EMPLOYEE (LABOR LAW DEFINITION INCLUDES REQUIREMENT THAT EMPLOYEE HAVE PERMISSION TO WORK)

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BANK DID NOT NEGOTIATE IN GOOD FAITH IN THE CPLR 3408 MANDATORY FORECLOSURE SETTLEMENT CONFERENCE, CERTAIN SANCTIONS PROPERLY IMPOSED.

The Second Department determined Supreme Court properly found the bank did not negotiate in a mortgage foreclosure settlement conference (CPLR 3408(f)) in good faith and properly imposed certain sanctions on the bank:

 

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see CPLR 3408[f]…). ” The purpose of the good faith requirement [in CPLR 3408] is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution'” … . To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that “the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” … .

Here, contrary to the Bank’s contention, the totality of the circumstances support the Supreme Court’s conclusion that it failed to negotiate in good faith. The homeowner’s submissions demonstrated that the Bank, among other things, engaged in dilatory conduct by “making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided” … . The Bank failed to offer any evidence in opposition to the homeowner’s motion and did not controvert the homeowner’s account of the mandatory settlement negotiations. Accordingly, under the circumstances, the Supreme Court properly concluded that the Bank violated CPLR 3408(f) by failing to negotiate in good faith … . LaSalle Bank, N.A. v Dono, 2016 NY Slip Op 00340, 2nd Dept 1-20-16

 

FORECLOSURE (BANK DID NOT NEGOTIATE IN GOOD FAITH RE: MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CIVIL PROCEDURE (BANK DID NOT NEGOTIATE IN GOOD FAITH IN MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)

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AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER THE DOCTRINE OF COMITY.

The Second Department determined an agreement, called a mahr agreement, which was part of a foreign Islamic divorce decree and which called for the payment to the wife of $250,000, was properly enforced by Supreme Court under the doctrine of comity:

 

“Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States” … . Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York … . Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy … .

Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby … . Badawi v Alesawy, 2016 NY Slip Op 00317, 2nd Dept 1-20-16

 

FAMILY LAW (AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER DOCTRINE OF COMITY)/COMITY (AGREEMENT WHICH WAS PART OF FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED IN SUPREME COURT)

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GOOD CAUSE FOR A FIVE-YEAR EXTENSION OF AN ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED.

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Chambers, determined petitioner had made showing of “good cause” for the extension of an order of protection, and the court ordered a five-year extension. The court took the opportunity to define “good cause” in this context:

 

… [I]n determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable … . * * *

The petitioner stated that, because they have a child in common, the parties continue to interact. They come into contact during litigation over custody and visitation issues and when they exchange the child at the drop-off location at the police station. The respondent also has a history of assaulting the petitioner, and their on-going discord continues. There is no evidence in the record to suggest that the petitioner’s more serious allegations were contrived. Moreover, it is undisputed that, since the entry of the subject order of protection, the respondent has pleaded guilty in the Criminal Court to disorderly conduct, and the Criminal Court has issued a two-year order of protection in favor of the petitioner. Therefore, it is clear from the record that the petitioner’s fear that the respondent may stalk, harass, or attack her is well-founded, and that the unavoidable interactions between the parties may subject her to a reoccurrence of violence … . Matter of Molloy v Molloy, 2016 NY Slip Op 00366, 2nd Dept 1-20-16

 

FAMILY LAW (GOOD CAUSE FOR EXTENSION OF ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED)/ORDERS OF PROTECTION (FAMILY COURT, CRITERIA FOR DEMONSTRATION OF GOOD CAUSE FOR AN EXTENSION EXPLAINED)

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JURY CONFUSION, STEMMING FROM THE WORDING OF THE SPECIAL VERDICT SHEET, MANDATED A NEW TRIAL.

The First Department, in three, two-justice concurring opinions, determined plaintiff’s motion to set aside the jury verdict should have granted on “jury confusion” grounds. Plaintiff had a kidney removed for his father’s transplant procedure. A “knot pusher device” was left inside plaintiff, and he underwent a second surgery to remove it. The jury, based on the special verdict sheet, indicated leaving the “knot pusher device” inside plaintiff was not the proximate cause of his injury, but the jury sent out a note stating the plaintiff should be awarded $50,000 for having to undergo the second procedure:

 

An examination of the record reveals that the special verdict sheet was “unclear and confusing” …, because it did not provide for an award of damages caused by the need to undergo a second surgery. The confusing and ambiguous wording of the verdict sheet caused the jurors to experience substantial confusion in reaching their verdict … . While “[t]he ambiguity had been brought to the attention of the trial Justice before the jury was discharged and could have been corrected or at least clarified at that time” …, the court did not do so and a new trial  … is required to prevent a miscarriage of justice. Srikishun v Edye, 2016 NY Slip Op 00315, 1st Dept 1-19-16

 

NEGLIGENCE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/MEDICAL MALPRACTICE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT BECAUSE OF JURY CONFUSION STEMMING FROM THE VERDICT SHEET SHOULD HAVE BEEN GRANTED)/JURIES (NEW TRIAL SHOULD HAVE BEEN GRANTED DUE TO CONFUSION STEMMING FROM THE SPECIAL VERDICT SHEET)/VERDICT SHEET (CONFUSING SPECIAL VERDICT SHEET WARRANTED A NEW TRIAL)

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PLAINTIFF’S INABILITY TO SHOW ACTUAL OUT-OF-POCKET LOSS REQUIRED DISMISSAL OF THE FRAUDULENT-INDUCEMENT CAUSE OF ACTION.

The First Department, over a two-justice dissent, determined the complaint alleging fraudulent inducement was properly dismissed for failure to allege out-of-pocket damages. Plaintiff was hired as an at will employee to develop a ramen cuisine for defendant restaurant chain (Chipotle). Plaintiff subsequently learned defendant had entered an agreement with another chef to develop ramen cuisine, the deal had fallen apart and would probably end in litigation. Plaintiff alleged, had he known about the undisclosed agreement with another chef he would not have entered the agreement with Chipotle. Although it was anticipated at the outset plaintiff would work for defendant for three years, and thereafter be entitled to certain specified additional compensation, plaintiff was an at will employee and had been compensated for the work he completed before he was terminated. Therefore, the First Department held, plaintiff could not demonstrate the out-of-pocket loss required for a “fraudulent inducement” cause of action:

 

The facts alleged, even when viewed in a light most favorable to plaintiff, do not give rise to a reasonable inference that he sustained calculable damages based on defendants’ actions. Plaintiff’s employment was at will, and he has no claim of reasonable reliance on representations concerning continued employment … . Any claim that he was deprived of the promised Chipotle stock cannot succeed, given that is undisputed that the express terms of the parties’ agreement required him to be an employee for three years. Nor can he seek damages based on the alleged profits that would have been realized had there been no fraud. When a claim sounds in fraud, the measure of damages is governed by the “out-of-pocket” rule, which states that the measure of damages is “indemnity for the actual pecuniary loss sustained as the direct result of the wrong” … . In other words, damages are calculated to compensate plaintiffs for what they lost because of the fraud, not for what they might have gained in the absence of fraud … . Additionally, plaintiff’s claim that he would have received better remuneration had he partnered with a different entity is inherently speculative and would require any factfinder to engage in conjecture … . Connaughton v Chipotle Mexican Grill, Inc., 2016 NY Slip Op 00273, 1st Dept 1-19-16

 

FRAUD (OUT-OF-POCKET DAMAGES REQUIREMENT)/DAMAGES (FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE SUPPORTED BY ALLEGATIONS OF OUT OF POCKET LOSS)/CONTRACT LAW (FRAUDUENT INDUCEMENT CAUSE OF ACTION MUST BE SUPPORTED BY ALLEGATIONS OF OUT OF POCKET LOSS)/EMPLOYMENT LAW (FRAUDULENT INDUCEMENT, AT WILL EMPLOYEE CANNOT RECOVER AS DAMAGES COMPENSATION EMPLOYEE WOULD HAVE RECEIVED IN THE FUTURE BUT FOR THE FRAUD)

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LONG-ARM JURISDICTION DID NOT REACH AN AUDITING FIRM IN THE UK AND CONVERSION CAUSES OF ACTION FAILED BECAUSE THE CONVERTED FUNDS WERE NOT IDENTIFIABLE AFTER THEY HAD BEEN INVESTED.

In affirming Supreme Court’s dismissal of several complaints stemming from the defendants’ alleged involvement with investments managed by Bernard Madoff, the First Department determined New York jurisdiction did not extend to a firm in the UK (KPMG UK) which allegedly negligently audited Madoff Securities, and further determined conversion causes of action failed because the funds allegedly converted were not sufficiently identifiable after they had been invested:

 

The motion court correctly found that New York lacks personal jurisdiction over KPMG UK pursuant to CPLR 302(a)(3)(ii). While plaintiffs allege that KPMG UK committed a tort outside the state (negligently auditing nonparty Madoff Securities International, Ltd. [MSIL] in the United Kingdom), and their causes of action arise out of that tort, KPMG UK’s act did not cause injury to a person or property within the state. “[T]he situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred”… .  * * *

Where, as here, a plaintiff alleges that a defendant converted money, the money “must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a particular manner” … . [Plaintiff] sent her money to Beacon Associates, which sent it to Madoff, who deposited it at JPMorgan. Even if, arguendo, [plaintiff’s] money was specifically identifiable when she sent it to Beacon Associates, there is no indication that Beacon Associates segregated it when it sent investors’ money to Madoff. By the time Madoff deposited investors’ money at JPMorgan, [plaintiff’s] investments would not have been specifically identifiable. McBride v KPMG Intl., 2016 NY Slip Op 00306, 1st Dept 1-19-16

 

CIVIL PROCEDURE (NEW YORK JURISDICTION DID NOT REACH UK FIRM ALLEGED TO HAVE NEGLIGENTLY AUDITED MADOFF SECURITIES)/CONVERSION (ALLEGEDLY CONVERTED FUNDS MUST BE IDENTIFIABLE, FUNDS NO LONGER IDENTIFIABLE AFTER INVESTMENT)

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PLENARY ACTION UNDER JUDICIARY LAW 487 ALLEGING ATTORNEYS ENGAGED IN DECEITFUL AND COLLUSIVE CONDUCT DURING A PRIOR CONTRACT ACTION PROPERLY SURVIVED MOTION TO DISMISS.

The First Department determined plaintiff (Melcher) properly brought a plenary action for fraud and deceit against a law firm pursuant to Judiciary Law 487. Plaintiff alleged the attorneys engaged in deceitful and collusive conduct in a prior contract action (the Apollo action) which had been settled. Plaintiff alleged the party-defendant in the prior contract action forged an amendment to the contract and then deliberately damaged the original instrument to obfuscate the forgery. The court rejected “claim-splitting” and “collateral estoppel” arguments because the precise issues raised in the Judiciary Law 487 complaint were not addressed in the prior Apollo action:

 

… [W]e find that under the circumstances presented, it was proper for Melcher to assert a Judiciary Law § 487 claim in a separate action, rather than seeking leave to assert a claim against the attorney defendants in the Apollo action.

Judiciary Law § 487(1) provides, among other things, that an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . forfeits to the party injured treble damages, to be recovered in a civil action.” A plaintiff may bring an action to recover damages for attorney deceit regardless of whether the attorney’s deceit was successful … . Further, the plaintiff in a section 487 case may recover the legal expenses incurred as a proximate result of a material misrepresentation in a prior action … . Melcher v Greenberg Traurig LLP, 2016 NY Slip Op 00274, 1st Dept. 1-19-16

ATTORNEYS (PLENARY ACTION FOR DECEITFUL AND COLLUSIVE CONDUCT UNDER JUDICIARY LAW 487 PROPERLY SURVIVED MOTION TO DISMISS)/FRAUD (PLENARY ACTION AGAINST ATTORNEYS ALLEGING DECEITFUL AND COLLUSIVE CONDUCT UNDER JUDICIARY LAW 487 PROPERLY SURVIVED MOTION TO DISMISS)/JUDICIARY LAW (PLENARY ACTION AGAINST ATTORNEYS ALLEGING DECEITFUL AND COLLUSIVE CONDUCT UNDER JUDICIARY LAW 487 PROPERLY SURVIVED MOTION TO DISMISS)

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INTERPRETER WAS AN EMPLOYEE, NOT AN INDEPENDENT CONTRACTOR.

The Third Department determined claimant, a Cantonese and Mandarin interpreter, was an employee of Language Services Associates, Inc. (LSA), not an independent contractor:

 

The record establishes that LSA advertises for interpreters, like claimant, to provide translation services to its clients. Interpreters are screened for their experience and, if approved by LSA following an interview, they are placed on a roster for future assignments. Clients contact LSA directly to request the services of an interpreter, at which point LSA decides who to call from its pool of interpreters. Although interpreters are free to decline assignments, there was testimony that they are not permitted to substitute someone else in their place once an assignment is accepted. LSA provides interpreters with the requisite information for accepted assignments, and interpreters are advised by LSA, not the client, of any changes in assignments. Moreover, interpreters are prohibited from accepting future assignments from a client without obtaining LSA’s permission and are subject to penalties for arriving late or failing to appear for an assignment without providing LSA with notice and a reasonable explanation. LSA requires interpreters to submit invoices detailing the hours worked for each in-person interpretation assignment, pays interpreters directly and reimburses them for transportation expenses associated with assignments.

The record further reflects that LSA records and monitors telephone interpretation services to ensure that interpreters are adequately performing their services. To that end, LSA assigned interpreters, including claimant, to evaluate other interpreters’ telephone services. Claimant herself received feedback and instructions from LSA on how to improve her services, and she conducted, at LSA’s request, numerous evaluations of other interpreters’ services. Based upon these evaluations, interpreters are given a rating that could affect whether an interpreter receives future assignments from LSA. Matter of Soo Tsui (Commissioner of Labor), 2016 NY Slip Op 00229, 3rd Dept 1-14-16

 

UNEMPLOYMENT INSURANCE (INTERPRETER WAS AN EMPLOYEE)/INTERPRETERS (UNEMPLOYEMENT INSURANCE, INTERPRETERS WERE EMPLOYEES)

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QUESTION OF FACT WHETHER HOTEL DEFENDANTS WERE VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF A SNOWMOBILE TOUR GUIDE UNDER AN APPARENT AGENCY THEORY.

The Third Department affirmed the denial of the hotel defendants’ motion for summary judgment. Plaintiff was severely injured and her husband was killed when the snowmobile they were using was struck by a car. The hotel promoted snowmobile tours. All the arrangements for the tour were made by the plaintiffs and hotel personnel. The actual tour was conducted by Adirondack Snowmobile Rental (ASR). The tour guide, driving the lead snowmobile, crossed a road without waiting for plaintiff and plaintiff’s decedent, who were following. Plaintiff and plaintiff’s decedent were struck by a car when they attempted to cross the road. The Third Department determined plaintiff had stated a cause of action in negligence against the hotel defendants, alleging the hotel defendants were vicariously liable for the negligence of ASR under an apparent agency theory:

 

… “[I]t is fundamental to the principal/agent relationship that [a principal] is liable to a third person for the wrongful or negligent acts . . . of its agent when made within the general or apparent scope of the agent’s authority” … . To establish a negligence claim based upon an apparent agency theory, a plaintiff must show evidence of “words or conduct of the principal . . . communicated to a third party, which give rise to a reasonable belief and appearance that the agent possesses authority to [act on the principal’s behalf]” … .

Here, the evidence includes a screenshot of the resort’s website that can be read to suggest that snowmobiling is a service provided by defendants’ agents or employees, as it is listed among the winter activities available on the premises. … [P]laintiff stated that she and decedent only dealt with the resort staff in organizing the tour and had never heard of ASR prior to the tour’s commencement. Viewing this evidence in a light most favorable to plaintiff as the nonmoving party, we find that Supreme Court properly denied the portion of defendants’ motion seeking dismissal of plaintiff’s negligence claim based upon the doctrine of apparent agency. In our view, defendants’ promotional materials, together with the testimony regarding the overall experience that defendants and their staff strive to provide for guests of the resort, create a question of fact as to whether plaintiff could have reasonably believed that ASR possessed the authority to conduct the snowmobile tour as defendants’ agent … . Taylor v The Point at Saranac Lake, Inc., 2016 NY Slip Op 00247, 3rd Dept 1-14-16

 

NEGLGENCE (TORT LIABILITY ARISING FROM CONTRACT, AND INTERVENING, SUPERSEDING CAUSE OF INJURY EXPLAINED)/CONTRACT LAW (TORT LIABILITY TO THIRD PERSONS EXPLAINED)/INTERVENING, SUPERSEDING CAUSE OF INJURY (CRITERIA EXPLAINED)/SUPERSEDING CAUSE OF INJURY (CRITERIA EXPLAINED)

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