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BECAUSE PROPERTY-OWNER-DEFENDANTS UNDERTOOK SNOW REMOVAL EFFORTS, THEIR FAILURE TO AFFIRMATIVELY DEMONSTRATE THOSE EFFORTS DID NOT CREATE THE HAZARDOUS CONDITION REQUIRED DENIAL OF THEIR MOTION FOR SUMMARY JUDGMENT.

The Second Department noted that, although a property owner is under no duty to remove snow and ice during a storm, if snow removal efforts are made, in moving for summary judgment, the property owner (here Chestnut Oaks) must affirmatively demonstrate the snow removal efforts did not create a hazardous condition. Chestnut Oaks’ failure to so demonstrate required denial of the motion:

As the proponents of a motion for summary judgment, the Chestnut Oaks defendants had the burden of establishing, prima facie, that they neither created the ice condition nor had actual or constructive notice of the condition … . “Under the so-called storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” … . A person responsible for maintaining property is not under a duty to remove ice and snow until a reasonable time after the cessation of the storm … . However, if a storm is ongoing, and a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating or exacerbating a natural hazard created by the storm … . In such an instance, a property owner moving for summary judgment in a slip and fall case must demonstrate in support of its motion that the snow removal efforts it undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall … . DeMonte v Chestnut Oaks at Chappaqua, 2015 NY Slip Op 08800, 2nd Dept 12-3-15

NEGLIGENCE (CREATION OF HAZARDOUS CONDITION, SNOW REMOVAL)/SLIP AND FALL (CREATION OF HAZARDOUS CONDITION, SNOW REMOVAL)/HAZARDOUS CONDITION, CREATION OF (SNOW REMOVAL)/SNOW REMOVAL (CREATION OF HAZARDOUS CONDITION)

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A QUESTION OF FACT EXISTS WHETHER DEFENDANT DRUG TREATMENT FACILITY OWED A DUTY OF CARE TO PLAINTIFF WHO WAS STABBED BY A PATIENT OF THE FACILITY SHORTLY AFTER DISCHARGE.

The First Department, in a full-fledged opinion by Justice Sweeny, over a full-fledged dissenting opinion by Justice Saxe, determined defendant drug treatment facility (Queens Village) did not demonstrate that it owed no duty  of care to plaintiff who was stabbed by a patient who had just been discharged by the facility. Queens Village is an alternative to incarceration. The patient was there because he had robbed a cab driver at gunpoint. The patient was discharged because he had pushed another patient to the ground and admitted drinking alcohol. The director of Queens Village indicated that the plan was to transfer the patient to an interim facility until he could be returned to the TASC program [Treatment Alternatives for Safer Communities]. However, the patient apparently became enraged when told he was being discharged and was “escorted” from Queens Village by the police. There was no evidence the police took the patient into custody, or that the police were told by Queens Village to take the patient to the interim facility. The majority concluded that the evidence demonstrated Queens Village exercised sufficient control over the patient (he was to be transferred to an interim facility, not released) to give rise to a duty of care owed to plaintiff. Because Queens Village moved for summary judgment, the court deemed that Queens Village did not demonstrate, as a matter of law, that it did not owe plaintiff a duty of care:

Generally, the common law does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; rather, liability for the negligent acts of third persons “arises when the defendant has authority to control the actions of such third persons” … . * * *

The key factor in determining whether a defendant will be liable for the negligent acts of third persons is whether the defendant has sufficient authority to control the actions of such third persons … . Such authority, at a minimum, requires “an existing relationship between the defendant and the third person over whom charge’ is asserted” … .There is no question that Queens Village had “an existing relationship” and sufficient authority to control [the patient’s] actions. Oddo v Queens Vil. Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 2015 NY Slip Op 08943, 1st Dept 12-3-15

NEGLIGENCE (DUTY OF CARE RE: THIRD PARTY)/DUTY OF CARE (OWED TO THIRD PARTY)/THIRD PARTY (DUTY OF CARE OWED TO)

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QUESTION OF FACT WHETHER PARTIAL PERFORMANCE TOOK ORAL AGREEMENT OUT OF THE STATUTE OF FRAUDS.

The Third Department determined a question of fact had been raised about whether an oral agreement to extend a mining lease was enforceable because partial performance took the contract out of the statute of frauds. An amendment to extend the mining lease for 20 years was never executed. However, the agreement was mentioned in a 20-year sublease which was subsequently entered:

Defendants’ statute of frauds argument is governed by General Obligations Law § 5-703, which, as relevant here, provides that an interest in real property can be created or conveyed only by a signed writing. While plaintiff concedes that a signed copy of the amendment does not exist, he contends that the statute of frauds is inapplicable, as the parties’ course of conduct constitutes partial performance of an oral contract to extend the term of the lease (see General Obligations Law § 5-703 [4]…). “[P]artial performance of an alleged oral contract will be deemed sufficient to take such contract out of the [s]tatute of [f]rauds only if it can be demonstrated that the acts constituting partial performance are ‘unequivocally referable’ to said contract” … .

Here, plaintiff raised triable issues of fact as to whether the partial-performance exception to the statute of frauds applies. Evidence of such performance can be found in the parties’ mutual decision to execute the 20-year sublease agreement, which explicitly referred to the amendment and acknowledged that plaintiff and [defendant] were parties to it. Indeed, if the parties did not have an understanding that the mining lease was to be extended to 20 years, then [defendant sublessee’s] willingness to enter into a 20-year sublease with plaintiff — despite the fact that plaintiff had only a five-year lease with [defendant] and [defendant’s] express consent to the creation of these incongruous interests in his property — would appear to be “‘unintelligible or at least extraordinary,’ explainable only with reference to the oral agreement” …. . Bowers v Hurley, 2015 NY Slip Op 08884, 3rd Dept 12-3-15

REAL PROPERTY (PARTIAL PERFORMANCE OF ORAL AGREEMENT, STATUTE OF FRAUDS)/CONTRACT LAW (PARTIAL PERFORMANCE OF ORAL AGREEMENT, STATUTE OF FRAUDS)/STATUTE OF FRAUDS (PARTIAL PERFORMANCE OF ORAL AGREEMENT)

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IT CONSULTANT WAS EMPLOYEE.

The Third Department determined claimant, who had her own IT consultant business, was an employee of Geneva, despite the contractual “independent contractor” designation. The court, however, sent the matter back for a determination whether claimant was totally unemployed. With respect to the employee status, the court wrote:

The evidence at the hearing demonstrated that claimant, who runs her own consulting business, Jessica Consultant LLC, responded to an advertisement placed by Geneva that listed the job requirements and necessary IT background for a position with its client; Geneva screened her and forwarded her credentials to its client, which interviewed and approved of claimant. Geneva required that claimant sign a contract that designated her as the consultant assigned to perform the IT services for the client, and labeled her as an independent contractor. Geneva employed approximately 35 people as consultants who received benefits and designated another 15 consultants as independent contractors who were required to be in business for themselves and to obtain, among other things, their own liability insurance, but Geneva’s chief financial officer conceded that both groups provided the “same services” and had the “same skills.” Geneva contracted with its client to provide claimant’s services and charged the client for those services, and Geneva paid claimant a negotiated daily rate. Claimant worked a full-time schedule set by the client and performed services in the client’s office where she was provided a desk, computer, supplies and support staff. Claimant reported regularly to the client’s manager, who instructed her on the client’s needs and expectations, trained her on the client’s systems, gave her assignments, set her deadlines and approved her time sheets, which were submitted to Geneva for payment. Claimant could not provide substitutes or refuse assigned work and needed the client’s approval to take time off from work. Matter of Thomas (Geneva Consulting Group–Commissioner of Labor), 2015 NY Slip Op 08889, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (IT CONSULTANT)

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MEDICAL COURIERS WERE EMPLOYEES.

The Third Department determined couriers were employees of Dynamex entitled to unemployment insurance benefits:

… [T]he record contains evidence that claimants were required to wear uniforms identifying themselves as being contracted through Dynamex. Claimants were also issued Dynamex identification cards. Further, claimants were bound by a one-year noncompetition restriction following their termination with Dynamex. Claimants would advise Dynamex when they were available to work and Dynamex would then assign pickups and deliveries to them within their general geographic location. Claimants were required to complete their assignments the same day and provide Dynamex with proof of delivery. Dynamex handled customer complaints and would bill its customers and pay claimants weekly, based upon commissions for the services performed, even if the customer did not pay Dynamex. Matter of Voisin (Dynamex Operations E., Inc.–Commissioner of Labor), 2015 NY Slip Op 08881, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (MEDICAL COURIERS)

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SPECIAL EDUCATION PROVIDER NOT AN EMPLOYEE.

The Third Department determined claimant, a provider of special education services, was not an employee of Mid Island, which was under contract with the New York City Department of Education (NYCDOE) to provide such services:

Although Mid Island would contact claimant to let her know whether a student in her geographic area needed special education services, Mid Island did not assign students to claimant; she was free to accept or reject a referral from Mid Island … . Mid Island also did not control the scheduling of services, which would be arranged between the student’s parents and claimant … , and did not dictate the type, location or manner of delivery of the services that were to be provided, which would be specified in the student’s individualized education program … . Once services were provided, any parental complaints were handled by NYCDOE, not Mid Island, and if a teacher needed to be replaced, NYCDOE would direct Mid Island to do so. Mid Island never performed any type of performance evaluation of claimant … . The reporting requirements governing submission of session and progress notes also came from NYCDOE, and such notes were neither required nor reviewed by Mid Island … .

Claimant was required under the parties’ agreement to maintain her own malpractice insurance and cover her own expenses, and she was not provided with any supplies or benefits … . The rate of payment was established by NYCDOE, and, if Mid Island did not receive payment from NYCDOE, it was not obliged to remit payment to claimant for services provided to a student… . Matter of Wright (Mid Is. Therapy Assoc. LLC–Commissioner of Labor), 2015 NY Slip Op 08897, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (SPECIAL EDUCATION PROVIDER)

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DEFAULT JUDGMENT GIVEN RES JUDICATA EFFECT.

The Second Department, in affirming a cross-motion for summary judgment, explained that plaintiffs’ action was precluded by the doctrine of res judicata based upon a default judgment taken against them. Plaintiffs did not move to vacate the default judgment. Therefore the judgment precluded plaintiffs’ action as to any matters actually litigated and any matters that might have been litigated in the prior action:

“[R]es judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was” … . “The doctrine is applicable to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding” … . Here, an order was issued in a declaratory judgment action granting the unopposed motion of the plaintiffs therein for leave to enter a default judgment against, inter alia, the appellants, who were named defendants in that action, upon their failure to appear or answer the complaint in that action. That order is conclusive for res judicata purposes as to any matters actually litigated or that might have been litigated in that action, and precludes the appellants from maintaining this action … . Albanez v Charles, 2015 NY Slip Op 08795,  2nd Dept 12-2-15

CIVIL PROCEDURE (DEFAULT JUDGMENT HAS RES JUDICATA EFFECT)/RES JUDICATA (DEFAULT JUDGMENT HAS RES JUDICATA EFFECT)/DEFAULT JUDGMENT (GIVEN RES JUDICATA EFFECT)

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NOTICE TO ADMIT IMPROPERLY SOUGHT CONCESSIONS THAT WENT TO HEART OF THE CONTROVERSY.

Reversing Supreme Court, the Second Department determined defendant’s notice to admit sought concessions that went to the heart of the controversy which should not have been deemed admitted:

CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted … . However, the purpose of a notice to admit is only to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of … . A notice to admit is not to be employed to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate facts … .

Here, as the plaintiff correctly contends, … the notice to admit improperly sought concessions that went to the essence of the controversy between the parties and involved matters that clearly were in contravention of the allegations of the complaint. Thus, the third-party defendant could not have reasonably believed that the admissions he sought were not in substantial dispute … , and those items were palpably improper … . Accordingly, the plaintiff was not obligated to respond to them … . The Supreme Court therefore erred in deeming those items admitted by reason of the plaintiff’s failure to respond to the notice. Since those items should not have been deemed admitted, the plaintiff’s motion pursuant to CPLR 3123(b) to withdraw those deemed admissions was unnecessary. 32nd Ave. LLC v Angelo Holding Corp., 2015 NY Slip Op 08824, 2nd Dept 12-2-15

CIVIL PROCEDURE (NOTICE TO ADMIT IMPROPERLY USED)/NOTICE TO ADMIT (IMPROPERLY USED)

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SEVEN-YEAR DELAY BETWEEN ARREST AND INDICTMENT DID NOT VIOLATE RIGHT TO SPEEDY TRIAL.

The Second Department determined Supreme Court properly found that the seven-year delay between defendant’s arrest and indictment did not violate defendant’s right to a speedy trial. The court explained the relevant law:

A defendant’s right to a speedy trial is guaranteed both by the United States Constitution … . Moreover, an unjustified delay in prosecution will deprive a defendant of the State constitutional right to due process … . However, “a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant” … . Where there has been extended delay, the People have the burden to establish good cause … .

In determining whether a defendant’s constitutional right to a speedy trial has been violated, the Court of Appeals has articulated five factors to be considered: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of the defendant’s defense … . These factors apply as well to the due process guarantee … . “In this State, we have never drawn a fine distinction between due process and speedy trial standards’ when dealing with delays in prosecution” … . People v Allen, 2015 NY Slip Op 08850, 2nd Dept 12-2-15

CRIMINAL LAW (SPEEDY TRIAL, SEVEN YEARS BETWEEN ARREST AND INDICTMENT)/SPEEDY TRIAL (SEVEN YEARS BETWEEN ARREST AND INDICTMENT)

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17-YEAR DELAY ADEQUATELY EXPLAINED, SPEEDY TRIAL RIGHT NOT VIOLATED.

The Third Department determined a 17-year delay between the act a defendant’s indictment did not violate his right to a speedy trial. Several years of the delay were attributed to the ability to test DNA without destroying it (not available at the time of the offense, 1994). In addition, a witness came forward in 2011. The court explained the applicable law:

“In determining whether there is an undue delay, the trial court must consider ‘(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay'” … . Where, as here, the delay is extraordinary, “close scrutiny of the other factors, especially the question of why the delay occurred,” is required … .

The People introduced evidence indicating that DNA technology in 1994 would have required the destruction of the two samples of biological material that had been collected. Further evidence established that technology at the time that the samples were tested — in 2004 and 2011 — did not require such destruction. In addition to this physical evidence becoming probative, a witness came forward in May 2011 implicating defendant in the murder. Such evidence demonstrated a good faith basis for the delay in proceeding with the prosecution … .

Turning to the remaining factors, the charge of murder in the second degree is “inarguably a very serious offense” … . Further, defendant was never incarcerated during the 17-year delay … . In addition, defendant’s generic claim that witnesses may have moved and that their recall of events is no longer as strong as it once was is too speculative to carry significant weight in the analysis … . Although defendant faced a substantial delay, upon considering these factors, we find that his constitutional right to a speedy trial was not violated … . People v Chaplin, 2015 NY Slip Op 08869, 2nd Dept 12-2-15

CRIMINAL LAW (SPEEDY TRIAL, 17-YEAR DELAY)/SPEEDY TRIAL (17-YEAR DELAY)

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