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School’s Knowledge that Infant-Plaintiff Was Being Taunted and Bullied Did Not Constitute Notice that Another Student Would Act Violently Toward Infant-Plaintiff—Supervision Could Not Have Prevented the Sudden Action by the Student Who Pushed Infant-Plaintiff

The First Department, over a dissent, determined the defendant New York City public school was entitled to summary judgment dismissing infant-plaintiff’s “negligent supervision” complaint. Infant-plaintiff had been taunted and bullied by a fellow student, referred to in the decision as WEM. Infant-plaintiff was injured when WEM pushed him into a bookcase. Although infant-plaintiff’s teacher had been notified of WEM’s bullying on the day of the incident, and the school administration had been notified infant-plaintiff was being taunted and bullied by (unidentified) students, the majority concluded the school was not on notice that WEM would act violently toward infant-plaintiff, and, even if the school had been so notified, the sudden incident could not have been prevented by supervision. The majority wrote:

Initially, while “schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” …, “unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school’s liability in negligence absent actual or constructive notice of prior similar conduct” … . Here, the record contains no evidence that the school had notice that WEM had a proclivity to engage in physically aggressive conduct. The evidence that plaintiff had complained to his teacher and others that WEM was “picking on him” and calling him names, and that his mother had called the principal’s office and reported that some unidentified boys were “picking on her son,” when viewed in the light most favorable to plaintiff, shows only that the school knew that WEM had been picking on plaintiff verbally. Knowledge of such taunting, however, did not give the school “sufficiently specific knowledge or notice” of “prior conduct similar to the unanticipated injury-causing act” by WEM to support a finding of actual or constructive notice of the risk that he would engage in violent or physically aggressive behavior against plaintiff … .

Summary judgment is also warranted because plaintiff has not raised an issue as to proximate causation. There is no non-speculative basis for finding that any greater level of supervision than was provided would have prevented the sudden and spontaneous altercation between the two students. “Schools are not insurers of safety” and “cannot reasonably be expected to continuously supervise and control all movements and activities of students” … . Emmanuel B. v City of New York, 2015 NY Slip Op 06750, 1st Dept 9-8-15

 

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Plaintiffs Entitled to Damages Re: City’s Failure to Timely Notify Plaintiffs of the Death of a Family Member

The First Department, in a full-fledged opinion by Justice Tom, affirmed Supreme Court’s rulings re: allegations that (1) the City of New York failed to timely notify plaintiffs of the death of a family member (a 36-hour delay in violation of the right of sepulcher) and (2) the City negligently performed an autopsy, which violated the family’s religious beliefs. The First Department determined plaintiffs were entitled to summary judgment on the “failure to timely notify” causes of action, and the City was entitled to summary judgment dismissing the “negligent performance of an autopsy” cause of action (by statute, in the absence of receipt of an objection on religious grounds, the City has the authority to conduct an autopsy without first seeking consent from the family). With respect to the “failure to timely notify” causes of action, the court wrote:

The first cause of action alleges that as a result of the failure to receive timely notification of the death of Darden Binakaj, plaintiffs sustained emotional injury. The second cause of action specifies that mental anguish resulted from defendants’ interference with the family’s right to the immediate possession of decedent’s body. Thus, these causes of action can be read to advance a claim for violation of the common-law right of sepulcher. * * *

While emotional distress resulting from injury inflicted on another is not compensable under New York law, as the City argues, the emotional harm alleged in this matter is the direct result of the breach of a duty to timely communicate information about a death to plaintiffs themselves … .  In Johnson v State of New York (37 NY2d 378 [1975]), the plaintiff alleged emotional harm as a result of receiving a message that negligently reported the death of her mother, a patient in a state hospital, when in fact the person who had died was another patient with the identical name. The Court of Appeals sustained recovery for emotional suffering on the reasoning that the particular circumstances were associated with ” genuine and serious mental distress . . . which serves as a guarantee that the claim is not spurious'” … . The Court noted that the false message informing the plaintiff of the death and the resulting psychological injury were within the orbit of duty owed by the hospital to the patient’s daughter and that she was entitled to recover for breach of that duty … . Contrary to the City’s contention, Johnson holds that in the case of negligent communications involving the death of a family member, damages are recoverable for purely emotional injury, expressly distinguishing negligent communication that causes emotional suffering from that sustained “solely as a result of injuries inflicted directly upon another, regardless of the relationship” … . The unavoidable implication is that such communication is a ministerial function, as opposed to the discretionary exercise envisioned by the City for which no recovery is available. While the injury alleged in this matter resulted from an untimely rather than false communication, the City’s contention that it cannot be held liable for negligence in informing the plaintiffs about the death of their loved one finds no support under Johnson.

The second cause of action alleges that as a result of the untimely notification, which deprived plaintiffs of any opportunity to state their objection to the autopsy, the City interfered with their right to immediate possession of decedent’s body. As this Court stated in Melfi v Mount Sinai Hosp. (64 AD3d 26, 31 [1st Dept 2009]), “the common-law right of sepulcher gives the next of kin an absolute right to the immediate possession of a decedent’s body for preservation and burial, and . . . damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body.” Damages are awarded as compensation to the next of kin for the “solely emotional injury” experienced as a result of the interference with their ability to properly bury their decedent … . * * *

As this Court stated:

“[F]or a right of sepulcher claim to accrue (1) there must be interference with the next of kin’s immediate possession of decedent’s body and (2) the interference has caused mental anguish, which is generally presumed. Interference can arise either by unauthorized autopsy or by disposing of the remains inadvertently or, as in this case, by failure to notify the next of kin of the death” … .

The City states no compelling reason to depart from clear precedent to bar a cause of action for loss of sepulcher in this instance … . Rugova v City of New York, 2015 NY Slip Op 06754, 1st Dept 9-8-15

 

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Claimant, Who Worked from Her Home Pursuant to a Consulting Agreement, Was an Employee, Not an Independent Contractor

The Third Department determined claimant, who worked from her whom pursuant to a consulting agreement with Source Interlink Media (SIM), was an employee entitled to unemployment insurance benefits:

“Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … .

Here, the consulting agreement indicates that SIM retained the services of claimant and set her hourly rate of pay. Further, claimant’s wages were reported on an IRS 1099 tax form with SIM identified as the wage payer. Although claimant generally worked from home, she was required to work at [the] office every Friday from 9:00 a.m. to 5:00 p.m. On Fridays, she was provided a work space, computer, telephone and office supplies. If claimant was going to be late or absent, she was expected to inform an executive assistant at the office. She planned annual meetings, parties and boat shows and was reimbursed for her travel expenses. Her other duties included writing press releases, but she could not distribute the releases until her supervisor had reviewed and edited them. If claimant missed a deadline to complete an assignment, her supervisor could terminate the consulting agreement. Matter of Morris (Commissioner of Labor), 2015 NY Slip Op 06741, 2nd Dept 9-3-15

 

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Claimant Was an Employee of an Outfit Which Advertises for Security Guards on Craigslist

The Third Department determined claimant was an employee of Precinct, which advertises for security guards on Craigslist:

Precinct places advertisements on Craigslist seeking security guards, although we note that claimant was referred to Precinct by another security guard. Precinct interviews applicants about their experience and verifies that the applicants are licensed as security guards in New York. As to claimant, he was assigned by Precinct to a hotel. Precinct negotiated with the hotel in setting claimant’s rate of pay. Precinct billed the hotel based upon the negotiated hourly rate and paid claimant after subtracting one third of claimant’s pay as a commission. If claimant could not report to work on a certain day, he was required to inform Precinct, and claimant could not find his own replacement. Matter of Lobban (Commissioner of Labor), 2015 NY Slip Op 06746, 2nd Dept 9-3-15

 

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Claimant, Who Worked Pursuant to a Consulting Agreement, Was Not an Employee

The Third Department determined claimant, who worked pursuant to a consulting agreement with two companies, was not an employee:

Tomen America Inc. was eliminated when Toyota negotiated to purchase assets of Tomen and acquire many of its employees. Claimant negotiated and drafted an agreement with both Tomen and Toyota whereby he served as a consultant for both companies, during set periods, to provide post-integration support in human resource matters with regard to the Tomen employees being assimilated by Toyota. As a consultant with Toyota, claimant worked three to five days a month and set his own schedule. He was not required to report to any supervisor, was not given any direction by anyone, did not submit his work for review, did not participate in regular human resource meetings and was issued an identification badge indicating that he was a contractor. Claimant submitted a monthly invoice for an agreed-upon payment, which, pursuant to the agreement drafted by claimant, withheld no taxes. Matter of Farley (Commissioner of Labor), 2015 NY Slip Op 06747, 2nd Dept. 9-3-15

 

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Flight Crew Member Deemed an Employee of a Service Which Provides Flight Crews for Corporate Clients

The Third Department determined claimant, who worked for Stecher Aviation Services, which provides flight crews for corporate clients, was an employee, not an independent contractor:

Here, the record reflects that Stecher Aviation reviews and evaluates the resume of a prospective crew member and other required certifications in deciding whether to add the crew member to its database. Once accepted, the crew member must sign a contract that requires him or her to take instructions directly from the client, prohibits substituting a third party to fulfill the assignment and requires the submission of an invoice by a specified time in order to be paid for services and reimbursed for expenses. Although a crew member may reject an assignment and can work for competitors, Stecher Aviation reviews its database and selects the crew member whom it deems qualified to perform the services required by its client, and the work hours and location are determined by the needs of the client. The crew member does not negotiate the rate of pay, as such rate is already set between Stecher Aviation and the client’s flight department. Stecher Aviation handles the billing for the services provided and, after deducting its commission, pays the crew member. Additionally, Stecher Aviation finds replacements for a crew member who cancels an assignment and fields complaints about a crew member’s performance; crew members also are covered under Stecher Aviation’s workers’ compensation insurance policy. Finally, Stecher Aviation’s sole business is providing crew members for its clients. Matter of Stecher Aviation Servs., Inc. (Commissioner of Labor), 2015 NY Slip Op 06743, 2nd Dept 9-3-15

 

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Supreme Court Should Not Have Denied Plaintiffs’ Motion to Extend the 90-Day Period for Filing a Note of Issue

In finding Supreme Court abused its discretion in denying plaintiffs’ motion to extend the 90-day period for filing a note of issue, the Second Department explained the analytical criteria:

Once the plaintiffs were in receipt of the 90-day notice, they were required to serve and file a timely note of issue, or move before the default date to either vacate the 90-day notice or extend the 90-day period pursuant to CPLR 2004 … . Here, there is no dispute that the plaintiffs timely moved, inter alia, to extend the 90-day period. However, notwithstanding the plaintiff’s timely motion, the Supreme Court directed the dismissal of the complaint pursuant to CPLR 3216. This was an improvident exercise of discretion.

The determination as to whether to vacate a 90-day notice and grant an extension of time to file a note of issue lies within the court’s discretion, and this determination may be guided by the length of the delay in prosecuting the action, the reason for the delay, the prejudice to the defendants, and whether the moving party was in default before seeking the extension … . The Court of Appeals has observed that CPLR 3216 is “extremely forgiving” …, in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . Amos v Southampton Hosp., 2015 NY Slip Op 06700, 2nd Dept 9-2-15

 

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Plaintiffs Raised a Question of Fact Whether “SLAPP” Suit Has a Substantial Basis in Fact and Law

The Second Department, over a long and detailed dissent, determined defendant, Petrucci, was entitled to summary judgment on the question whether the action against her constituted a SLAPP suit under the Civil Rights Law, but was not entitled to summary judgment on the merits.  SLAPP stands for “strategic lawsuit against public participation.” The statute, Civil Rights law 76-a(1), seeks to prohibit lawsuits brought against citizens who are critical of public bodies. Although finding that the suit is properly characterized as a SLAPP suit, the majority further determined the plaintiffs had raised questions of fact about whether their action “has a substantial basis in fact and law.” Plaintiffs have leases with the Port Authority. Plaintiffs alleged that Petrucci falsely reported to the Port Authority’s Office of Inspector General that plaintiffs had underreported their revenues and therefore were paying less rent than was owed:

Civil Rights Law § 76-a(1) provides, in relevant part:

“(a) An action involving public petition and participation’ is an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.

“(b) Public applicant or permittee’ shall mean any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission.”

Here, the plaintiffs are “public permittees” within the meaning of the statute, since that term encompasses those who have obtained a lease from a government body, and the plaintiffs have obtained concessionary leases from the Port Authority of New York and New Jersey (hereinafter the Port Authority). Moreover, those causes of action specifically asserted against Petrucci in the complaint are “materially related” to her efforts to report on those leases, since they are premised upon her statements to the Port Authority’s Office of the Inspector General (hereinafter the OIG) regarding whether the plaintiffs, inter alia, intentionally underreported their revenues and thus paid less rent than was owed under the leases. Inasmuch as the complaint alleges that Petrucci affirmatively instigated the subject investigations by the OIG in a calculated attempt to undermine the plaintiffs’ leases with the Port Authority, and that she made her statements directly to the governing body responsible for the leases …, Petrucci demonstrated her prima facie entitlement to judgment as a matter of law determining that this action is a SLAPP suit, and the plaintiffs failed to raise a triable issue of fact in opposition. Accordingly, this action is properly characterized as a SLAPP suit … .

However, Petrucci was not entitled to summary judgment dismissing those causes of action specifically asserted against her in the complaint, or on her counterclaim pursuant to Civil Rights Law § 70-a. While we share the dissent’s concern for safeguarding the rights of citizens to comment on matters of public concern, and we acknowledge that “Civil Rights Law § 76-a was enacted to provide special protection for defendants in actions arising from the exercise of their rights of public petition and participation by deterring SLAPP actions” … , we conclude that the plaintiffs sustained their statutory burdens in opposition to the motion by demonstrating that the action “has a substantial basis in fact and law” (CPLR 3212[h]…). International Shoppes, Inc. v At the Airport, LLC, 2015 NY Slip Op 06710, 2nd Dept 9-2-15

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Plaintiff Not Entitled to Summary Judgment—Plaintiff Could Not Demonstrate Plaintiff’s Interpretation of the Contract Was the Only Reasonable Interpretation (Rendering the Contract Ambiguous)

Plaintiff sued under a brokerage agreement alleging entitlement to a fee in connection with the sale of defendant’s property. By the terms of the agreement, no fee was owed if the property was sold to “a private party identified as James Walker.” Ultimately the property was sold to “James Walker,” but defendant alleged the buyer was not James Walker but was merely using the name as a pseudonym to protect his privacy. The Second Department determined plaintiff was not entitled to summary judgment because it could not be found as a matter of law that plaintiff’s interpretation of the contract was the only reasonable interpretation. The court explained the relevant analytical criteria:

“The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent” … . “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . “To determine whether a writing is unambiguous, language should not be read in isolation because the contract must be considered as a whole” … . If the language of the contract is susceptible of more than one reasonable interpretation, the contract will be considered ambiguous … .

The threshold question of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are issues of law within the province of the court … . “[W]hen interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized” … . Extrinsic and parol evidence of the parties’ intent may not be admitted to create ambiguity in a contract that is unambiguous on its face, but such evidence may be considered where a contract is determined to be ambiguous … .

* * * … [Here it] cannot be determined as a matter of law that the plaintiff’s interpretation … was the only reasonable interpretation … . NRT N.Y., LLC v Harding, 2015 NY Slip Op 06719, 2nd Dept 9-2-15

 

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Where the Complaint Alleged Only that the Driveway Was Defective and the Complaint Against the Company Which Renovated the Driveway Was Dismissed, the Complaint Against the Property Owners Should Have Been Dismissed As Well–There Was No Viable Theory for Liability on the Part of the Property Owners

The Second Department determined Supreme Court should have granted defendant property owners’ motion for a judgment as a matter of law after the close of proof. Plaintiff, who tripped over the lip on defendants’ driveway, alleged the driveway was defective. After proof was closed, Supreme Court dismissed the complaint against the company which renovated the driveway, but denied the property owners’ motion to dismiss. Because plaintiff’s only theory was that the driveway was defective, and the property owners could only be liable for a hazardous condition caused by a failure to properly maintain the property, the complaint against the property owners should have been dismissed as well:

Dismissal of an action insofar as asserted against a contractor who performs work on premises does not mandate dismissal of the action insofar as asserted against the owner of the premises, since the owner has a duty to maintain the premises in a reasonably safe condition … . Here, however, the plaintiff’s theory of liability was that the driveway was defective. …[T]here was no evidence that the lip of the driveway was in a hazardous condition. Therefore, it was inconsistent to direct the dismissal of the complaint insofar as asserted against [contractor] while denying such relief to the appellants as homeowners, since no viable alternative theory of liability was asserted against the appellants … . Cioffi v Klein, 2015 NY Slip Op 06704, 2nd Dept 9-2-15

 

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