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A Police Report of a Vehicle Accident Involving Respondent’s Employee Was Not Sufficient to Alert Respondent to the Facts Underlying Petitioner’s Claim—Petition to File Late Notice of Claim Properly Denied

The Second Department determined the petition to file a late notice of claim was properly denied because there was no showing the respondent school district was aware of the facts underlying the claim, there was no showing the school district was not prejudiced by the two-month delay, and there was no showing of an adequate excuse for the delay.  The petitioner argued that a police report describing a vehicle accident provided notice of the facts to the school district. But the report indicated only that respondent’s employee was involved in the accident, which was not sufficient to establish respondent’s knowledge of the facts of plaintiff’s claim:

For a police accident report to serve as sufficient notice to the public corporation, the public corporation must have been “able to readily infer from that report that a potentially actionable wrong had been committed by the [employee of] the public corporation” … . A report which describes the circumstances of the accident without making a connection between the petitioner’s injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim … . The petitioners’ contention that the respondent had actual knowledge of their claim solely on the basis of the allegation that its employee was directly involved in the accident, without more, such as a report or record demonstrating that the respondent acquired actual knowledge of the essential facts constituting the claim, is without merit … . Matter of Thill v North Shore Cent. School Dist., 2015 NY Slip Op 04332, 2nd Dept 5-20-15

 

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Question of Fact Whether Embankment Near a Stream Was an “Open and Obvious” Dangerous Condition at 3 a.m.

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants (property owners).  Plaintiff, who had been invited onto the property, fell off an embankment near a stream and fractured his ankle.  Plaintiff was among a group who had gathered around a bonfire in an area which had been used for that purpose by defendants.  The fall took place at 3 a.m.  The Second Department determined there was a question of fact whether the dangerous condition was open and obvious (because it was dark):

“A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . “The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff’s presence on the property” …. “Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain” … .

However, a landowner does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous … . Moreover, the question “of whether a condition is hidden or open and obvious is generally for the finder of fact to determine” …, although, in a proper case, a condition may be found open and obvious as a matter of law. Nonetheless, whether a condition is open and obvious “cannot be divorced from the surrounding circumstances,” and a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured … . Barone v Risi, 2015 NY Slip Op 04265, 2nd Dept 5-20-15

 

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Disagreement About the Meaning of a Term in the Shared-Fee-Agreement Did Not Render the Contract Ambiguous—No Need for Interpretation of the Term by the Court

The First Department, in an extensive decision, over a two-justice partial dissent, determined the shared-fee arrangements among attorneys were unambiguous and must be enforced as written, without reference to extrinsic evidence. The underlying personal injury case eventually settled for $8 million.  Along the way, plaintiff’s attorney, Menkes, entered into agreements with two attorneys for assistance with the case. Most of the decision addresses the agreement with an attorney, Golomb, concerning mediation and settlement negotiations. If the mediation resulted in a settlement, Golomb was entitled to 12% of the attorney’s fees.  If further work, beyond the mediation, were required, Golomb was entitled to 40% of the attorney’s fees. Menkes argued that, although the mediation session did not result in a settlement, the mediation was a “process” which continued beyond the initial session culminating in a settlement. The majority held that the term “mediation,” pursuant to the language of the contract, encompassed only the one session.  Once that session ended without a settlement, the 40% shared-fee-arrangement kicked in:

The issue before us is one of simple contract interpretation. Under well established precedent, agreements are to be generally construed in accord with the parties’ intent … . The best evidence of the parties’ intent is “what they say in their writing” … . “[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms” … . This rule is particularly applicable where the parties are sophisticated and are negotiating at arm’s length … . Language in a written agreement is deemed to be clear and unambiguous where it is reasonably susceptible of only one meaning or interpretation … . Finally, “[e]xtrinsic evidence may not be introduced to create an ambiguity in an otherwise clear document” … .

Here, as the dissent agrees, the language of the contract is unambiguous. Menkes argues that she interpreted the term “mediation” to constitute an ongoing process that would not be limited to a single session but rather would continue until an impasse or other termination had occurred. However, the assertion by a party to a contract that its terms mean something to him or her “where it is otherwise clear, unequivocal and understandable when read in connection with the whole contract” is not sufficient to make a contract ambiguous so as to require a court to divine its meaning … . The specific fee language that Menkes now claims supports her position was added to the agreement at her request. She takes the untenable position that she was never advised that the mediation reached an impasse or had been terminated. Yet despite the fact that the agreement went through several revisions, neither party saw fit to add any language to that effect. Both parties to the agreement are attorneys and thus know the importance of precision in the words used … . These clear terms, under these circumstances, need no interpretation by the court. Marin v Constitution Realty, LLC, 2015 NY Slip Op 04225, 1st Dept 5-19-15

 

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Supreme Court Used the Wrong Standards When It Denied Petitioner’s Request for Documents Relating to Complaints Alleging the Improper Use of School Property by an Employee of the Department of Education (the Employee Gave a Speech on School Property Which May Have Violated the Chancellor’s Regulations re: the Use of School Property for Political Purposes)—Correct Analytical Criteria Explained and Applied

The First Department determined Supreme Court used the wrong criteria when it denied petitioner’s request for documents relating to the investigation of complaints about the use of school buildings for political purposes.  The complaints concerned a speech given by an employee of the Department of Education (DOE) which criticized the positions on education policy taken by unnamed mayoral candidates.  The speech was put up on the DOE website. Petitioner alleged the speech violated specified Chancellor’s Regulations re: the conduct of school employees with respect political campaigns and elections.  Supreme Court erroneously held that petitioner must show that the denial of the request for documents was “arbitrary and capricious,” “an abuse of discretion,” “irrational,” or “unlawful.”  The proper analysis is whether the determination “was affected by an error of law” and  places the burden on the respondent to show the request falls within one of the statutory exceptions to disclosure.  The First Department reversed Supreme Court, applied the correct analytical criteria and found that any relevant privacy interests did not outweigh the public interest in disclosure:

The appropriate standard of review is whether the determination “was affected by an error of law” (CPLR 7803[3]…). Moreover, the burden is on respondents to establish “that the material requested falls squarely within the ambit of one of the[] statutory exemptions” from disclosure … . Under the circumstances of this case, the application of an improper legal standard is reversible error since it resulted in substantial prejudice to petitioner … .

Respondents failed to establish that disclosure of the materials at issue would “constitute an unwarranted invasion of personal privacy under the provisions of [§ 89(2)]” (Public Officers Law § 87[2][b]). They do not claim that any personal privacy category enumerated in § 89(2) is applicable. Therefore, we must determine whether any invasion of personal privacy would be unwarranted “by balancing the privacy interests at stake against the public interest in disclosure of the information” … . The speech at issue excoriated unspecified candidates in the 2013 mayoral election who had taken certain positions on education policy. Notwithstanding that the speech did not name any individual candidate or political party, the complaints to [the school district]  raised serious questions about the propriety of the speech and its publication on DOE’s website. We find that there is a “significant public interest” in the requested materials, which may shed light on whether this matter was adequately investigated … . Respondents failed to establish that the claimed privacy interests outweigh this public interest … . They assert that the materials contain personally identifying information such as home addresses, dates of birth, and Social Security numbers. However, that information can be redacted and does not provide a basis for withholding entire documents … . . Matter of Thomas v Condon, 2015 NY Slip Op 04237, 1st Dept 5-19-15

 

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Deliberate Joinder of Claims for Legal and Equitable Relief Arising from the Same Transaction Constitutes a Waiver of the Right to Demand a Jury Trial

The Second Department noted that the deliberate joinder of claims for legal and equitable relief arising from the same transaction constitutes a waiver of the right to demand a jury trial. In addition, the court dismissed the aspect of the appeal for which the relevant portions of the record were omitted from the appendix. With respect to the contents of the appendix submitted on appeal, the Second Department wrote:

” An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal'” … . “The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent” (22 NYCRR 670.10-b[c][1]; see CPLR 5528[a][5]). Here, the plaintiff omitted material excerpts from the transcripts of trial testimony and critical exhibits she relies on in seeking review of the dismissal of her disability discrimination cause of action. These omissions inhibit this Court’s ability to render an informed decision on the merits of the appeal … . Accordingly, the appeal from so much of the judgment as is in favor of the defendants and against the plaintiff, in effect, dismissing the second cause of action must be dismissed. Zutrau v ICE Sys., Inc., 2015 NY Slip Op 04479, 2nd Dept 5-1715

 

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Defense Counsel’s Main Reason for the Peremptory Challenges To Which the Prosecutor Objected, i.e., the Potential Jurors Had Been Crime-Victims, Was Not Pretextual

The Second Department reversed defendant’s conviction because Supreme Court improperly applied the Batson doctrine and denied defense counsel’s peremptory challenges to two jurors.  The prosecutor raised a “reverse-Batson” objection to defense peremptory challenges alleging the defense was excluding “Asian persons.”  Defense counsel offered race-neutral reasons for the peremptory challenges, the principal reason being that the potential jurors had been crime victims. Supreme Court found the proffered race-neutral reasons were pretextual.  The Second Department determined they were not:

“In Batson, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories. In step one, the moving party must make a prima facie case of purposeful discrimination by showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason. If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome. Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and the trial court must determine whether the proffered reasons are pretextual” … . A trial court’s step-three determination that the facially race-neutral reasons for a nonmoving party’s peremptory challenges to particular jurors were pretextual is entitled to great deference on appeal and will not be disturbed where such determination is supported by the record … . * * *

The record does not support the trial court’s step-three finding of fact as to the subject prospective juror, to wit, that other prospective jurors who were crime victims and who indicated that the incident would not affect them had nevertheless been seated. “[A]ssurances from a challenged prospective juror that he or she could assess the evidence in a fair manner even though he or she was a crime victim are irrelevant to the determination of whether the basis of a peremptory challenge is pretextual” … . Nonetheless, the record indicates that defense counsel treated such jurors consistently by exercising a peremptory challenge for another prospective juror who was not Asian but was a crime victim who provided assurance that nothing in her experience would affect her as a juror. In addition, although defense counsel did not exercise peremptory challenges for K.A.M. and G.A., defense counsel sufficiently distinguished the experiences of those jurors from that of the subject prospective juror, who had been robbed at gunpoint … . Consequently, the record supports a finding that defense counsel had legitimate, nonpretextual reasons for challenging prospective jurors based on their crime victim status … .People v Grant, 2015 NY Slip Op 04505, 2nd Dept 5-17-15

 

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Excessive Intervention and Improper Conduct of Judge Required New Trial in Medical Malpractice Case

The Second Department reversed and sent a medical malpractice case back for retrial on liability because of the excessive intervention and improper conduct by the trial judge.  The Second Department wrote:

…[T]he trial justice’s excessive intervention in the proceedings, as well as the cumulative effect of the trial court’s improper conduct, deprived the plaintiff of her right to a fair trial (see CPLR 5501[a][1]; 4017…). “[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” …. A trial justice plays a “vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” but that “power is one that should be exercised sparingly” …. Accordingly, a trial justice may not ” so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'” … .

A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff’s counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should ” at all times maintain an impartial attitude and exercise a high degree of patience and forebearance’ “…. Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff’s counsel, at all phases of the trial-and often times in the presence of the jury-unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel, and gave the plaintiff’s counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants’ counsel. *  *  *

Under the circumstances of this case, by virtue of the cumulative effect of the improper conduct of the trial justice, the plaintiff was deprived of a fair trial. As a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner ….  Porcelli v Northern Westchester Hosp, 2013 NY Slip Op 03467, 2nd Dept 5-15-13

 

 

 

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No Substantial Basis in the Record for Custody Determination

After the parents’ deaths the maternal and paternal grandmothers petitioned for custody of the child. The Second Department reversed Family Court, which had awarded custody to the maternal grandmother after a three-day hearing, and granted custody to the paternal grandmother, finding no sound and substantial basis for Family Court’s ruling in the record:

The essential consideration in any custody dispute is the best interests of the child … . In determining the best interests of the child, the court must evaluate the totality of the circumstances… . This Court’s authority in custody determinations is as broad as that of the hearing court …, and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we “would be seriously remiss if, simply in deference to the finding of a Trial Judge,” we allowed a custody determination to stand where it lacks a sound and substantial basis in the record … .  Matter of Iams v Estate of Iams, 2013 NY Slip Op 03482, 2nd Dept, 5-15-13

 

 

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Plaintiff Did Not Adequately Allege a Presuit Demand Would Be Futile

The First Department, noting that the presuit demand required by Business Corporation Law 626(c) applies to Limited Liability Companies, determined that plaintiff failed to adequately allege the presuit demand was excused as futile. The court noted that Business Corporation Law 625(c) does not differentiate between majority and minority shareholders and a corporation’s refusal to provide information is not on the list of circumstances where a demand is excused:

Pursuant to Business Corporation Law § 626(c), a plaintiff shareholder must “set forth in the complaint – with particularity – an attempt to secure the initiation of such action by the board or the reasons for not making such effort” … . Demand is excused due to futility when a complaint alleges with particularity that: (1) “a majority of the board of directors is interested in the challenged transaction”; or (2) “the board of directors did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances”; or (3) “the challenged transaction was so egregious on its face that it could not have been the product of sound business judgment of the directors” … . The demand requirement of Business Corporation Law § 626(c) also applies to members of New York limited liability companies … .

The complaint alleges only that since Sowers owns 80% of the LLC, it would be futile for plaintiff to make a demand upon him to consent to the filing of an action on the LLC’s behalf. However, this Court has made clear that Business Corporation Law § 626(c) “does not differentiate between minority and majority shareholders for demand purposes” … . We note that Sowers’ alleged concealment of financial information does not warrant a finding that demand was futile, since “[a] corporation’s refusal to provide information to its shareholders is not on the [] list of circumstances where demand is excused” … , Barone v Sowers, 2015 NY Slip Op 04195, 1st Dept, 5-14-15

 

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For Purposes of CPLR 205 (a) (Allowing the Commencement of a New Action within Six Months of the Termination of a Prior Action) a Prior Action Terminates When a Nondiscretionary Appeal Is “Exhausted,” Even If the Appeal Is Dismissed As Abandoned

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that the six-month period for commencing a new action after the termination of a prior action afforded by CPLR 205 (a) runs from the termination of an appeal, even if the appeal is dismissed as abandoned. Here the plaintiff started an action in federal court which was dismissed by District Court.  Plaintiff then appealed as of right to the Second Circuit.  The appeal was dismissed for failure to file the brief and appendix.  Plaintiff, before the federal appeal was dismissed, started an action in state court. The state court action was started more than six months after the District Court had dismissed the federal action and defendants moved to dismiss the state action under CPLR 205 (a).  The Court of Appeals held that the CPLR 205 (a) six-month period did not start running until the federal appeal was dismissed.  Therefore the state action was timely commenced:

In its current form, CPLR 205 (a) provides:

“If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.” * * *

… [T]his Court has not addressed the issue of when a prior action terminates for purposes of CPLR 205 (a) where, as here, an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect. We resolve that question now by … holding that, where an appeal is taken as of right, the prior action terminates for purposes of CPLR 205 (a) when the nondiscretionary appeal is truly “exhausted,” either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned. Malay v City of Syracuse, 2015 NY Slip Op 04164, CtApp 5-14-15

 

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