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Doctrine of Primary Assumption of Risk Applies to Informal Game of Catch on a Paved Handball Court

The First Department determined the doctrine of primary assumption of risk applied where plaintiff tripped on the raised, cracked, uneven edge of a sidewalk adjacent to the paved handball court where he was playing catch with a friend:

The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This includes risks associated with the construction of the playing surface, including risks involving less than optimal conditions .. . “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” … .

The assessment of awareness must take place against a particular plaintiff’s skill and experience … . Here, the 26-year-old plaintiff was familiar with the risks inherent in the sport of football, such as the risk of falling while running to catch a ball. He had been to Jerome Playground South to play football or baseball at least 15 times previously and was generally aware of defects in the park. Although plaintiff alleges that he did not see the particular defect that caused him to trip before he fell, cracks in the concrete were visible to a person walking by and nothing covered or concealed the open and obvious condition. Given these circumstances, the primary assumption of risk doctrine is applicable “because plaintiff was involved in an athletic activity at a designated venue and was aware of the perfectly obvious risk of playing on the cracked court”… . Latimer v City of New York, 2014 NY Slip Op 03954 1st Dept 6-3-14

 

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Doctor Did Not Have a Duty to Disclose an Email from a Non-Physician Representative of the Implant Manufacturer Which Indicated Plaintiff Might Not Be a Good Candidate for the Implants

The First Department, over a dissent, determined summary judgment had been properly granted to the defendants in a medical malpractice action.  The court found that the doctor was not required to provide the plaintiff with an email from a non-physician representative of the implant manufacturer stating that plaintiff might not be an ideal candidate for the implant because the implants require “good tissue support:”

Plaintiff … failed to rebut defendants’ showing that she was properly informed of the surgical procedure and the alternatives, as well as the reasonably foreseeable risks and benefits, by tendering expert testimony proving the insufficiency of the information … disclosed to her … .

There is no basis in the law for the dissent’s conclusion that [the doctor] had a duty to disclose to plaintiff the email from the manufacturer’s representative in response to her general query. The dissent mistakenly equates that representative’s conclusory email with a product’s written manufacturer warning or a consulting doctor’s opinion. Ramos v Weber, 2014 NY Slip Op 03943, 1st Dept 5-3-14

 

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New York State Can Issue a License to Practice Law to an Undocumented Immigrant Authorized to Be In the United States by the Deferred Action for Childhood Arrivals Policy of the Federal Government

The Second Department, in an extensive, full-fledged opinion (per curiam), dealing with a question of first impression, determined the State of New York could issue a license to practice law to an undocumented immigrant who was qualified for admission to the bar.  The court explained the issues before it as follows:

We are called upon to determine whether an undocumented immigrant, who is authorized to be present in the United States under the auspices of the Deferred Action for Childhood Arrivals policy of the federal government, and who meets the statutory eligibility requirements and the rules of court governing admission to the practice of law in the State of New York, may satisfy the standard of good character and general fitness necessary for admission. We are further called upon to determine whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.

We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York. Accordingly, we answer the first question in the affirmative and the second question in the negative. Matter of Application of Cesar Adrian Vargas for Admission to the Bar of the State of New York., 2015 NY Slip Op 04657, 2nd Dept 6-3-15

 

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Plaintiffs Should Have Been Allowed to Amend the Pleadings to Conform to the Proof at Trial—No Prejudice to Defendant

The Second Department determined plaintiffs should have been allowed to amend the pleadings to conform to the proof at trial. The complaint alleged breach of contract and negligence re: the installation of foam insulation. The contract called for the installation to conform to the manufacturer’s specifications.  The negligence cause of action alleged the work was not done in a good and workmanlike manner. Because defendant would not have been prejudiced, Supreme Court should have allowed plaintiffs to amend the breach of contract cause of action to allege the work was not done in a good and workmanlike manner.  Plaintiffs’ motion pursuant to CPLR 4404(b) for judgment in their favor on the breach of contract cause of action should have been granted. The negligence cause of action, which essentially duplicated the breach of contract cause of action, should have been dismissed. With respect the post-trial motion to amend the pleadings, the Second Department wrote:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” … . Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial … . Leave shall be freely given upon such terms as may be just (see CPLR 3025[b]). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” … .

Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice …, failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner … . Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 2015 NY Slip Op 04615, 2nd Dept 6-3-15

 

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Trial Court Has the Discretion to Determine the Best Venue for Consolidated Actions—Here a County Other than the County Where the First Action Was Brought Was Properly Determined to Be the Most Appropriate Venue

In a medical malpractice case, the Second Department determined Supreme Court properly exercised its discretion re: the venue of these consolidated actions.  Although the venue of the initial action (Queens County) should usually serve as the venue of the consolidated actions, here the medical treatment was rendered at a hospital in Nassau County, many individual defendants resided in Nassau County, and the plaintiffs themselves resided in Nassau County at the time each action was commenced—making Nassau County the best venue for the proceedings:

“When a trial court orders consolidation or joint trials under CPLR 602(a), venue should generally be placed in the county where jurisdiction was invoked in the first action” … . However, where special circumstances are present, the court, in its discretion, may place venue elsewhere … .

Here, the claims relate to treatment rendered at St. Francis Hospital, located in Nassau County. Many of the individual defendants resided in Nassau County. All of the individual defendants worked in Nassau County at the time of the alleged malpractice and lack of informed consent. The plaintiffs themselves resided in Nassau County at the time each action was commenced. Under these circumstances, the Supreme Court providently exercised its discretion in granting those branches of the cross motions which were to place the venue of the consolidated action in Nassau County and denying that branch of the plaintiffs’ motion which was to place venue in Queens County… . Castro v Durban, 2015 NY Slip Op 04600, 2nd Dept 6-3-15

 

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Defendant’s Submissions Did Not Rebut the Presumption of Receipt of the Summons and Complaint Properly Sent by Ordinary Mail

The Second Department determined defendant’s claims he was out of the country when the summons and complaint were mailed and never received them were insufficient to overcome the presumption of receipt based upon proper mailing by ordinary mail:

In support of that branch of his cross motion which was pursuant to CPLR 5015(a)(1), the defendant was required to demonstrate a reasonable excuse for his default in answering the complaint … . In support of his contention that he had a reasonable excuse, the defendant claimed that he was out of the country …, and when he returned to the United States there were no summons and complaint or notice of this action in the mail. The defendant’s submissions, however, failed to rebut the presumption of receipt based on proof of the proper mailing of the summons and complaint by ordinary mail … . Therefore, the defendant failed to establish a reasonable excuse for his default in answering the complaint … .

In support of that branch of his motion which was pursuant to CPLR 317, the defendant was required to demonstrate that he did not personally receive notice of the summons in time to defend and a potentially meritorious defense (see CPLR 317…). The evidence demonstrating that copies of the summons and complaint were mailed to the defendant at the correct residential address created a presumption of proper mailing and of receipt, and the defendant’s mere denial of receipt was insufficient to rebut that presumption … .  Williamson v Marlou Cab Corp., 2015 NY Slip Op 04636, 2nd Dept 6-3-15

 

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Complaint Sufficiently Alleged a Cause of Action for Unjust Enrichment—an Action Which Only Applies in the Absence of an Express Agreement

The Second Department determined Supreme Court properly granted the motion to dismiss the breach of contract cause of action because, pursuant to the “doctrine of definiteness,”  the terms of the purported contract were too indefinite and uncertain to be enforceable.  However, Supreme Court should not have dismissed the unjust enrichment cause of action. The court noted that unjust enrichment, or quasi contract, only applies in the absence of an express agreement and is really not a contract, but rather an equitable obligation. Here plaintiff alleged that defendant took possession of millions of dollars worth of watches and refused to pay for them. Therefore, the complaint alleged the elements of unjust enrichment—(1) defendant was enriched at (2) plaintiff’s expense and (3) it is against equity to allow the defendant to keep what is sought to be recovered:

The doctrine of definiteness, well established in contract law, “means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to” … .

“[T]o recover for unjust enrichment, a plaintiff must show that (1) the [defendant] was enriched, (2) at [the plaintiff’s] expense, and (3) that it is against equity and good conscience to permit [the defendant] to retain what is sought to be recovered'” … . Such quasi contract only applies in the absence of an express agreement, and is not really a contract at all, but rather an equitable obligation imposed in order to prevent a party’s unjust enrichment … . Here, the complaint alleges that [defendant] received a benefit when he received luxury watches worth millions of dollars from [plaintiff’s] predecessor in interest, “with the understanding and reasonable expectation that [defendant] would pay for those goods,” and that [defendant] was “personally enriched by taking the millions of dollars worth of luxury watches, while failing and refusing to pay for said merchandise.” Such allegations are sufficient to state a cause of action alleging unjust enrichment … . UETA Latinamerica, Inc. v Zafir, 2015 NY Slip Op 04633, 2nd Dept 6-3-15

 

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Elements of Actions for (1) Discrimination in Employment and (2) Retaliation for Opposition to Discriminatory Practices Succinctly Described

In determining the employer’s (State of New York’s) motion for summary judgment was properly granted, the Second Department succinctly explained the elements of an action for discrimination in employment and an  action for retaliation for an employee’s opposition to discriminatory practices:

A plaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination … . To meet this burden, the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination … . The burden then shifts to the employer “to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision” … . To succeed on the claim, “the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason” … .

To prevail on a motion for summary judgment in a discriminatory employment action, a defendant must demonstrate either the plaintiff’s failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual … . * * *

It is unlawful to retaliate against an employee for opposing discriminatory practices … . In order to make out a claim for retaliation, a plaintiff must show that (1) he or she has engaged in protected activity; (2) his or her employer was aware of such activity; (3) he or she suffered an adverse employment action based upon the protected activity; and (4) there is a causal connection between the protected activity and the adverse action … . Cotterell v State of New York, 2015 NY Slip Op 04601, 2nd Dept 6-3-15

 

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Request for Mugshots and Identifying Information Re: Arrestees for Posting on Petitioner’s Website Denied—Posting of Such Information Would Constitute an Unwarranted Invasion of Privacy

Petitioner sought mugshots and other identifying information re: arrestees from the NYC Department of Corrections (DOC) for posting on his website.  Petitioner charged a fee for removing a photo from the site.  DOC denied the request. Supreme Court denied the Article 78 petition seeking reversal of the DOC’s denial.  The Second Department determined DOC did not meet its burden of demonstrating the applicability of any of the statutory exemptions from disclosure in the Public Officers Law (DOC’s assertions were “conclusory”), but went on to determine release of the photos and information would constitute an unwarranted invasion of privacy and may endanger the life or safety of the arrestees:

The agency’s burden of demonstrating that the material requested falls within a statutory exemption “requires the [agency] to articulate a “particularized and specific justification for denying access”‘” … . ” Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed'” … .

Pursuant to Public Officers Law § 87(2)(b), an agency “may deny access to records” where disclosure “would constitute an unwarranted invasion of personal privacy under the provisions of [Public Officers Law § 89(2)(b)].” “[W]here none of the [exemptions under Public Officers Law § 89(2)(b) are] applicable, a court must decide whether any invasion of privacy . . . is “unwarranted” by balancing the privacy interests at stake against the public interest in disclosure of the information'” … .

Here, the DOC proffered only conclusory assertions that denial of the requested records “would result in economic or personal hardship to the subject party,” which was insufficient to demonstrate the applicability of Public Officers Law § 89(2)(b)(iv) … . The DOC also failed to establish that any individuals received an express or implied promise of confidentiality from it, as required to demonstrate the applicability of Public Officers Law § 89(2)(b)(v) … .

In view of the DOC’s failure to demonstrate the applicability of any exemptions under Public Officers Law § 89(2)(b), this Court must determine whether disclosure would constitute an “unwarranted invasion of personal privacy” by ” balancing the privacy interests at stake against the public interest in disclosure of the information'” … . Here, the petitioner has not set forth any direct public interest in disclosure of the records at issue, which were sought for the sole purpose of posting personal information and photographs of individuals currently or formerly in the custody of the DOC on a website that collects payment in exchange for removing the photographs. On the other hand, the record reflects that the privacy interests of numerous individuals are implicated, including those individuals who were ultimately acquitted of any criminal charges and adolescents between the ages of 16 and 18 who are presently or were in the custody of the DOC. Consequently, under the particular circumstances of this case, a balancing of the privacy interests at stake against any public interest in disclosure necessitates a determination that disclosure of the records at issue would constitute an “unwarranted invasion of personal privacy” (Public Officers Law § 87[2][b]…). Matter of Prall v New York City Dept. of Corrections, 2015 NY Slip Op 04653, 2nd Dept 6-3-15

 

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Failure to Allege a “Special Relationship” Between Insurance Broker and Client Required Dismissal of the “Breach of Fiduciary Duty” Cause of Action

In determining defendants’ motion to dismiss the “breach of fiduciary duty” cause of action was properly granted, the Second Department explained that an insurance broker can be liable to a client for breach of a fiduciary duty only when a “special relationship” over and above the ordinary broker-client relationship exists.  Here the plaintiffs failed to allege the existence of a “special relationship.” The court explained the relevant law:

The common-law rule is that “an insurance broker acting as an agent of its customer has a duty of reasonable care to the customer to obtain [specifically] requested coverage within a reasonable time after the request, or to inform the customer of the agent’s inability to do so, [but] the agent owes no continuing duty to advise, guide or direct the customer insured to obtain additional coverage” … . However “[w]here a special relationship develops between the broker and client, [the] broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage” … . The Court of Appeals has identified three “exceptional situations” which may give rise to such a special relationship: ” (1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on'” … . Waters Edge @ Jude Thaddeus Landing, Inc. v B & G Group, Inc., 2015 NY Slip Op 04634, 2nd Dept 6-3-15

 

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