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Pre-Discovery Motion for Summary Judgment Should Have Been Granted—Defendant Bus Driver’s Affidavit Explained the Collision Was the Result of His Reaction to an Emergency and Plaintiff Submitted No Alternate Factual Account

The First Department, over a dissent, determined that pre-discovery summary judgment dismissing the complaint against the Metropolitan Transportation Authority (MTA) (stemming from a bus-car collision) should have been granted.  The bus driver’s affidavit stated that when a van suddenly jumped a guard rail and entered his lane of travel, he veered to the left to avoid the van and collided with the vehicle in which plaintiff, who was asleep, was riding. Even though the MTA’s motion was made before the bus driver had been deposed, summary judgment, applying the emergency doctrine, was deemed appropriate because plaintiff submitted no alternate factual account:

The emergency doctrine applies in situations where an actor is confronted with a sudden or unexpected circumstance, not of the actor’s own making, that leaves little or no time for thought, deliberation, or consideration to weigh alternative courses of conduct … . The existence of an emergency and the reasonableness of a party’s response to it ordinarily present questions of fact warranting the denial of summary judgment … . Where, however, a driver presents sufficient evidence that he or she did not contribute to the creation of the emergency situation, that his or her actions were reasonable under the circumstances, and that there is otherwise no opposing evidentiary showing sufficient to raise a legitimate question of fact, summary judgment may be granted … . Speculation concerning the possible accident-avoidance measures of a defendant faced with an emergency is not sufficient to defeat summary judgment … . Green v Metropolitan Transp. Auth. Bus Co., 2015 NY Slip Op 02897, 1st Dept 4-7-15

 

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Work on Billboard Was “Alteration” within Meaning of Labor Law 240 (1) and “Construction” within Meaning of Labor Law 241 (6)

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that plaintiff, who fell putting up advertisement on a billboard, was engaged in covered activities pursuant to Labor Law 240 (1) (alteration), 240 (2) (no guardrail) and 241 (6) (construction):

[W]e conclude that plaintiff was engaged in work that constitutes an alteration within the meaning of the statute. In reaching this determination we apply the definition the Court adopted in Joblon, that the term “altering” in section 240 (1) “requires making a significant physical change to the configuration or composition of the building or structure” (Joblon, 91 NY2d at 465). This definition excludes “routine maintenance” and “decorative modifications” (id.). Whether a physical change is significant depends on its effect on the physical structure. Thus, the Court held that the plaintiff in Joblon who was injured when he fell off a ladder while in the process of chiseling a hole through a concrete block wall so that he could run electrical wires from one room to another to install a wall clock was engaged in “altering” under section 240 (1). As the Court held, extending the wiring and chiseling a hole through the concrete constituted a significant change and entailed “more than a simple, routine activity” (id. at 465-66).

Here, plaintiff’s job was to install a new advertisement. In order to do so he and the other members of the construction crew had to attach extensions that changed the dimensions of the billboard’s frame and transformed the shape of the billboard to accommodate the advertisement’s artwork. Plaintiff was injured when in furtherance of this task he fell while assisting the other crew members with the removal of the old vinyl advertisement from the billboard’s side panels. The vinyl removal was a prerequisite to the attachment of the extensions and therefore an integral part of the installation of the extensions. We have little difficulty concluding that the plaintiff’s work entails a significant change to the billboard structure because once the vinyl is removed, the billboard is enlarged by the attachment of the extensions, work accomplished by the use of the angle iron on the back of each extension, and application of nuts, bolts and nails.  Saint v Syracuse Supply Co., 2015 NY Slip Op 02802, CtApp 4-2-15

 

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Child No Longer Had Sufficient Connection to New York State—Custody-Enforcement Petition Properly Dismissed

The Third Department determined mother’s custody-enforcement petition was properly dismissed for lack of jurisdiction because the child no longer had a sufficient connection to New York.  The court noted that both Title II (jurisdiction) and Title III (enforcement) of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applied:

The mother’s main argument is that Family Court erred in applying title II of the UCCJEA, entitled “[j]urisdiction,” rather than title III, entitled “[e]nforcement.” While title III is not limited to enforcement of out-of-state custody determinations, and its “mechanisms . . . are presumptively available in any enforcement action” (Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 77, at 563; see Domestic Relations Law § 77), several of the sections within title III do refer or apply to custody determinations issued by courts in other states (see e.g. Domestic Relations Law §§ 77-b, 77-d, 77-e, 77-l). Similarly, title II has sections dealing with initial custody determinations and modification determinations (see Domestic Relations Law §§ 76, 76-b), neither of which is sought by the petition here, but the title overall is broader than those sections. Simply because the mother’s petition seeks enforcement of a custody determination, rather than modification, does not mean that the title addressing enforcement must be relied upon independently and exclusively, without any possible reference to the title addressing jurisdiction. Instead, courts can apply both the jurisdiction and enforcement portions of the UCCJEA, where applicable.

A New York court that made a child custody determination “has exclusive, continuing jurisdiction over the determination until . . . a court of this state determines that neither the child, [nor] the child and one parent, . . . have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a [1] [a]). Here, Family Court determined that the child had lived in Georgia with the father for more than two years and all of her medical and educational records and providers are in Georgia . While the mother and other family members reside in New York, the child did not return to New York — for visitation or any other reason — during the years that she was living in Georgia … . Thus, neither the child nor the father had a significant connection with New York, and substantial evidence regarding “the child’s care, protection, training, and personal relationships” is located in Georgia rather than New York (Domestic Relations Law § 76-a [1] [a]). According to the statute, after this determination, New York courts no longer have exclusive, continuing jurisdiction over the divorce judgment determining custody. Due to this determination, Family Court properly dismissed the mother’s petition for lack of jurisdiction … . Matter of Wengenroth v McGuire, 2015 NY Slip Op 02818, 3rd Dept 4-2-15

 

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Statutory Provision that the Gaming Commission “Shall” Render a Determination Within 30 Days After a Hearing Is “Directory” Not “Mandatory”—A Late Determination Will Not Be Annulled Absent Prejudice

The Third Department determined Supreme Court erred when it annulled the suspension of petitioner’s license to train and own horses because the NYS Gaming Commission did not render a determination within 30 days of the hearing as required by Racing, Pari-Mutuel Wagering and Breeding Law 321.  The Third Department determined the 30-day time-limit was not mandatory and petitioner could only seek relief for a violation of section 321 if he could show prejudice related to the delay:

Racing, Pari-Mutuel Wagering and Breeding Law § 321 provides that, when respondent suspends a harness racing participant’s license, the licensee may demand a hearing and, “[w]ithin thirty days after the conclusion of such hearing, [respondent] shall make a final order in writing.” The use of “shall” is not conclusive, however, inasmuch as the statute does not impose any limitation on respondent’s power to act or provide for any consequences for the failure to comply with the time limit … . Nor has petitioner cited any legislative history, and we are not aware of any, suggesting that the 30-day provision in the statute was intended to be mandatory. Rather, at the time this provision was enacted, similar language in the Alcoholic Beverage Control Law had been judicially determined to be directory … , yet the Legislature imposed no additional language limiting respondent’s power to act when it later enacted Racing, Pari-Mutuel Wagering and Breeding Law § 321.

Where, as here, an agency fails to follow a procedural provision that is merely directory, the subsequent determination should only be judicially annulled when the challenger can “show that substantial prejudice resulted from the agency’s noncompliance” … . Matter of Pena v New York State Gaming Commn., 2015 NY Slip Op 02821, 3rd Dept 4-2-15

 

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Elements of Intentional Infliction of Emotional Distress and Prima Facie Tort Described

In finding the counterclaims for intentional infliction of emotional distress and prima facie tort were properly dismissed, the Third Department described the elements of those causes of action:

…[W]ith respect to the counterclaim for intentional infliction of emotional distress [,] … [defendant] was required to plead “extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress” … . Notably, the alleged conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [be] utterly intolerable in a civilized community” … . Here, [defendant] alleged that, during the course of their professional relationship, plaintiff sent unwanted gifts and letters, engaged in suggestive conversations and made threats of future conduct toward him. Even reading the allegations liberally and accepting them as true, we find that the alleged conduct, while undeniably inappropriate, did not rise to the level of being “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” … . …

As for [defendant’s] counterclaim for prima facie tort, there can be no recovery under this theory “unless malevolence is the sole motive for [plaintiff’s] otherwise lawful act or, in [other words], unless [plaintiff] acts from disinterested malevolence” … . Stated another way, the act “must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” … . Hyman v Schwartz, 2015 NY Slip Op 02819, 3rd Dept 4-2-15

 

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Denial of Application for Renewal of General Contractor’s Registration Based Upon a Conviction Which Preceded a Prior Renewal Was Arbitrary and Capricious

The First Department determined the denial of petitioner’s application for renewal of his general contractor’s registration, based upon a conviction which preceded a prior renewal, was arbitrary and capricious.  The court noted that the presumption derived from petitioner’s certificate of relief from disabilities was not rebutted:

Respondent’s determination lacked a rational basis (see CPLR 7803[3]…). Respondent arbitrarily concluded that petitioner’s prior conviction for filing false documents bore a direct relationship to the duties and responsibilities attendant to the general contractor registration, the license for which he sought renewal (see Correction Law §§ 752[1], 750[3]…). * * *

Respondent’s failure to rebut the presumption of rehabilitation deriving from petitioner’s certificate of relief from disabilities also renders its determination arbitrary and capricious … . Matter of Jakubiak v New York City Dept. of Bldgs., 2015 NY Slip Op 02858, 1st Dept 4-2-15

 

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A Stipulation Cannot Bind an Insurer to Nonexistent Coverage

In finding that a hearing was required to determine if respondent was entitled to supplemental uninsured/underinsured motorist (SUM) coverage, the Third Department noted that a stipulation, which implied the existence of such coverage, could not bind the insurer:

Supreme Court erred in concluding that the parties’ stipulation waived the issue of respondent’s entitlement to SUM coverage. Although the stipulation stated that, “[u]pon the completion of [certain] discovery set forth [in the stipulation, petitioner] agrees to proceed to arbitration,” a stipulation cannot create coverage of an individual, nor the obligation to arbitrate the issue of coverage, where the individual does not meet the relevant contractual prerequisites for coverage … . Stated differently, the stipulation cannot independently bind petitioner to supply coverage where no such coverage exists under the policy. Matter of Preferred Mut. Ins. Co. (Fisher), 2015 NY Slip Op 02837, 3rd Dept 4-2-15

 

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Emails Can Suffice as “Documentary Evidence” to Support a Motion to Dismiss—Here the Documentary Evidence About Aspects of an Employment Agreement that Were In Contention Did Not Utterly Refute the Allegation that an Employment Contract Had Already Been Entered

The First Department, in a full-fledged opinion by Justice Renwick, over a dissent, determined the documentary evidence submitted by the defendant, which dealt with several aspects of an employment agreement that were in contention, did not utterly refute plaintiff’s allegation that an employment contract had already been entered.  Therefore defendant’s motion to dismiss the breach of contract cause of action was properly denied.  The opinion is long and detailed, as is the dissent, and cannot fairly be summarized here.  With respect to what constitutes documentary evidence in this context, the court wrote:

On a motion to dismiss pursuant to CPLR 3211(a)(1), a court is obliged “to accept the complaint’s factual allegations as true, according to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory” … . Moreover, dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence submitted “utterly refutes plaintiff’s factual allegations” … . If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action … . * * *

Preliminarily, we reject Supreme Court’s conclusion that correspondence such as the emails here do not suffice as documentary evidence for purposes of CPLR 3211(a)(1). This Court has consistently held otherwise. For example, in Schutty v Speiser Krause P.C. (86 AD3d 484, 484-485 [1st Dept 2011]), this Court found drafts of an agreement and correspondence sufficient for purposes of establishing a defense under the statute. Similarly, in Langer v Dadabhoy (44 AD3d 425, 426 [1st Dept 2007], lv denied 10 NY3d 712 [2008]), this Court found “documentary evidence in the form of emails” to be sufficient to carry the day for a defendant on a CPLR 3211(a)(1) motion. Likewise, in WFB Telecom. v NYNEX Corp. (188 AD2d 257, 259 [1st Dept 1992], lv denied 81 NY2d 709 [1993]), this Court granted a CPLR 3211(a)(1) motion on the basis of a letter from the plaintiff’s counsel that contradicted the complaint. Therefore, there is no blanket rule by which email is to be excluded from consideration as documentary evidence under the statute. Kolchins v Evolution Mkts., Inc., 2015 NY Slip Op 02863, 1st Dept 4-2-15

 

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Summary Judgment Properly Granted to Hospital—Criteria for Hospital Liability for Treatment by a Non-Employee Explained

The Third Department determined summary judgment was properly granted to the hospital (AOMC) because plaintiff (Hoad) was treated by her private physician (Dolkart) and there was no indication hospital staff was negligent in following the doctor’s orders:

…[G]enerally, a hospital is not liable for the negligence of independent physicians except on a theory of ostensible or apparent agency … . Put differently, a hospital may be liable “where the hospital’s words or conduct communicated to a third-party patient give rise to the appearance and belief that the agent-independent physician possesses authority to act on behalf of the hospital” … . As the proponent of summary judgment, AOMC “bore the initial burden of establishing that [Hoad] sought care from a specific physician rather than from [AOMC] generally” … . Here, AOMC’s Vice President of Medical Affairs submitted an affidavit wherein he explained that Dolkart was not an employee, but a tenant with admitting privileges at AOMC. The record confirms that when Hoad was transferred from the emergency room, she consented to a transfer into Dolkart’s care at AOMC, not to AOMC generally. In response, no facts or admissible evidence were presented to establish that Hoad reasonably believed that Dolkart was AOMC’s employee. We therefore discern no basis for imposing liability based upon a theory of ostensible agency … .

We further find no basis for the infant’s claims against AOMC based on the actions of its professional staff. Generally, a hospital is insulated from liability “when its professional staff follows the orders of private physicians selected by the patient” … . An exception to this general rule exists “where the hospital staff knows that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” … . Here, AOMC met its burden through the submission of an affirmation by … an obstetrician. Hoad v Dolkart, 2015 NY Slip Op 02831, 3rd Dept 4-2-15

 

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Course of Conduct Revealed the Terms of an Implied Contract—Complaint Dismissed

The Third Department determined defendant had demonstrated the terms of an implied contract by course of conduct and plaintiff failed to raise a triable question of fact to the contrary:

…[A]n implied contract exists when the parties have not entered into an express contract, but their course of conduct indicates that they have reached a meeting of the minds that is sufficient to constitute an enforceable contract … . A contract may be implied “as an inference from the facts and circumstances of [a] case, although not formally stated in words, and is derived from the presumed intention of the parties as indicated by their conduct” … . Here, the parties agree that they had a longstanding implied contract, but disagree as to whether the terms of this agreement included the amounts that plaintiff now seeks to collect. Plaintiff asserts that these amounts represent debts resulting from systematic underpayments by defendant dating back to 2006. However, defendant contends that it was the parties’ longstanding practice to resolve payment disputes shortly after each payment came due, and that plaintiff gave defendant no reason to believe that any such disagreements were not resolved or that any charges remained outstanding. * * *

…[T]he uncontradicted evidence reveals that, throughout the relationship, both parties treated all pricing disputes as resolved after plaintiff accepted payment and removed the charges from its statements. Plaintiff put forward no admissible evidence giving rise to issues of fact as to whether defendant was on notice that plaintiff considered any charges to be outstanding after this process was complete, or that defendant agreed, explicitly or implicitly, that it was liable for them. Thus, defendant established as a matter of law that there was no breach of contract, and its motion for summary judgment dismissing the cause of action for breach of contract should have been granted … . Coca-Cola Refreshments, USA, Inc. v Binghamton Giant Mkts., Inc., 2015 NY Slip Op 02834, 3rd Dept 4-2-15

 

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