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Question of Fact Whether Nonowner Occupied and Controlled Premises Where Plaintiff Fell

The Third Department determined there were questions of fact whether a nonowner of a premises, 68 Weibel Avenue, occupied and controlled the premises such that a duty to use reasonable care re: the condition of the premises arose. The owner of the property (third-party defendant) is the father of two sisters who operate defendant business across the street at 75 Weibel Avenue.  There was testimony that defendant business also occupied and controlled the area where plaintiff slipped on ice at 68 Weibel Avenue:

A nonowner who occupies or controls premises has a duty to exercise reasonable care regarding the condition of the premises … . The boundaries of occupancy and extent of control are typically addressed in a written agreement, and may also be established or modified by a course of conduct … . The absence of a written agreement creates a situation ripe for factual issues regarding relevant rights and responsibilities to the premises … .

Here, there was no written agreement between defendant and third-party defendant regarding the premises. Defendant and third-party defendant had a close familial relationship, and it does not appear from the record that there was even an oral agreement specifically delineating their rights and responsibilities. In light of the absence of any agreement, defendant’s conduct regarding the premises is particularly pertinent. Plaintiff testified that, although defendant had a retail store across the road at 75 Weibel Avenue, he was directed by defendant to make deliveries at the 68 Weibel Avenue shop. He recalled that an owner or an employee of defendant was always present at such address when he made a delivery. While there were other businesses that used the parking lot at 68 Weibel Avenue, plaintiff stated that there were never vehicles directly in front of defendant’s shop other than a vehicle of an employee/owner of defendant. He parked at such location in front of the shop when making deliveries and was so parked on the date of his accident. A freestanding sign for defendant’s business was located outside the building at 68 Weibel Avenue and in the vicinity where plaintiff parked. We agree with Supreme Court that, under the circumstances, there are triable issues of fact as to whether defendant exercised control over the pertinent part of the 68 Weibel Avenue premises. Contreras v Randi’s Enter., LLC, 2015 NY Slip Op 02165, 3rd Dept 3-19-15

 

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Sufficient Factual Allegations of Malpractice Not Made/Denial of Motion to Reargue Appealable as of Right Because the Merits Were Dealt with By the Motion Court

The Third Department, in affirming the dismissal of a legal malpractice complaint, determined that the fact that the motion court dealt with the merits of a motion to reargue while denying it rendered the denial appealable as of right:

As a general proposition, “no appeal lies from the denial of a motion to reargue” … . Where, however, the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied … . Accordingly, Supreme Court’s April 2013 order is appealable as of right (see CPLR 5701 [a] [2] [viii]…). * * *

To survive defendants’ motion to dismiss, it was incumbent upon plaintiff to, among other things, “plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter” … , i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Rodriguez v Jacoby & Meyers, LLP, 2015 NY Slip Op 02151, 3rd Dept 3-19-15

 

 

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Drivers Transporting Patients to a Physical Therapy Facility Are Employees Not Independent Contractors

The Third Department determined drivers for Agewell, a physical therapy center, (bringing patients to the facility) were employees, not independent contractors:

Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . An employment relationship will be found “when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results,” with “‘control over the means [being] the more important factor'” … . In contrast, “[i]ncidental control over the results produced,” such as supplying form contracts, requiring periodic reports and attendance at meetings, giving instruction on what to wear or how to make a presentation, “without further indicia of control over the means employed to achieve the results[,] will not constitute substantial evidence of an employer-employee relationship” … .

Here, the evidence presented at the hearing demonstrated that Agewell set the driver’s schedules, determining the order in which multiple clients would be picked up, and required the drivers to sign in and out. Drivers typically used Agewell’s vehicles with the company logo on them and its credit card when putting gas into the vehicles, but were reimbursed if they used their own vehicles. Claimant further testified that shirts and jackets with the company logo were provided and that he typically wore them, along with a name tag. Agewell also fielded complaints from clients and provided feedback to the drivers on their performance. Drivers were allowed to pursue their own business interests and many did, including claimant. Notwithstanding the existence of evidence in the record to support a contrary conclusion, the foregoing constitutes substantial evidence to support the Board’s conclusion that the control retained by Agewell was more than incidental and sufficient to establish that claimant was its employee and not an independent contractor … . Matter of McAlevey (Agewell Physical Therapy & Wellness, P.C.–Commissioner of Labor), 2015 NY Slip Op 02179, 3rd Dept 3-19-15

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Claimant Was an Employee of a Cleaning and Janitorial Service

The Third Department determined claimant was an employee of a cleaning and janitorial service, Shield Cleaners:

“Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . An employment relationship will be found “when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results,” with “‘control over the means [being] the more important factor'” … . In contrast, “[i]ncidental control over the results produced,” such as supplying form contracts, requiring periodic reports and attendance at meetings, giving instruction on what to wear or how to make a presentation, “without further indicia of control over the means employed to achieve the results[,] will not constitute substantial evidence of an employer-employee relationship” … .

Here, claimant testified that Shield Cleaning contacted her with assignments and told her how long to spend at each assignment, and that she was required to accept unless she was performing another assignment or could produce documentation, such as a doctor’s note, to show why she was not at work. Shield Cleaning worked out the requirements in advance and memorialized the agreements with the client in writing. Claimant was paid by the hour, required to submit time sheets, had a certain percentage of her paycheck deducted as insurance and agreed in writing not to solicit any of Shield Cleaning’s clients as her own. She was also provided with supplies to perform her work and a t-shirt with the company’s logo and telephone number on it. Claimant was paid regardless of whether the client paid, and any complaints about the work were directed to Shield Cleaning, rather than claimant. Notwithstanding the existence of evidence in the record to support a contrary conclusion, the foregoing constitutes substantial evidence to support the Board’s conclusion that the control retained by Shield Cleaning was more than incidental and sufficient to establish that claimant was its employee and not an independent contractor … . Matter of Dwightmoore (Lawrence M. Fanfair–Commissioner of Labor), 2015 NY Slip Op 02182, 3rd Dept 3-19-15

 

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Even Employees “Working Off the Books” Are Barred from Suing Employer in Tort

The Second Department determined plaintiff’s suit against his employer was barred by the Workers’ Compensation Law, even if plaintiff was “working off the books:”

Workers’ compensation benefits are [t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment” … . “This precludes suits against an employer for injuries in the course of employment” … . “[W]henever it appears or will appear from a plaintiff’s pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and, in any event, of proving noncoverage falls on the plaintiff” … .

Here, in support of their motion for summary judgment, the defendants presented evidence that the plaintiff was an employee of the defendant N.B. Painting and Decorating Corp. (hereinafter N.B. Painting), who was injured in the course of his employment, and that N.B Painting maintained a Workers’ Compensation policy on the date of the accident. Accordingly, the defendants established prima facie that the exclusivity provisions of Workers’ Compensation Law § 11 barred the plaintiff from seeking a recovery in tort against N.B. Painting … .

In opposition, the plaintiff failed to raise a triable issue of fact. “[A]ll employees of an employer are deemed covered by the employer’s workers’ compensation policy, regardless of whether an employee may have been working off the books’, where the employer has secured a policy of insurance coverage” … . De Los Santos v Butkovich, 2015 NY Slip Op 02089, 2nd Dept 3-18-15

 

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Sua Sponte Dismissal of Complaint Not Justified/Lack of Standing Not a Jurisdictional Defect

In a foreclosure action, the Second Department noted that Supreme Court did not have the authority to, sua sponte, dismiss the complaint, even if the plaintiff did not have standing, which is not a jurisdictional defect.  (The Second Department determined the plaintiff did in fact have standing.):

The Supreme Court also erred in, sua sponte, directing dismissal of the complaint. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with extraordinary circumstances warranting sua sponte dismissal of the complaint. Even if the plaintiff had lacked standing it would not have constituted a jurisdictional defect and would not warrant a sua sponte dismissal of the complaint … . Citimortgage, Inc. v Chow Ming Tung, 2015 NY Slip Op 02087, 2nd Dept 3-18-15

 

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Amendment of Summons and Complaint after the Statute of Limitations Has Run

In affirming the amendment of a summons and complaint, (apparently) after the running of the statute of limitations, the Second Department explained the relevant law:

CPLR 305(c) authorizes the court, in its discretion, to “allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced.” Where the motion is to cure “a misnomer in the description of a party defendant,” it should be granted even after the statute of limitations has run where “(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought” … . “Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue” … . “However, while CPLR 305(c) may be utilized to correct the name of an existing defendant . . . it cannot be used by a party as a device to add or substitute a party defendant'” … , and it may not be used “to proceed against an entirely new defendant, who was not served, after the expiration of the statute of limitations” … . Sanders v 230fa, LLC, 2015 NY Slip Op 02107, 2nd Dept 3-18-15

 

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Invoices Together with Purchase Orders Created an Agreement to a Reduced Sales-Contract Statute of Limitations

The Second Department determined the sales-contract statute of limitations was validly reduced from four years to one year by the terms of invoices:

While UCC 2-725(1) generally provides that a cause of action alleging breach of a sales contract must be commenced within four years after it has accrued, that provision also allows the parties to a sales contract to “reduce the period of limitation to not less than one year” (UCC 2-725[1]…). Here, the defendants met their initial burden by demonstrating that their invoices containing the one-year limitation period constituted an acceptance that, together with the plaintiff’s purchase order, was effective in forming a contract, and that the one-year limitation period, an additional term set forth in the invoices, was presumed to have become part of this contract between the parties unless one of the three exceptions in UCC 2-207(2) applied (see UCC 2-207[1], [2]…). It is undisputed that the plaintiff’s action was not commenced within one year from the alleged breach, as required by the additional term. The burden then shifted to the plaintiff, as the party opposing the inclusion of the additional term, to raise a question of fact as to whether one of the three exceptions under UCC 2-207(2) was applicable … . The plaintiff failed to satisfy its burden.

Contrary to the plaintiff’s contention, the abbreviated period of limitation was not against public policy (see CPLR 201; UCC 2-725[1]…). ” Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … . ” Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentations in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed to'” … . State of Narrow Fabric, Inc. v UNIFI, Inc., 2015 NY Slip Op 02110, 2nd Dept 3-18-15

 

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Delaware Pleading Requirements Not Met in Shareholders’ Derivative Action

The Second Department determined the shareholders’ derivative action alleging breach of a fiduciary duty was properly dismissed for failure to meet the pleading requirements of the controlling Delaware law:

As the parties agree, the laws of Delaware, the State of incorporation, govern the issues raised on this appeal … . Delaware Chancery Court Rule 23.1(a) provides that every shareholders’ derivative complaint shall “allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and the reasons for the plaintiff’s failure to obtain the action or for not making the effort.” A plaintiff’s demand on the directors pursuant to Rule 23.1(a) will be excused “if the derivative complaint pleads particularized facts creating a reasonable doubt that (1) the directors are disinterested and independent or (2) the challenged transaction was otherwise the product of a valid exercise of business judgment” … . Demand may also be excused in certain circumstances “where particularized factual allegations create a reasonable doubt that, as of the time the complaint was filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand” … . Here, the allegations of the amended complaint were insufficient to satisfy the pleading requirements of Rule 23.1(a). Walter v FalconStor Software, Inc., 2015 NY Slip Op 02112, 2nd Dept 3-18-15

 

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Defendant Did Not Have the Right to Be Present During Discussion of Exclusion of a Sworn Juror

The Second Department determined the defendant’s absence from a conference re: whether a sworn juror was grossly unqualified to serve did not violate defendant’s right to be present at all material stages of the trial:

The defendant’s right to be present at all material stages of trial was not violated by his absence from an in camera interview with a sworn juror, conducted in the presence of the prosecutor and defense counsel, to determine whether that sworn juror was grossly unqualified to serve (see CPL 270.35[1]). A defendant’s statutory right to be present at trial (see CPL 260.20) “extends to all material stages of the trial, including ancillary proceedings in which defendant’s presence could have a substantial effect on [his or her] ability to defend against the charges'” … . A conference to determine whether a sworn juror should be excluded (see CPL 270.35) is an ancillary proceeding, at which the defendant’s presence is “only necessary where defendant has something valuable to contribute'” … .

Under the circumstances presented here, the defendant’s presence at the conference could not have had a substantial effect on his ability to defend the charges, and the defendant could not have made a valuable contribution to the conference … . People v Peoples, 2015 NY Slip Op 02143, 2nd Dept 3-18-15

 

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