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Failure to Submit Lease to Show No Contractual Obligation to Remove Ice And Snow Precluded Summary Judgment to Defendant Out-of-Possession Landlord—Evidence First Submitted in Reply Papers Properly Not Considered

The Second Department determined defendant out-of-possession landlord was not entitled to summary judgment in a slip and fall case because it did not submit the lease and therefore did not demonstrate the absence of any obligation to remove ice and snow.  The court noted that it could not consider evidence presented for the first time in reply papers:

An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . Here, the plaintiff did not allege that the landlord’s duty was statutory or based on a course of conduct. Thus, to prevail on its motion, [defendant] was required to demonstrate, prima facie, that it had not retained control over the premises, or that it had no contractual duty to remove snow and ice from the area where the plaintiff allegedly slipped and fell. [Defendant] failed to sustain this burden because it failed to submit a copy of the lease between it and the entity that was the tenant of the subject premises at the time of the accident … .  Poole v MCPJF, Inc., 2015 NY Slip Op 03142, 2nd Dept 4-15-15

 

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Failure to State in the Notice of Claim that Defendant Created the Icy Condition on the Sidewalk, or that the Condition Was the Result of Defendant’s Negligence, Required Dismissal of the Complaint

The Second Department determined summary judgment dismissing the complaint in a slip and fall case was appropriate because the notice of claim did not set forth the legal theory upon which the suit was based:

A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim, and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality (see General Municipal Law § 50-e[1][a]…). While a claimant need not state “a precise cause of action in haec verba in a notice of claim” …, the notice of claim must at least adequately apprise the defendant that the claimant would seek to impose liability under a cognizable theory of recovery … . Moreover “a party may not add a new theory of liability which was not included in the notice of claim” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting proof that the notice of claim made no allegations that the ice patch on which the plaintiff slipped and fell was created by its snow removal operation, or existed by virtue of its negligence … . Steins v Incorporated Vil. of Garden City, 2015 NY Slip Op 03149, 2nd Dept 4-15-15

 

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Criteria for Respondeat Superior (Scope of Employment) Liability Succinctly Explained

The Second Department determined summary judgment was properly denied to the defendant employer.  The employee was test driving a competitor’s car in connection with his job at a Mercedes dealership when the employee was involved in an accident.  The Second Department determined the employer failed to demonstrate the employee was not acting within the scope of his employment at the time of the accident.  The court explained the relevant law:

Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment” … . “An employer, however, cannot be held vicariously liable for its employee’s alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business at the time of the incident … . Zwibel v Midway Automotive Group, 2015 NY Slip Op 03154, 2nd Dept 4-15-15

 

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Owners of Single Family Residence Not Liable for Defects in Abutting Sidewalk

In affirming the grant of summary judgment to the defendants who owned a single family residence abutting the allegedly defective sidewalk where plaintiff fell, the Second Department explained the relevant New York City law:

[Defendants] demonstrated that they were exempt from liability pursuant to Administrative Code of the City of New York § 7-210(b) for their alleged failure to maintain the sidewalk abutting their property by establishing that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes (see Administrative Code of City of N.Y. § 7-210[b]…).  Further, they established, prima facie, that they could not be held liable for the plaintiff’s alleged injuries under common-law principles. ‘Absent the liability imposed by statute or ordinance, an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in the sidewalk unless the landowner either created the defect or caused it to occur by special use’… . Shneider v City of New York, 2015 NY Slip Op 03148, 1st Dept 4-15-15

 

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In an Appeal from an Order Made Upon Appellant’s Default, Only Matters Contested Below Can Be Heard—Here the Only Matter Contested Below Was Appellants’ Request for an Adjournment to Obtain New Counsel—Relevant Review Criteria Explained

The Second Department noted that in an appeal from an order made upon the appellant’s default, the only issues which can be reviewed are those which were contested below.  Here only appellants’ request for an adjournment to obtain new counsel was contested, therefore that was the only issue the appellate court could consider.  The court determined the denial of the adjournment request was not an abuse of discretion.  “In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding … .” The court noted the appellants’ lack of cooperation with their second counsel and their consent to second counsel’s being relieved:

Where, as here, the order appealed from was made upon the appellants’ default, “review is limited to matters which were the subject of contest below” … . Accordingly, in this case, review is limited to the denial of the appellants’ request for an adjournment … .

The granting of an adjournment for any purpose rests within the sound discretion of the court … , and its determination will not be disturbed absent an improvident exercise of that discretion … . In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding … .

Applying these principles here, the Supreme Court did not improvidently exercise its discretion in denying the appellants’ request for an adjournment to obtain new counsel after their second counsel was relieved, as second counsel requested that the appellants permit it to be relieved of the obligation of representation, based on the appellants’ lack of cooperation with second counsel, and the appellants thereupon voluntarily consented to second counsel’s request … . Hawes v Lewis, 2015 NY Slip Op 03127, 2nd Dept 4-15-15

 

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Failed Attempt to Circumvent the Banking Law by Making a High-Cost Home Loan to a Limited Liability Company to which the Home Had Been Transferred

The Second Department determined summary judgment should have been granted on defendants’ counterclaim alleging plaintiff’s violation of the Banking Law which prohibits “high-cost home loans” (Banking Law 6-1).  Plaintiff had attempted to circumvent the law by making the loan to a limited liabilIty company to which the defendants-owners had transferred the home. The Second Department determined the provisions of the Banking Law relating to “high-cost home loans” which (1) prohibited “subterfuge” to circumvent the law, (2) prohibited the consolidation of loan payments made payable in advance, (3) required certain notices, and (4) prohibited excessive points and fees, applied to the transaction in issue:

The defendants established their prima facie entitlement to judgment as a matter of law on their first counterclaim, which was to recover damages and for declaratory relief for violations of Banking Law § 6-l, which imposes limitations and prohibits certain “practices for high-cost home loans” (Banking Law § 6-l[2]). The defendants established, prima facie, that the subject loan was a “high-cost home loan” (Banking Law § 6-l[1][d]; see Banking Law § 6-l[1][f][i]-[iii]; [g][ii]…). …[U]nder the circumstances of this case, Banking Law § 6-l applies to the … loan, even though it was made to a limited liability company, and not to “a natural person” (Banking Law § 6-l[1][e][ii]). The provisions of Banking Law § 6-l apply “to any person who in bad faith attempts to avoid the application of this section by any subterfuge” (Banking Law § 6-l[3]). Here, the defendants made a prima facie showing that a representative of [plaintiff] attempted, in bad faith, to avoid the application of the statute by “subterfuge,” and that, thus, the statute applied to the Aries loan (Banking Law § 6-l[3]). Moreover, the defendants’ submissions demonstrated, prima facie, that [plaintiff] violated the provisions of Banking Law § 6-l(2) by consolidating the first 12 payments and having them “paid in advance from the loan proceeds provided to the [defendants]” (Banking Law § 6-l[2][e]); engaging in “loan flipping” (Banking Law § 6-[2][i]); making the loan “without due regard to repayment ability” (Banking Law § 6-l[2][k]); failing to provide required notices (see Banking Law § 6-l[2][e]; [2-a][a]); and financing points and fees, as defined in Banking Law § 6-l(1)(f), “in an amount that exceeds three percent of the principal amount of the loan” (Banking Law § 6-l[2][m]).  Aries Fin., LLC v 12005 142nd St., LLC, 2015 NY Slip Op 03115, 2nd Dept 4-15-15

 

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CONTRACT LAW/EVIDENCE Parol Evidence (Email) Properly Admitted to Explain Ambiguous Term in Construction Contract with a Merger Clause—Relevant Law Succinctly Explained

The Second Department determined parol evidence was properly admitted to explain the meaning of an ambiguous phrase in a construction contract with a merger clause.  The court succinctly explained the relevant law:

A written agreement that is complete, clear, and unambiguous on its face must be enforced to give effect to the meaning of its terms and the reasonable expectations of the parties, and the court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities … . A contract is considered to be clear and unambiguous where the language used has “a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion” … . Moreover, the parol evidence rule operates to preclude evidence of a prior or contemporaneous communication during negotiations of the agreement that contradicts, varies, or explains a written agreement which is clear and unambiguous in its terms and expresses the parties’ entire agreement and intentions … . Where a contract contains a merger clause, a court is obliged to require full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to vary or contradict the terms of the writing … .

Here … parol evidence was properly admitted into evidence to explain the ambiguous phrase “cost to Owner” in the change order provision of the construction contract, inasmuch as the term “cost” was not defined, and could have various meanings, including one limited to labor and material costs without an additional markup. Accordingly, parol evidence, such as the email … stating that change orders would not include markups, which does not otherwise vary or contradict the construction contract, was permitted… . Vivir of L I, Inc. v Ehrenkranz, 2015 NY Slip Op 03152, 2nd Dept 4-15-15

 

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The Facts that a Witness Had Given a Statement to the Police and Was on the People’s Witness List Did Not Demonstrate the People Had Control Over the Witness—Request for Missing Witness Charge Properly Denied

The Second Department determined Supreme Court properly denied defendant’s request for a missing witness charge for the defendant’s roommate, who had witnessed the shooting and had given a statement to the police during the initial investigation.  The facts that the roommate had given a statement and was placed on the People’s witness list did not demonstrate control over the witness. Without evidence of such control (for example, a material witness order) a missing witness charge is not appropriate:

…[T]he roommate was not under the People’s control at the time of trial by virtue of having provided a statement to the police during the initial investigation stage of the case. In addition, control cannot be found from the People’s placement of the roommate on their witness list, as their wish for his testimony is not indicia of having control over him. There was no material witness order. Indeed, the record contains no evidence that the People’s relationship with the defendant’s roommate gave them any more control over him at trial than the defendant may have had himself.  People v Roseboro, 2015 NY Slip Op 03192, 2nd Dept 4-15-15

 

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Defendant Who Objected to the Amount of Restitution at Sentencing Was Entitled to a Hearing Even Though the Restitution-Amount Was (Apparently) Specified in the Plea Agreement

The Second Department determined defendant, who objected at sentencing to the amount of restitution, was entitled to a hearing, even though the specific restitution-amount was (apparently) made part of the plea agreement.  The restitution was related to the “buy money” used by the police in a related drug deal.  The court explained the relevant law:

Under Penal Law § 60.27(9), a defendant may be ordered to pay restitution for funds used by law enforcement in the purchase of drugs, if certain prerequisites are met. Before a defendant may be directed to pay restitution, a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing (see Penal Law § 60.27[2]…). This procedure must be followed even if the plea agreement contains a provision for a specific amount of restitution … . People v Morrishill, 2015 NY Slip Op 03187, 2nd Dept 4-15-15

 

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Defendant Alleged a Possible Defense to His Failure to Comply with an Order that He Pay Temporary Maintenance and Child Support (Inability to Work Due to Medical Problems)—Hearing Was Required Before a Civil Contempt Finding Could Be Made

The Second Department determined Supreme Court should not have held defendant in civil contempt for his failure to comply with an order that he pay temporary maintenance and child support without first conducting a hearing. The defendant’s opposition papers raised a factual dispute about whether there was a defense (inability to work due to medical problems).  In the context of a civil contempt proceeding, a question of fact about the existence a defense requires a hearing:

To prevail on a motion to hold a party in civil contempt, the movant is required to prove by clear and convincing evidence ” (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'” … . “Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order” … . A hearing is required “if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense” … . Lundgren v Lundgren, 2015 NY Slip Op 03135, 2nd Dept 4-15-15

 

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