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Teacher Who Was Encouraged by the Superintendent to Resign Her Tenured Teaching Position to Take A Library-Position Which Was Subsequently Eliminated Did Not Thereby Voluntarily Waive Her Seniority Rights—She Was Entitled to Reinstatement In Her Tenured Teaching Position With Back Pay

The Third Department determined that a teacher (petitioner) who, at the request of the school superintendent resigned her teaching position to take a library media specialist (LMS) position, did not waive her seniority rights.  After the LMS position was eliminated and petitioner was terminated, petitioner brought an Article 78 proceeding to reinstate her as a tenured teacher. Supreme Court granted the petition and the Third Department affirmed:

Respondents maintain that Supreme Court erred in finding that the termination of petitioner’s employment was arbitrary and capricious and irrational, inasmuch as petitioner freely waived her seniority rights when she resigned from her position as an English teacher. Although an employee may waive his or her seniority rights by resigning or retiring, “such a relinquishment must be knowing and voluntary” … . An effective waiver of such rights must be free from any indicia of duress or coercion … .

The record demonstrates that, when petitioner was encouraged by the interim Superintendent to take the LMS position, she expressed her reluctance to leave her position as an English teacher and asked if she could take a leave of absence rather than resign. The interim Superintendent indicated that a leave of absence would not suffice and that petitioner’s resignation was required. After tendering her letter of resignation, which the Board accepted a month after appointing her to the LMS position, petitioner received a longevity pay increase, continued to accrue sick and personal leave time that had carried over from her English teaching position and also received a severance payment from the District that would not have been made if petitioner had voluntarily severed her employment. Notably, when petitioner moved into the LMS position, she assumed such position without any interruption in service … . Where, as here, an employee does not take the necessary “affirmative steps to terminate all aspects of his or her employment by a school district,” no waiver of seniority and tenure rights will be found … . Accordingly, as the Commissioner’s dismissal of petitioner’s appeal was arbitrary and capricious and lacking a rational basis, Supreme Court’s judgment annulling that determination shall remain undisturbed … . Matter of Kwasnik v King, 2014 NY Slip Op 08697, 3rd Dept 12-11-14

 

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Indian Point Nuclear Power Plants Exempt from a Consistency Review Under New York’s Coastal Management Program—No State Environmental Impact Statements Required—Federal Environmental Impact Statements Prepared in the 1970’s Deemed Sufficient to Trigger the Exemption Under the Plain Meaning of the Statutory and Regulatory Language

The Third Department, in a full-fledged opinion by Justice Clark, determined that the petitioners, owners and operators of Indian Point nuclear power plants seeking renewal of operating licenses, were exempt from New York’s Coastal Management Program (CMP).  The court explained that the plain language of the relevant statutes and regulations did not require the preparation of environmental impact statements pursuant to New York’s State Environmental Quality Review Act (SEQRA), as the Department of State and the lower court had ruled. The fact that environmental impact statements had been prepared in the 1970’s under the federal National Environmental Policy Act (NEPA) was deemed sufficient to trigger the exemption:

Petitioners particularly focus upon the second exemption in the CMP, which exempts from consistency review “those projects for which a final [e]nvironmental [i]mpact [s]tatement has been prepared prior to the effective date of the Department of State [p]art 600 regulations … .” 19 NYCRR part 600 took effect in 1982. Indian Point 2 and Indian Point 3 went into operation prior to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) taking effect in 1976 and, as such, environmental impact statements were not prepared under SEQRA. Final environmental impact statements were prepared pursuant to the National Environmental Policy Act of 1969 (42 USC § 4321 et seq. [hereinafter NEPA]), however, and statements were completed for Indian Point 2 and Indian Point 3 in 1972 and 1975, respectively. Accordingly, applying the plain meaning of the language in the CMP, Indian Point 2 and Indian Point 3 are exempt from consistency review.

The Department nevertheless held that the exemption did not apply to Indian Point 2 and Indian Point 3 because their final environmental impact statements had not been prepared pursuant to SEQRA. There is simply no basis in law for injecting such a requirement. The Department noted that 19 NYCRR 600.3 (d) is cited in the exemption and refers to final environmental impact statements prepared under the SEQRA regulatory regime, but that regime permits the use of final environmental impact statements prepared under NEPA (see 6 NYCRR 617.2 [n]; 617.15 [a]; Philip Weinberg, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17½, ECL 8-0111). Indeed, SEQRA is modeled upon NEPA, and there is no indication that the final environmental impact statements prepared for Indian Point 2 and Indian Point 3 would not have complied with SEQRA … . Matter of Entergy Nuclear Operation Inc v New York State Dept of State, 2014 NY Slip Op 08702, 3rd Dept 12-11-14

 

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Single Step Was Open and Obvious and Not Inherently Dangerous

The Second Department determined a single step separating the carpeted dining area from the rest of the restaurant was open and obvious and not inherently dangerous:

A property owner has a duty to maintain his or her property in a reasonably safe manner … . However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Here, the defendants … submitted evidence sufficient to establish, prima facie, that the single step separating the carpeted dining area from the rest of the restaurant in which the plaintiff allegedly fell, which consisted of wooden flooring, was open and obvious, and not inherently dangerous … . Dillman v City Cellar Wine, Bar & Grill, 2014 NY Slip Op 08598, 2nd Dept 12-10-14

Similar issue and result in Varon v New York City Dept of Educ, 2014 NY Slip Op 08633, 2nd Dept 12-10-14.

 

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Operating Agreements Created a Limited Liability Company In Which Members Did Not Share Control of the Development Project or Responsibility for Losses/No Fiduciary Duty Arises from a Limited-Liability-Company Relationship, As It Does from a Partnership or Joint Venture

The Second Department noted that a fiduciary duty did not arise among members of a limited liability company, as it would have in a partnership or joint venture.  Here, the operating agreements created a limited liability company in which (unlike a partnership or joint venture) the members did not share control of the project or responsibility for losses:

“Generally, where parties have entered into a contract, courts look to that agreement to discover . . . the nexus of [the parties'] relationship and the particular contractual expression establishing the parties' interdependency. If the parties . . . do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them'” … . Here, the written operating agreements submitted in support of the motions demonstrated an intent to form a limited liability company, not a partnership or joint venture that would have given rise to a fiduciary relationship. Moreover, the members of the limited liability company did not share control of the subject development project or responsibility for the losses, which are elements of both a joint venture and a partnership … . Grand Pac Fin Corp v 97-111 Hale LLC, 2014 NY Slip Op 08604, 2nd Dept 12-10-14

 

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There Can Be More than One Proximate Cause of an Accident—Plaintiff, to Prevail On a Motion for Summary Judgment, Must Demonstrate Both Defendant’s Negligence as a Matter of Law and Plaintiff’s Freedom from Comparative Fault

The Second Department determined plaintiff's motion for summary judgment was properly denied, in part, because she failed to demonstrate she was free from comparative fault.  Defendant's truck and plaintiff's vehicle were stopped side by side in two left-turn lanes. When the light turned green both vehicles turned left.  Plaintiff alleged that defendant's truck crossed into her lane during the turn, striking her vehicle.  The court noted that there was a question of fact whether the truck crossed into plaintiff's lane, as well as whether plaintiff was comparatively negligent (two possible proximate causes of the accident):

A driver is negligent if he or she violates Vehicle and Traffic Law § 1128(a) by, inter alia, failing to drive “as nearly as practicable entirely within a single lane” (Vehicle and Traffic Law § 1128[a]…). However, there can be more than one proximate cause of an accident … . Accordingly, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault … .

Here, the deposition testimony of the parties, which the plaintiff submitted in support of her motion, was insufficient to demonstrate, prima facie, her entitlement to judgment as a matter of law. The deposition testimony raised triable issues of fact as to whether the defendant driver violated Vehicle and Traffic Law § 1128(a) by failing to drive the tractor-trailer “as nearly as practicable entirely within a single lane,” and whether negligence, if any, on the part of the plaintiff, who admitted that she was not aware of what the defendant driver was doing while she made her turn, contributed to the happening of the accident. Kaur v Demata, 2014 NY Slip Op 08607, 2nd Dept 12-10-14

 

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Motion to Strike Errata Sheet “Correcting” Substantive Discrepancies in Deposition Testimony Should Have Been Granted

The Second Department reversed Supreme Court and dismissed the complaint.  In her deposition plaintiff testified at length about where she tripped and fell but identified a very different location from that described in the complaint.  Plaintiff then sought to “correct” the “errors” in the deposition transcript by executing an errata sheet:

Notwithstanding the detailed, consistent, and emphatic nature of the plaintiff’s deposition testimony regarding the location of her accident, she subsequently executed an errata sheet containing numerous substantive “corrections” which conflicted with various portions of her testimony and which sought to establish that she actually fell at 197 Fifth Avenue, not 140 Fifth Avenue. The only reason proffered for these changes was that, prior to her deposition, she was shown photographs of 140 Fifth Avenue that mistakenly had been taken by an investigator hired by her attorney, and that she thereafter premised her testimony on her accident having occurred at the location depicted in those photographs. The defendants … moved, to strike the errata sheet and for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the motions. We reverse.

Contrary to the determination of the Supreme Court, the plaintiff failed to provide an adequate reason for the numerous, critical, substantive changes she sought to make in an effort to materially alter her deposition testimony (see CPLR 3116[a]…). Horn v 197 5th Ave Corp, 2014 NY Slip Op 08605, 2nd Dept 12-10-14

 

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Sudden and Frequent Stops In Traffic Must Be Anticipated by Drivers

The Second Department, in finding no question of fact had been raised about the existence of a non-negligent explanation for a rear-end collision, explained the relevant law:

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … .

“One of several nonnegligent explanations for a rear-end collision [may be] a sudden stop of the lead vehicle” … . However, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead” … . Le Grand v Silberstein, 2014 NY Slip OP 08608, 2nd Dept 12-10-14

 

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Plaintiff Did Not Sufficiently Allege Colorado Defendant Had Purposefully Transacted Business In New York—Motion to Dismiss for Lack of Personal Jurisdiction Should Have Been Granted

The Second Department determined Supreme Court should have granted the Colorado defendant’s motion to dismiss the complaint for lack of personal jurisdiction.  Plaintiff requested a loan from her uncle (the defendant), a Colorado resident. After her uncle refused, plaintiff brought this action for prima facie tort and slander based upon her communications with the defendant.  The Second Department found that plaintiff had not sufficiently alleged that defendant “purposefully transacted business” within New York:

A court may exercise personal jurisdiction over any nondomiciliary who “transacts any business within the state” (CPLR 302[a][1]). Generally, a nondomiciliary will be deemed to be subject to the jurisdiction of a New York court pursuant to CPLR 302(a)(1) if he or she has “engaged in some purposeful activity within the State and there is a substantial relationship’ between this activity and the plaintiff’s cause of action” … . “Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” … .

Although the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR 3211(a)(8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court … . Here, accepting as true the allegations set forth in the complaint and in the plaintiff’s opposition papers, and according the plaintiff the benefit of every favorable inference … , the plaintiff failed to meet her prima facie burden. The nature and quality of the defendant’s alleged contacts with New York do not demonstrate that he purposefully transacted business within this state … . Whitcraft v Runyon, 2014 NY Slip Op 08634, 2nd Dept 12-10-14

 

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Defendant Driver Could Not Avoid Striking Bicyclist Who Did Not Stop at a Stop Sign

The Second Department determined summary judgment was properly granted to the defendant re:  a bicycle/car collision in which the bicyclist was killed.  Defendant driver demonstrated plaintiff's decedent rode through a stop sign and there was no time to avoid the collision:

The defendant was entitled to anticipate that the plaintiffs' decedent would stop at the stop sign and yield the right-of-way to him … . Moreover, the evidence submitted by the defendant eliminated any triable issue of fact as to the defendant's alleged negligence in failing to avoid the impact … . The defendant established, prima facie, that he had only a second to react … . The evidence further established that, in an attempt to avoid impact, the defendant braked and slowed his vehicle to a stop immediately after impact. In opposition, the plaintiffs failed to raise a triable issue of fact. Under the circumstances presented, the defendant's alleged failure to reduce speed or alter his direction prior to impact did not raise a triable issue of fact as to whether he was negligent … . Yun Lu v Saia, 2014 NY Slip Op 08635, 2nd Dept 12-10-14

 

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Doctrine of Res Judicata Did Not Preclude Lawsuit Against Defendant Building Inspector In His Individual Capacity After Summary Judgment (In Defendant’s Favor) In an Action Against Defendant In His Official Capacity—Transactional Approach to Res Judicata Explained

The Second Department determined that summary judgment in favor of the defendant (Maikisch) in an action brought against a town and defendant in his capacity as building inspector did not, pursuant to the doctrine of res judicata, preclude a lawsuit against the defendant in his individual capacity. The court explained the analytical criteria:

This State has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … . “It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A pragmatic' test has been applied to make this determination–—analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage'” … . “One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion'”

…[I]n the prior action, the plaintiff made no claim against Maikisch in his capacity as an individual. Rather, the plaintiff sought relief, in the form of a declaratory judgment, against the Town and Maikisch in his capacity as Building Inspector of the Town. “It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued” … .

In any event, the differences which exist between the issues raised in the prior litigation and those raised now, namely, the differences in the kind of relief sought, in the kind of facts to be proved, and in the kind of law to be applied, outweigh the similarities to such an extent as to render the doctrine of res judicata inapplicable … . In the prior action, the plaintiff sought a judgment declaring that the subject property was exempt from certain land-use and building code regulations. There, the plaintiff alleged that, for reasons stated, the relevant regulations were inapplicable the subject property. In this action, the plaintiff seeks to recover money damages from Maikisch individually, based on contract and tort theories. In this action, the plaintiff alleges, inter alia, that Maikisch breached an oral contract between the parties, breached a fiduciary duty owed to the plaintiff, and tortiously interfered with the plaintiff's business relations. Specialized Realty Servs LLC v Maickisch, 2014 NY Slip Op 08627, 2nd Dept 12-10-14

 

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