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The Prevailing Wage Statute Applies To All Work Reasonably Interpreted to Be Covered by the Statute—The Fact that the Application of the Statute Is Unsettled At the Time the Public Works Contract Is Entered Does Not Allow the Employer to Escape Its Reach Once the Law Is Settled

The Court of Appeals, in an opinion by Judge Smith, answered two certified questions posed by the Second Circuit about the application of the prevailing wage statute to workers engaged in the testing and inspection of fire protection equipment.  The statute requires employees doing construction, maintenance or repair on public works be paid not less than the prevailing rate of wages. The Second Circuit was asked to review the Labor Department Commissioner's ruling that the statute applied to the testing and inspection of fire protection equipment, but only prospectively.  The Second Circuit asked the Court of Appeals whether deference to the Labor Department's prospective application should be accorded, and further asked whether an employer who agrees to be bound to pay prevailing wages pursuant to section 220 has agreed to pay such wages for all work covered by the statute as the statute is reasonably interpreted, as opposed to only the types of work about which the law is settled at the time of the agreement.  The Court of Appeals determined the law should apply as it is correctly understood, not as the parties may have misunderstood it.  Ramos v SimplexGrinnell LP, 2014 NY Slip Op 07198, CtApp 10-23-14

 

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Organizations Representing Lakeshore Residents Should Have Been Allowed to Intervene in an Action Concerning Regulation of Lake Water Levels (Dictated by an 80-Year-Old Injunction)—Neither the Doctrine of Collateral Estoppel Nor Laches Was a Bar to the Relief Sought by the Lakeshore Residents

The Third Department determined Supreme Court should have allowed organizations representing hundreds of lakeshore residents (PLA and Sandy Knolls) to intervene in an Article 78/declaratory judgment proceeding concerning an 80-year-old injunction re: the operation of a dam to control water levels in the lake.  The court held that the neither the doctrine of collateral estoppel nor laches was a bar to the relief sought by the lakeshore residents:

“Pursuant to CPLR 7802 (d), a court may allow other interested persons to intervene” in proceedings brought against public agencies … . Further, intervention is to be granted as of right in any action or proceeding where a nonparty demonstrates that its interest in the matter is not being duly represented and the nonparty may be “bound by the judgment” (CPLR 1012 [a] [2]) or, alternatively, may be permitted by the court “when the person’s claim or defense and the main action [or proceeding] have a common question of law or fact” (CPLR 1013…). * * *

Although requests for leave to intervene invoke a court’s discretionary authority …, the thorough and well-reasoned submissions of the PLA and Sandy Knolls have shown that they have a “‘direct and substantial interest’ in the outcome of this litigation” and, therefore, Supreme Court erred in denying their motions to intervene … . Further, inasmuch as the motions to intervene were filed in the months after Supreme Court issued its order in proceeding No. 1, but before the final judgment was rendered in that proceeding more than a year and one half later, and approximately two years before judgment was entered in proceeding No. 2, we do not agree that denial of the motions on untimeliness grounds was necessitated … . Nor are there any indicia of undue prejudice to petitioners that would warrant the exclusion of the proposed intervenors from the matters . In light of this determination, the argument that the PLA and Sandy Knolls should have been joined as necessary parties has become academic.

Next, we consider Supreme Court’s finding …that collateral estoppel principles precluded respondents from challenging the [injunction]. As a “narrower species of res judicata,” the equitable doctrine of collateral estoppel precludes a party from retrying “an issue clearly raised in a prior action or proceeding and decided against that party or those in privity” … . In this regard, privity is an amorphous term not “susceptible to ease of application” …, and a court’s finding that differing parties are in privity requires consideration of “the character, right and extent of a party’s role in one proceeding as it bears on the intervention of the collateral estoppel doctrine in another” … . * * *[R]espondents were never given “a full and fair opportunity to contest the decision now said to be controlling” …, nor were their interests properly represented by [the defendant in the original injunction action], so as to warrant the application of collateral estoppel … . Borst v International Paper Co., 2014 NY Slip Op 07224, 3rd Dept 10-23-14

 

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Post-Judgment Restraining Order Served On a New York Branch of a Foreign Bank, Pursuant to the Separate Entity Rule, Cannot Extend to Assets Held in Branches of the Bank Which Are Outside of New York

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissenting opinion, answering a certified question from the Second Circuit, determined the “separate entity” rule prohibited a restraining order served on a New York branch of a bank from extending to assets in other branches of the bank which are outside New York.  Here a restraining order was served on a New York Branch of a foreign bank headquarted in the United Kingdom and the plaintiff sought to apply the restraining order to $30 million held in a branch of that bank in the United Arab Emirates:

The separate entity rule, as it has been employed by lower New York courts and federal courts applying New York law, provides that even when a bank garnishee with a New York branch is subject to personal jurisdiction, its other branches are to be treated as separate entities for certain purposes, particularly with respect to CPLR article 62 prejudgment attachments and article 52 postjudgment restraining notices and turnover orders. In other words, a restraining notice or turnover order served on a New York branch will be effective for assets held in accounts at that branch but will have no impact on assets in other branches… . * * *

In large measure, the underlying reasons that led to the adoption of the separate entity rule still ring true today. The risk of competing claims and the possibility of double liability in separate jurisdictions remain significant concerns, as does the reality that foreign branches are subject to a multitude of legal and regulatory regimes. By limiting the reach of a CPLR 5222 restraining notice in the foreign banking context, the separate entity rule promotes international comity and serves to avoid conflicts among competing legal systems … . And although Motorola suggests that technological advancements and centralized banking have ameliorated the need for the doctrine, courts have continued to recognize the practical constraints and costs associated with conducting a worldwide search for a judgment debtor's assets … . Motorola Credit Corp v Standard Chartered Bank, 2014 NY Slip Op 07199, CtApp 10-23-14

 

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Heroin Upon Which Defendant Overdosed in His Cell Constituted “Dangerous Contraband”—Conviction for Promoting Prison Contraband in the First Degree Was Not Against the Weight of the Evidence

The Third Department determined defendant’s conviction for promoting prison contraband in the first degree was supported by the evidence.  The contraband, heroin, was “dangerous” with the meaning of the statute because it endangered the safety of the defendant, who overdosed on the drug in his cell:

As noted by County Court, contraband will be considered dangerous under the statutory definition as long as it endangers the safety of “any person” (Penal Law § 205.00 [4]). Inasmuch as the heroin possessed by defendant clearly endangered his own safety, and he freely admitted that he used it to harm himself, there was legally sufficient evidence from which the jury could reasonably conclude that it constituted dangerous contraband and we do not find that the verdict was against the weight of the evidence… . People v Verley, 2014 NY Slip Op 07208, 3rd Dept 10-23-14

 

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Where Jail Time Is Contemplated as Punishment for Disobeying an Order of Protection, the Standard of Proof for Willful Contempt is “Beyond a Reasonable Doubt”

The Third Department, in a full-fledged opinion by Justice Lahtinen, determined that the “beyond a reasonable doubt” standard applied in a contempt proceeding where jail time was imposed as a punishment for disobeying an order of protection.  The court held the proof met the standard, but sentenced the respondent to time-served (11 days):

Case law has not been consistent regarding the level of proof when considering an alleged willful violation of a protective order … . This inconsistency may be due in part to the statutory silence as to the quantum of proof (see Family Ct Act § 846-a [stating that the court must be satisfied by “competent proof”]), as well as the fact that, like other statutes implicating contempt, a Family Ct Act article 8 proceeding can involve civil contempt, criminal contempt or both. Criminal and civil contempt have different levels of proof as “criminal contempt must be proven beyond a reasonable doubt,” whereas “civil contempt . . . must be proven by clear and convincing evidence” … .

Where, as here, a person who has violated an order of protection is incarcerated as a punitive remedy for a definite period — with no avenue to shorten the term by acts that extinguish the contempt — then that aspect of the Family Ct Act article 8 proceeding “is one involving criminal contempt [and] [t]he standard of proof that must be met to establish that the individual willfully violated the court’s order is beyond a reasonable doubt” … . Matter of Stuart LL v Aimee KL, 2014 NY Slip Op 07222, 3rd Dept 10-23-14

 

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A Retired Police Officer’s Personnel Records, Including Records of Misconduct, Are Exempt from the Freedom of Information Law

The Third Department noted that records of personnel records of a police officer, including records of misconduct, are exempt from the Freedom of Information Law pursuant to the Civil Rights Law, and the exemption extends to retired police officers:

An agency may properly deny access to records that are specifically exempted from disclosure by state statute (see Public Officers Law § 87 [2] [a]). As is relevant here, Civil Rights Law § 50-a (1) provides that “[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . .[,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.” Personnel records include documents relating to misconduct or rule violations by police officers … . Thus, if a document relating to an officer’s public employment may be used “in litigation to harass, embarrass, degrade or impeach [that] officer’s integrity,” then it is protected by Civil Rights Law § 50-a … .

Inasmuch as this Court has expressly ruled that a police officer’s personnel records continue to be exempt from disclosure after he or she departs from public service, we disagree with petitioner’s contention that Supreme Court erred by concluding that Civil Rights Law § 50-a applies to the records of [the officer] as a retired police officer … . Whether an officer “is no longer employed by [an agency] has no bearing upon the question of whether the requested records were or were not used by [that agency] to evaluate his [or her] performance” … . Matter of Columbia-Greene Beauty School Inc v City of Albany, 2014 NY Slip Op 07233, 3rd Dept 10-23-14

 

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“But For” Causation Element of Tortious Interference with Contract and Prospective Business Relationship Not Present—Notwithstanding the Actions of the Defendants, there Was Evidence the Contract Was Cancelled for Financial Reasons

The Third Department, in finding the causes of action should have been dismissed, explained the “but for” element of tortious interference with contractual relations and prospective business relationships.  The complaint alleged that defendants made disparaging and false remarks about the plaintiff which caused plaintiff to lose a consulting contract.  However the evidence demonstrated the contract was cancelled for financial reasons.  Therefore the “but for” element was not present:

Causation is an essential element of a claim for tortious interference with contractual relations. Such a cause of action requires proof that, “but for” the defendants’ conduct, the plaintiff would not have breached its contract with a third party … .

In opposition to defendants’ motion for summary judgment, plaintiffs submitted a letter — not previously disclosed during discovery —… . * * * This letter established that, regardless of whether defendants acted in such a manner as to interfere with the consulting contract, the contract … was terminated for financial reasons … . Thus, it cannot be shown that “but for” defendants’ alleged interference, plaintiffs’ contractual relationship … would have continued … . Ullmanglass v Oneida Ltd, 2014 NY Slip Op 07234, 3rd Dept 10-23-14

 

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Attack on Plaintiff Upon Leaving Defendant-Lodge’s Premises Not Foreseeable—Landowner Had No Duty to Take Measures to Protect Against the Attack—Evidence Lodge Is Located in a “High Crime” Area Insufficient to Render Such an Attack Foreseeable

The Third Department determined the landowner did not have a duty to take measures to protect plaintiff who was assaulted and stabbed after leaving defendant’s fraternal lodge, even though there was evidence the lodge was located in a “high crime” area.  The evidence of prior crimes at the premises was not sufficient to render the attack on plaintiff foreseeable:

Landowners have a duty of reasonable care to maintain their property in a safe condition; although they “have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor’s safety” … . Notably, “even where there is an extensive history of criminal conduct on the premises, the landowner cannot be held to a duty to take protective measures unless it is shown that he or she either knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor” … . “The scope of the duty varies with the foreseeability of the potential harm” … . Stated another way, “no duty is imposed to protect . . . against unforeseeable and unexpected assaults” …, and “landowners have a duty to control third persons only when they have the opportunity to control such persons and are reasonably aware of the need for such control” … . Prior crimes need not be identical to a present crime in order to put a landowner on notice; “the inquiry of foreseeability depends upon the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question” … . Finally, although foreseeability is generally an issue to be resolved by the factfinder, it may be determined as a matter of law where the facts are undisputed and permit only one inference to be drawn therefrom … . Milton v IBPOE The World Forest city Lodge, #180, 2014 NY Slip Op 07242, 3rd Dept 10-23-14

 

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Elements of Malicious Prosecution and Abuse of Process Explained

In reversing the pre-answer dismissal of a malicious prosecution cause of action and affirming the dismissal on an abuse of process cause of action, the Third Department explained the elements of both:

…[W]e conclude that Supreme Court erred in dismissing plaintiff’s malicious prosecution cause of action. The elements of such a claim are “(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” … . As is particularly relevant here, “[i]n order for a civilian complainant to be considered to have initiated a criminal proceeding, ‘it must be shown that [the complainant] played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act'” … .  * * *

With respect to the abuse of process claim, the three essential elements are “(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective” … . In general, such a claim “will only lie for improperly using process after it is issued” …, and a malicious motive alone is insufficient to give rise to a cause of action to recover for abuse of process … . Here, plaintiff’s allegations in the complaint pertaining to this cause of action, even construed liberally, fail to allege that defendant actually used process improperly — either the order of protection or the arrest warrant — “in a manner inconsistent with the purpose for which it was designed” … . Place v Ciccotelli, 2014 NY Slip Op 07237, 3rd Dept 10-23-14

 

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In a Slip and Fall Case, Plaintiff Was Unable to Raise a Question of Fact About Whether a Defect in a Concrete Slab Was More than “Trivial”—Criteria Explained

The Third Department determined a slip and fall complaint was properly dismissed because plaintiff failed to raise a question of fact about whether the chip in a concrete slab was more than a trivial, nonactionable, defect:

Generally, whether a condition is dangerous or merely a nonactionable, trivial defect is a factual question for a jury to resolve … . An owner will not be liable, however, for “‘negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance,'” which may cause “‘a pedestrian [to] merely stumble, stub his [or her] toes, or trip over a raised projection'” … . Accordingly, it is sometimes appropriate, after “consideration of such relevant factors as the dimensions of the alleged defect . . ., including [its] width, depth, elevation, irregularity, and appearance . . .[,] as well as the time, place, and circumstances of the injury” … to conclude as a matter of law that a defect is too trivial to be actionable … . * * *

Under these circumstances, and upon review of the color photographs of the defect, we conclude that defendants met their initial burden of establishing that the chip in the edge of the curb was a trivial defect … . In response to defendants’ prima facie showing, plaintiffs were obligated to submit “evidence to establish that the alleged defect has the characteristics of a trap, snare or nuisance” … . Given the undisputed circumstances of plaintiff’s fall, her attorney’s affirmation, which was of no probative value, was an insufficient response to defendants’ prima facie showing … . Gillis v Herzog Supply Co Inc, 2014 NY Slip Op 07220, 3rd Dept 10-23-14

 

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