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New York Courts Do Not Have Jurisdiction Over Intra-Tribal Matters

The First Department determined New York courts do not have subject matter jurisdiction over an election dispute concerning competing tribal councils.  The court also addressed the waiver of sovereignty by a Native American tribe and noted that the jurisdiction of a New York court conveyed by 25 USC 233 does not extend beyond the borders of the state (tribe was located in California):

New York courts do not have subject matter jurisdiction over the internal affairs of Indian tribes” … . “[A]n election dispute concerning competing tribal councils” is a “non-justiciable intra-tribal matter” … . Appellants seek a declaration that defendant Chukchansi Economic Development Authority (CEDA) is lawfully governed by a board composed of seven named individuals; however, appellants themselves allege in their counterclaim and cross claims that the members of the CEDA Board are the same as the members of defendant Tribal Council of the Tribe of Picayune Rancheria of the Chukchansi Indians. Wells Fargo Bank NA v Chukchansi Economic Dev Auth, 2014 NY Slip Op 04437, 1st Dept 6-17-14

 

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Allegation of “But For” Element of Attorney Malpractice Too Speculative

The First Department determined plaintiff had not sufficiently alleged the “but for” element of an attorney malpractice action.  Plaintiff alleged she would have won the arbitration in which the attorney represented her if the attorney had submitted certain evidence. The First Department found the allegation too speculative to support the action:

Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that “but-for” defendants’ alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset … . Plaintiff stated that if defendants had introduced her parents’ personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents’ personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel’s determination regarding the parents’ ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice … . Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker, 2014 NY Slip Op 04428, 1st Dept 6-17-14

 

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General Language—“Disposition”—Limited in Scope by More Specific Words—“Sale or Transfer”

The First Department, over a dissent, determined that the rules of contract interpretation did not allow the collection of a “transaction fee” by plaintiff financial advisor with respect to the defendant’s purchase of notes in anticipation of the purchase of a mine.  When the financing for the mine fell through, the defendant sold back the notes in accordance with the purchase agreement with the seller of the notes.  The plaintiff sought a “transaction fee” for that transaction:

…[T]he motion court unreasonably construed the parties’ agreement in arriving at the conclusion that plaintiff was entitled to a “transaction fee” in connection with defendant’s aborted acquisition of a participation interest in the notes. The letter agreement provides that plaintiff is entitled to a “transaction fee” following the consummation or closing of a “transaction,” which it defines as the “sale, transfer or other disposition . . . [of] a portion of the assets, businesses or securities of [defendant].” The acquisition in question was admittedly not a “sale” or “transfer.” Nor can it be considered a “disposition,” as plaintiff contends. The term “disposition” does not appear in isolation in the agreement, but as a catch-all at the end of the phrase “sale, transfer or other disposition.” Thus, under the principle of ejusdem generis, the general language “or other disposition” must be construed as limited in scope by the more specific words “sale” and “transfer” that preceded it … . Miller Tabak + Co LLC v Senetek PLC, 2014 NY Slip Op 04418, 1st Dept 6-17-14

 

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Insurer of Contractor for Its (Primarily) Interior Work Was Not Entitled to Summary Judgment (Disclaiming Coverage) in Action Stemming from Building Collapse of Unknown Cause

The First Department, over a dissent, determined the insurer was not entitled to disclaim coverage as a matter of law and therefore was not entitled to summary judgment.  The insured (BCS) did (primarily) interior work (painting, carpentry, etc.) in the renovation of a building which included adding two floors.  There was a partial collapse of the building.  The insurer argued that the collapse could not be attributed to any of the specific (mainly interior-work) activities covered in the policy.  The court determined the lack of certainty about the cause(s) of the collapse precluded summary judgment:

Plaintiff issued a commercial lines insurance policy to BCS. The policy’s declarations page stated BCS’s “Business Description” as “Carpentry-Painting-Drywall-Plastering-Tile-Contractor.” Elsewhere, the work to be covered was separated into five separate “classifications,” namely, “Carpentry-Interior,” Painting-Interior-Structures,” “Dry wall or wallboard install,” “Plastering or stucco work,” and “Tile, Stone-Interior construction.” Plaintiff issued an endorsement to the policy clarifying that “[n]o coverage is provided for any classification code or operation performed by the Named Insured not specifically listed in the Declaration of this policy.” Another endorsement provided that the “policy shall not apply to [claims] arising out of operations performed for any insured by independent contractors or acts or omissions of any insured in connection with his general supervision of such operations.” * * *

Plaintiff would be entitled to summary judgment if it could establish that “there is no possible factual or legal basis upon which [it] may eventually be held obligated to indemnify [BCS] under any policy provision” … . In other words, the record before us would have to establish, as a matter of law, that the underlying claim did not arise out of any work BCS did in the areas of interior carpentry, interior painting, dry wall installation, plastering or stucco work (interior or exterior), or interior tile and stone construction. Plaintiff would have to demonstrate conclusively that all of the work out of which the claim arose was performed by an independent contractor.

This record permits no such conclusions,… . Tower Ins Co of NY v BCS Constr Servs Corp, 2014 NY Slip Op 04420, 1st Dept 6-17-14

 

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State’s Placement of a Stop Sign and the Resulting Difficulty in Seeing Oncoming Traffic was a Concurrent Cause of the Accident which Was Not Superseded by the Negligence of the Drivers

The Fourth Department determined the state was properly held partially liable for an accident at an intersection.  Plaintiff was a passenger in a car (driven by Kiczewski) which, after stopping, entered an intersection where it was struck by a truck (driven by Martin) with the right of way.  Plaintiff alleged the placement of the stop sign (by the state) made it difficult to see oncoming traffic:

We reject the State’s contention that claimants failed to meet their burden of establishing that its negligence was a proximate cause of claimant’s injuries. “In order to prevail at trial in a negligence case, a [claimant] . . . is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred” …. . Here, based on our review of the record, we conclude that a fair interpretation of the evidence supports the court’s determination that the State’s failure to remedy a known dangerous condition at the intersection was a substantial factor in bringing about the accident … .

Although it is true, as the State contends, that the accident was caused primarily by the negligence of Kiczewski, who failed to yield the right-of-way to the truck, it is well settled that there may be more than one proximate cause of the accident …, and it cannot be said on this record that Kiczewski’s negligence, or that of Martin, was a superseding cause of the accident that severed any causal connection between claimant’s injuries and the State’s negligence … . Because claimants proved that the State’s negligence “increased the likelihood of an accident,” we conclude that the court properly determined that the State’s negligence was a “concurring cause” of the accident … . Przesiek v State of New York, 2014 NY Slip Op 04327, 4th Dept 6-13-14

 

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Absentee Landlord Granted Summary Judgment in Lead-Paint Exposure Case—No Constructive Notice

The Fourth Department, over a dissent, determined summary judgment was properly granted to an absentee landlord in a lead-paint exposure case.  The landlord had never seen the property:

Defendant and his wife acquired the property by deed in January 1993, and they took title to the property as tenants by the entirety. Defendant’s wife died in 2004. Defendant testified at his deposition that his participation in the acquisition of the property was as an accommodation to the financial situation of his wife’s son and her nephew. Defendant denied that he had anything to do with the property and asserted that he was only an owner “on paper.” Defendant never saw the property, never went there, never received any rent, did not know that a child resided there and never received any correspondence related thereto. Defendant did not execute any lease agreements with respect to the property. “To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition” … . Hamilton v Picardo, 2014 NY Slip Op 04290, 4th Dept 6-13-14

 

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Defendant Failed to Meet Its Burden on Its Summary Judgment Motion—Not Enough to Point to Deficiencies in Plaintiff’s Proof

The Fourth Department determined Supreme Court erred in dismissing a lawsuit against a residential care facility based upon plaintiff’s decedent’s being fatally injured by another resident. The court noted that the motion for summary judgment was brought by the defendant and it was therefore not enough for the defendant to allege only deficiencies in  plaintiff’s proof:

We conclude that the court erred in granting defendant’s motion because defendant “failed to come forward with any proof to rebut plaintiff[‘s] allegations and merely focused on the claimed deficiency in plaintiff[‘s] proof” … . In support of its motion, defendant repeatedly argued that plaintiff “failed to satisfy [her] burden” of establishing a prima facie case of negligence because of the “absence of proof[]” with respect to duty, breach of duty, foreseeability, and proximate cause. Those arguments are misplaced, however, because “defendant, not plaintiff, moved for summary judgment and defendant cannot meet its burden by relying on claimed deficienc[ies] in plaintiff[‘s] proof’ ” … . Although plaintiff will bear the burden of establishing defendant’s negligence at trial, “on this motion for summary judgment, defendant has the burden of establishing its entitlement to judgment as a matter of law” … , and we conclude that defendant failed to meet that burden … .

Defendant concedes that there was an altercation between decedent and another resident, and that such altercation resulted in decedent’s injuries. With respect to the foreseeability of the resident’s alleged conduct, “defendant[], as the part[y] seeking summary judgment, bore the burden of establishing that the assault on [decedent] was not foreseeable” … . Defendant, however, “failed to submit any evidence to show that [it] lacked knowledge of any danger presented by the [resident],” and thus failed to establish its entitlement to judgment as a matter of law … . Schnorr v Emeritus Corp, 2014 NY Slip Op 04314, 4th Dept 6-13-14

 

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Suit Against City for Attempting to Resuscitate Plaintiff with an Inoperable Defibrillator Properly Dismissed—No Special Duty Owed to Plaintiff

The Fourth Department determined causes of action against the city stemming from an inoperable defibrillator which delayed the resuscitation of plaintiff (Angona) were properly dismissed.  Angona had suffered a heart attack and fire department personnel responded. The rendering of resuscitative care and treatment involved a governmental function and the city owed no special duty to the plaintiff:

All of [the] claims of negligence arise from the City’s exercise of governmental functions … . Thus, “[t]o sustain liability against [the City], the duty breached must be more than that owed the public generally” … . The City met its burden of establishing the absence of a special duty owed to Angona in these circumstances …, and plaintiff failed to raise a triable issue of fact. We reject plaintiff’s contention that the City owed a special duty to Angona by virtue of his status as an off-duty firefighter. Angona v City of Syracuse, 2014 NY Slip Op 04322, 4th Dept 6-13-14

 

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Land Owned by Power Company Which Does Not Now Produce Sewage and Garbage Properly Subject to Ad Valorem Taxes for Sewage and Garbage

The Fourth Department determined land owned by a power company was properly subject to ad valorem taxes for sewer and garbage because it was possible the land, at some point, could be used in a way that would generate sewage and garbage:

The test for determining whether real properties are benefitted, thus warranting special district assessment, is whether the properties are capable of receiving the service funded by the special ad valorem levy’ ” … . “An ad valorem tax will not be deemed invalid unless the taxpayer’s benefit received from the imposition of the tax is reduced to the point where it is, in effect, nonexistent” … .

Here, ” there is a sufficient theoretical potential of the properties to be developed in a manner that will result in the generation of garbage [and sewage]’ ” … . Unlike the plaintiff in Long Is. Water Corp. v Supervisor of Town of Hempstead (77 AD3d 795, lv denied 16 NY3d 711), plaintiff herein owns the land on which its “mass” properties sit, and we conclude that it is theoretically possible that such land, if put to a different use, could generate garbage and sewage. Matter of Niagara Mohawk Power Corp v Town of Marcy Assessor, 2014 NY Slip Op 04312, 4th Dept 6-13-14

 

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No Assets Left to Distribute—Disposition of a Painting Which Was Part of the Estate and Had Been Donated to a Museum Could Be Protected by the Attorney General (Charged with Protecting the Donor’s Wishes)–No Need to Issue Letters of Administration to Petitioner to Ensure Proper Use of the Painting

The Fourth Department determined letters of administration should not have been granted because all the assets of the estate had been distributed.  The letters were sought by a relative of the decedent who was concerned about the disposition of a valuable painting which was a charitable gift to a museum and could not be otherwise disposed of without a court order.  The court concluded that the disposition of the painting could be protected by the Attorney General:

…[W]e … conclude that [the Surrogate] erred in granting letters of administration c.t.a. to petitioner. It is undisputed that there are no assets of the estate that have not been administered … . As the Court of Appeals has written, “[t]here may be cases where letters of administration are necessary to be granted for other purposes than the recovery and distribution of assets[,]” including a “claim in respect to them which can be enforced” … . Nevertheless, we conclude that any claim with respect to the painting is to be “enforced by the [Attorney General], pursuant to his duty to effectuate the donor’s wishes” …, and we conclude that letters of administration c.t.a. are not “necessary” … .

We further conclude that limited letters of administration also are not “appropriate or necessary in respect of the affairs of the estate” (SCPA 702 [10]…). … [T]he Surrogate has previously prohibited the disposition of the painting without court approval, and there is no basis to conclude that the Attorney General is not properly fulfilling his duty to protect the decedent’s wishes with respect to the bequest to the Emerson Foundation … . Matter of Seward, 2014 NY Slip Op 04317, 4th Dept 6-13-14

 

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