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Village Ordinance Prohibiting Crematory Not Preempted by State Law Under Either Express or Conflict Preemption Criteria

The Second Department determined that the Not-for-Profit Corporation Law, which includes “crematory” in the definition of cemetery, did not pre-empt a village ordinance prohibiting the construction of a crematory in petitioner’s cemetery.  Both express preemption and conflict preemption were addressed by the court:

The Supreme Court correctly determined that Not-for-Profit Corporation Law article 15 did not preempt any attempt at local regulation of cemeteries under the doctrine of “field preemption.” That doctrine “applies under any of three different scenarios. First, an express statement in the state statute explicitly avers that it preempts all local laws on the same subject matter. Second, a declaration of state policy evinces the intent of the Legislature to preempt local laws on the same subject matter. And third, the Legislature’s enactment of a comprehensive and detailed regulatory scheme in an area in controversy is deemed to demonstrate an intent to preempt local laws” … . * * *

Thus, although Not-for-Profit Corporation Law article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries. Further, there is no declaration of State policy in either Not-for-Profit Corporation Law article 15 or the rules and regulations promulgated under it that evinces any such intent (see N-PCL 1501…). Finally, the regulatory scheme under Not-for-Profit Corporation Law article 15 does not evince the Legislature’s desire to preempt the local zoning law … . Accordingly, the Not-for-Profit Corporation Law did not preempt the field of cemetery regulation.

The Supreme Court properly determined that Not-for-Profit Corporation Law § 1502(d) does not invalidate the Village’s more restrictive definition of “cemetery” under the doctrine of conflict preemption. The Not-for-Profit Corporation Law is addressed to the management of cemetery corporations, and the definition contained in the Not-for-Profit Corporation Law addresses the scope of that law. By contrast, the Village Code’s definition of “cemetery,” which excludes crematories, is addressed to land use, which is another matter entirely. Since the differing definitions of “cemetery” are addressed to differing purposes, they are not in direct conflict … . Matter of Oakwood Cemetery v Village/Town of Mount Kisco, 2014 NY Slip Op 01616, 2nd Dept 3-12-14

 

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Family Court Improperly Conditioned Future Visitation Upon Enrollment in a Drug Testing Program and Improperly Delegated Its Authority to Control Father’s Visitation to Mother

The Second Department noted that Family Court could not condition father’s future visitation upon enrollment in a drug testing program.  Family Court could only make participating in the drug testing program a component of a current visitation order.  In addition Family Court improperly delegated its control of father’s visitation to mother:

…”[A] court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” … . Thus, the Family Court erred in conditioning the father’s visitation upon his enrollment in a random drug testing program at a medical facility, and should have instead directed the father to enroll in such a program as a component of visitation. Moreover, by authorizing the mother to suspend visitation upon the father’s failure to provide proof of his prescription, the Family Court improperly delegated its responsibility to determine whether and when visitation rights should be suspended … . Matter of Welch v Taylor, 2014 NY Slip Op 01619, 2nd Dept 3-12-14

 

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Father Estopped from Moving to Vacate Order of Filiation Entered Upon Consent Despite “Somewhat Limited” Parent-Child Relationship

The Second Department determined father was estopped from challenging an order of filiation even though there was evidence the parent-child relationship was “somewhat limited:”

Here, the order of filiation was entered approximately 10 years prior to the instant petition, and the father had been paying child support during that time. In addition, the father sought, and was granted, visitation with the subject child, which he exercised, although sporadically. The father attended some of the child’s school functions and parent-teacher conferences, had telephone contact with the child, and saw the child on some of her birthdays. The child, who was 15 years old at the time the father’s petition was filed, was acquainted with some of the father’s family members, considered the father to be her father, and had never known any other father. Under these circumstances, the Family Court properly invoked the doctrine of equitable estoppel to preclude the father’s challenge to the order of filiation …, and “the evidence indicating that the parent-child relationship was somewhat limited did not preclude the application of [that] doctrine” … . Matter of Shawn H v Kimberly F, 2014 NY Slip Op 01610, 2nd Dept 3-12-14

 

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Question of Fact Whether Owner of Servient State Had Duty to Maintain Easement in Safe Condition/Easement Used for Servient-Estate-Owner’s Own Purposes

The Second Department explained when the owner of a servient estate has a duty to maintain an easement in a safe condition:

While an easement generally imposes no affirmative duty on the owner of the servient estate to maintain and repair structures …, such an owner may be required to perform maintenance functions where it makes use of the easement for its own purposes and that use does not interfere with the legitimate activities of the holder of the dominant estate … . Under those circumstances, the owner of the servient estate may retain its duty as a landowner to maintain the portion of its premises that is subject to the easement in a reasonably safe condition, provided that such maintenance subjects the owner of the servient estate to no unusual hazards and requires no special expertise … .

Here, the Supreme Court correctly determined that the appellants failed to establish their prima facie entitlement to judgment as a matter of law, since their submissions revealed the existence of a triable issue of fact as to whether they have used the portion of the property that is subject to the easements for their own purposes by creating and maintaining a private, for-profit parking lot upon that portion of the property. Kleyner v City of New York, 2014 NY Slip Op 01584, 2nd Dept 3-12-14

 

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Stray Remarks Doctrine Applied in Action Under New York City Human Rights Law

The First Department determined that the “stray remarks doctrine” applied to actions brought brought under the New York City Human Rights Law.  The court rejected the argument that a statement in an email written weeks after plaintiff’s termination was actionable, asserting the so-called “stray remarks doctrine:”

Plaintiff relies on one remark made in an email exchange that took place weeks after the decision to terminate him was made and that concerned the resolution of his union’s grievance following the termination. In the email, one of defendant’s employees responsible for making the decision to terminate plaintiff declined to reconsider the penalty because of the nature of plaintiff’s convictions and his concern about the liability that defendant would assume if plaintiff committed a similar crime while on company time. However, “[s]tray remarks such as [this], even if made by a decision maker, do not, without more, constitute evidence of discrimination” … .  Indeed, plaintiff did not demonstrate a nexus between the employee’s remark and the decision to terminate him… .

We decline to hold, as urged by plaintiff and amici, that the stray remarks doctrine may not be relied on in determining claims brought pursuant to the City Human Rights Law, even as we recognize the law’s “uniquely broad and remedial purposes” (Bennett, 92 AD3d at 34 [internal quotation marks omitted]). The doctrine is not inconsistent with the intentions of the law, since statements “constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff” … . Godbolt v Verizon NY Inc, 2014 NY Slip Op 01561, 1st Dept 3-11-14

 

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Inexperience or Lack of Sophistication Does Not Toll the Statute of Limitations Re: the Discovery of Fraud/The Test for When the Fraud Should Have Been Discovered in an Objective One

The First Department determined the action alleging the fraudulent churning of trades by an employee of Morgan Stanley was untimely.  The plaintiff argued that plaintiff’s inexperience and lack of sophistication should toll the statute of limitations re: the discovery of the fraud.  The court explained that when the fraud should have been noticed is determined by an objective test:

“The test as to when fraud should with reasonable diligence have been discovered is an objective one,” and the duty of inquiry arises “where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he [or she] has been defrauded” … . Apt v Morgan Stanley DW Inc, 2014 NY Slip Op 01541, 1st Dept 3-11-14

 

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“In Transit” Means Between Destinations, Even If “At Rest”

The First Department, in a full-fledged opinion by Justice Saxe, determined that the “in transit” clause of a bond covered the loss which occurred when the stolen cash was in a vault owned by the armored car company.  Under New York law, the term “in transit” covers a larceny which occurs when the stolen item is between destinations, even if it is not being moved at the time:

An “In Transit” provision was discussed and interpreted in the controlling case of Underwood v Globe Indem. Co. (245 NY 111 [1927]). In Underwood, a bond salesman who was attempting to arrange a bond sale to a potential buyer brought the bonds from Pine Street, in lower Manhattan, to West End Avenue near 88th Street, where the buyer gave him a worthless check that had been forged to appear certified, in exchange for the bonds. When the buyer absconded with the bonds, the seller made a claim under a policy for the theft of the bonds while “in transit.” The Court concluded that the transit of the bonds was never completed, because the completion of transit would have involved a lawful transfer of title, whereas the bonds had been taken “by a trick and false device,” without a valid transfer of title (id. at 115). The Court reasoned that “[t]o hold that transit means actual movement, and not a period of rest, is too narrow a construction to give to this undertaking, and is contrary to its full meaning and scope” (id.).

The Underwood analysis was at the heart of the determination in Franklin v Washington Gen. Ins. Corp. (62 Misc 2d 965 [Sup Ct, NY County 1970], affd 36 AD2d 688 [1st Dept 1971]), a determination affirmed by this Court, holding that the test for whether something is “in transit” is “whether the goods, even though temporarily at rest, were still on their way, with the stoppage being merely incidental to the main purpose of delivery” (at 966-967).  CashZone Check Cashing Corp v Vigilant Ins Co, 2014 NY Slip Op 01565, 1st Dept 3-11-14

 

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Being Thrown from the Forks of a Forklift Is a Gravity Related Event Under Labor Law 240 (1)

The First Department determined that being thrown from the front forks of a forklift (Bobcat) is a gravity related event covered by the Labor Law:

…[W]e find that falling from the Bobcat is the type of gravity related event contemplated by the Court of Appeals in Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]). In Potter v Jay E. Potter Lumber Co., Inc. (71 AD3d 1565 [4th Dept 2010]), the [4th] Department, relying on Runner, similarly found that a worker, who like plaintiff here, was positioned as a counterweight for a load on a forklift and was catapulted forward when the forklift became unstable, was entitled to the protection of Labor Law § 240(1). Penaranda v 4933 Realty, LLC, 2014 NY Slip Op 01547, 1st Dept 3-11-14

 

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Landlord Cannot Recover Lost Rent In Action Based Upon Breach of Covenant to Keep the Premises in Good Repair

Over the dissents of two justices, the First Department determined that lost rent was not recoverable for breach of a lease provision requiring a tenant to keep the premises in good repair:

It is well settled that lost rent is not recoverable as damages for breach of a lease covenant requiring a tenant to keep the premises in good repair. An action alleging breach of such a covenant can be brought either before or after the expiration of the lease term … . In Appleton v Marx (191 NY 81 [1908]), the Court of Appeals identified two different measures of damages, depending on when the action is commenced. If the action is brought before the lease expires, a landlord can recover “the injury done to the reversion” (id. at 83), i.e. “the difference between the value of the premises with the improvement and absent the improvement” … . On the other hand, if the action is brought after the expiration of the lease term, “the measure of the damages is the cost of putting the premises into repair” … . In neither circumstance, however, did the Court of Appeals provide that lost rent is included in the measure of damages.  Building Serv Local 32B-J Pension Fund v 101 Ltd Partnership, 2014 NY Slip Op 01544, 1st Dept 3-11-14

 

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Language in the Arbitration Agreement Supported the Applicability of the New York Law Reserving the Determination of a Statute of Limitations Defense to the Court, Even Though the Controlling Federal Arbitration Act Presumptively Reserves the Determination of a Statute of Limitations Defense to the Arbitrator

The First Department determined that an arbitration agreement which specifically incorporates “the arbitration laws of New York State” incorporates the New York rule that the resolution of a statute of limitations defense is for the court, not the arbitrator, even where the matter is controlled by the Federal Arbitration Act [FAA] (which presumptively reserves resolution of a statute of limitations defense to the arbitrator):

Under the FAA, the “resolution of a statute of limitations defense is presumptively reserved to the arbitrator, not a court” … . “[A]n exception to this rule exists where parties explicitly agree to leave timeliness issues to the court” (Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247, 253 [2005]). This is in keeping with the FAA policy by which private arbitration agreements are to be enforced according to their terms (id. at 252). Unlike the FAA, New York law “allows a threshold issue of timeliness to be asserted in court” even absent an agreement to do so (…CPLR 7502 [b]; 7503 [a]).

The arbitration clause of the agreement before us provides that “the arbitration laws of New York State” shall govern the parties’ arbitration. In Matter of Smith Barney, Harris Upham & Co. v Luckie (85 NY2d 193 [1995]…), the Court held that a choice of law provision which states that New York law shall govern both “the agreement and its enforcement” incorporated New York’s rule that threshold statute of limitations questions are for the courts (id. at 202). In Diamond Waterproofing, the Court held that an agreement that merely provided that it “shall be governed by the law of [New York]” did not express an intent to have New York law govern enforcement (4 NY3d at 253). The Court reasoned that “[i]n the absence of more critical Language concerning enforcement . . . all controversies, including issues of timeliness, are subjects for arbitration” (id.).

The question arises as to whether the specific incorporation of “the arbitration laws of New York State” in the instant arbitration clause itself constitutes the needed “more critical language concerning enforcement” within the contemplation of Diamond Waterproofing. We hold that it does and, under the agreement, the arbitration laws of New York State include article 75 of the CPLR.  Matter of ROM Reins Mgt Co Inc v Continental Ins Co Inc, 2014 NY Slip Op 01546, 1st Dept 3-11-14

 

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