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Question of Fact About Property Owner’s Constructive Notice of Lead Paint/Tenant by the Entirety Could Be Vicariously Liable

The First Department determined questions of fact had been raised about whether defendant property owner, Robert Dvorak, had constructive notice of lead paint on the premises.  The court noted that the complaint should not have been dismissed against Diane Dvorak who also owned the property as a tenant by the entirety:

The motion court correctly found that plaintiffs raised questions of fact as to whether Robert A. Dvorak had constructive notice of lead-based paint in the Babylon premises, since they presented evidence that he entered the premises, made repairs, knew that the building was constructed before the banning of lead-based interior paint, was aware that paint was peeling on the premises, knew of the hazards of lead-based paint to young children, and knew that a young child lived in the house …. .The motion court should not have granted summary judgment to Diane L. Dvorak, since, as a tenant by the entirety with her husband Robert, she may be held vicariously liable for his actions toward the property… . Rivera v Neighborhood Partnership Hous Dev Fund Co Inc, 2014 NY Slip Op 02873, 1st Dept 3-29-14

 

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Demand for Jury Trial Properly Struck/Rescission Was Core of Action and Counterclaim

In a detailed opinion by Justice Moskowitz, the First Department methodically went through the issues raised in a trial stemming from the breakdown of a partnership including breach of fiduciary duty, tortious interference with contract and unjust enrichment. In the course of the opinion, the court noted that inclusion of a cause of action and counterclaim for rescission constituted a waiver of a jury trial:

Defendants next assert that the trial court improperly struck their jury demand in Action 1. This argument has no merit. Because defendants’ demand for the equitable remedy of rescission in Action 2 was not “incidental” to that action, and their demand for rescission was not “incidental” to their counterclaims in Action 1, defendants effectively waived their right to a jury trial by joining those demands with claims for legal relief … . In addition, defendants argued that rescission of the partnership’s license agreements … was “the core” of their claims in both actions, and defendants all asserted, as part of their Action 1 counterclaims, that they had “no adequate remedy at law.” New Media Holding Co LLC v Kagalovsky, 2014 NY Slip Op 02888, 1st Dept 4-29-14

 

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New Paltz Local Wetlands Law Should Not Have Been Annulled

The Third Department, in a lengthy and detailed decision, reversed Supreme Court’s annulment of a Local Law enacted by the Town of New Paltz.  The law was enacted to prevent the “despoliation and destruction of wetlands.”  The court determined, among other issues, the town board had acted in compliance with the State Environental Quality Review Act (SEQRA), the law was not unconsitutionally vague, and the law was not preempted by other laws.  The  court described the “hard look” required by SEQRA, as well as the court’s review-role, as follows:

Initially, respondents contend that Supreme Court erred in concluding that the Board failed to take the “hard look” required by SEQRA before concluding that an environmental impact statement (hereinafter EIS) was not required. SEQRA requires an EIS when an agency action “may have a significant effect on the environment,” and such an impact is presumed to be likely where, as here, a type I action is involved (ECL 8-0109 [2]… 6 NYCRR 617.4 [a] [1]); however, a type I action does not, “per se, necessitate the filing of an [EIS]” … . A negative declaration may be issued, obviating the need for an EIS, if the lead agency — here, the Board — determines that “no adverse environmental impacts [will result] or that the identified adverse environmental impacts will not be significant” (6 NYCRR 617.7 [a] [2]…). Upon judicial review, we may not substitute our judgment for that of the Board, and may annul its decision “only if it is arbitrary, capricious or unsupported by the evidence” … . Matter of Gabrielli v Town of New Paltz, 2014 NY Slip Op 02826, Third Dept 4-24-14

 

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Abutting Landowners’ Responsibilties for Sidewalk Defects and Defects Relating to Covers and Gratings Explained

The Second Department explained the New York City law applicable to the responsibilty of abutting landowners with respect to sidewalks, and with respect to covers or gratings within or near the sidewalks:

…[L]iability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner … . However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk … . Section 7-210 of the Administrative Code of the City of New York, which was in effect at the time of the accident, shifts liability for injuries resulting from defective sidewalks from the City to abutting property owners … . Legislative enactments in derogation of the common law which create liability where none previously existed must be strictly construed … . Hence, while section 7-210 expressly shifts tort liability to the abutting property owner for injuries proximately caused by the owner’s failure to maintain the sidewalk in a reasonably safe condition, it does not supersede pre-existing regulations such as 34 RCNY 2-07(b), which provides that “owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware” (34 RCNY 2-07[b][1]…).  Roman v Bob’s Discount Furniture of NY LLC, 2014 NY Slip Op 02762, 2nd Dept 4-23-14

 

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Assault by NYC Firefigthers in a Restaurant Raised Questions of Fact Whether the City Defendants Were Liable for the Injuries to the Plaintiffs Based Upon Negligent Hiring, Training, Supervision and/or Retention/Fact that Suit Could Not Be Based Upon Respondeat Superior (Actions Outside the Scope of Employment) Did Not Preclude Suit Based Upon City’s Own Alleged Negligence (!)

The Second Department determined plaintiffs, who were injured when assaulted by NYC firefighters in a restaurant, had made allegations against the city and the fire department which raised questions of fact about negligent hiring, supervision, training and retention. The firefighters, including supervisors, had just come from a New York City Fire Department annual dinner held at another restaurant.  Apparently two firefighters (Reilly and Warnock) attacked the plaintiffs after a drink had been accidentally spilled on a firefighter. The court explained that the doctrine of respondeat superior would not apply because the firefighters were not acting within the scope of their employment at the time of the assault.  But the court determined the causes of action against the City defendants for negligent hiring, supervision, training and retention could go forward!

“The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” … . “An employee’s actions fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business'” … . “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 the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Where, however, an employee’s actions are taken for wholly personal reasons, which are not job related, the actions cannot be said to fall within the scope of employment … . In instances where vicarious liability for an employee’s torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained … .

Here, the Supreme Court properly granted that branch of the City defendants’ motion which was for summary judgment dismissing the causes of action alleging vicarious liability. The City defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of Reilly and Warnock was not within the scope of their employment … . In opposition, the plaintiffs failed to raise a triable issue of fact … . However, as to the causes of action alleging negligent hiring, supervision, training, and retention, the City defendants did not establish their entitlement to judgment as a matter of law. They failed to submit any evidence demonstrating that they did not know or have reason to know of Reilly’s or Warnock’s alleged propensity for assaultive conduct … . Furthermore, the City defendants failed to submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs’ injuries … . Selmani City of New York, 2014 NY Slip Op 02764, 2nd Dept 4-23-14

 

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Property Owners, Absent a Regulation, Do Not Have a Duty to Make Sure Vegetation Does Not Obstruct Drivers’ View/Here the Cited Code Violations Were Not Intended to Impose that Duty

The Second Department determined that the town code provisions cited by plaintiffs did not impose a duty upon property owners to prevent vegetation from obstructing the view of drivers on a public road:

A property owner has no common-law duty to prevent vegetation growing on its property from creating a visual obstruction to users of a public roadway … . Although such a duty may be imposed by a specific regulatory provision …, the ordinances … defendants allegedly violated, Code of the Town of Clarkstown §§ 216-4 and 250-6, were not intended to protect motorists from the hazards of vegetation which obstruct views at intersections of streets and driveways … . Accordingly, alleged noncompliance with the subject ordinances may not give rise to tort liability… . Preux v Dennis, 2014 NY Slip Op 02763, 2nd Dept 4-23-14

 

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No Allegation of Active Concealment of Defects on Part of Seller/Buyer Can Not Sue for Defects Discovered after the Closing Based Solely Upon Seller’s Silence

In affirming the grant of summary judgment to the seller of property, the Second Department explained the doctrine of “caveat emptor.”  The complaint alleged the plaintiffs became aware of flooding problems and mechanical problems after the closing.

” New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment'” … . “If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property” … . ” To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor'” … . Here, in opposition to the respondent’s prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the respondent engaged in conduct that would constitute active concealment. Mo v Rosen, 2014 NY Slip Op 02758, 2nd Dept 4-23-14

 

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Defendant Entitled to Hearing Re: Whether His Counsel Was Ineffective For Failing to Communicate an Earlier, More Lenient Plea Offer

The Second Department determined defendant had presented enough evidence to justify a hearing on whether his counsel was ineffective for failure to inform him of an earlier, more lenient, plea offer.  The court explained the legal principles involved:

…[T]he United States Supreme Court held in Missouri v Frye ( _____ US _____, _____, 132 S Ct 1399, 1410) that counsel’s failure to advise a criminal defendant of a beneficial plea agreement constitutes ineffective assistance of counsel under the Sixth Amendment … where the defendant establishes that there was a reasonable probability that he or she would have accepted the earlier plea offer had it been communicated to him or her, that the election to go to trial or accept a different plea agreement resulted in a harsher penalty, and that, if the prosecution had the discretion to cancel the earlier proposed plea agreement or the trial court had the discretion to refuse to accept it, there was a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. In Lafler v Cooper ( _____ US _____, _____, 132 S Ct 1376, 1391), which was decided on the same day as Missouri v Frye, the United States Supreme Court concluded that the remedy for a claim of ineffective assistance of counsel that results in a harsher sentence than that initially proposed to the defendant pursuant to a plea agreement is to direct the People to reoffer the plea agreement.

Given the defendant’s detailed allegations on the record, which had first been brought to the Supreme Court’s attention more than one month before the defendant pleaded guilty, the court should have addressed the contention. Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing and a report on the defendant’s contention that the People had previously made a more lenient plea offer than the one which he ultimately accepted. The defendant has the burden of establishing that the People made that plea offer, including a determinate term of imprisonment of three years in connection with a plea of guilty to a lesser count …, that his first assigned counsel did not adequately inform him of that offer …, that there is a sufficient likelihood that he would have accepted the offer had counsel adequately communicated it to him …, and that there is a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement…  .  People v Maldonado, 2014 NY Slip Op 02800, 2nd Dept 4-23-14

 

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Show-Up Identification Procedure Unduly Suggestive

Although deemed harmless error, the Second Department determined the show-up identification of the defendant was unduly suggestive.  The defendant had already been arrested when he was pulled to a standing position in front of the victim for identification (for the second time).  At that point there were no “exigent circumstances” to justify the procedure used:

While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, “the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure” … . “The People’s burden consists of two elements. First, the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the People’s burden'” … . However, “[t]he People also have the burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive” … .

The People established that the showup “was conducted in close geographic and temporal proximity to the crime” … . However, they failed to demonstrate that the procedure was not unduly suggestive. The fact that a defendant is handcuffed and in the presence of police officers, standing alone, does not render a showup unduly suggestive …, even where “the victim had been told that the police had a suspect in custody” … . Here, however, the complainant was given two opportunities to identify the same man as the perpetrator. The second time, police officers pulled the defendant into a standing position and escorted him to where the complainant was standing. At that juncture, the defendant was under arrest and Officer Fallace acknowledged that “[t]here was no rush at that point.” Therefore, there were no exigent circumstances justifying the procedures employed. The above-described circumstances, when “viewed cumulatively,” establish that “the showup identification was unduly suggestive” … . Further, there was no hearing or finding on the question of whether the complainant’s in-court identification had an independent source … . People v Ward, 2014 NY Slip Op 02809, 2nd Dept 4-23-14

 

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Insurance Law 5214 Does Not Apply Where Motor Vehicle Accident Indemnification Corporation (MVAIC) Is Sued Directly Because the Identity of the Driver Who Caused Plaintiff’s Injury Is Unknown/Default Judgment Against MVAIC Properly Entered

The Second Department, in a full-fledged opinion by Justice Hinds-radix, determined Supreme Court had properly entered a default judgment against the Motor Vehicle Accident Indemnification Corporation (MVAIC).  Plaintiff was a pededstrian who was allegedly struck by a driver who drove plaintiff to the hospital but then left without identifying himself.  Because the driver was unknown, plaintiff sued MVAIC directly pursuant to Insurance Law 5218.  MVAIC argued that Insurance Law 5214 prohibited the entry of a default judgment against it.  The Second Department determined Insurance Law 5214 did not apply, and a default judgment was properly entered against the MVAIC pursuant to CPLR 5015:

This case does not fall within the scope of Insurance Law § 5214 because it does not involve a claim against MVAIC stemming from a judgment entered upon the default or consent of an uninsured defendant. Rather, MVAIC was involved because the identity of the offending motorist was unknown, which permitted the plaintiff, with the approval of the court, to commence an action against MVAIC directly, pursuant to Insurance Law § 5218. Insurance Law § 5218 authorizes a court to permit the commencement of an action against MVAIC directly, if, inter alia, “all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, or the identity of the operator, who was operating the motor vehicle without the owner’s consent, cannot be established” (Insurance Law § 5218[b][5]…). Where an action is commenced directly against MVAIC, the concerns underlying the enactment of Insurance Law § 5214—protecting MVAIC from the defaults of, or possible collusion by, uninsured defendants—are not implicated. Thus, Insurance Law § 5214 “does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted” … .  Archer v Motor Veh Acc Indem Corp, 2014 NY Slip Op 02732, 2nd Dept 4-23-14

 

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