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Height Differential Need Only Be More than “De Minimis”

In reversing the trial court and granting summary judgment to the plaintiff, the First Department noted that a “risk arising from a significant elevation differential” within the meaning of Labor Law 240(1) need only be based on a “height differential” that is more than “de minimis:”

While the record did not specify the height, the uncontroverted evidence shows that the steel beams fell a short distance from the top of the A-frame cart to plaintiff’s leg. Given the beams’ total weight of 1,000 pounds and the force they were able to generate during their descent, the height differential was not de minimis (see McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2d Dept 2012] [elevation differential was within the scope of the scaffold law when a scaffold on wheels fell on the plaintiff who was at the same level as the scaffold, and it traveled a short distance]; Kempisty v 246 Spring Street, LLC, 92 AD3d 474, 474 [1st Dept 2012] [an elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance]; see also Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011] [recovery was permitted under the scaffold law when metal vertical pipes, on the same level as the plaintiff, toppled over on him]; Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]). Marrero v 2075 Holding Co, LLC, 2013 NY Slip Op 03160, 1st Dept, 5-2-13​

 

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Prepayment Service Agreement Does Not Constitute a Debt that is Subject to a Restraining Notice Pursuant to CPLR 5222 (b)

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that “an at-will, prepayment service agreement, which lacks any obligation to continue services or a commitment to engage in future dealings, [does not] constitute[] a property interest or debt subject to a CPLR 5222 (b) restraining notice:”

The Appellate Division here affirmed the Supreme Court’s findings of fact, which are supported by the record (see Karger, Powers of the New York Court of Appeals § 13:10, at 489 [3d ed. rev.][facts affirmed by the Appellate Division with evidentiary support are “conclusive and binding on the Court”]). The affirmed findings established that [defendant] prepaid for its service, and as such, there was no debt past due or yet to become due under the definition of CPLR 5201 (a). The only remaining issue is whether [defendant’s] oral agreement with GNAPs [a telephone switch service agreement which defendant decided weekly whether to continue] is an attachable property interest subject to restraint.  …[B]ecause [defendant] prepaid for services to be provided by GNAPs on a week-to-week basis, without any commitment or promise for additional services, or any assurance of a continued purchase of services, [defendant] neither owed any debt to, nor possessed any property of, GNAPs that could be subject to a restraint notice. Similarly, because [defendant’s] payments to GNAPs constitute neither a debt nor a present or future property interest, CPLR 5201 (a) and (b) are not applicable.  Verizon…v Transcom…, No 70, CtApp, 5-2-13

 

 

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Appraisal of Value of Gas-Line Easements Insufficient 

The Third Department reviewed an eminent domain proceeding for gas-line easements and determined that the appraisal relied upon by the trial court did not include a sufficient explanation of the valuation methods employed to allow substantive cross-examination.  Because the other appraisal offered at trial was rejected by the trial court, the case was remanded.  Matter of Acquisition of Easements … v Porto Bagel, Inc, 514583, 3rd Dept, 5-2-13

 

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Downtown Improvement/Sanitary District Charges; Downtown Special Assessment District Charges Not “Taxes” for Purposes of Empire-Zone Tax Credit

The question before the Third Department was whether petitioner’s limited liability company, which was a Qualified Empire Zone Enterprise (QEZE) and therefore was entitled to claim credit for “eligible real property taxes,” could also claim credit for a “downtown improvement tax.”  The issue was whether the “downtown improvement tax” was an “eligible real property tax.”  After extensive analysis of the meaning of “tax” in this context, the Third Department, in a full-fledged opinion by Justice McCarthy, determined it was not: “By long-standing precedent, statutory relief from real property ‘taxation’ . . . was held not to apply to taxes imposed for special benefits, typically in the form of special ad  valorem levies or special assessments” … .   Matter of Piccolo v NYS Tax Appeals Tribunal, 513539, 3rd Dept, 5-2-13

In a case which raised the same “tax versus ad valorem levy” issue in the QEZE context, the Third Department determined Sanitary District charges were not “taxes” entitled to credit.  Matter of Stevenson v NYS Tax Appeals Tribunal, 513540, 3rd Dept, 5-2-13

In another case with the same QEZE “tax versus ad valorem levy” issue, the Third Department determined that “Downtown Special Assessment District Charges” were not “taxes” entitled to credit.  Matter of Herrick v NYS Tax Appeals Tribunal, 513541, 3rd Dept, 5-2-13

 

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Sole Custody to Mother Appropriate Because Voluntary Joint Custody No Longer Working

In affirming the grant of sole custody to the mother (in the face of a voluntary agreement of joint custody) because the parties’ relationship had deteriorated, the Third Department wrote:

Initially, “[w]here a voluntary agreement of joint custody is entered into, it will not  be  set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child]…, and “an order entered on consent, without a plenary hearing, is entitled to less weight” ….”[A] sufficient change [in] circumstances can be established where  . . . the relationship between  joint custodial parents deteriorates ‘to the point where they simply cannot work together in a cooperative fashion for the good of their children'” … .  Matter of Youngs v Olsen, 514669, 3rd Dept, 5-2-13

 

 

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Summary Judgment in Neglect Proceeding Based Upon Proceeding Concerning Other Children in Another County Upheld​

In upholding the grant of summary judgment in a neglect proceeding based upon a prior “derivative neglect” determination (based upon drug abuse) with respect to other children in another county, the Third Department wrote:

“Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists” ….  We note that “evidence of abuse of one child will not, in and of itself, establish a prima facie case of derivative neglect or abuse of another” … . Rather, a prima facie case of “‘[d]erivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent’s care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist'” … . * * * Here, the prior neglect determination was proximate in time– the order reflecting respondent’s consent to a finding of neglect based upon excessive drug use was entered in January 2012, and petitioner moved for summary judgment in this proceeding less than one month later.  Matter of Alyssa WW … v Cortland County DSS, 514585, 3rd Dept, 5-2-13

 

 

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Issue Whether Son of Sam Law Supersedes Retirement and Social Security Law Protection of Pension Benefits Not Preserved for Review​

This case was remitted to the Third Department after the Court of Appeals determined the issue whether the Son of Sam Law (allowing the victims of crimes to seek compensation from the perpetrator) superseded Retirement and Social Security Law 110, which protects pension payments from creditors, had not been preserved for review.  The Third Department made it clear that it believes the Son of Sam Law does supersede the Retirement and Social Security Law, but the court was prohibited from addressing the subject due to the procedural posture of the case.  Matter of NYS Office of Victim Services v Raucci, 513039, 3rd Dept, 5-2-13

 

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Money Paid Into Court in Conjunction with Stay Pending Appeal Does Not Stop Accruing of Interest Until Prevailing Party is Paid

Where money has been paid into the court in conjunction with a stay pending appeal, interest accrues on it until prevailing party is paid.  The First Department explained:

Contrary to respondents’ claim, their payment of $1,763,080.64 into court on February 18, 2011 to stay the judgment pending appeal did not stop interest from accruing …. This is so even though respondents no longer had the use of the money after paying it into court …. Petitioner is entitled to simple interest until the date he was paid ….  Weiderhorn v Merkin, 2013 NY Slip Op 03166, 1st Dept, 5-2-13

 

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Criteria for Application of Equitable Estoppel to Late Disclaimer of Coverage

The circumstances under which an insurer can be equitably estopped from making a late coverage-disclaimer were discussed by the First Department.  Equitable estoppel based on the timing of a disclaimer alone will only be invoked when the insurer has controlled the defense and the character and strategy of the defense can no longer be altered (i.e., when the matter is close to trial).  201-208 Main St Assoc Inc v Arch Ins Co, 2013 NY Slip Op 03159, 1st Dept, 5-2-13

 

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Reporter’s Information Subject to Qualified Protection​

A reporter spent four days “autotrekking” with petitioner’s husband a few months before the husband’s death in an “autotrekking” accident. Petitioner subpoenaed the reporter to appear in an action arising from the death of her husband. The First Department ruled the information gathered by the reporter was entitled to qualified protection under the New York Shield Law:

Contrary to petitioner’s contention, all the information she seeks constitutes “unpublished news obtained or prepared by” Coburn, undisputedly a professional journalist, “in the course of gathering or obtaining [the] news” that was ultimately published in the article, and is therefore subject to qualified protection under the New York Shield Law (see Civil Rights Law § 79-h[c]… .

Petitioner failed to make the “clear and specific showing” required to overcome the protection (see Civil Service Law § 79-h[c]). Even assuming that the information she seeks is “highly material and relevant” and “critical or necessary” to the maintenance of her claims, she has not shown that it is unobtainable “from any alternative source” … . Matter of Gilson v Coburn, 2013 NY Slip Op 03177, 1st Dept, 5-2-13

 

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