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Product Warranty Does Not Extend Statute of Limitations

In finding that a 10-year warranty on windows and doors did not extend the relevant statute of limitations, the First Department wrote:

Although initially it may seem somewhat unfair for defendant to have given plaintiffs a 10-year warranty and then argue that plaintiffs cannot sue for breach of warranty at any time during that 10-year period, the case law is clear on when this cause of action accrues …. Katopodis v Marvin Windows & Doors, 2013 NY Slip Op 02817, 1st Dept, 4-25-13

 

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Class Certification Properly Granted; Rent Overcharge and Attorney’s-Fees Claims Did Not Seek “Penalties” In Violation of CPLR 901

The First Department affirmed the grant of class certification in a landlord-tenant action finding that plaintiff’s rent overcharge claim and attorney’s-fees claim did not seek “penalties” in violation of CPLR 901.  There was a dissent.  The First Department wrote:

Although plaintiff did not waive her right to reimbursement for alleged overcharges and interest, these claims did not render her action an action for a penalty for purposes of CPLR 901(b), even though such recovery is denominated a penalty by the RSL [Rent Stabilization Law], because they lack a punitive, deterrent and litigation-incentivizing purpose ….

Nor did the attorneys’ fees request seek a penalty, as the general right to attorneys’ fees in landlord-tenant proceedings (Real Property Law § 234) does not apply to administrative proceedings …, and the RSL provision should be understood as having the same nonpunitive purpose as the statute applicable to actions and summary proceedings. Notably, the reference in Rent Stabilization Code (9 NYCRR) § 2526.1(d) to attorneys’ fees as an “additional penalty,” while otherwise not dispositive, is absent from the attorney fee provision in the legislatively enacted RSL. Gudz v Jemrock Realty Co, LLC, 2013 NY SlipOp 02814, 1st Dept, 4-25-13

 

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Class Certification Should Have Been Granted; Plaintiffs Waived Statutory Treble Damages

The First Department reversed the dismissal of a putative class action by tenants against a landlord alleging the landlord deregulated the apartments while receiving tax incentive benefits from the city.  Because the tenants waived the statutory treble damages provision, the First Department determined that the case no longer involved “penalties” and was therefore not precluded by CPLR 901.  In a full-fledged opinion by Justice Andrias, the First Department wrote:

Pursuant to CPLR 901(b), “[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained in a class action.” However, even where a statute creates or imposes a penalty, the restriction of CPLR 901(b) is inapplicable where the class representative seeks to recover only actual damages and waives the penalty on behalf of the class, and individual class members are allowed to opt out of the class to pursue their punitive damages. … . * * * Rent Stabilization Code (9 NYCRR) § 2520.13, which states that “[a]n agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void,” does not require a different result. “[P]laintiffs are seeking to waive their entitlement to treble damages unilaterally, not through agreement. Thus, allowing the class action to proceed would not frustrate the RSC’s purpose of [avoiding] situations whereby the landlord attempts to circumvent the [RSC’s] benefits” … . Downing v First Lenox Terrace Assoc, 2013 NY Slip Op 02853, 1st Dept, 4-25-13

 

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Class Certification in Landlord-Tenant Action Upheld

The First Department upheld Supreme Court’s grant of class certification in an action alleging defendant landlord charged market rents while accepting J-51 [tax incentive] benefits.  The First Department wrote:

The issues of when defendant received J-51 benefits, whether defendant deregulated apartments while receiving those benefits, which tenants resided in those apartments during those time periods, and whether defendant wrongfully charged market rents while accepting J-51 benefits are common issues that “predominate,” thereby meeting the commonality requirement of CPLR 902(a)(2)… . The need to conduct individualized damages inquiries does not obviate the utility of the class mechanism for this action, given the predominant common issues of liability … .

Defendant’s counterclaim for rent arrears does not cause plaintiff to be an atypical member of the class. Her claim is typical of the claims of all class members in that each flows from defendant’s alleged unlawful deregulation of apartments while receiving J-51 benefits … . “[T]hat the underlying facts of each individual plaintiff’s claim vary, or that [defendant’s] defenses vary, does not preclude class certification” …. Defendant’s counterclaim does not materially add to the complexity or difficulty of resolving plaintiff’s individual claim, and defendant’s suggestion that plaintiff might be inclined to settle her case to evade liability on the counterclaim is speculative.  Bordern v 400 East 55th Street Associates, LP, 2013 NY Slip Op 02815, 1st Dept, 4-25-13

 

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“Depraved Indifference to Human Life” Defined Differently in Family Law, as Opposed to Criminal Law, Context​

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the phrase “depraved indifference to human life” as it is used in Social Services Law 384-b(8)(a)(i) to define when a child has been “severely abused” does not have the meaning ascribed to the same phrase under the Penal Law.  In addition, the court clarified the statutory conditions which relieve a social services agency of the requirement to make diligent efforts to reunite the child with the abusive parent.  Judge Read wrote:

Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life” (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference … [“[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim” … . Additionally, “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” …, whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute “circumstances evincing a depraved indifference to human life” refers to the risk intentionally or recklessly posed to the child by the parent’s abusive conduct.  Matter of Dashawn W …, No 71, CtApp, 4-25-13

 

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Grant of Visitation to Grandmother Reversed

In reversing Family Court’s grant of visitation rights to the children’s grandmother (more than what the mother wanted to allow), the Third Department wrote:

Where, as here, the parents of children are alive, Domestic Relations Law § 72 gives grandparents the right to seek visitation with their grandchildren where, as a threshold matter, they can establish circumstances in which “equity would see fit to intervene,” i.e., that equitable circumstances exist (Domestic Relations Law § 72 [1]…). * * * Upon our review of the testimony, we conclude that petitioner  did  not  establish  equitable  circumstances  that  justify according her standing to force the mother to accept visitation outside parameters  within which  she is comfortable as a fit and responsible parent … .  “[C]ourts should  not  lightly intrude on  the family  relationship  against  a  fit parent’s  wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one” …  Matter of Hill v Juhase, 514036, 3rd Dept, 4-25-13

 

 

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Social Services Motion to Be Relieved of Obligation to Make Efforts to Return Child to Father Granted Even Though Neglect Finding Against Mother Only

Family Court granted a motion by social services to be relieved of its obligation to make further reasonable efforts to return the child to the father.  The child was in foster care after a neglect proceeding against the mother.  In holding that the motion was properly brought and granted, even though a finding of neglect had been made only against the mother, the Third Department wrote:

 A  social services agency may  move  to be  relieved of its obligation to undertake  reasonable efforts to return a child to his or her home  “[i]n conjunction with, or at any time subsequent to, the filing of” an abuse or neglect petition (Family Ct Act §  1039-b  [a]). Here, while a neglect petition was filed solely against the mother, contrary to the father’s contention, nothing  in Family Ct Act §  1039-b  limits its scope to the respondent(s) named  in the underlying petition. Moreover, to infer such a limitation would undercut the purpose of the statute, which was intended to promote the health and safety of the child by expediting permanency planning… .  Matter of Jayden QQ., 513777, 3rd Dept, 4-25-13

 

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Misbehavior Report Did Not Supply Sufficient Notice of Alleged Offense

In annulling a disciplinary finding, the Third Department held the misbehavior report did not provide sufficient notice of the alleged offense:

Petitioner contends that his due process rights were violated because the misbehavior report failed to comply with the particularity requirements of 7 NYCRR 251-3.1 (c). This regulation provides that a misbehavior report must set forth “the date, time and place of the offense, . . . the disciplinary rule alleged to have been violated and . . . the factual basis for the charge with enough particularity to enable the inmate to prepare a defense” (… 7 NYCRR 251-3.1 [c]). Here, the misbehavior report, which was prepared by the correction officer who tested the substance, simply stated that a substance given to him by another correction officer tested positive for marihuana. Significantly, it did not indicate that the officer who gave him the substance obtained it from petitioner’s cell nor did it provide any details as to exactly where the substance was found.  To add to the confusion, the report listed the location of the incident as the “chart office.”  Matter of Simmons v Fischer, 514873, 3rd Dept, 4-25-13

 

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Admission in Evidence of Defendant’s Statements About Prior Murders Did Not Rise to a Constitutional Injury—Harmless Error Doctrine Applied

The Court of Appeals held that the admission at trial of statements made by the defendant indicating he had committed murders other than the murder with which he was charged “did not rise to the level of constitutional injury such as ineffectiveness of counsel or juror partiality.”  Therefore, the harmless error doctrine applied and, in light of the evidence against the defendant, the conviction was affirmed.  People v Byer, No 84, CtApp, 4-25-13

 

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SORA Proof Burdens Explained

The Third Department noted the different proof burdens for a SORA classification hearing versus a modification hearing:

The People concede that defendant is entitled to a new hearing because Supreme Court treated the 2005 rehearing as one for modification, as opposed to classification (compare Correction Law § 168-n, with Correction Law § 168-o).   As the People now acknowledge, they bore the burden of establishing the determination sought by clear and convincing evidence … .  Inasmuch as the record here reflects that the burden was placed on defendant to demonstrate sufficient evidence warranting a departure from the risk level III classification (see Correction Law § 168-o [2]), we remit for a new hearing … . People v Middlemiss, 511311, 3rd Dept, 4-25-13

 

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