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ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE IN THIS LABOR LAW 240(1) LADDER-FALL ACTION, DEFENDANTS RAISED TRIABLE ISSUES OF FACT BY POINTING TO INCONSISTENCIES IN PLAINTIFF’S ACCOUNT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were able to raise triable issues of fact in this ladder-fall Labor Law 240(1) cause by pointing to inconsistencies in the plaintiff’s version of events:

Plaintiff was allegedly injured while removing and replacing bricks on a building at a construction site. At his deposition, plaintiff testified that while working, he climbed up an extension ladder to retrieve materials necessary for the project. According to plaintiff, when he reached a point around seven to eight feet off the ground, the ladder suddenly moved, causing him to fall.

Plaintiff established prima facie entitlement to summary judgment by submitting his deposition testimony describing the accident, along with photographic evidence of the accident site.

… [D]efendants raised triable issues of fact sufficient to defeat the motion by identifying various inconsistencies in plaintiffs account of the accident, thus calling into question his overall credibility and the circumstances underlying his claimed injuries … . For example, plaintiff testified inconsistently about the day that he was allegedly injured, whether he continued working after his alleged accident, and whether he promptly reported his accident. Further, the record evidence shows that plaintiff first went to the hospital at least several days after his employer had allegedly terminated him for unexplained, repeated absenteeism. Simpertegui v Carlyle House Inc., 2024 NY Slip Op 02609, First Dept 5-9-24

Practice Point: Credibility issues can defeat a motion for summary judgment.

 

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PLAINTIFF’S ALLOWING HIS ATTACKER INTO HIS APARTMENT WAS AN INTERVENING ACT AND A SUPERSEDING PROXIMATE CAUSE WHICH RELIEVED THE BUILDING DEFENDANTS OF ANY LIABILITY FOR LAPSES IN SECURITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that there was evidence building security was lax, but plaintiff’s allowing the attacker, whom plaintiff knew, into to plaintiff’s apartment was an intervening act relieving the building defendants from liability:

Plaintiff, a psychiatrist, was conducting a patient session in his home office when Jacob Nolan, the cousin of his estranged former partner barged unannounced into the office. He was carrying a large black duffel bag and demanded that plaintiff give him certain financial documents required for the child shared by plaintiff and the former partner.… Plaintiff reproached Nolan, successfully expelled him from the apartment and locked the door. After the session, the patient departed but quickly returned to advise the plaintiff that the man who barged in was loitering in a common area of the building. Plaintiff then escorted his patient to the elevator and again engaged Nolan in dialogue. Nolan again communicated that his purported purpose was to retrieve some financial documents for the former partner and asked to use the bathroom in plaintiff’s apartment (which plaintiff made available to patients). Plaintiff then permitted Nolan into his locked apartment to use the bathroom, while plaintiff printed the form Nolan had requested. Nolan then suddenly emerged from the bathroom and attacked plaintiff, hitting him with a sledgehammer and stabbing him multiple times with a knife. Nolan and the former partner were both arrested and convicted for felony assaults upon the plaintiff.

… Supreme Court should have granted defendant’s motion for summary judgment dismissing the complaint. … [P]laintiff raised legitimate issues regarding lapses in the defendants’ security protocols, such as defendants’ allowing Nolan to enter and wander around the building for over twenty minutes before exiting, only to re-enter the building minutes later without being challenged by the building staff about his continued presence. Plaintiff’s conduct in re-admitting Nolan into the apartment after earlier expelling him, however, constituted an intervening act and a superseding proximate cause … . Weiss v Park Towers S. Co., LLC, 2024 NY Slip Op 02612, First Dept 5-9-24

Practice Point: Here plaintiff knew his attacker and allowed the attacker into his apartment. That was an intervening act and a superseding proximate cause of plaintiff’s injuries which insulated the building defendants from liability for lapses in security.

 

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THE EXECUTIVE LAW WHICH CREATED THE NYS COMMISSION ON ETHICS AND LOBBYING IN GOVERNMENT IS UNCONSTITUTIONAL; THE LAW CREATED AN AGENCY WITH EXECUTIVE POWERS WHICH USURPED THE GOVERNOR’S POWER TO ENSURE FAITHFUL EXECUTION OF ETHICS LAWS (THIRD DEPT) ​

The Third Department, in a full-fledged opinion by Justice Powers. determined the Executive Law provision which created the New York State Commission on Ethics and Lobbying in Government is unconstitutional. The law was challenged by former governor Andrew Cuomo after ethics charges were brought against him by the Commission stemming from a book by Governor Cuomo entitled “American Crisis: Leadership Lessons from the COVID-19 Pandemic:”

Pursuant to the Governor’s authority to execute the laws, she is afforded wide discretion in determining the proper methods of enforcement … . However, Executive Law § 94 revokes the Governor’s enforcement power with respect to the ethics laws, thereby depriving her of all discretion in determining the methods of enforcement of these laws. Instead, it places this power into the hands of defendant [Commission], an entity over which she maintains extremely limited control and oversight, as she appoints a minority of members and has no ability to remove members. Moreover, appointments must be approved by the IRC [independent review committee], an external nongovernmental entity made up of people who are in that position solely by virtue of their employment and do not answer to the populace. As such, Executive Law § 94 creates an agency with executive power, in that it has the authority to investigate and impose penalties for the violation of the ethics laws, while being entirely outside the control of the executive branch. Thus, it usurps the Governor’s power to ensure the faithful execution of the applicable ethics laws … . Cuomo v New York State Commn. on Ethics & Lobbying in Govt., 2024 NY Slip Op 02568, Third Dept 5-9-24

 

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THE NEW YORK EARLY MAIL VOTER ACT, EFFECTIVE JANAURY 1, 2024, IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the 2923 New York Early Mail Voter Act (Election Law 8-700 et seq) is constitutional:

In 2023, the Legislature passed the New York Early Mail Voter Act (Election Law § 8-700 et seq), permitting all registered voters in New York to apply to “vote early by mail . . . in any election . . . in which the voter is eligible to vote” … . To be considered for processing, an application to vote early by mail must be received by a local Board of Elections (hereinafter BOE) no later than 10 days before the election … . Once received, the BOE confirms that the applicant is “a registered voter of the county or city at the address listed in the application and is eligible to vote in the election or elections for which the application is filed” … . A ballot is then issued to the applicant, along with a postage-paid return envelope, which must be cast and counted by the BOE if received by the close of polls on election day or postmarked by that date and received no later than seven days thereafter … . The Act contains safeguards to protect against fraud, requiring the State BOE to maintain “an electronic early mail ballot tracking system” that records, among other information, whether it “received such voter’s completed early mail ballot” and “counted or rejected” it … . Correspondingly, each local BOE is required to “maintain an early mail ballot tracking system integrated with the [S]tate [BOE’s] system” … . Concomitant with the Act’s passage, the Legislature also amended Election Law § 9-209 to make the canvass procedures set forth in that section — which contain substantial protections to ensure election integrity — applicable to early mail ballots. The express purpose of the Act is to ensure “ease of participation” in elections and to “make New York State a leader in engaging the electorate, meeting voters where they are and opening up greater opportunities for people to have their choices made on the ballot” … . It was signed into law on September 20, 2023 and became effective January 1, 2024.  Stefanik v Hochul, 2024 NY Slip Op 02569, Second Dept 5-9-24

 

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IN THIS BUS-PASSENGER INJURY CASE, THE BUS DRIVER RAISED A QUESTION OF FACT WHETHER THE EMERGENCY DOCTRINE APPLIED; THE BUS STRUCK A VEHICLE WHICH STOPPED SUDDENLY AFTER IT WAS CUT OFF BY A THIRD VEHICLE; THE BUS DRIVER’S AFFIDAVIT WAS SUPPORTED BY SURVEILLANCE VIDEO (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant bus driver raised a question of fact about the applicability of the emergency doctrine in this bus-passenger injury case. The bus driver’s affidavit, together with video evidence, indicated that the vehicle struck by the bus stopped suddenly after being cut off by a third vehicle:

… [T]he defendants raised a triable issue of fact as to whether there was a nonnegligent explanation for the collision through the submission of an affidavit from Mendes [the bus driver] and a surveillance video of the accident … . In Mendes’ affidavit, she attested, among other things, that she collided with the vehicle owned by Paratransit when that vehicle made a sudden stop after being “cut off” by another vehicle. Moreover, the surveillance video was consistent with the assertions in Mendes’ affidavit. Yearwood v New York City Tr. Auth., 2024 NY Slip Op 02555, Second Dept 5-8-24

Practice Point: Although most rear-end collisions are deemed the fault of the rear driver, here it was alleged the front vehicle stopped suddenly after being cut off by a third vehicle, raising a question of fact about the applicability of the emergency doctrine as a defense.

Practice Point: Here is this rear-end collision case, the availability of surveillance video supported the applicability of the emergency doctrine as a defense.

 

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DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION, GUILTY PLEA VACATED; THE WAIVER OF APPEAL WAS NOT DISCUSSED UNTIL AFTER THE GUILTY PLEA, WAIVER INVALID (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea and finding the waiver of appeal invalid, held that the judge’s failure to inform defendant of the period of postrelease supervision rendered the guilty plea involuntary. In addition, the judge did not discuss the waiver of appeal until after the guilty plea:

… County Court did not specify the period of postrelease supervision to be imposed and did not explain that a term of postrelease supervision would be imposed even if the defendant successfully completed a substance abuse diversion program. … [T]he court’s failure to so advise the defendant prevented his plea from being knowing, voluntary, and intelligent … . …

… County Court did not discuss the appeal waiver until after the defendant had already admitted his guilt … , and the court failed to ascertain whether the defendant “understood the nature of the appellate rights being waived” and the consequences of waiving those rights … . People v Reyes, 2024 NY Slip Op 02547, Second Dept  5-8-24

Practice Point: Failure to inform defendant of the period of postrelease supervision renders the guilty plea involuntary.

Practice Point: Failure to discuss the waiver of appeal until after the defendant pleads guilty renders the waiver invalid.

 

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THE RULING OF THE TOWN PLANNING BOARD ENGINEER RE: A PROPOSED INDUSTRIAL PARK MUST BE CHALLENGED BEFORE THE TOWN ZONING BOARD OF APPEALS, NOT SUPREME COURT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petitioners’ challenge to a ruling by the town’s planning board engineer must first be brought in front of the town’s zoning board of appeals before a court can hear it:

“It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” … . “This doctrine . . . reliev[es] the courts of the burden of deciding questions entrusted to an agency, prevent[s] premature judicial interference with the administrators’ efforts to develop[ ] . . . a co-ordinated, consistent and legally enforceable scheme of regulation,” and allows the agency “to prepare a record reflective of its expertise and judgment” … . “Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals” … .

As required by Code of the Town of New Windsor § 300-86(D)(3), the Planning Board Engineer reported to the Planning Board that the proposed site plan met all applicable zoning laws. Since the Town’s Zoning Board of Appeals had the authority to review determinations of administrative officials with respect to local zoning laws … , the petitioners were required to challenge the determination of the Planning Board Engineer before the Zoning Board of Appeals … . Matter of O’Malley v Town of New Windsor Planning Bd., 2024 NY Slip Op 02537, Second Dept 5-8-24

Practice Point: Here the petitioners did not exhaust their administrative remedies before bringing a petition in Supreme Court. The town planning board engineer’s ruling on an application for approval of an industrial park must first be challenged in front of the town zoning board of appeals before an Article 78 petition is an available remedy.

 

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SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this divorce action, determined there was no demonstration of “extraordinary circumstances” to justify Supreme Court’s sua sponte dismissal of the complaint:

“A court’s power to dismiss a [complaint], sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court did not identify any extraordinary circumstances warranting sua sponte dismissal of the complaint … . The plaintiff moved, inter alia, to consolidate custody and family offense proceedings that were pending in the Family Court, Queens County, and the Family Court, Kings County, with the instant action. There was no motion to dismiss the complaint in its entirety or to change venue before the court … . Ivashchenko v Borukhov, 2024 NY Slip Op 02526, Second Dept 5-8-24

Practice Point: This decision illustrates the appellate-courts’ discomfort with sua sponte dismissals of complaints (dismissal in the absence of a motion requesting it).

 

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ALTHOUGH ONLY STEPHEN BOTT SIGNED THE NOTE, BOTH HE AND CHRISTINE BOTT SIGNED THE MORTGAGE; THEREFORE CHRISTINE BOTT WAS A “BORROWER” ENTITLED TO SEPARATE NOTICE OF THE FORECLOSURE PURSUANT TO RPAPL 1304; THE JOINT NOTICE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to notify both borrowers of the foreclosure action violated RPAPL 1304 and required that defendants’ summary judgment motion be granted. Although only Stephen Bott signed the note, he and Christine Bott executed the mortgage instrument. Therefor the joint RPAPL 1304 notice was invalid:

Although Stephen Bott was the only signatory to the note, both he and Christine Bott executed the mortgage, and Christine Bott is identified as a borrower on the first page of the mortgage. “Where, as here, a homeowner defendant is referred to as a ‘borrower’ in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a ‘borrower’ for the purposes of RPAPL 1304, notwithstanding . . . any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured” … . Therefore, Christine Bott was entitled to notice pursuant to RPAPL 1304 … . Since it is undisputed that a jointly addressed 90-day notice, rather than individually addressed notices in separate envelopes, was sent to the defendants, the plaintiff failed to comply with RPAPL 1304, and the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them … . HSBC Bank USA, N.A. v Bott, 2024 NY Slip Op 02524, Second Dept 5-8-24

Practice Point: A person obligated to pay the mortgage is a “borrower” within the meaning of RPAPL 1304 even if that person did not sign the note. Each “borrower” is entitled to separate notice of the foreclosure. Here, the joint notice was invalid and defendant-borrowers’ motion for summary judgment should have been granted.

 

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