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THE EMPLOYER’S REQUEST, AT THE HEARING, TO CROSS-EXAMINE CLAIMANT’S PHYSICIAN SHOULD HAVE BEEN GRANTED; THE LANGUAGE IN THE RELEVANT REGULATION IS MANDATORY (THIRD DEPT). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, determined the Workers’ Compensation Law Judge (WCLJ) should have granted the employer’s request, made at the hearing, to cross-examine the claimant’s physician, who had submitted a report. The Court of Appeals noted that the relevant language in the regulation was mandatory (“shall”):

The rule at issue here provides that, if “the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose” (12 NYCRR 300.10 [c] …). The mandatory nature of this language contrasts with the language used in the Board’s other rules governing adjournment of hearings, which afford referees discretion and create exceptions to otherwise mandatory rules. For example, if the employer fails to present evidence as directed by the Board, the referee “may adjourn the hearing” and, if the employer fails to present evidence on the adjourned date, the referee “shall proceed to make a decision unless” the referee finds “extraordinary circumstances” warranting “a further adjournment” … . Under the plain language of the rule, the employer properly exercised its rights by making its request at a hearing on the claim prior to the WCLJ’s ruling on the merits … . Matter of Lazalee v Wegman’s Food Mkts., Inc., 2023 NY Slip Op 06343, CtApp 12-12-23

Practice Point: In a Workers’ Compensation hearing, the employer’s request for an adjournment to cross-examine the claimant’s physician must be granted.

 

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THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED IN THE JUDGMENT OF DIVORCE WAS UNAMBIGUOUS AND PROVIDED EACH PARTY WAS RESPONSIBLE FOR THEIR OWN ATTORNEY’S FEES; IT WAS THEREFORE ERROR TO AWARD FATHER ATTORNEY’S FEES (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that the stipulation incorporated but not merged in to the judgment of divorce, which provided that each party was responsible for their own attorney’s fees, controlled. Therefore the award of attorney’s fees to father was error:

… [T]he parties executed a written stipulation of settlement containing the provision, “as and for a global resolution, each party shall be responsible for the payment of his and her respective attorney fees.”

“A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” … . “Generally, where the parties have agreed to provisions in a settlement agreement which govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” … . If the contract is clear and unambiguous, it is to be interpreted so as to give effect to the parties’ intent and the intent is to be gleaned from within the four corners of the document … . Here, the fees awarded were as a result of the initial custody determination, and a review of the stipulation of settlement reveals no ambiguity as the agreement clearly provides that each party is to be responsible for his and her respective counsel fees and we must give its terms their plain meaning … . Moreover, in rendering its determination, Supreme Court did not reference the stipulation’s express provision that each parent shall be responsible for his and her counsel fees, thus, it erred in awarding the father counsel fees … . Daryl N. v Amy O., 2023 NY Slip Op 06286, Third Dept 12-7-23

Practice Point: A stipulation of settlement incorporated but not merged into a judgment of divorce is a contract which supersedes statutory provisions. The unambiguous provision in the stipulation that each party is responsible for their own attorney’s fees controls. Attorney’s fees should not have been awarded to father.

 

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PETITIONER, A NOT-FOR-PROFIT LOCAL DEVELOPMENT CORPORATION, WAS PROPERLY FOUND TO BE SO CLOSELY AFFILIATED WITH LOCAL GOVERNMENT AS TO MEET THE DEFINITION OF A “LOCAL AUTHORITY” SUBJECT TO THE REPORTING AND OVERSIGHT REQUIREMENTS OF THE STATE OF NEW YORK AUTHORITIES BUDGET OFFICE (THIRD DEPT).

​The Third Department, reversing Supreme Court, determined that the petitioner, a non-for-profit local development corporation, was a “local authority” subject to the reporting and oversight requirements of the respondent State of New York Authorities Budget Office:

… [W]e find that respondent rationally concluded that petitioner is a local authority, in that there is a “close relationship between petitioner and local governments” and petitioner “is the type of entity that the Legislature intended to subject to the provisions of the PAAA” [Public Authorities Accountability Act]. Notably, the purposes of the PAAA and the PARA [Public Authorities Reform Act] include remedying public concerns about transparency and accountability of entities that, like petitioner, “work[ ] with public and private sector partners to spur economic development and meet public needs” … . Matter of Saratoga Economic Dev. Corp. v State of N.Y. Auths. Budget Office, 2023 NY Slip Op 06292, 11-7-23

Practice Point: The State of New York Authorities Budget Office’s administrative determination that petitioner not-for-profit development corporation was a “local authority” subject to the Budget Office’s oversight was not arbitrary and capricious. Supreme Court should not have annulled the determination.

 

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ALTHOUGH VOLUNTARY PAYMENTS ON A DEFAULT JUDGMENT MAY WAIVE THE PERSONAL JURISDICTION DEFENSE TO THE FAILURE TO MOVE TO VACATE A DEFAULT JUDGMENT WITHIN A YEAR, HERE THE GARNISHMENT OF DEFENDANT’S WAGES FOR MORE THAN A YEAR DID NOT WAIVE THE DEFENSE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant did not waive the personal jurisdiction defense (CPLR 5015(a)(4)) by waiting more that a year to move to vacate the default judgment, despite the garnishment of defendant’s wages during that time. Voluntary payments on a default judgment would have waived the defense, but not garnishment:

The proper approach for determining whether a defendant has waived the CPLR 5015(a)(4) personal jurisdiction defense involves the consideration of whether the defendant’s particular actions amount to “an intentional relinquishment of a known right” … , and results from the taking of some affirmative action evincing the intent to accept a judgment’s validity — such as the making of voluntary payments to satisfy a default judgment prior to moving to vacate … . The mere fact that a defendant, like defendant here, was subject to payments pursuant to a wage garnishment order for more than one year without taking some action is not, without more, a proper basis for finding waiver of the ability to seek relief under CPLR 5015(a)(4) … . Esgro Capital Mgt., LLC v Banks, 2023 NY Slip Op 06312, First Dept 12-7-23

Practice Practice: Making voluntary payments on a default judgment would waive a defendant’s personal-jurisdiction defense to the failure to move to vacate a default judgment within a year. But the garnishment of defendant’s wages for more than a year did not waive the defense.

 

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ALTHOUGH PLAINTIFFS DO NOT CONTEST THE APPEALS AND WILL NOT PURSUE THE LITIGATION, THE APPEALS ARE NOT MOOT BECAUSE THE ORDER MAY AFFECT RELATED ACTIONS AGAINST THE DEFENDANTS; THE SUMMARY JUDGMENT MOTION, BROUGHT BEFORE DEFENDANTS ANSWERED THE COMPLAINT, WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) despite the fact that the plaintiffs indicated they do not contest the appeals and will not pursue the action which had been dismissed, the appeals are not moot because the dismissal may affect related actions against the defendants; and (2) the plaintiff’s summary judgment motion, brought before the defendants had answered the amended complaint, was premature:

While plaintiffs do not contest the appeals and have represented that they will not be pursuing the underlying litigation, this does not render defendants’ appeals moot. The mootness doctrine will deprive a court of the ability to review a case where a change in circumstances between the parties has eliminated the controversy that once existed … . However, an appeal is not moot where “the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . Defendants have the right to appeal the order addressing the motion to dismiss because it may serve as unfavorable precedent in related cases that have been brought against them. Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 06314, First Dept 12-7-23

Practice Point: An appeal is not moot when it is not contested if the order appealed from could affect related actions against the appellants.

 

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THE SPA PATRON WHO SEXUALLY ASSAULTED PLAINTIFF WAS INVOLVED IN A FIGHT IN THE SPA BUT WAS ALLOWED TO REMAIN; THE FIGHT DID NOT RENDER THE SUBSEQUENT SEXUAL ASSAULT OF THE PLAINTIFF FORESEEABLE BY THE DEFENDANT SPA (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s action against defendant spa based on a sexual assault by a spa patron should have been dismissed. The patron pretended to be an employee of the spa and offered plaintiff a massage. From the standpoint of the defendant spa, the patron’s assault was not foreseeable. The fact that the assailant was involved in a fight before the sexual assault and was allowed to remain in the spa did not render the sexual assault foreseeable:

While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control … . Thus the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults … . To establish foreseeability based upon prior history of third-party criminal behavior, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location … .

Contrary to plaintiff’s allegations, it was not reasonably foreseeable that a fight occurring amongst male patrons, who had been drinking there, could lead to the alleged assailant pretending to be an employee of the spa and then sexually assaulting her … . The prior altercation noted by plaintiff was completely unrelated to her situation and thus cannot support a claim that the instant assault was a foreseeable consequence of defendant permitting the men involved in the altercation [to remain at the premises … . Memeh v Spa 88, LLC, 2023 NY Slip Op 06315, First Dept 12-7-23

Practice Point: Here a spa patron pretending to be a masseuse employed by the spa sexually assaulted the plaintiff. The facts that the patron had been drinking and was involved in a fight but was allowed to remain in the spa did not render the subsequent sexual assault foreseeable.

 

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PLAINTIFF’S MOTION TO AMEND THE NOTICE OF CLAIM TO ADD A VERIFICATION IN THIS WRONGFUL DEATH ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DENIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, held that the plaintiff’s motion to amend the notice of claim in this wrongful death action against the defendant city should not have been denied:

“Where there is no showing of prejudice to a municipality, the fact that a notice of claim was not verified by a claimant may be disregarded” … . Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross-motion pursuant to General Municipal Law § 50-e(6) for leave to amend the notice of claim to add a verification from the plaintiff’s attorney that the plaintiff lives in a different county than the attorney, as the City defendants failed to demonstrate that they would be prejudiced by the amendment … . Watts v Jamaica Hosp. Med. Ctr., 2023 NY Slip Op 06276, Second Dept 12-6-23

Practice Point: Where there is no prejudice to the municipality, the fact that a notice of claim was not verified can be disregarded.

 

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DEFENDANT OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT HAVE RESPONSIBILITY FOR MAINTENANCE OF THE AREA WHERE PLAINTIFF FELL (PARKING LOT RAMP); THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should not have been granted. The lease indicated the landlord had responsibility for maintenance of the ramp where plaintiff fell:

… “[A]n out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct” … .

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that it was an out-of-possession landlord. The defendant’s submissions in support of its motion, including its written lease with Petco and a transcript of the deposition testimony of its principal, did not demonstrate that it was an out-of-possession landlord with respect to the subject ramp. The lease obligated the defendant to maintain all appurtenant exterior areas, including the parking area, and the defendant’s principal testified at his deposition that the ramp was part of the parking lot, which the defendant maintained … . Further, the defendant failed to eliminate triable issues of fact as to whether its allegedly negligent maintenance of the ramp was a proximate cause of the plaintiff’s accident  … . Thepenier v BGTWO Realty, LLC, 2023 NY Slip Op 06272, Second Dept 12-6-23

Practice Point: Whether an out-of-possession landlord can be liable for a slip and fall on the property depends on the terms of the lease. Here the landlord had the responsibility to maintain the parking lot ramp where plaintiff fell.

 

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THE COURT PARKING LOT WHERE PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS DEEMED TO BE THE FUNCTIONAL EQUIVALENT OF A SIDEWALK; THEREFORE THE STATUTE REQUIRING WRITTEN NOTICE OF A DANGEROUS SIDEWALK CONDITION AS A PREREQUISITE FOR COUNTY LIABILITY APPLIED; THE COUNTY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant county’s motion for summary judgment in this trip and fall case should have been granted. Plaintiff allegedly tripped over a section of rebar protruding from a concrete island in a court parking lot. Although parking lots are not explicitly mentioned in the statute requiring written notice of a dangerous condition as a prerequisite for the county’s liability, the Second Department held that the parking lot served the function of a sidewalk and therefore was subject to the written notice requirement:

The County has a prior written notice statute which provides, in relevant part, that “‘[n]o civil action shall be maintained against the County for damages or injuries to person or property sustained by reason of any sidewalk . . . unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk [is given] . . . [and s]uch written notice shall specify the particular place and nature of such defective, unsafe, dangerous or obstructed condition . . . [and that n]otice required to be given as herein provided shall be made in writing by certified or registered mail directed to the Office of the County Attorney'” … . * * *

The County demonstrated … that its prior written notice statute applied here because the concrete island with the protruding metal “served the same functional purpose as a sidewalk” … . The County further demonstrated, prima facie, that it lacked prior written notice of the alleged defect.  Sanchez v County of Nassau, 2023 NY Slip Op 06270, Second Dept 12-6-23

Practice Point: Here the statute required written notice of a dangerous condition on a sidewalk before the county could be liable for a slip or trip and fall. The plaintiff tripped in a county parking lot. The parking lot was deemed the functional equivalent of a sidewalk, triggering the written-notice requirement.

 

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THE UNDERWRITING GUIDELINES DID NOT SUPPORT THE UNDERWRITER’S CLAIM THAT THE LIFE INSURANCE POLICY WOULD NOT HAVE BEEN ISSUED IF THE COMPANY HAD BEEN AWARE OF PLAINTIFF’S DECEDENT’S HEART CONDITION; THEREFORE THE INSURANCE COMPANY DID NOT DEMONSTRATE, AS A MATTER OF LAW, THAT PLAINTIFF’S DECEDENT MADE A MATERIAL MISREPRESENTATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurance company’s motion for summary judgment in this breach of contract action should not have been granted. The insurance company alleged plaintiff’s decedent misrepresented his medical condition when applying for the term life insurance policy eight months before his death. The insurance company failed to demonstrate, as a matter of law, that plaintiff’s decedent made a material misrepresentation:

“To establish materiality as a matter of law, an insurer must present clear and substantially uncontradicted documentation concerning its underwriting practice, such as underwriting manuals, bulletins, or rules pertaining to similar risks, which show that it would not have issued the same policy if the correct information had been disclosed in the application … . …

Although the defendant’s chief underwriter testified at his deposition that the defendant would not have issued the subject policy to the decedent at the same premium rate had he disclosed the extent of his heart conditions, the underwriting guidelines submitted by the defendant do not state that the heart conditions which the decedent failed to disclose must be assessed at a higher premium … . Ruiz v First Invs. Life Ins. Co., 2023 NY Slip Op 06269, Second Dept 12-6-23

Practice Point: Here the underwriting guidelines did not support the insurance company’s claim that it would not have issued plaintiff’s decedent’s life insurance policy had it been aware of his heart condition. Therefore the company did not demonstrate, as a matter of law, that plaintiff’s decedent made a material misrepresentation when applying for the policy.

 

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