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PLAINTIFF WAS DEEMED TO HAVE READ THE INFORMATION WHICH WAS HYPERLINKED; THEREFORE PLAINTIFF WAS DEEMED TO HAVE AGREED TO ARBITRATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff agreed to arbitrate based upon the hyperlinks in the document plaintiff reviewed:

Uber [defendant] sustained its burden of demonstrating that the parties had an explicit and unequivocal agreement to arbitrate. … [P]laintiff had agreed to be bound by the arbitration agreement when he affirmatively indicated and confirmed, by taking two separate actions, that he had reviewed and agreed to Uber’s updated terms of use, which were overtly hyperlinked as part of the pop-up screen and sufficient to form a binding contract … .

… [P]laintiff was on inquiry notice of the updated Terms of Use that required any disputes between the parties to be resolved by arbitration. Although a clickwrap agreement’s terms and conditions must be clear and conspicuous, they need not all be simultaneously and immediately visible; the terms may be binding and enforceable even if they are only accessible through a hyperlink … . The keys to enforceability are a reasonable indication of the existence of the additional terms and the user’s being required to manifest assent to them … . Brooks v Lang Yang, 2023 NY Slip Op 02610, First Dept 5-15-23

Practice Point: Here the plaintiff was deemed to have read information which was hyperlinked and therefore was deemed to have agreed to arbitrate.

 

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THE HOSTILE WORK ENVIRONMENT AND SEX DISCRIMINATION CLAIMS WERE NOT UNTIMELY BECAUSE A CONTINUING COURSE OF CONDUCT LEADING UP TO THE FILING OF THE COMPLAINT WAS ALLEGED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s hostile work environment and sex discrimination claims should not have been dismissed as untimely because a continuing pattern was sufficiently alleged:

The allegations supporting plaintiff’s hostile work environment and sex discrimination claims are timely, as she has sufficiently alleged facts comprising “a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint” … . The complaint alleges that, following Corn’s sexual assault on plaintiff in February 2015, he continued to stare at her, lurked by her desk, made inappropriate, flirtatious comments toward her, disclosed intimate details about his marriage, and frequently pressured her to go out drinking, within the limitations period. It cannot be said that, as a matter of law, these acts were not part of a single continuing pattern of unlawful conduct supporting her hostile work environment and discrimination claims … .

Moreover, under the New York City Human Rights Law (Administrative Code of City of NY § 8-107) and amended New York State Human Rights Law (Executive Law § 296[h]), the allegations that Corn sexually assaulted plaintiff in 2015 and engaged in a pattern of gender-based misconduct in the workplace, demonstrate that she was subjected to inferior terms, conditions, or privileges of employment on the basis of her gender … . Crawford v American Broadcasting Co., Inc., 2023 NY Slip Op 02611, First Dept 5-16-23

Practice Point: Here the hostile work environment and sex discrimination claims should not have been dismissed as untimely because a continuing course of conduct up until the filing of the complaint was alleged.

 

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ALTHOUGH THE NYC ADMININSTRATIVE CODE MAKES TENANTS RESPONSIBLE FOR REMOVING ICE AND SNOW FROM SIDEWALKS, IT DOES NOT IMPOSE TORT LIABILITY FOR FAILURE TO DO SO; THE ADMINISTRATIVE CODE ALSO MAKES PROPERTY OWNERS RESPONSIBLE FOR SNOW AND ICE REMOVAL; THE LEASE SPECIFICALLY STATED DEFENDANT WAS NOT RESPONSIBLE FOR CLEARING SNOW AND ICE FROM THE SIDEWALK; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant, 185th Operating, was not liable for a sidewalk ice and snow slip and fall. Although the NYC Administrative Code makes tenants responsible for removing ice and snow from sidewalks, it does not impose tort liability for a failure to do so. Here the lease explicitly stated the tenant is not responsible for clearing ice and snow:

Although the applicable statute requires tenants to clear snow and ice from the sidewalks around their premises, the statute does not impose tort liability for noncompliance (Administrative Code of the City of New York § 16-123[a] …). Furthermore, Administrative Code § 7-210(a), which requires property owners to maintain the sidewalk abutting their property, does not impose liability on 185 Operating, as 185 Operating is a tenant of the premises, not the owner. Not only did 185th Operating’s lease with defendant owner … specifically state that 185th Operating was not responsible for maintaining the sidewalks adjacent to the premises, but [the owner’s] lease with defendant Staples …, a tenant occupying the same building as 185th Operating, expressly made Staples responsible for clearing snow and ice from the sidewalk where the icy condition had occurred.

The record does not present any evidence that 185th Operating’s earlier voluntary snow removal created or exacerbated a hazardous condition that then caused plaintiff’s injury … . Cruz v Heights Broadway, LLC, 2023 NY Slip Op 02612, First Dept 5-16-23

Practice Point: Here the lease specifically stated the defendant tenant was not responsible for removing ice and snow from the sidewalk. The NYC Administrative Code requires tenants to remove ice and snow but does not impose tort liability for the failure to do so. The code also requires owners to remove ice and snow. The tenant’s motion for summary judgment should have been granted.

 

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PLAINTIFF, AN EDITORIAL DIRECTOR AT GAWKER, DID NOT SUFFICIENTLY ALLEGE THE DAILY BEAST REPORTERS WHO WROTE AN ARTICLE ABOUT GAWKER VIOLATED THE “GROSS IRRESPONSIBILITY STANDARD” IN MAKING STATEMENTS ABOUT PLAINTIFF; THE DEFAMATION COMPLAINT WAS DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, an editor, did not sufficiently allege the reporters who wrote a story about the company where plaintiff worked acted in a “grossly irresponsible manner,” the standard for defamation in this context:

Plaintiff, who at the time of the article was employed by BDG Media as the editorial director of the digital media website Gawker, alleges that the article contained misleading excerpts of her communications with her colleagues at Gawker, omitting relevant context in order to inaccurately portray her as racist, homophobic, xenophobic, and transphobic. Plaintiff further alleges that the statements published in the article were false, misleading, or, to the extent they contained literal truth, taken out of context to place her in a defamatory light. Plaintiff maintains that … BDG Media terminated her employment as a result of the article.

… [P]laintiff’s defamation cause of action withstands dismissal only if she adequately alleges that defendants, all of whom are members of the media, “‘acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties'” in writing and publishing the article … The “gross irresponsibility standard demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy” and does not require “exhaustive research [or] painstaking judgments” … . Furthermore, the alleged falsity or defamatory meaning of certain statements is not probative of whether defendants acted with gross irresponsibility … . Griffith v Daily Beast, 2023 NY Slip Op 02614, First Dept 5-16-23

Practice Point: Where matters of legitimate public concern are implicated, a plaintiff alleging defamation by reporters must allege the reporters violated the “gross irresponsibility standard;” the complaint here failed to do so.

 

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THE DEFENDANT ARGUED A 2022 US SUPREME COURT RULING FINDING NEW YORK’S FIREARM LICENSING REQUIREMENT UNCONSITUTIONAL RENDERED THE POSSESSION-OF-A-WEAPON STATUTE TO WHICH HE PLED GUILTY IN 2016 UNCONSTITUTIONAL; THE ISSUE WAS NOT PRESERVED BECAUSE IT WAS NOT RAISED IN THE TRIAL COURT IN 2016 (FIRST DEPT).

The First Department refused to consider a constitutional issue on appeal because the issue was not preserved. Defendant pled guilty in 2016. The defendant argued on appeal that a 2022 US Supreme Court ruling rendered the offense to which he pled guilty, Penal Law 265.03(3), unconstitutional. In order to preserve that issue for appeal, it must have been raised before the trial court in 2016. The US Supreme Court case, New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 [2022]), declared New York’s license requirement for carrying a loaded firearm in public unconstitutional. Defendant pled guilty to possessing a loaded weapon outside his home or business:

Defendant did not preserve his claim that Penal Law § 265.03(3) is unconstitutional in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v Bruen …), or his related claim that the ineligibility of persons under 21 (such as himself at the time of the crime) to apply for licenses to carry firearms violates the Second Amendment. “This [preservation] requirement is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established” … .

“[D]efendant should not be permitted to avoid the consequences of the lack of preservation” on the ground that a constitutional challenge to Penal Law § 265.03(3) would have been futile … . Here, “[a]lthough [Bruen] had not yet been decided, and trial counsel may have reasonably declined to challenge the [constitutionality of Penal Law § 265.03 (3)], defendant had the same opportunity to advocate for a change in the law as [any other] litigant” … . Defendant is essentially making the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come,” but the Court of Appeals has expressly rejected that argument … . This preservation principle applies to constitutional claims … .

As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03(3) is unconstitutional. People v Adames, 2023 NY Slip Op 02623, Fist Dept 5-16-23

Practice Point: Even if there has been no ruling on the constitutionality of a statute at the time the offense is before the trial court, in order to preserve the constitutional issue it must be raised in the trial court. Here defendant argued a 2022 US Supreme Court ruling finding New York’s firearm licensing requirement unconstitutional rendered the possession-of-a-weapon statute to which he pled guilty in 2016 unconstitutional. The First Department held the issue was not preserved because it was not raised in the trial court in 2016.

 

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A LOCAL LAW WHICH CURTAILED THE POWER OF AN ELECTED OFFICER TO ACT WAS DEEMED INVALID BECAUSE IT WAS NOT SUBJECT TO A PUBLIC REFERENDUM (SECOND DEPT).

The Second Department, over an extensive dissent, determined a Local Law which curtailed to power of an elected officer to act was invalid because it was not subject to a public referendum. The decision and the dissent are too detailed to fairly summarize here:

Chapter 263 is substantively invalid on its face because the supermajority requirement continually curtails the power of a local officer to act … . This goes to the wisdom and merit of the local law. “Unless specifically provided by statute or charter provisions, one [local] legislature may not bind the hands of its successors in areas relating to governmental matters” … . “A local law . . . which . . . has the effect of curtailing the power of such elective officers . . . becomes operative only after approval by the majority of the qualified” voters … , since it “curtail[s] each legislator’s relative ability to cast the deciding vote” … . To rule otherwise in the instant case would bind the hands of the Town Board and the public indefinitely, merely because years in the past, no one saw fit to challenge a law which would only have practical effect years in the future…. . * * *

The power of the Town Board cannot be limited indefinitely merely because there was a procedure which would have allowed for the passage of such a provision, and although that procedure was not followed, the four-month statute of limitations for challenging procedural defects had passed. This was not a mere procedural defect. Rather, the Town Board imposed a continuing illegal infringement on the rights of future members of the Town Board, and a continuing infringement upon the rights of the voters. Hoehmann v Town of Clarkstown, 2023 NY Slip Op 02606, Second Dept 5-15-23

Affirmed by the Court of Appeals: Hoehmann v Town of Clarkstown, 2023 NY Slip Op 02750, CtApp 5-19-23

Practice Point: Here, a local law which curtailed the power of elective officers was invalid because it was not subject to a public referendum.

 

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THE COUNTY DID NOT SUBMIT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPTL 1125 IN THIS PROPERTY TAX FORECLOSURE CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the county (petitioner) in this real property tax foreclosure case did not demonstrate the respondent received notice of the foreclosure as required by RPTL 1125 and a recent Court of Appeals ruling:

In James B. Nutter & Co. v County of Saratoga (__ NY3d ___, 2023 NY Slip Op 01469 [2023], revg 195 AD3d 1359 [3d Dept 2021]), the Court ruled that RPTL 1125 (1) (b) (i) contains no presumption of service and that “an interested party may create a factual issue as to whether the taxing authority has complied with the requirements of RPTL 1125 (1) (b) . . . despite the taxing authority’s submission of the ‘affidavit[s] of mailing’ mandated by [RPTL] 1125 (3) (a) and evidence that no mailings were returned” (id. at *3). Here, petitioner’s attorney avers in support of its motion for summary judgment that “affidavits documenting compliance with all RPTL requirements for this proceeding have been publicly filed with the [c]ounty [c]lerk as a part of the judgment roll therein; and, assuming without conceding, that any noticing defects as to [a]nswerants occurred, by service of an [a]nswer therein [a]nswerants concedes actual notice of the pendency of this proceeding and its applicability to the above said parcel, thereby as a matter of law obviating any such defects.” Although RPTL 1125 (1) (b) “contains no requirement of actual notice and evidence of the failure to receive notice is, by itself, insufficient to demonstrate noncompliance” (id.), this generic language failed to affirmatively establish compliance with the statutory mailing requirements as it failed to establish that the notice of foreclosure was mailed to respondent’s actual mailing address or the last address listed in petitioner’s records and that the records had been searched to verify that the mailings to respondent were not returned … . Matter of County of Albany (Johnson), 2023 NY Slip Op 02564, Third Dept 5-11-23

Practice Point: Here the county failed to prove strict compliance with the notice requirements of RPTL 1125 precluding summary judgment in this real property tax foreclosure case.

 

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DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS LAST INSPECTED PRIOR TO FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DEFECTIVE CONDITION (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined defendant building owner, 797 Broadway, did not demonstrate it did not have constructive notice of the alleged loose elevator threshold plate over which plaintiff slipped and fell:

… 797 Broadway submitted the sworn affidavit of David Fallati, who … acted as the property manager for the building. Fallati stated that he visited the building twice a week, “including the time period of the alleged incident.” According to Fallati, he did not observe, or receive complaints about, any tripping hazards near the elevator threshold area where the accident occurred. We find that this proof was insufficient to establish that 797 Broadway lacked constructive notice of the condition of the threshold plate. Unlike trip-and-fall cases where the specific area in question was inspected on the date of the accident … . Fallati’s vague affidavit, in which he only stated generally that his inspections occurred twice per week, did not indicate when he had last inspected the elevator threshold area prior to plaintiff’s fall. Thus, the Fallati affidavit failed to eliminate all factual questions “as to whether the alleged dangerous condition . . . existed for a sufficient period of time prior to plaintiff’s fall to permit [797 Broadway] to discover it and take remedial action” … . Lloyd v 797 Broadway Group, LLC, 2023 NY Slip Op 02573, Third Dept 5-11-23

Practice Point: Without sufficient proof when the area of the slip and fall was last inspected the defendant cannot demonstrate a lack of constructive notice of the condition.

 

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THE FACT THAT PLAINTIFF WAS USING HIS OWN LADDER WHEN IT FELL DID NOT PRECLUDE RECOVERY UNDER LABOR LAW 240(1); AS THERE WAS NO EVIDENCE OF MEASURES TAKEN TO PREVENT THE LADDER FROM FALLING, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this Labor Law 240(1) ladder-fall case. Plaintiff brought his own ladder to the job and the feet of the ladder apparently slipped away from the wall. Plaintiff alleged the ladder should have been secured in some way (i.e., a person should have been holding the ladder):

… [T]here is no dispute that plaintiff used his own equipment, which does not preclude liability under Labor Law § 240 (1) … . The testimony as to the ladder’s functionality at the time of the accident does not aid defendants, as there is no dispute “that no one was holding the ladder from which plaintiff fell when it suddenly shifted or wobbled, and that no safety devices were provided to prevent the ladder from slipping or plaintiff from falling if it did” … . Nor is there some indication that plaintiff was recalcitrant in deliberately refusing available safety devices … . Barnhardt v Richard G. Rosetti, LLC, 2023 NY Slip Op 02574, Third Dept 5-11-23

Practice Point: Plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this ladder-fall case. The fact that plaintiff was using his own ladder did not preclude recovery.

 

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THE LEGISLATION ALLOWING PUBLIC FUNDS TO BE USED TO CONSTRUCT A $1.4 BILLION STADIUM FOR THE BUFFALO BILLS IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the statutes authorizing the use of public funds to construct a stadium for the Buffalo Bills are constitutional:

… [T]he NY Constitution establishes that “[t]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking” (NY Const, article VII, § 8 [1]). “[T]he appropriate standard for resolving a challenge to an appropriation, whether under article VIII, § 1 or article VII, § 8 (1),” is that “an appropriation is valid where it has a predominant public purpose and any private benefit is merely incidental” … . Moreover, “it is undisputed that article VII, § 8 (1) permits the granting of public funds to public benefit corporations for a public purpose” … and expenditures for stadiums have expressly been found to have a public purpose …  Further, “[b]ecause public benefit corporations … benefit from a status separate and apart from the State, money passed to public corporations consequently cannot be subject to the article VII, § 8 (1) prohibition against gifting or loaning state money as such money is no longer in the control of the State” … . Matter of Schulz v State of New York, 2023 NY Slip Op 02575, Third Dept 5-11-23

Practice Point: Statutes allowing public funds to be used for the construction of a stadium for the Buffalo Bills are constitutional.

 

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