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THERE WAS EVIDENCE OF TWO PROXIMATE CAUSES OF PLAINTIFF’S SLIP AND FALL: (1) HER KNEE BUCKLED; AND (2) WHEN SHE TRIED TO STOP HER FALL BY GRABBING THE VANITY, THE VANITY MOVED FIVE INCHES AWAY FROM THE WALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was evidence of two proximate causes of the slip and fall: (1) plaintiff/s knee buckled when she stepped out of the shower; and (2) when plaintiff tried to stop her fall by grabbing onto the vanity, the vanity moved five inches and she fell. The building superintendent testified that a properly installed vanity would not move away from the wall:

“There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault” … . “‘Generally, it is for the trier of fact to determine the issue of proximate cause'” … .

Here, the defendant failed to establish, prima facie, that the plaintiff losing her balance due to her knee buckling was the sole proximate cause of the accident and that the defendant was free from fault in the happening of the accident … . In support of its motion, the defendant submitted, inter alia, the transcript of the plaintiff’s deposition testimony, at which she testified that, after she lost her balance due to her knee buckling and she grabbed the vanity with one hand, the vanity moved about five inches away from the wall, “and when it moved I lost my balance even more and that’s when I fell.” Moreover, the plaintiff testified that the vanity had been installed around “a couple of weeks” prior to the accident. The defendant also submitted the transcript of the deposition testimony of the superintendent for the apartment building, who testified that a vanity which had been properly installed should not move away from the bathroom wall through “normal use.” Moe-Salley v Highbridge House Ogden, LLC, 2023 NY Slip Op 01187, Second Dept 3-8-23

Practice Point: There can be more than one proximate cause of a slip and fall. Here plaintiff’s knee buckled as she stepped out of the shower. When she tried to stop her fall by grabbing the vanity, the vanity moved and she fell. There was testimony that a properly installed vanity would not move away from the wall.

 

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DEFENDANTS IN THIS ICY-STEP SLIP AND FALL CASE DID NOT DEMONSTRATE THEY WERE OUT-OF-POSSESSION LANDLORDS WHO WERE NOT RESPONSIBLE FOR ICE AND SNOW REMOVAL; DEFENDANTS DID NOT SUBMIT THE LEASE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this icy-steps slip and fall case did not demonstrate they had transferred possession and control of the property such that they were not responsible for removal of ice and snow. The lease was not submitted in support of defendants’ motion for summary judgment:

… [T]he defendants’ submissions failed to establish, prima facie, that they were out-of-possession landlords. The defendants did not submit a copy of any lease, and the deposition testimony submitted in support of the motion failed to establish, prima facie, that the defendants had transferred possession and control of the premises … . Moreover, the deposition testimony submitted in support of the motion included testimony that the defendants were responsible for maintaining the property, including snow removal, and had engaged in snow removal on the premises. The defendants thus also failed to establish, prima facie, that they had no duty, by contract or course of conduct, to remove snow and ice from the premises … . Maharaj v Kreidenweis, 2023 NY Slip Op 01185, Second Dept 3-8-23

Practice Point: Here the defendant landlords did not submit the lease in support of their motion for summary judgment in this icy-step slip and fall case. Therefore the defendants did not demonstrate they were out-of-possession landlords not responsible for ice and snow removal.

 

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ALTHOUGH DEFENDANT COMMITTED A HEINOUS SECOND DEGREE MURDER, THE PROOF OF THE STATUTORY ELEMENTS OF FIRST DEGREE MURDER WAS LEGALLY INSUFFICIENT (FIRST DEPT).

The First Department, reversing defendant’s first degree murder conviction, determined that, although defendant committed a heinous murder, the statutory criteria for first degree murder were not met:

… [T]he evidence was legally insufficient to prove that defendant inflicted torture on the victim within the meaning of the statute in two respects. First, we conclude that defendant did not engage in a “course of conduct” with the intention of inflicting “extreme physical pain” on the victim. Extreme physical pain cannot be defined precisely. However, it cannot be reasonably doubted that the fatal blow to the victim’s neck caused extreme pain. Yet, that blow was a single act rather than a course of conduct. Thus, we find that defendant and his accomplices did not engage in a “course of conduct” involving the intentional infliction of extreme physical pain. Accordingly, the conduct at issue here does not satisfy the statutory definition of torture in that respect.

… [T]he record also fails to support the conclusion that defendant “relished” or “evidenced a sense of pleasure in the infliction of extreme physical pain.” In arguing to the contrary, the People point out that, after the homicide, defendant twice told other gang members that he had “hit [the victim] in the neck,” in a tone that the listener considered boastful. This did not meet the statutory standard. In our view, the statute contemplates evidence that the defendant savored the infliction of extreme pain in the process of inflicting the pain, and for its own sake. The record does not indicate that this occurred here … . People v Estrella, 2023 NY Slip Op 01240, First Dept 3-9-23

Practice Point: Here the evidence of two elements of first degree murder, torture and “relishing” the infliction of pain, were not proven. Therefore the first degree murder conviction was vacated.

 

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A VIDEO CAMERA HAD BEEN INSTALLED IN A GRAPEFRUIT-SIZED HOLE BEHIND A TOILET IN A WOMEN’S RESTROOM AND VIDEO HAD BEEN RECOVERED; OVERRULING PRECEDENT, THE FIRST DEPARTMENT HELD THAT “EXTREME AND OUTRAGEOUS CONDUCT” IS NOT AN ELEMENT OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND THAT CAUSE OF ACTION WAS REINSTATED (FIRST DEPT).

​The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Webber, determined “extreme and outrageous conduct” is not an essential element of negligent (as opposed to intentional) infliction of emotional distress. Here there was a hole in the wall behind a toilet in the women’s restroom. There was a video camera in the hole and video had been recovered.. Complaints about the hole in the wall had been made. Supreme Court properly upheld the negligence cause of action, but dismissed the negligent infliction of emotional distress cause of action:

Although it has been recognized that there may be recovery for negligent infliction of emotional distress, the elements necessary for recovery has developed through case law. This Department’s case law has held that both intentional infliction of emotional distress and negligent infliction of emotional distress require a showing of extreme and outrageous conduct.

… There is no stated rationale as to why extreme and outrageous conduct would be a required element for both an intentional act as well as a negligent act.

As such, we now hold that extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress.

This holding is in line with recent decisions of the Second, Third and Fourth Departments. Brown v New York Design Ctr., Inc., 2023 NY Slip Op 01228, First Dept 3-9-23

Practice Point: All four appellate division departments have now held “extreme and outrageous conduct” is not an element of negligent infliction of emotional distress.

 

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THE PROCEEDS OF THE SALE OF COLLATERAL TO THE MAJORITY LENDERS WERE NOT DISTRIBUTED TO THE MINORITY LENDERS IN THE MANNER REQUIRED BY THE CREDIT AND SECURITY AGREEMENTS IN THIS PRIVATE FORECLOSURE; THE MINORITY LENDERS’ BREACH OF CONTRACT CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Renwick, determined the breach of contract claims by the minority lenders against the majority lenders and a collateral agent should not have been dismissed. Collateral was sold to the majority lenders but the proceeds were not distributed to the minority lenders in the manner required by the credit and security agreements. The opinion is fact-specific and far too complex to fairly summarize here:

… [T]he pro rata sharing provisions required that all minority lenders receive pro rata treatment of their debt obligations, which meant that the proceeds of the sale of the collateral (notes and equity) should have been distributed to all secured lenders pro rata in accordance with the terms of the credit agreement. … While the Collateral Agent, as directed by the majority lenders, was authorized to define the terms, conditions, and limitations of how the restructuring sale should be carried out, the reorganization had to be for the pro rata benefit of all those holders of secured debt, including minority lenders. Thus, the minority lenders have the right to object to the restructure sale conducted through credit bidding based upon the failure to provide them adequate protection of their pro rata interest on the foreclosed collateral. AEA Middle Mkt. Debt Funding LLC v Marblegate Asset Mgt., LLC, 2023 NY Slip Op 01157, First Dept 3-7-23

Practice Point: This comprehensive opinion concerns a private foreclosure of collateral and the distribution of the proceeds to the majority and minority lenders pursuant to complex credit and security agreements.

 

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THE HANDWRITTEN ADDITION TO THE PRINTED CONTRACT IS PRESUMED TO EXPRESS THE LATEST INTENTION OF THE PARTIES; HERE THE ENTRY CREATED AMBIGUITY IN THE “NO DAMAGES FOR DELAY” CLAUSE REQUIRING DISCOVERY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined a handwritten entry in a printed contract is presumed to express the latest intention of the parties and created ambiguity requiring discovery:

The subcontractor agreement between plaintiff and defendant JDS Construction Group LLC contains clauses precluding damages for delay. It also provides that if plaintiff’s work was “delayed or disrupted by fault of [JDS], Architect, or any other contractor, or by abnormal weather conditions, then the time fixed for the completion of the Work shall be extended for a period equivalent to the time actually lost, in the discretion of [JDS] and compensated for additional, mutually agreed to costs,” with the words in italics handwritten onto the typed agreement.

… [A] handwritten provision that conflicts with the language of the preprinted form document will control, “as it is presumed to express the latest intention of the parties” … . The handwritten amendment to the no-damages-for-delay clause renders the clause ambiguous as to whether plaintiff is entitled to be compensated for costs incurred as a result of such delays, which requires discovery to discern the parties’ intent … . Henick-Lane, Inc. v 616 First Ave. LLC, 2023 NY Slip Op 01163, First Dept 3-7-23

Practice Point: A handwritten entry in a printed contract is presumed to reflect the latest intention of the parties.

 

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PERMIT/ORDER ALLOWING DEVELOPMENT OF MARINAS ON LOWER SARANAC LAKE IN THE ADIRONDACK PARK ANNULLED (THIRD DEPT).

The Third Department, reversing the Adirondack Park Agency (APA), in a full-fledged opinion by Justice Ceresia, determined that the APA misapplied its wetlands regulations in issuing a permit for the development of marinas on Lower Saranac Lake in the Adirondack Park. The permit/order was therefore annulled. The opinion is too detailed and comprehensive to fairly summarize here:

LS Marina’s wetlands permit application required APA to evaluate the freshwater wetland at the Annex location and assign it a value rating between one and four, with one representing the highest value (see 9 NYCRR 578.5). The value rating is arrived at by first determining whether the wetland possesses any one or more of 24 different characteristics, each of which, in turn, has an assigned value of one through four (see 9 NYCRR 578.5 [a]-[x]). These 24 characteristics are grouped under six headings or categories, which APA refers to as “factors.” The wetland’s overall value is to be no lower than the highest value of any of its characteristics (see 9 NYCRR 578.6 [a]). Furthermore, as is relevant here, if the wetland has three or more characteristics with a value of two, which fall under “more than one factor,” this will raise the wetland’s value to one (9 NYCRR 578.6 [c]).

There is no dispute that the wetland at the Annex has three value-two characteristics, and that these three characteristics fall under two separate factors (see 9 NYCRR 578.5 [c], [g], [k]). Nevertheless, APA assigned the wetland an overall value of two rather than one … . … Therefore, APA should have assigned an overall value of one to the Annex wetland and should have analyzed the wetlands permit application accordingly (see 9 NYCRR 578.10 [a] [1]). Matter of Jorling v Adirondack Park Agency, 2023 NY Slip Op 01118, Third Dept 3-2-23

Practice Point: Here the Adirondack Park Agency misapplied its wetlands regulations with respect to a permit for the development of marinas on Lower Saranac Lake in the Adirondack Park. The permit/order was therefore annulled.

 

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A JUDGE MAY NOT ORDER THAT ONLY THE ATTORNEY FOR THE CHILD (AFC), AND NOT THE DEPARTMENT OF SOCIAL SERVICES, IS ALLOWED TO DISCUSS MATTERS OF SURRENDER OR ADOPTION WITH THE CHILD; SUCH AN ORDER INTERFERES WITH THE DEPARTMENT’S STATUTORY DUTIES (THIRD DEPT).

The Third Department, reversing Family Court in a matter of first impression in this neglect proceeding, in a full-fledged opinion by Justice Clark, determined Family Court could not order the petitioner (Delaware County Department of Social Services) to refrain from discussing matters of surrender or adoption with the child. The attorney for the child (AFC) requested the order which allowed only the AFC to discuss surrender or adoption with the child. The Third Department heard the case as an exception to the mootness doctrine (the order had been vacated, but the issue is likely to recur). The Third Department concluded the order could not stand because it interfered with the petitioner’s statutory duties:

Although we recognize that circumstances may arise where it may be appropriate to allow an attorney for children reasonable time to discuss sensitive matters of importance, such as adoption or surrender, with their child-client before anyone else does, Family Court’s order was not a temporal arrangement to allow the AFC an opportunity to broach the issue with the child. Instead, the order was an outright ban on anyone, including petitioner’s caseworkers, having a discussion with the child regarding issues that are central to the child’s permanency (see Family Ct Act § 1089 [c] [1] [ii]).

Although Family Court attempted to differentiate the issues of surrender and adoption as “a legal issue distinguishable from the assessment of the child’s well-being,” the court construed the issues pertaining to the child’s well-being too narrowly, leaving petitioner in an untenable situation…. According to petitioner, for over a year, it was prevented “from speaking with the child to reassess its understanding of the child’s wishes” relative to respondent’s possible conditional surrender and a subsequent adoption of the child — issues that fall squarely into the category of permanency decisions. Although the child has a right to meaningful representation and to learn about legal issues from the AFC (see Family Ct Act § 241 …), attorneys for children cannot transform such responsibility into a roadblock, as occurred here, preventing petitioner from fulfilling its mandates and planning for the child’s permanency and well-being … . Matter of Michael H. (Catherine I.), 2023 NY Slip Op 01119, Third Dept 3-2-23

Practice Point: Family Court can not order the Department of Social Services to refrain from discussing matters of surrender or adoption with the child. Here the attorney for the child (AFC) asked Family Court for the order allowing only the AFC to discuss surrender or adoption with the child and the request was granted.

 

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PETITIONER OPERATED HIS BARBER SHOP OUT OF HIS HOME IN MARCH 2020 AFTER THE GOVERNOR ORDERED BARBER SHOPS CLOSED DUE TO COVID-19; REVOCATION OF PETITIONER’S BARBER LICENSES WAS DEEMED TOO SEVERE A PENALTY; THERE WAS A DISSENT (THIRD DEPT). ​

The Third Department, over a dissent, determined the revocation of petitioner’s barber operator license and barber shop license was too severe a penalty for violating the state’s COVID-19 policy in early 2020. After the governor ordered barber shops closed due to COVID, petitioner opened his barber shop in his home in March 2020. He closed his home operation in May 2020 when he was hospitalized with COVID:

The Secretary is empowered to impose a range of penalties for a barber’s misconduct, with a reprimand being the least severe, then a fine of up to $500, then license suspension and, most seriously, license revocation (see General Business Law §§ 441 [a]; 443). As noted above, petitioner has been a licensed barber since 1963 and, before the proceedings at issue here, had a clean disciplinary record for nearly six decades. The ALJ found that petitioner “sincerely believed” that he was entitled to reopen his shop in March 2020 and was remorseful for having done so, as well as that he did not knowingly work while suffering from COVID-19. Further, although petitioner failed to operate in accordance with COVID-19 guidelines after he was permitted to reopen, it appears that such resulted from his lack of familiarity with the particulars of the guidelines, and it must be noted that those guidelines and other COVID-19 restrictions had been lifted by the time of the Secretary’s determination … . It is accordingly unclear how petitioner’s conduct during the COVID-19 emergency would pose an ongoing threat to the public that would warrant the maximum sanction of permanently barring him from performing the work he had otherwise done without incident for almost 60 years. “Under these circumstances, and considering petitioner’s otherwise unblemished record, revocation was too severe a penalty,” and we therefore “remit to [the Secretary] to impose a less severe penalty” … . Matter of Lalima v New York State Dept. of State, 2023 NY Slip Op 01121, Third Dept 3-2-23

Practice Point: Here revocation of petitioner’s barber licenses was deemed too severe a penalty. After the governor ordered barber shops closed in March 2020 due to COVID, petitioner continued cutting hair in his home.

 

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IN A REAR-END COLLISION, THE ALLEGATION THE CAR IN FRONT STOPPED SHORT DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court in this rear-end traffic accident case, determined the allegation that the car in front stopped short did not raise a question of fact and summary judgment should have been awarded to driver/owner of the car in front:

Plaintiff alleges that he was injured in a two-car collision while he was a passenger in a car driven by Morera and owned by Giovanni. According to plaintiff, defendant Dan Espeut, who was driving behind the Morera defendants’ car, rear-ended the Morera defendants’ car.

It is well-settled law that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence by the driver of the rear vehicle, and imposes a duty on the driver of the rear vehicle to come forward with an adequate nonnegligent explanation for the accident … . Here, the Morera defendants made a prima facie showing of their entitlement to summary judgment by submitting Morera’s affidavit, in which he averred that he was driving straight and gradually applying his brakes because there was traffic ahead of him, and that as he was doing so, the Espeut vehicle rear-ended his vehicle … .

… Espeut’s affidavit, in which he averred that Morera stopped short in front of him after entering his lane of traffic, was insufficient to raise an issue of fact … . Moreover, Espeut had the obligation to maintain a safe distance between the vehicles, which, as the record evidence makes clear, he failed to do … . Obando v Espeut, 2023 NY Slip Op 01144, First Dept 3-2-23

Practice Point: In a rear-end collision case, the allegation by the driver of the rear-most car that the car in front stopped short is not a non-negligent explanation for the accident.

 

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