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THE BOARD SHOULD HAVE CONSIDERED WHETHER A PRIOR ELBOW INJURY ADDED TO THE SCHEDULE LOSS OF USE (SLU) ASSOCIATED WITH THE SUBSEQUENT SHOULDER INJURY; THE BOARD DEPARTED FROM PRECEDENT WITHOUT EXPLANATION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the schedule loss of use (SLU) award for a shoulder injury should not have been offset by a prior award for an elbow injury. Rather, whether the second injury resulted in an increased loss of use should have been considered:

… [T]he Board credited Coniglio’s [the employer’s expert’s] opinion of a 20% SLU as being consistent with the guidelines and expressly declined to add any additional loss of use. …

… [W]e note that the Board has previously determined that adding value for posterior extension to an overall SLU award that also includes a documentation of deficits of flexion or abduction is consistent with the guidelines … . The Board did not address Coniglio’s failure to add any value for his finding of a posterior extension defect to his overall SLU calculation and, as such, has not provided a rational basis for departing from its precedent. Accordingly, its finding of a 20% SLU of the left arm must also be reversed and the matter remitted for further consideration by the Board … . Matter of Kromer v UPS Supply Chain Solutions, 2022 NY Slip Op 04072, Third Dept 6-23-22

Practice Point: Here claimant’s prior schedule loss of use (SLU) award for an elbow injury was not considered in connection with the SLU for the subsequent shoulder injury, a departure from precedent. Because the departure from precedent was not explained, the decision was reversed and remitted.

 

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AFTER TRIGGERING A SECURITY ALARM AT A SPORTING GOODS STORE, DEFENDANT WAS DETAINED IN THE STORE FOR HALF AN HOUR IN THE PRESENCE OF POLICE OFFICERS WHOSE QUESTIONS WERE NOT CONFINED TO THE PETIT LARCENY INVESTIGATION RE: AMMUNITION, BUT RATHER RELATED TO DEFENDANT’S POSSESSION OF FIREARMS; DEFENDANT’S UNWARNED STATEMENTS SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the questioning by the police when defendant was still in a sporting goods store where he allegedly attempted to steal ammunition constituted custodial interrogation in the absence of the Miranda warnings. The statements made by the defendant at the sporting goods store should have been suppressed:

The entire interaction at the sporting goods store was captured by the various body cameras worn by the police involved. Viewing same, it is evident that, throughout most of the interaction, four police officers were present at the sporting goods store, with at least one officer positioned between defendant and the exit. More importantly, shortly after the police arrived, defendant had been told to empty his pockets and place all of his personal property on the counter. Defendant did so. While being detained by the police, defendant asked the police multiple times if he could retrieve his possessions. The police denied each of these requests. … Additionally, the questions posed by the police to defendant exceeded that necessary for investigation. Many of their inquiries were not limited to the petit larceny, the allegation in question, but instead focused on firearms that defendant may have possessed, their location, caliber and defendant’s intent as to his usage of same. With the benefit of viewing the interaction between the police and defendant, and considering all the circumstances involved, we cannot say that a reasonable person would have felt free to leave … . People v Abdullah, 2022 NY Slip Op 04045, Third Dept 6-23-22

Practice Point: Defendant triggered a security alarm in a sporting goods store when he attempted to steal ammunition. He was detained by police in the store for half an hour and was asked questions about his possession of firearms. Because the questions exceeded the scope of the petit larceny investigation and were not preceded by the Miranda warnings, defendant’s statements should have been suppressed. His conviction was reversed.

 

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FAMILY COURT HELD A HEARING IN THE MODIFICATION OF CUSTODY PROCEEDING BUT DID NOT STATE IN ITS DECISION THE FACTS RELIED UPON TO DENY THE PETITION; THE APPELLATE DIVISION REVIEWED THE EVIDENCE, REVERSED FAMILY COURT, AND GRANTED MOTHER’S PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify custody should have been granted. Family Court held a hearing but did not, in its decision, state the facts relied upon to deny the petition. Because the record was sufficient, the Second Department exercised its authority to review the evidence and make its own determination:

… [T]o facilitate effective appellate review, the hearing court “must state in its decision ‘the facts it deems essential’ to its determination” … .

… [W]hile the Family Court stated in its decision that the allegations in the mother’s petition “largely stem from the difficulties that the parties have in co-parenting which predate her petition,” and that “both parties contribute to continuing the conflict between one another,” the court did not identify the facts adduced at the hearing that supported its denial of the mother’s petition. … . …

The evidence at the hearing showed that, on numerous occasions after the issuance of the 2018 custody order, the father, in the child’s presence, denigrated the mother and behaved inappropriately toward her … . The father consistently failed to make the child available for telephone and video calls with the mother as required by the original custody order, routinely ignored the mother’s attempted communications with the child, and repeatedly failed to adhere to the court-ordered parental access schedule … . The hearing testimony established that the father not only refused to foster a good relationship between the mother and the child—he expressly testified that he did not believe he had an obligation to do so—but actively sought to thwart such a relationship. “Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the child[ ] as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent” …

… [T]he father demonstrated a lack of interest in the child’s education and development by, among other things, refusing to have the child evaluated for learning disabilities or treated for his speech impediment … . … [T]he father failed to respond to the mother’s inquiries about the child’s health, education, and safety. Matter of Smith v Francis, 2022 NY Slip Op 04026, Second Dept 6-22-22

Practice Point: After a hearing on a petition to modify custody, Family Court, in its decision, must, but did not, state the facts relied upon in making its ruling denying the petition. The appellate division exercised its authority to review the evidence and make its own determination (reversing Family Court and granting mother’s petition for residential custody).

 

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IN THIS VEHICLE ACCIDENT CASE, PLAINTIFF ENTERED AN ARBITRATION AGREEMENT WHICH INDICATED THE AWARD WOULD BE BETWEEN $0 AND $50,000, BUT THE POLICY LIMITS WERE $100,000/300,000; THE UNILATERAL MISTAKE BY PLAINTIFF’S ATTORNEY RE: THE POLICY LIMITS WAS NOT INDUCED BY DEFENDANT OR DEFENDANT’S CARRIER, THEREFORE RESCISSION OF THE AGREEMENT WAS NOT AN AVAILABLE REMEDY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to compel arbitration in this vehicle-accident case should have been granted. Plaintiff wanted the agreement to arbitrate rescinded because it did not reflect the actual policy limits. But the unilateral mistake by plaintiff’s attorney was not induced by the defendant because defendant’s insurance carrier had twice notified plaintiff’s attorney of the policy limits. The agreement to arbitrate set the award at between $0 and $50,000, but the policy limits were $100,000/300,000:

“Generally, a party’s unilateral mistake is a ground for rescission of a contract only where it was induced by fraud or other wrongful conduct by the other party” … . Moreover, “the equitable remedy of rescission is not available to relieve an allegedly mistaken party of the consequences of their failure to exercise ordinary care” … .

Contrary to the plaintiff’s contention, he failed to establish that the arbitration agreement was subject to the equitable remedy of rescission on the ground of unilateral mistake by his attorney regarding the policy limits … . The purported mistake in the high-low agreement at issue arose not from any fraudulent inducement by the defendant, but from the failure of the plaintiff’s attorney to exercise ordinary care under the circumstances … . Maynard v Smith, 2022 NY Slip Op 04017, Second Dept 6-22-22

Practice Point: A unilateral mistake by one party which was not induced by the other party is not a ground for rescission of a contract.

 

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THERE ARE SUBSTANTIVE QUESTIONS OF FACT ABOUT THE NATURE OF THE AGREEMENTS BETWEEN PLAINTIFF EMPLOYER AND DEFENDANT EMPLOYEE RE: THE SALE OF DEFENDANT’S TAX PREPARATION BUSINESS TO PLAINTIFF AND WHETHER DEFENDANT SOLD HER CLIENT LIST TO PLAINTIFF; PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION ENFORCING THE RESTRICTIVE COVENANT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-employer’s motion for a preliminary injunction in this violation-of-a-restrictive-covenant case should not have been granted. There were too many issues of fact about the nature of the parties’ agreement re: plaintiff’s purchase of defendant’s tax preparation business, including whether defendant turned over her client list to the plaintiff:

… [T]he plaintiff commenced this action against the defendant, its former employee, to recover damages for breach of contract. The plaintiff alleged … the parties entered into three agreements: a purchase agreement whereby the plaintiff purchased the defendant’s tax preparation business, including her client list; an agreement whereby the plaintiff employed the defendant as a tax preparer; and a confidentiality, nonsolicit, and noncompete agreement which, inter alia, contained restrictive covenants that, among other things, prohibited the defendant from soliciting the plaintiff’s clients. …

… [T]he plaintiff failed to demonstrate a clear right to relief and, thus, did not demonstrate a likelihood of success on the merits. “‘[A] restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee'” … . An employer’s interests justifying a restrictive covenant are limited “to the protection against misappropriation of the employer’s trade secrets or of confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary” … . Here, there are issues of fact as to what the parties agreed to, including whether the plaintiff purchased the rights to the defendant’s clients pursuant to the parties’ agreements and whether the plaintiff breached its own obligations pursuant to those agreements. Since these issues of fact exist, the plaintiff did not show a likelihood of success on the merits and, thus, failed to establish a clear right to preliminary injunctive relief … . R&G Brenner Income Tax Consultants v Fonts, 2022 NY Slip Op 04039, Second Dept 6-22-22

Practice Point: Where there are substantive questions of fact, a preliminary injunction should not be granted because a likelihood of success on the merits has not been demonstrated.

 

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IN ACCORDANCE WITH THE NURSING HOME REFORM ACT (NHRA), THE ADMISSION AGREEMENT SIGNED BY THE NURSING-HOME RESIDENT’S GRANDDAUGHTER DID NOT IMPOSE PERSONAL LIABILITY UPON THE GRANDDAUGHTER FOR PAYMENT OF THE COSTS OF THE RESIDENT’S CARE; THE GRANDDAUGHTER’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED AND THE BREACH-OF-CONTRACT COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the admission agreement signed by the nursing-home resident’s granddaughter (who was appointed guardian of her grandfather’s property) did not impose personal liability upon the granddaughter for payment of the cost of her resident’s care (provided by the plaintiff facility). Therefore, plaintiff should not have seized the granddaughter’s personal funds. The default judgment in favor of plaintiff should have been vacated, and the breach-of-contract complaint should have been dismissed:

… [t]he admission agreement in this case is subject to the Nursing Home Reform Act (hereinafter the NHRA). As relevant here, the NHRA provides that “[w]ith respect to admissions practices, a nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility” … . However, that prohibition “shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident’s income or resources for such care” … .

The admissions agreement set forth the relevant contractual obligations of the granddaughter, and the admissions agreement demonstrates as a matter of law that it did not render the granddaughter a “third party guarantee of payment” … .”The admission[s] agreement merely required the [granddaughter] to facilitate payment from the . . . resident’s available income and resources, and only to the extent that the [granddaughter] had access to such income and resources and only if [the granddaughter] could do so without incurring any personal financial liability” … . …

.. [T]he plaintiff failed to adequately allege a breach of the granddaughter’s contractual obligation to facilitate payment to the plaintiff from the resident’s “income or resources” … . Nassau Operating Co., LLC v DeSimone, 2022 NY Slip Op 04029, Second Dept 6-22-22

Practice Point: The Nursing Home Reform Act (NHRA) prohibits holding a third-party who signs an admission agreement personally liable for the costs of a resident’s care. The agreement may only obligate the third party to pay the costs from the resident’s assets (over which the third party exercises control).

 

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DEFENDANT’S MOTION TO COMPEL PLANTIFF TO APPEAR FOR A PSYCHIATRIC EXAMINATION (INDEPENDENT MEDICAL EXAMINATION [IME]) SHOULD HAVE BEEN GRANTED BECAUSE PLAINTIFF HAD PLACED HER MENTAL CONDITION IN CONTROVERSY; DEFENDANT’S MOTION TO VACATE THE NOTE OF ISSUE SHOULD HAVE BEEN GRANTED BECAUSE DISCOVERY WAS NOT COMPLETE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s motions to compel plaintiff to appear for an independent medical examination (IME) and to vacate the note of issue should have been granted:

We find that plaintiff’s mental condition is, in fact, in controversy. Plaintiff requests compensatory damages only for her alleged emotional distress, and she has testified that she experienced depression, anxiety, and dizziness, as well as headaches brought on by severe mental anguish (CPLR 3121[a]). As a result, a mental examination by a psychiatrist is warranted to enable defendants to rebut plaintiff’s causes of action for emotional distress … .

… [W]e grant defendants’ motion to vacate the note of issue. Contrary to the certificate of readiness, discovery had not been completed, as plaintiff had not yet complied with the court’s directive to submit a Jackson affidavit detailing the process she had undertaken to search her social media post … . Lopez v Bendell, 2022 NY Slip Op 03990, First Dept 6-21-22

Practice Point: Plaintiff had placed her mental condition in controversy by testifying about depression, anxiety, dizziness and headaches caused by mental anguish. Defendant was therefore entitled to compel a psychiatric exam (an independent medical examination [IME]). Here defendant’s motion to vacate the note of issue should have been granted because defendant’s discovery was not complete.

 

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SUPREME COURT DID NOT HAVE THE DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND A COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED FOR LACK OF STANDING BY THE APPELLATE DIVISION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, over a two-justice dissent, determined Supreme Court did not have the discretion to grant leave to amend a complaint which had been dismissed by the First Department for lack of standing. After the appeal, plaintiff had cured the standing defect and Supreme Court allowed the amendment after the time-period to commence a new action (CPLR 205(a)) had expired:

This appeal raises the interesting question of whether a trial court has the discretion to grant a plaintiff leave to amend a complaint, pursuant to CPLR 3025 (b) … , after the Appellate Division has already ordered the complaint dismissed, with direction to enter judgment. We dismissed the complaint because plaintiffs, as non-managing members of a manager-managed Delaware limited liability company, lacked capacity … or standing to act on behalf of the Company when they obtained a Certificate of Revival of the Company before filing a second amended complaint. After plaintiffs purportedly remedied this deficiency of proper standing, they sought to revive the dismissed action by seeking leave to file a third amended complaint. As aforementioned, after we had already ordered the complaint dismissed, the motion court granted plaintiffs leave to file the third amended complaint. At the time plaintiffs sought leave to amend, the time to commence a new action had expired, including the six-month grace period provided by CPLR 205(a). … Under these circumstances, we find that the trial court lacked discretion to grant plaintiffs leave to amend a complaint that had already been dismissed by this Court. * * *

Given this Court’s outright dismissal of the claims based on a finding of lack of standing, there was no action pending when plaintiffs moved for leave to file the third amended complaint. Thus, the trial court lacked any discretion or authority to grant plaintiffs such leave, where we had properly dismissed the second amended complaint before plaintiffs filed the motion to amend … .Favourite Ltd. v Cico, 2022 NY Slip Op 03987, First Dept 6-21-22

Practice Point: Once the complaint was dismissed for lack of standing by the First Department, there was no pending action. Once the time for commencing a new action pursuant to CPLR 205(a) had expired plaintiff was out of luck. Supreme Court did not have the discretion to grant plaintiff’s motion to amend the complaint after it had been dismissed by the First Department.

 

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THE COMPLAINT WAS NEVER PROPERLY AMENDED TO ADD DEFENDANT AS A PARTY PURSUANT TO CPLR 1003 OR CPLR 3025 REQUIRING DISMISSAL (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the action against defendant (Adam) must be dismissed because the complaint was never properly amended to add Adam as a party:

This action must be dismissed as against Adam Max (Adam) because the complaint was never properly amended to add him as a defendant. CPLR 1003 requires leave of court or a stipulation by all parties to add parties, at least where, as here, parties have previously been added. CPLR 3025(a)-(b) similarly requires leave of court or a stipulation by all parties to amend a complaint, at least when done so late in the case. Because this procedure was not followed, the amended complaint must be dismissed, at least as against the newly joined Adam … . ALP, Inc. v Moskowitz, 2022 NY Slip Op 03962, First Dept 6-16-22

Practice Point: Here the amendment of the complaint to add a party was not done by leave of court or a stipulation of all parties/ The action against the added party was dismissed.

 

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THE COVID EXECUTIVE ORDERS REQUIRING A SHUTDOWN AND REOPENING RESTRICTIONS DID NOT TERMINATE PLAINTIFF RETAIL STORE’S LEASE AS A MATTER OF LAW; THE DOCTRINES OF FRUSTRATION OF PURPOSE AND IMPOSSIBILITY DO NOT APPLY (FIRST DEPT).

The First Department determined plaintiff retail store (GAP) was not entitled to a termination of its lease by operation of law based upon the New York governor’s COVID shutdown order and subsequent reopening restrictions. Plaintiff relied on the doctrines of frustration of purpose and impossibility, neither of which was deemed applicable:

Plaintiffs admittedly were allowed to provide curbside and in-store pickup on June 8, 2020, and to reopen at half capacity, with masking and social distancing, on June 22, 2020. Moreover, they represent that they were allowed to reopen fully from June 2021, albeit with the mask requirements reimposed during the winter months. Contrary to plaintiffs’ contention, “frustration of purpose is not implicated by temporary governmental restrictions on in-person operations” … . …

We have already rejected plaintiff Gap’s contention that Executive Order No. 202.8 “rendered it objectively impossible to perform its operations as a retail store” where, as here, Gap filed its complaint after reopening was allowed (Gap, Inc. v 170 Broadway Retail Owner, LLC, 195 AD3d at 577). In addition, even if the reopening restrictions made plaintiffs’ ability to provide a flagship store experience more difficult, the pandemic did not render their performance impossible, as “the leased premises were not destroyed” … . Gap, Inc. v 44-45 Broadway Leasing Co. LLC, 2022 NY Slip Op 03980, First Dept 6-16-22

Practice Point: The COVID executive orders requiring GAP to shutdown its retail store and then imposed restrictions on reopening did not terminate GAP’s lease as a matter of law. The contract-law doctrines of frustration of purpose and impossibility did not apply.

 

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