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THE TWO-JUSTICE DISSENT ARGUED THAT THE MAJORITY ERRONEOUSLY AFFIRMED THE DENIAL OF THE MOTION TO VACATE THE CONVICTION ON A GROUND NOT RELIED UPON BY THE MOTION COURT (FOURTH DEPT). ​

The Fourth Department affirmed the summary denial of defendant’s motion to vacate his conviction on ineffective assistance grounds. Defendant argued his counsel was ineffective because counsel did not object to defendant’s being forced to wear a stun belt. The two-justice dissent noted that the ground on which the majority based its decision, i.e., that defense counsel’s failure to object did not rise to ineffective assistance, was not the ground relied on by the motion court. Therefore, the dissent argued, the appellate court could not affirm on that ground:

From the dissent:

The court summarily denied the motion, concluding in relevant part that defendant is not entitled to relief on his ineffective assistance of counsel claim because we determined on direct appeal that he was not deprived of effective assistance of counsel … . The majority affirms that ruling on another ground, one not argued by the People on appeal—namely, that defense counsel’s failure to object to the stun belt, standing alone, was not such an egregious or prejudicial error as to compromise defendant’s right to a fair trial. Because the court did not deny defendant’s motion on the ground relied upon by the majority, we are precluded from affirming on that ground (see People v Concepcion, 17 NY3d 192, 197-198 [2011]; People v LaFontaine, 92 NY2d 470, 473-474 [1998], rearg denied 93 NY2d 849 [1999]). People v Bradford, 2022 NY Slip Op 02897, Fourth Dept 4-29-22

Practice Point: Although the argument was made in the dissent in this case, it is worth noting that there is authority for the position that an appellate court cannot affirm on a ground not relied upon by the lower court.

 

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TO FACILITATE APPELLATE REVIEW THE JUDGE WHO AWARDED PLAINTIFFS SUMMARY JUDGMENT, ATTORNEY’S FEES AND COSTS SHOULD HAVE WRITTEN A DECISION EXPLAINING THE BURDENS OF PROOF AND REASONING; ISSUING ORDERS WITHOUT AN EXPLANATORY DECISION IS AN “UNACCEPTABLE PRACTICE;” PLAINTIFFS DID NOT SHOW THEIR INTERPRETATION OF THE CONTRACT WAS THE ONLY REASONABLE ONE; THE FRAUDULENT MISREPRESENTATION CAUSE OF ACTION CANNOT BE BASED UPON AN ALLEGED INTENT TO BREACH THE CONTRACT AND WAS NOT SUFFICIENTLY PLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) to facilitate appellate review, the court should have written a decision explaining the burdens of proof and its reasoning in granting plaintiffs summary judgment and awarding attorney’s fees and costs; (2)  the plaintiffs did not demonstrate the contract was unambiguous and therefore were not entitled to summary judgment on the breach of contract claims; and (3) summary judgment should not have been awarded on plaintiffs’ fraudulent misrepresentation cause of action. A fraudulent misrepresentation cause of action cannot be based upon an alleged intent to breach a contract:

Although the court granted plaintiffs’ motion insofar as it sought summary judgment, it failed to address the burdens of proof or any specific cause of action. In addition, the court awarded costs and attorneys’ fees without providing the basis therefor. As noted, this case involved a motion for summary judgment and for costs, attorneys’ fees, and sanctions, and the court chose not to write. This is an unacceptable practice … .. To maximize effective appellate review, we must remind our colleagues in the trial courts to provide their reasoning instead of simply issuing orders.  …

… [P]laintiffs did not meet their initial burden on those parts of the motion seeking summary judgment … inasmuch as plaintiffs failed to submit sufficient evidence to establish that their interpretation of the relevant contracts is the only reasonable interpretation thereof. …

… “[F]ar from being collateral to the contract, the purported misrepresentation was directly related to a specific provision of the contract” … .. In addition, CPLR 3016 (b) provides that, “[w]here a cause of action . . . is based upon . . . fraud, the circumstances constituting the wrong shall be stated in detail,” and we conclude that the cause of action here failed to satisfy that requirement … . Wilsey v 7203 Rawson Rd., LLC, 2022 NY Slip Op 02905, Fourth Dept 4-29-22

Practice Point: Here not only was the judge wrong to award plaintiffs summary judgment, attorney’s fees and costs on the breach of contract and fraudulent misrepresentation causes of act, but the judge made appellate review difficult by issuing orders without a decision explaining the burdens of proof and reasoning, characterized as an “unacceptable practice” by the Fourth Department.

 

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THE CITY COMMISSIONER ORDERED THE DEMOLITION OF A GRAIN ELEVATOR, A CITY LANDMARK, WHICH HAD BEEN DAMAGED BY WIND; SUPREME COURT PROPERLY ORDERED A HEARING ON WHETHER THE COMMISSIONER HAD A RATIONAL BASIS FOR ORDERING DEMOLITION BUT IMPROPERLY PROHIBITED THE PETITIONER FROM PRESENTING EVIDENCE THAT DEMOLITION WAS NOT NECESSARY; NEW HEARING ORDERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering another hearing, determined that the petitioner was entitled to present evidence at the hearing about the Buffalo Commissioner of the City’s Department of Permit and Inspections Services’ (Commissioner’s) ruling that a grain elevator, a City landmark, which was damaged by wind, must be demolished. Supreme Court had confined the hearing to whether the Commissioner had a rational basis for ordering demolition and did not allow the petitioner to submit evidence. Petitioner had submitted with the petition “an unsworn and unsigned expert affidavit from a licensed architect who opined that the Grain Elevator could be adequately repaired and did not need to be demolished:”

We agree with petitioner … that, while petitioner is not entitled to a de novo hearing on the Commissioner’s determination … , the court erred in refusing to consider petitioner’s proposed evidence inasmuch as it should have afforded petitioner the opportunity to submit ” ‘any competent and relevant proof . . . bearing on the triable issue here presented and showing that any of the underlying material on which the [Commissioner] based [his] determination has no basis in fact’ . . . , or that the determination was irrational or arbitrary”  … . Matter of Campaign for Buffalo History, Architecture & Culture, Inc. v City of Buffalo, 2022 NY Slip Op 02927, Fourth Dept 4-29-22

Practice Point: The City Commission ordered the demolition of a city landmark which had been damaged by wind. Petitioner opposed demolition. At the hearing to determine whether there was a rational basis for the Commissioner’s decision, the petitioner was entitled to present evidence demolition was not required. Because Supreme Court did not allow petitioner to present evidence, a new hearing was necessary.

 

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A CORPORATE OFFICER OR SHAREHOLDER CANNOT BE PERSONALLY LIABLE FOR NONFEASANCE (DOING NOTHING), AS OPPOSED MISFEASANCE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the complaint against the individual defendant, John Milevoi, an officer or shareholder of the  property management company, defendant M&L Milevoi Management, must be dismissed. Plaintiff alleged a leak in the ceiling of her apartment caused her slip and fall:

The complaint should be dismissed against the individual defendant John Milevoi, because there is no allegation that his liability stems from an act of misfeasance or malfeasance, as opposed to nonfeasance. A corporate officer or shareholder may not be held personally liable for a failure to act … . Defendant owner and defendant management company, on the other hand, have not established their entitlement to judgment as a matter of law. De Barcacel v 1015 Concourse Owners Corp., 2022 NY Slip Op 02869, First Dept 4-28-22

Practice Point: A corporate officer or shareholder cannot be personally liable for nonfeasance (doing nothing), as opposed to misfeasance. The complaint against the corporate officer or shareholder here was dismissed. But the complaint against the corporation was not. The corporation is a property management company and plaintiff’s slip and fall complaint alleged there was a water leak in her apartment.

 

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PLAINTIFF’S DECEDENT WAS IN THE ELEVATOR SHAFT WHEN THE ELEVATOR, OPERATING NORMALLY, DESCENDED AND CRUSHED HIM; THE ELEVATOR WAS NOT A “FALLING OBJECT” WITHIN THE MEANING OF LABOR LAW 240(1); COMPLAINT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the elevator which descended and crushed plaintiff’s decedent, who had entered the shaft, was not a “falling object” within the meaning of Labor Law 240(1). Therefore the complaint against defendants must be dismissed:

Plaintiff’s decedent, an elevator mechanic, entered an elevator shaft on the lobby level, under an elevator that he had sent to one of the floors above. After the shaft doors closed, the call button was pressed, and the elevator descended to the lobby, crushing the decedent. The parties agree that the elevator was working normally, in the “automatic” setting, at the time of the accident.

The Labor Law § 240(1) claim must be dismissed because the elevator did not “fall” as a result of the force of gravity but descended in automatic mode, as it was designed to do … . Luna v Brodcom W. Dev. Co. LLC, 2022 NY Slip Op 02873, First Dept 4-28-22

​Practice Point: In order to be covered under Labor Law 240(1), this elevator accident must have been the result of the elevator “falling.” Because the elevator was descending normally when it struck and killed plaintiff, the complaint was dismissed.

 

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PLAINTIFF’S FALLING INTO A HOLE ON THE PREMISES AFTER HIS TRUCK WAS LOADED WAS NOT THE RESULT OF “USE” OF THE TRUCK WITHIN THE MEANING OF THE INSURANCE POLICIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s falling into a hole after he was finished loading his truck did not result from his “use” of the truck within the meaning of the applicable insurance policies:

While “use” of an automobile includes loading and unloading , an accident does not arise from the “use” of an automobile merely because it occurs during the loading or unloading process, but rather “must be the result of some act or omission related to the use of the vehicle” … . Tishman Constr. Corp. v Zurich Am. Ins. Co., 2022 NY Slip Op 02886, First Dept 4-28-22

Practice Point: Here plaintiff’s falling into a hole on the premises after he had loaded his truck did not result from “use” of the truck within the meaning of the insurance policies.

 

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PLAINTIFF DANCER STATED CAUSES OF ACTION AGAINST DEFENDANT DANCER AND THEIR EMPLOYER, THE NEW YORK CITY BALLET (NYCB), IN CONNECTION WITH INTIMATE IMAGES ALLEGEDLY DISCLOSED BY THE DEFENDANT DANCER (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, determined plaintiff, Waterbury, stated causes of action for: (1) violation of the NYC Administrative Code provision which prohibits the disclosure of intimate images without consent; (2) intentional infliction of emotional distress; and (3) negligent hiring, supervision and retention. The plaintiff (Waterbury) was a dancer with the defendant New York City Ballet (NYCB). The defendant Finlay, who allegedly disclosed the images, was also a NYCB dancer. The negligent hiring cause of action is against NYCB as the defendant-dancer’s employer:

Waterbury’s allegations that images depict her engaged in sexual activity suffice (see Administrative Code § 10-180 [a] …). Construing the complaint liberally and according Waterbury “the benefit of every possible favorable inference” … , the allegations that Finlay shared images of her breasts are also sufficient (see Administrative Code § 10-180 [a] …). …

Waterbury also sufficiently alleges that Finlay intended to cause her economic, physical, or substantial emotional harm. “A result is intended if the act is done with the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue” … . …

Waterbury alleges that NYCB dancers and others affiliated with NYCB shared images and commentary regarding other women and that NYCB knew that Finlay and other dancers were degrading and exploiting young women. She asserts that NYCB implicitly encouraged this behavior. Waterbury states that NYCB knew of Finlay’s sexual conduct towards young women and took no steps to prevent such conduct. Waterbury v New York City Ballet, Inc., 2022 NY Slip Op 02890, First Dept 4-28-22

​Practice Point: The NYC Administrative Code prohibits the disclosure of intimate images without consent. Here the complaint stated a cause of action based on an alleged violation of that code provision.

 

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STAFFING COMPANY WHICH SCREENED JOB APPLICANTS FOR ITS CLIENTS WAS NOT AN EMPLOYER LIABLE FOR UNEMPLOYMENT INSURANCE CONTRIBUTIONS (THIRD DEPT). ​

The Third Department, reversing the Unemployment Insurance Appeal Board, determined Strikeforce Staffing was not an employer of the persons for whom it found employment with its clients. Therefore, Strikeforce was not liable for additional unemployment insurance contributions on remuneration paid to the claimant and others similarly situated:

Strikeforce recruited job seekers for its clients, businesses in need of workers, by placing advertisements on various websites. For example, claimant completed an application on Indeed.com for a line production position at a bakery. Strikeforce would first screen a job seeker’s application to see if he or she potentially met a client’s needs and, if so, send the individual for an interview with the client. The client would make a hiring decision and, according to the testimony of the owner and operator of Strikeforce, Strikeforce clients did not hire about 30% to 40% of the applicants referred to them. If hired, the client, not Strikeforce, would provide the worker with his or her rate of pay, which the worker was free to negotiate with the client, and the worker’s schedule. * * *

As Strikeforce does not exercise any control over the manner in which the workers hired by its clients perform their services, the means used to supply those services or the results produced, we cannot find that there is substantial evidence to support the Board’s determination that Strikeforce exercised sufficient direction, supervision and control over claimant, and those similarly situated, to demonstrate an employment relationship … . Matter of Cruz (Strikeforce Staffing LLC–Commissioner of Labor), 2022 NY Slip Op 02849, Third Dept 4-28-22

Practice Point: A staffing company which screens job applicants for its clients but which exercises no supervisory control over the applicants who are hired is not liable for unemployment insurance contributions.

 

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PLAINTIFFS HAD STANDING TO CHALLENGE THE TRUST SET UP BY DECEDENT; PLAINITIFFS DID NOT STATE A CAUSE OF ACTION FOR FRAUD BECAUSE IT WAS ALLEGED THE DECEDENT (A THIRD PARTY), NOT THE PLAINTIFFS, RELIED ON THE ALLEGEDLY FALSE STATEMENT; THE COMPLAINT STATED A CAUSE OF ACTION ALLEGING DEFENDANTS EXERCISED UNDUE INFLUENCE OVER THE DECEDENT WHICH AFFECTED THE DECEDENT’S ESTATE-RELATED DECISIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) the complaint did not state a cause of action for fraud because it was alleged a third-party (the decedent), not plaintiffs, relied upon the alleged false statement; (2) the complaint stated a cause of action for “undue influence” on the decedent by the defendants; and (3), the plaintiffs had standing to challenge the validity of the trust set up by the decedent. It was alleged that the decedent made decisions about the disposition of his assets based upon the false assertion that his daughter-in-law killed his son:

Here, as the grandchildren were given specific bequests in decedent’s … last will and testament, and the instrument creating the trust … reserved to decedent a limited power of appointment to name his grandchildren as possible beneficiaries of trust assets upon his death, the grandchildren are interested persons within the meaning of the SCPA, so plaintiffs have capacity to challenge the validity of the trust … . …

… [P]laintiffs cannot state a cause of action for fraud because the Court of Appeals has expressly declined “to extend the reliance element of fraud to include a claim based on the reliance of a third party” … . … As to plaintiffs’ cause of action asserting undue influence, plaintiffs’ broadly-stated theory is that, upon the death of the deceased son, the previously absent defendants drove a wedge between the daughter-in-law and decedent, took control of decedent’s caretaking as he aged and grew infirm and then moved him into defendants’ home where decedent created the trust and conveyed into it his assets to benefit defendants and the son upon his death. … [A]ffording the plaintiffs the benefit of every favorable inference … , we find that such allegations are enough to assert a cause of action for undue influence … . Constantine v Lutz, 2022 NY Slip Op 02842, Third Dept 4-28-22

Practice Point: To state a cause of action for fraud, it must be alleged the plaintiff(s), not a third party (the decedent in this case), relied on the alleged false statement. Here plaintiffs alleged the decedent made estate-related decisions based upon the false statement that his daughter-in-law killed his son. Because of the absence of the “reliance” element of fraud, that cause of action was properly dismissed.

 

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THE MODIFICATION OF THE GUARDIANSHIP ORDER MUST BE IN THE BESTS INTEREST OF THE DEVELOPMENTALLY DISABLED PERSON; HERE THE APPOINTMENT OF STEPFATHER AS LIMITED COGUARDIAN CONSTITUTED A CHANGE THAT WAS NOT IN THE DISABLED PERSON’S BEST INTERESTS BECAUSE CONSISTENCY IN ROUTINE AND REGIMEN WAS PARAMOUNT (THIRD DEPT).

The Third Department, modifying Surrogate’s Court, determined the appointment of the stepfather as limited cogurdian of Jonathan JJ, a developmentally disable adult, was not in Jonathan’s best interests. Jonathan had apparently thrived with his father as guardian and his stepfather had not seen Jonathan since 2009:

… Surrogate’s Court granted the father’s petition for coguardianship of the person and property of Jonathan JJ. along with the Commissioner. The court also appointed the stepfather as a limited coguardian with the ability to attend only the medical appointments of Jonathan JJ. The father appeals, arguing that Surrogate’s Court erred in appointing the stepfather as a limited coguardian.

In order to modify an existing guardianship order, it must be shown that such change would further the best interests of the person who is intellectually or developmentally disabled … . Such a modification is warranted where it is necessary to protect the “‘personal and/or financial interests'” of the person with a disability … , or “as may be deemed necessary or proper for the welfare” of such person … . …

The testimony elicited at the hearing demonstrated that Jonathan JJ. has thrived from consistency in his routine and regimen. In that regard, his outbursts were a primary concern among his treatment providers, and the routine that was put in place, together with management by medical personnel, helped control the outbursts, as well as contributed to other positive physical, medical and cognitive improvements in his life. Matter of Jonathan JJ. (Alan JJ.–Caren KK.), 2022 NY Slip Op 02837, Third Dept 4-28-22

Practice Point: Any modification of an existing guardianship of a developmentally disabled adult must be found to be in the disabled person’s best interests. Here consistency in regimen and routine was paramount. The appointment of stepfather, who had not seen the disabled person since 2009, as limited coguardian was deemed a change that would disrupt the successful regimen and routine.

 

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