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ABSENT A SHOWING OF GOOD CAUSE FOR THE DELAY, A MOTION TO SET ASIDE A VERDICT MADE MORE THAN 15 DAYS AFTER THE VERDICT WAS RENDERED SHOULD NOT BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to set aside the verdict as against the weight of the evidence should not have been granted because it was made more than 15 days after the jury verdict:

The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4404(a) as untimely, as it was made more than 15 days after the jury verdict was rendered, without good cause shown for the delay … . Galarza v Heaney, 2022 NY Slip Op 02395, Second Dept 4-13-22

Practice Point: A motion to set aside a verdict made more than 15 days after the verdict was rendered, without a demonstration of good cause for the delay, should not be granted.

 

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HERE PLAINTIFF’S ATTORNEY OFFERED A DETAILED, CREDIBLE EXPLANATION OF THE LAW OFFICE FAILURE WHICH RESULTED IN MISSING THE DEADLINE FOR PROVIDING DISCOVERY, AS WELL AS THE DEMONSTRATION OF POTENTIALLY MERITORIOUS CAUSES OF ACTION; DEFENDANTS’ MOTIONS TO ENFORCE THE PRECLUSION ORDER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney offered a reasonable “law office failure” excuse for not complying with a discovery deadline (conditional order of preclusion):

“The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” … . “Conversely, where a claim of law office failure is conclusory and unsubstantiated or lacking in credibility, it should be rejected” … .

Here, in opposition to the defendants’ separate motions, inter alia, in effect, to enforce the conditional order, the plaintiff’s counsel provided a detailed and credible explanation of the law office error that resulted in the failure to comply with the conditional order … . The plaintiff also demonstrated potentially meritorious causes of action … . Fortino v Wheels, Inc., 2022 NY Slip Op 02393, Second Dept 4-13-22

​Practice Point: Here counsel offered a detailed, credible explanation for law office failure (failure to comply with a deadline for discovery). That explanation was coupled with the demonstration of potentially meritorious causes of action. Defendant’s motion to enforce the conditional preclusion order should not have been granted.

 

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THE BANK IN THIS FORECLOSURE ACTION SENT THE RPAPL 1304 NOTICE TO BOTH BORROWERS IN THE SAME ENVELOPE, A VIOLATION OF THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank did not comply with the notice requirements of RPAPL 1304, specifically the “separate envelope for each borrower” rule:

…[T]he plaintiff failed to establish its strict compliance with RPAPL 1304. Although the plaintiff demonstrated that it mailed the RPAPL 1304 notice to the defendants by both certified and first-class mail … , and that the contents of the notice complied with RPAPL 1304(1), the plaintiff failed to establish that it sent a 90-day notice individually addressed to each defendant in separate envelopes, as required by the statute … . Instead, as the plaintiff concedes, the notice was mailed in a single envelope jointly to both defendants. Deutsche Bank Natl. Trust Co. v Loayza, 2022 NY Slip Op 02392, Second Dept 4-13-22

​Practice Point: In a foreclosure action, the RPAPL 1304 notice must be sent in a separate envelope to each borrower.

 

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PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:

… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal. Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22​

Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.

 

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BOARDING UP A VACANT HOUSE WAS WITHIN THE SCOPE OF LABOR LAW 240(1) AND 241(6) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s work, boarding up a vacant house to prevent access, was within the scope of work covered by Labor Law 240 (1) and Labor Law 241(6). Plaintiff allegedly fell from a ladder when attempting to board up a window:

… [P]laintiff’s work of boarding up the house, thus making it uninhabitable, was “altering” the premises within the meaning of Labor Law § 240(1), as it constituted a significant physical change to the configuration or composition of the building … .. Further, as the work the plaintiff was engaged in constituted “alteration,” it was within the scope of “construction work” for purposes of Labor Law § 241(6) … . Nucci v County of Suffolk, 2022 NY Slip Op 02423, Second Dept 4-13-22

​Practice Point: Boarding up a vacant house is covered by Labor Law 240(1) and 241(6).

 

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DEFENDANTS WERE UNABLE TO COMPLETE DISCOVERY BECAUSE OF PLAINTIFF’S ILLNESS AND THE COVID-19 SHUTDOWN; DEFENDANTS’ MOTION TO EXTEND THE TIME FOR FILING A SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to extend the time for making a summary judgment, for reasons related to COVID-19, should have been granted:

… [T]he defendants submitted evidence showing that after their prior motion was decided, the plaintiff did not attend scheduled independent medical examinations because of illness and that discovery was further delayed by the COVID-19 shutdown. As a result, the defendants established good cause for their failure to timely move for summary judgment … . Under these COVID-19-related circumstances, the Supreme Court improvidently denied those branches of the defendants’ motion which were for leave to renew those branches of their prior motion which were to vacate the note of issue and certificate of readiness and extend the time to move for summary judgment. Upon renewal, the court should have granted those branches of the defendants’ motion which were to vacate the note of issue and certificate of readiness and to extend the time to move for summary judgment. We therefore remit the matter to the Supreme Court, Kings County, for the selection of a new date by which summary judgment motions shall be filed…. . Newfeld v Midwood Ambulance & Oxygen Serv., Inc., 2022 NY Slip Op 02422, Second Dept 4-13-22

​Practice Point: The COVID-19 shutdown was a valid excuse for defendants’ inability to complete discovery. Defendants’ motion to extend the time to file a summary judgment motion should have been granted.

 

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MOTHER’S MARIJUANA USE DURING PREGNANCY AND THE FACT THAT MOTHER AND CHILD TESTED POSITIVE FOR MARIJUANA AT THE TIME OF THE CHILD’S BIRTH WERE NOT SUFFICIENT TO DEMONSTRATE NEGLECT; NEW YORK HAS LEGALIZED MARIJUANA USE (FIRST DEPT).

The First Department, reversing Family Court, determined mother’s marijuana use during pregnancy, and the fact that mother and the child tested positive for marijuana at the time of birth, were insufficient to demonstrate neglect:

… [T]he evidence that the mother smoked marijuana while pregnant with her youngest daughter, and that the mother and child both tested positive for marijuana at the time of the birth, is insufficient, in and of itself, to sustain a finding that the child was physically, mentally or emotionally impaired, or was in imminent danger of being impaired … . Here, as acknowledged by the agency, there was no evidence that the mother’s marijuana use impacted her judgment or behavior, or that the child was impaired or placed in imminent risk of impairment by the mother’s drug use … . Furthermore, the finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with this State’s public policy legalizing marijuana, as reflected in the recent amendment to the Family Court Act (Family Court Act § 1046[a][iii] …). Matter of Saaphire A.W. (Lakesha B.), 2022 NY Slip Op 02382, First Dept 4-12-22

Practice Point: Because marijuana use has been legalized, proof mother smoked marijuana and mother and child tested positive for marijuana at the time of birth was not enough to demonstrate neglect. There must be proof, for example, that mother’s judgment was affected or the child was harmed in some way.

 

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THE PEOPLE’S APPLICATION FOR A PROTECTIVE ORDER PRECLUDING DISCLOSURE OF CERTAIN DISCOVERABLE MATERIALS TO THE DEFENDANT UNTIL A WEEK BEFORE TRIAL SHOULD HAVE BEEN PROVIDED TO DEFENSE COUNSEL TO ALLOW THE ISSUES TO BE FULLY LITIGATED; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing (modifying) the protective order upon an expedited review (CPL 245.70), determined that defense counsel should have been provided with the People’s application to withhold certain discoverable materials from the defendant until a week before trial:

Inasmuch as the People offered no basis to withhold these materials from defense counsel and, in fact, pursuant to the proposed order submitted by the People, defense counsel would be permitted to access them as soon as County Court signed the order, the better practice would have been to permit defense counsel access to the application and materials prior to the hearing on the protective order so that counsel could participate in it to the fullest extent practicable. …

Defense counsel should, with the appropriate caveat not to disclose them to or discuss their contents with his client pending determination of the application, be permitted to view the application and the materials at issue and thereby meaningfully participate in the hearing before County Court in order to advocate on behalf of his client and assist in reaching an appropriate outcome. Accordingly, the instant application should be granted and the matter remitted for a new hearing following further disclosure to defense counsel. People v Escobales, 2022 NY Slip Op 02354, Third Dept 4-8-22

Practice Point: Here County Court should have disclosed to defense counsel the People’s application to withhold certain discoverable materials from the defendant until a week before trial. Without the application, defense counsel could not fully litigate the issues. (The People had no objection to disclosing the withheld materials to defense counsel as soon as the requested order of protection was signed.)

 

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LOSS OF RESTAURANT CUSTOMERS DUE TO COVID DOES NOT CONSTITUTE “DIRECT PHYSICAL LOSS OR DAMAGE” WITHIN THE MEANING OF THE BUSINESS-INTERRUPTION INSURANCE POLICY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, determined plaintiff’s allegation his restaurant lost business because of COVID did not constitute “direct physical loss or damage” within the meaning of the business-interruption insurance policy:

This appeal concerns the issue of whether the actual or possible presence of COVID-19 in plaintiff’s restaurants caused “direct physical loss or damage” to its property, within the meaning of the insurance policy that plaintiff purchased from defendant. The issue of whether business interruptions due to COVID-19 is caused by direct “physical” damage to property presents an issue of first impression for an appellate court in New York. This Court has, however, previously construed the phrase “direct physical loss or damage” in other contexts involving similar insurance contracts. As more fully explained below, we hold that where a policy specifically states that coverage is triggered only where there is “direct physical loss or damage” to the insured property, the policy holder’s inability to fully use its premises as intended because of COVID-19, without any actual, discernable, quantifiable change constituting “physical” difference to the property from what it was before exposure to the virus, fails to state a cause of action for a covered loss. Consolidated Rest. Operations, Inc. v Westport Ins. Corp, 2022 NY Slip Op 02336, First Dept 4-7-22

​Practice Point: Plaintiff alleged his restaurant lost business due to COVID. The business-interruption insurance policy does not cover the loss.

 

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PLAINTIFF STATED A HOSTILE WORK ENVIRONMENT CAUSE OF ACTION WITH THE ALLEGATION (AMONG OTHERS) THAT HIS ACCENT WAS MOCKED, BUT PLAINTIFF DID NOT DEMONSTATE HIS DEMOTION WAS RELATED TO SUCH ANIMUS; THERFORE THE DISCRIMINATION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s employment discrimination claims under the NYS and NYC Human Rights Law stemming from his demotions should have been dismissed:

The discrimination claims should not have been allowed to proceed. Defendants proffered evidence supporting several legitimate reasons for demoting him from his provisional managerial position, including (1) an agency-wide restructuring, (2) plaintiff’s lack of accounting and management skills, and (3) evidence that he was a poor manager whose routinely hostile demeanor demoralized his subordinates, as evidenced by complaints made against him by several of those subordinates …  In the face of this evidence, plaintiff failed to come forward with any evidence raising an issue of fact as to whether these reasons were mere pretext for discrimination (under the State HRL) or whether discrimination was one of the motivating factors for the demotion (under the City HRL) … . Plaintiff presented no evidence of any disparity between defendants’ treatment of him and defendants’ treatment of employees of other races or ethnicities under similar circumstances. While plaintiff’s allegations of remarks that could be interpreted as derogatory or indicative of animus suffice to support the hostile work environment claim … plaintiff fails to identify any evidence connecting such animus, if any, to the decision to demote him … . Kwong v City of New York, 2022 NY Slip Op 02342, First Dept 4-7-22

Practice Point: Facts sufficient to state a cause of action for a hostile work environment do not necessarily state a cause of action for employment discrimination. A connection must be made between the hostile work environment claims (here allegations plaintiff’s accent was mocked) and the discrimination (here a demotion).

 

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