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THE WORKERS’ COMPENSATION BOARD HAD PREVIOUSLY HELD THAT, IN A HEARING-LOSS CASE, THE FAILURE TO INCLUDE THE AUDIOGRAM (HEARING TEST) WITH THE INDEPENDENT MEDICAL EXAMINATION RECORD PRECLUDES CONSIDERATION OF THE EXPERT EVIDENCE; THE AUDIOGRAM WAS NOT INCLUDED HERE AND THE BOARD DID NOT EXPLAIN ITS DEPARTURE FROM PRECEDENT (BY CREDITING THE EXPERT EVIDENCE); DETERMINATION REVERSED (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board in this hearing-loss case, determined the carrier’s expert’s (Arick’s) failure to include the audiogram (hearing test) with the independent medical examination (IME) record required that the expert’s evidence be precluded. There was precedent to that effect and the board did not explain its departure from precedent:

Arick could not explain during his testimony, however, why a copy of his audiogram was neither provided with his IME report nor present in the Board’s file, and claimant’s counsel continued to raise this point during the hearing, on administrative appeal to the Board and now again before this Court. As claimant argues, the Board has previously determined that where an audiogram test providing the basis for a physician’s SLU [schedule loss of use] finding does not accompany the IME report and is not submitted to the Board file, that physician’s IME report and findings must be precluded … . …

The Board failed to address claimant’s contention regarding the omission of Arick’s audiogram from his IME and the record and, as such, has not provided a rational explanation for departing from its prior decision requiring that an audiogram be submitted to the Board with the IME report (see Workers’ Compensation Law § 137 [1] [a]; 12 NYCRR 300.2 [d] [4] [iii], [iv]; [12]). Inasmuch as the Board has not provided a rational basis for departing from its own precedent, its decision must be reversed … . Matter of Cala v PAL Envtl. Safety Corp., 2022 NY Slip Op 01498, Third Dept 3-10-22

Practice Point: If the Workers’ Compensation Board departs from its own precedent without explanation, the determination will be reversed.

 

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TENANTS’ CAUSES OF ACTION FOR TENANT (STATUTORY) HARASSMENT, PRIVATE NUISANCE, ASSAULT, BREACH OF THE WARRANTY OF HABITABILITY, AS WELL AS THE CLAIM FOR PUNITIVE DAMAGES, REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court, reinstated plaintiffs-tenants’ causes of action for statutory harassment, private nuisance, assault, breach of the warranty of habitability, as well as the demand for punitive damages, in this action by tenants against the landlord alleging both habitability-issues and the landlord’s imminent threat to use force. With respect to the tenant (statutory) harassment cause of action, the court wrote:

Plaintiffs alleged … there were repeated interruptions of essential services such as heat, hot water, gas, and electricity, as well as disruptions in elevator service, phone, television, and internet service; large amounts of construction dust, including lead dust, in the public hallways; flooding and mold on the tenth floor; rat and vermin infestations; a lack of building security in the lobby and a lack of a fire safety system. * * *

The complaint states a cause of action for harassment under Administrative Code of City of NY §§ 27—2005(d) and 27—2115(m), as Supreme Court is “a court of competent jurisdiction” for the purposes of Administrative Code § 27—2115(m)(2) … . Contrary to the motion court’s determination, the statute expressly provides that only claims arising [from conditions in the building, that is, under subparagraphs b, c, and g of Administrative Code § 27-2004(a)(48)(ii), require the existence of a predicate violation to state a claim for harassment. Here, plaintiffs assert their first cause of action under Administrative Code § 27-2004(a)(48)(ii)(a), based on allegations that defendant Chelsea Hotel Owner, LLC’s principal, defendant Ira Drukier, was “making express or implied threats that force will be used” against plaintiffs, and therefore no predicate violation was required for this cause of action. …

On the third cause of action, for harassment arising from deprivation of services, plaintiffs state a claim under the statute by asserting that the alleged conditions were the subject of violations that, if established, would support a claim for harassment (see Robinson v Day, 103 AD3d 584, 587 [1st Dept 2013] [“A complaint need only ‘allege the misconduct complained of in sufficient detail to inform the defendants of the substance of the claims'”]). Evidence of the specific violations issued in connection with the alleged conditions may be obtained in discovery as contemplated by the statute (see Administrative Code § 27-2115[h][2][ii]). Berg v Chelsea Hotel Owner, LLC, 2022 NY Slip Op 01511. First Dept 3-10-22

Practice Point: The courts have recently been fleshing out the proof requirements for tenant (statutory) harassment under the NYC Administrative Code. Here, both the habitability issues and the landlord’s assaultive behavior (imminent threat of force) fit into the criteria for a valid tenant (statutory) harassment cause of action.

 

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THE PROPERTY OWNER AND GENERAL CONTRACTOR FAILED TO DEMONSTRATE THAT THE INDUSTRIAL CODE PROVISION REQUIRING EMPLOYERS TO ENSURE THE FLOOR AT THE WORK SITE IS NOT SLIPPERY DID NOT APPLY TO THE FLOOR OF A TRUCK OWNED AND OPERATED BY A THIRD PARTY WHICH DELIVERED MATERIALS TO THE WORK SITE; HERE PLAINTIFF ALLEGED HE SLIPPED AND FELL ON OIL ON THE FLOOR OF THE TRUCK AS HE WAS ATTEMPTING TO UNLOAD IT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant property owner and general contractor were not entitled to summary judgment on the Labor Law 241(6) cause of action, even though plaintiff’s slip and fall was allegedly caused by oil on the floor of a truck used to deliver elevator components to the work site:

Habberstad [the property owner] and T.G. Nickel [the general managger] failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on 12 NYCRR 23-1.7(d) insofar as asserted against each of them. Section 23-1.7(d) of the Industrial Code provides that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.” Here, contrary to the Supreme Court’s conclusion, Habberstad and T.G. Nickel failed to make a prima facie showing that the floor of the truck on which the injured plaintiff was performing work was not the type of surface contemplated under section 23-1.7(d) … . Schutt v Dynasty Transp. of Ohio, Inc., 2022 NY Slip Op 01473, Second Dept 3-9-22

Practice Point: The Industrial Code provision requiring employers to ensure floors at the work site are not slippery may apply to the floors of trucks used to deliver material to the work site. Here the plaintiff alleged he slipped and fell on oil on the floor of a truck he was attempting to unload. The appellate court determined the property owner’s and the general contractor’s motions for summary judgment on the Labor Law 241(6) cause of action should not have been granted.

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THE PEOPLE’S APPLICATION FOR AN UPWARD DEPARTURE IN THIS SORA RISK ASSESSMENT PROCEEDING WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).

The Second Department, reversing (modifying) County Court determine the proof submitted by the People did not support the application for an upward departure in this SORA risk assessment proceeding:

… County Court erred in granting the People’s application for an upward departure. The People failed to prove the facts in support of their proffered aggravating factor, including that the defendant engaged in unprotected sexual conduct with the victim, by clear and convincing evidence … . People v Paterno, 2022 NY Slip Op 01470, Second Dept 3-9-22

Practice Point: Any application by the People for an upward departure in a SORA risk assessment proceeding must be supported by clear and convincing evidence. Here the People’s upward departure application alleged defendant had unprotected sex with the 15-year-old victim. The appellate court determined the allegation was not supported by clear and convincing evidence.

 

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THE UNION’S CLAIM THAT THE COUNTY EMPLOYEE, A SEASONAL EMPLOYEE, SHOULD BE CLASSIFIED AS FULL-TIME BECAUSE HE WORKED 40 HOURS-A-WEEK WAS NOT ARBITRABLE BECAUSE CIVIL SERVICE LAW SECTION 22 PROVIDES THAT RECLASSIFICATION OF A CIVIL SERVICE POSITION CAN ONLY BE DONE BY THE MUNICIPAL CIVIL SERVICE COMMISSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the grievance filed on behalf of a county employee was not arbitrable because the relief required reclassification of a civil service position:

The respondent Joseph W. Grzymalski began to work for the petitioner, the County of Nassau, on June 28, 2013. He was classified as a seasonal worker and allegedly worked 40 hours per week until his employment was terminated on July 3, 2018.

… [T]he respondent Civil Service Employees Association, AFSCME, Local 1000, AFL-CIO, by its Local 830 (hereinafter CSEA), on behalf of Grzymalski, filed a grievance claiming that because Grzymalski worked 40 hours per week, he was entitled to “full time benefits and status.” …

In determining whether a dispute between a public sector employer and employee is arbitrable, a court must first determine whether “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . …

… [T]he respondents are essentially seeking a reclassification of Grzymalski’s position from seasonal to full time. Since the reclassification of a civil service position can only be accomplished by the municipal civil service commission (see Civil Service Law § 22), the subject grievance is nonarbitrable … . Matter of County of Nassau v Civil Serv. Empls. Assn., Civ. Serv. Empls. Assn., AFSCME, Local 1000, AFL-CIO, 2022 NY Slip Op 01453, Second Dept 3-9-22

Practice Point: Civil Service Law section 22 requires that any reclassification of a public sector employee’s position be done by the municipal civil service commission. Therefore, because there was a statutory prohibition, the request to classify the “seasonal” county employee as a full-time employee was not arbitrable.

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THE PETITION BROUGHT BY THE EXECUTOR PURSUANT TO SCPA 2103 SOUGHT DISCOVERY AND THE TURNOVER OF ANNUITY FUNDS WHICH HAD BEEN TRANSFERRED TO APPELLANT; THE SCPA 21O3 ACTION IS LIKE AN ACTION FOR CONVERSION OR REPLEVIN AND HAS A THREE-YEAR STATUTE OF LIMITATIONS; HERE THE MOTIONS TO AMEND THE ANSWERS TO ASSERT THE STATUTE OF LIMITATIONS DEFENSE AND FOR SUMMARY JUDGMENT ON THAT GROUND SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the appellant’s motion to amend their answers to assert the statute of limitations defense, and the summary judgment dismissing the petition on that ground should have been granted. The petition, brought by the executor pursuant to SCPA 2103, sought discovery and the turnover of funds from an annuity which had been distributed:

… [T]he Surrogate’s Court should have granted that branch of the appellants’ motion which was for leave to amend their answers to add the affirmative defense of the statute of limitations. The petitioner failed to demonstrate that she would be prejudiced or surprised by the proposed amendment. The petitioner also failed to demonstrate that the proposed amendment was palpably insufficient or patently devoid of merit.

“A discovery proceeding pursuant to SCPA article 21 has been likened to an action for conversion or replevin and a three-year statute of limitations has been applied” … . “A conversion cause of action accrues and the limitations period begins to run on the date the conversion allegedly occurred”… . Here, the appellants produced evidence … that the annuity funds at issue were withdrawn and deposited into a joint bank account … [and] then transferred into a personal account … on December 31, 2012, and January 3, 2013. Since the petition was not filed until June 23, 2016, the appellants demonstrated, prima facie, that the petitioner’s claim was time-barred.

… [T]he petition did not allege a cause of action sounding in fraud or breach of fiduciary duty. Moreover, even if the petition had alleged breach of fiduciary duty, the applicable statute of limitations would still be three years because the petition sought money damages only and fraud was not essential to the claim … . Matter of Chustckie, 2022 NY Slip Op 01452, Second Dept 3-9-22

Practice Point: An action by an executor of an estate pursuant to SCPA 2103 seeking the turnover of funds already distributed is in the nature of a conversion or replevin action and has a three-year statute of limitations.

 

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EVEN THOUGH PLAINTIFF DID NOT TIMELY FILE A NOTE OF ISSUE AND DID NOT COMPLY WITH A PRIOR DISCOVERY ORDER, THE JUDGE WAS WITHOUT AUTHORITY TO, SUA SPONTE, DISMISS THE COMPLAINT BECAUSE PLAINTIFF HAD NOT BEEN SERVED WITH A VAILD 90-DAY DEMAND TO FILE A NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint on the ground plaintiff failed to timely file a note of issue and failed to comply with a prior discovery order because plaintiff had not been served with a valid 90-day notice:

The Supreme Court improperly, sua sponte, directed dismissal of the complaint on the ground that the plaintiff failed to timely file a note of issue and failed to comply with a prior discovery order of the court. Because the plaintiff was not served with a valid 90-day demand to file a note of issue pursuant to CPLR 3216(b)(3), the court had no authority to dismiss the complaint based on the failure to timely file a note of issue … . Further, the plaintiff’s alleged failure to comply with the discovery order did not constitute extraordinary circumstances warranting the sua sponte dismissal of the complaint … .Moreau v Cayton,, 2022 NY Slip Op 01450, Second Dept 3-9-22

Practice Point: The judge did not have the authority to, sua sponte, dismiss the complaint, even though plaintiff had not timely filed a note of issue and had not complied with a prior discovery order, because the plaintiff had not been served with a valid 90-day demand to file a note of issue.

 

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PLAINTIFF ROOFER WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BECAUSE HE FELL THROUGH AN UNPROTECTED HOLE IN THE ROOF WHICH WAS COVERED ONLY BY A SHEET OF BLACK PLASTIC; THE FACT THAT PLAINTIFF HAD UNTIED HIS SAFETY HARNESS SO HE COULD ASSIST A CO-WORKER DID NOT PRECLUDE SUMMARY JUDGMENT BECAUSE COMPARATIVE NEGLIGENCE IS NOT RELEVANT UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the fact that plaintiff untied his harness so he could assist a fellow roofer in another area of the roof did not preclude summary judgment in plaintiff’s favor on the Labor Law 240(1) cause of action. Plaintiff, when walking toward the co-worker he was going to assist, fell through a hole in the roof that was concealed by a sheet of black plastic:

… [T]he plaintiff established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injuries. The undisputed evidence established that the plaintiff was exposed to the elevation-related risk of the hole that was cut into the roof, that the hole through which the plaintiff fell was uncovered and unguarded, and that the location of the hole was concealed by an ice and water shield. The plaintiff established that the absence of protective equipment covering or guarding the hole was a proximate cause of his injuries. Indeed, in granting summary judgment on the issue of liability on the Labor Law § 241(6) cause of action, the Supreme Court found that the defendants failed to cover or guard the hole as required by the Industrial Code, and that such failure was a proximate cause of the plaintiff’s injuries. “[W]hen the evidence establishes the absence of any safety devices . . . the statutes’ [Labor Law § 240(1)] clear dictates have not been met. . . If proximate cause is established, the responsible parties have failed, as a matter of law, to ‘give proper protection'” … .

… [T]he defendants failed to raise a triable issue of fact as to whether there was a statutory violation and whether the plaintiff’s own conduct was the sole proximate cause of the accident … . Since the plaintiff established a violation of the statute and that the violation was a proximate cause of his fall, the plaintiff’s comparative negligence, if any, is not a defense to the Labor Law § 240(1) cause of action … . Mejia v 69 Mamaroneck Rd. Corp, 2022 NY Slip Op 01449, Second Dept 3-9-22

Practice Point: Plaintiff fell through an unprotected hole in the roof covered only by a sheet of black plastic. Even though he had untied his safety harness at the time of the fall, summary judgment on his Labor Law 240(1) cause of action was awarded by the appellate court because comparative negligence is not defense.

 

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WHEN THE PROPERTY OWNER DIED INTESTATE, THE DECEDENT’S INTEREST IN THE PROPERTY PASSED OUTSIDE THE ESTATE TO THE DISTRIBUTEES AS TENANTS IN COMMON; THEREFORE, THE PARTITION ACTION BY ONE OF THE TENANTS IN COMMON SHOULD NOT HAVE BEEN DISMISED ON THE GROUND AN ADMINISTRATOR OF THE ESTATE HAD BEEN APPOINTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the partition action by a party holding 50% ownership of real property formerly owned by decedent should not have been dismissed based on the appointment of an administrator for decedent’s estate. Decedent died intestate. His interest in the real property passed to the distributees upon his death and is therefore not part of the estate:

… [T]he decedent died intestate, possessed of the subject property, and leaving six distributees who became owners of the subject property as tenants in common at the time of the decedent’s death. In its complaint, LCD Holdings alleged that it had acquired a 50% interest in the subject property from deeds given by and through certain of those distributees, with the defendants—the decedent’s remaining distributees—holding the other 50% interest. Consequently, the subject property is not part of the administrable estate … . Under such circumstances, LCD Holding, as the alleged holder of a 50% interest in the subject property as a tenant in common with the defendants, had the right to maintain this action for the partition and sale of the subject property in the Supreme Court, Kings County (see RPAPL 901[1] … ). Accordingly, the court erred in, sua sponte, directing dismissal of the action without prejudice to the commencement of a proceeding for the same relief in the in Surrogate’s Court … . LCD Holding Corp. v Powell-Allen, 2022 NY Slip Op 01447, Second Dept 3-9-22

Practice Point: When a real-property owner dies intestate, the decedent’s interest in the property immediately passes outside the estate to the distributees as tenants in common. Here the partition action by one of the tenants in common should not have been dismissed when an administrator of the estate was appointed because the real property was not part of the administrable estate.

 

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THE BANK FAILED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; THERE WERE QUESTIONS OF FACT WHETHER THE “HOLDER (OF THE NOTE)” REQUIREMENTS OF THE UCC WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the foreclosure action:

… [T]here was no evidence that the plaintiff is the assignee of note, and triable issues of fact exist as to whether the plaintiff was the holder of the note at the time the action was commenced. A promissory note is a negotiable instrument within the meaning of the Uniform Commercial Code (see UCC 3-104[2][d] …). A “holder” is “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession” (UCC 1-201[b][21][A] …). Where an instrument is endorsed in blank, it may be negotiated by delivery (see UCC 3-202[1]; 3-204[2] …). In the present case, there is a triable issue of fact as to whether the note was properly endorsed in blank by an allonge “so firmly affixed thereto as to become a part thereof” when it came into the possession of the plaintiff (UCC 3-202[2] …). …

The plaintiff’s reliance on the assignments of the mortgage is misplaced “because the mortgage is not the dispositive document of title as to the mortgage loan” … . HSBC Bank USA, N.A. v Herod, 2022 NY Slip Op 01444, Second Dept 3-9-22

Practice Point: To establish standing, a bank has to prove it was the “holder” of the promissory note within the meaning of the UCC at the time the foreclosure action was commenced. Here there were questions of fact whether the note in the bank’s possession was endorsed in blank by an attached “allonge” as required by the UCC.

 

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