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A STACK OF SHEETROCK BOARDS WHICH WERE LEANING AGAINST A WALL FELL ON PLAINTIFF; THERE WERE QUESTIONS OF FACT ABOUT WHETHER IT WAS A GRAVITY-RELATED EVENT AND WHETHER THE ELEVATION DIFFERENTIAL WAS DE MINIMUS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff could recover for injuries under Labor Law 240(1). A stack of 25 to 30 sheetrock boards which had been leaning against a wall fell on him. The court noted that the Labor Law 241(6) cause of action was properly dismissed because the incident happened in an apartment, not a “passageway:”

… [T]he record presents issues of fact as to whether plaintiff’s injuries flowed directly from the application of the force of gravity to the sheetrock, whether the elevation differential was de minimis, and whether the combined weight of the sheetrock panels could generate a significant amount of force as it fell … . Kuylen v KPP 107th St., LLC, 2022 NY Slip Op 01419, First Dept 3-8-22

​Practice Point: A stack of sheetrock boards which had been leaning against a wall fell on plaintiff. There were questions of fact re: whether the accident was covered by Labor Law 240(1) as a gravity-related event where the elevation differential was not de minimus.

 

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THE CONTRACTOR COULD NOT ESCAPE LIABILITY FOR PAYMENT OF THE SUBCONTRACTOR; THE PAY-WHEN-PAID CLAUSE IN THE CONTRACT IS INVALID; NOTHING IN THE CONTRACT INDICATED THE CONTRACTOR WAS ACTING SOLELY AS AN AGENT FOR THE OWNER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendant Sweet was not an agent such that it could avoid responsibility for paying a subcontractor, Arenson, for the construction work done by Arenson. The First Department further held General Business Law 756-a did not invalidate the precedent prohibiting pay-when-paid clauses like the one in the contract between Sweet and Arenson:

The scope letter, which is on Sweet’s letterhead, contains the following clause:”Subcontractor understands that Contractor is acting as an agent for the Owner, and agrees to look only to funds actually received by the Contractor (from the Owner) as payment for the work performed under this Subcontract.” [This is the prohibited pay-when-paid clause.] * * *

… Sweet was not an agent for a disclosed principal. The clearest indicator of Sweet’s role, its signature, supports this conclusion. The signature line for “Sweet Construction Approval” and the signature do not indicate that Sweet signed the contract as agent on behalf of a disclosed principal or reflect any limitations … . …

In characterizing itself as “only a facilitator of payment” and “merely a conduit” Sweet ignores that the subcontract provides that the work is to be performed pursuant to the “SCC General Requirements.” Those requirements, which also appear in the scope letter, provide that Arenson will … indemnify and hold Sweet harmless with respect to Arenson’s work; obtain liability insurance in Sweet’s favor; and recognize Sweet’s authority to issue safety violations and correct unsafe conditions. These general requirements, on their face, apply to Sweet in its own capacity, and not in its capacity as an agent. Bank of Am., N.A. v ASD Gem Realty LLC, 2022 NY Slip Op 01379, First Dept 3-3-22

 

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BECAUSE PLAINTIFF HAD TO STAND ON THE GUARDRAILS OF THE MANLIFT TO REACH WHAT HE WAS WORKING ON, THE MANLIFT WAS NOT APPROPRIATE EQUIPMENT; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff had to stand on the guardrails of a manlift to reach what he was working on. He received an electric shock and fell:

Plaintiffs should be granted summary judgment as to defendants’ liability under the statute. The record demonstrates that plaintiff Matthew S. Healy (plaintiff) fell from the guardrails of a manlift after sustaining an electric shock. Plaintiff was required to stand on the manlift’s guardrails because HVAC ductwork prevented him from raising the manlift to the area in which he needed to work. Thus, the manlift was “inappropriate for the task at hand in light of the configuration of the building” and failed to afford plaintiff adequate protection pursuant to the statute … .Healy v BOP One N. End LLC, 2022 NY Slip Op 01388, First Dept 3-3-22

 

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FAMILY COURT DID NOT HAVE JURISDICTION TO MODIFY A SEPARATION AGREEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; A PLENARY ACTION IS REQUIRED (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined Family Court did not have jurisdiction to modify the separation agreement by putting a cap on the child-support/spousal-support credit father was entitled to for his payment of the mortgage and apartment expenses:

A stipulation of settlement which is incorporated but not merged into the parties’ judgment of divorce may be reformed only in a plenary action … . Family Court does not have jurisdiction to modify a separation agreement … . Under the terms of the parties’ stipulation of settlement, the father is entitled to pay his $2,100 in monthly child support directly to the mortgagee of the parties’ former marital apartment. However, the Family Court erred in capping the father’s credit against support arrears at $25,200 per year based on this provision. Although Family Court found that there was no similar provision with respect to spousal support, in fact the parties’ stipulation permits the father to also deduct the payment of apartment expenses, including the mortgage, from his spousal support. Accordingly, Family Court improperly amended the stipulation by imposing an annual maximum credit to which the father is entitled based solely on his child support obligation. Matter of Deborah K. v Richard K., 2022 NY Slip Op 01391, First Dept 3-3-22

 

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THIS ACTION WAS BROUGHT BY THE OWNERS OF RENTAL PROPERTIES IN THE DEFENDANT VILLAGE ALLEGING, AMONG OTHER CAUSES OF ACTION, VIOLATIONS OF THEIR CONSTITUTIONAL RIGHTS BY THE VILLAGE “NUISANCE LAW” WHICH WAS DECLARED UNCONSTITUTIONAL BECAUSE IT INFRINGED ON THE TENANTS’ RIGHT TO CALL THE POLICE (“NUISANCE POINTS” WERE ASSESSED FOR CALLS TO THE POLICE); THE ACTION BY THE RENTAL-PROPERTY OWNERS WAS PROPERLY DISMISSED (THIRD DEPT). ​

The Third Department affirmed the dismissal of this action brought by owners of rental properties in the defendant village asserting, among other causes of action, violations of their constitutional rights stemming from a local law (Nuisance Law) which was declared unconstitutional:

… [This court] declar[ed] that the Nuisance Law was “overbroad and facially invalid under the First Amendment” … . As to the finding of facial invalidity under the First Amendment, this Court held that, because the Nuisance Law did not prohibit the assessment of nuisance points against a property for police involvement thereat, the law violated the right of plaintiffs’ tenants to petition the government for redress of grievances by deterring them from calling the police in response to crimes committed at their properties … . * * *

… Supreme Court properly dismissed the first cause of action for malicious prosecution. * * *

As for the First Amendment claim, Supreme Court found …that plaintiffs lacked standing to assert their tenants’ constitutional rights. * * *

With respect to the selective enforcement claim, nothing in the record suggests that plaintiffs were singled out for enforcement of the Nuisance Law due to the population of tenants to which they rented — i.e., individuals whose rent was paid by the Tompkins County Department of Social Services. * * *

… [P]laintiffs’ due process claim, to the extent based upon defendants’ alleged failure to follow the procedures set forth in the Nuisance Law, is not actionable. Pirro v Board of Trustees of the Vil. of Groton, 2022 NY Slip Op 01358, Third Dept 3-3-22

 

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PLAINTIFFS-PARENTS’ CAUSE OF ACTION FOR LOSS OF THEIR INJURED DAUGHTER’S SERVICES SHOULD HAVE BEEN DISMISSED; THE PARENTS DEMONSTRATED ONLY THAT THEIR DAUGHTER PERFORMED SERVICES IN HER EMPLOYMENT AT THE COMPANIES OWNED BY THE PARENTS (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the parents’ cause of action for loss of their injured daughter’s services should have been granted:

Defendants established prima facie that plaintiffs Arlene and Herbert Klaar, the parents of the injured plaintiff, Deborah Klaar, are not entitled to recover damages for loss of their daughter’s services since they showed only that their claim rests entirely on the services Deborah performed in her employment at the two companies they own … .

… [P]laintiffs failed to raise an issue of fact. They cited deposition testimony demonstrating that Deborah served as a secretary, office manager, and assistant controller at her parents’ companies, that she was expected to take over the businesses and provide her parents with a monthly payment, and that she had significant difficulty fulfilling all of her many duties following the accident. They did not submit evidence that Deborah regularly performed services for them as their daughter, such as doing chores or running errands for the household, nor that they sustained any pecuniary loss as a result of her failure to do so … .Klaar v Fedex Corp., 2022 NY Slip Op 01393, First Dept 3-3-22

 

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PLAINTIFFS’ MOTION TO RENEW ON THE GROUND THE DEFENDANTS’ WINNING ARGUMENT WAS RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiffs’ motion to renew should have been granted. Defendants’ motion to dismiss was improperly granted based upon an argument first raised in reply papers:

The court granted defendants’ motion to dismiss … based on defendants’ argument raised for the first time in their reply to their motion to dismiss, that [the] operating agreement contained a provision wherein plaintiffs purportedly waived any past, present, and future conflicts of interest. Plaintiffs moved for leave to renew and reargue, claiming that the issue of the waiver provision was improperly raised for the first time in reply, and in substance was contradicted by another section of the operating agreement that provides, among other things, that no one other than the members can enforce any provision of the operating agreement against any member.

The motion to renew should have been granted. Plaintiffs’ claim that the waiver issue was improperly raised in defendants’ reply provides a reasonable justification for granting the renewal motion … . Upon renewal, defendants’ motion should be denied with respect to plaintiffs’ breach of fiduciary duty claim … . Dismissal is warranted only where documentary evidence “conclusively establishes a defense to the asserted claims as a matter of law” … . Mehra v Morrison Cohen LLP, 2022 NY Slip Op 01396, First Sept 3-3-22

 

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CERTAIN FOIL REQUESTS RE: THE TRAINING AND PROCEDURES OF THE BOARD OF PAROLE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE; TWO DISSENTERS DISAGREED (THRID DEPT).

The Third Department, over two partial dissents, determined the FOIL request for certain documents relating to the training and procedures of the Board of Parole was properly denied as protected by the attorney-client privilege:

“[T]he attorney-client privilege protects communications between an attorney and his or her client that convey facts relevant to a legal issue under consideration, even if the information contained in the communication is not privileged” … . Regarding the minor offenders memoranda, these documents … were created by counsel and contain legal advice to the Board regarding the state of law and how the Board should conduct interviews in accord with such law. The court-decisions handouts likewise provide counsel’s summary, view and impression of recent case law to the Board. Similarly, the presentation slides and the parole interviews and decision-making handout discuss various legal standards and regulations and, as the Board’s counsel noted, were provided to the Board so it could understand the requirements imposed by them and how it can comply with them. As to the remaining documents — handouts concerning Board interviews, sample decision language concerning departure from COMPAS [Correctional Offender Management Profiling for Alternative Sanctions] and hypothetical Board decisions — they also involve legal advice as to how to reach decisions on parole matters so as to be in compliance with applicable regulations…. .

From the two partial dissents:

… [M]any of the documents contain sections that are devoted solely to informing the Board of Parole of its duly codified statutory and regulatory duties in rendering parole determinations, without any fact-specific discussions or legal advice on how to apply the law to particular scenarios. Although these documents were prepared by attorneys in the course of a professional relationship, the general legal principles outlined therein are not confidential … * * *

… I disagree with the majority because it is my opinion that the proper basis to withhold these documents is the intra-agency exemption, rather than the attorney-client privilege exemption. Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 01354, Third Dept 3-3-22

 

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THE STIPULATION OF SETTLEMENT IN THIS LANDLORD-TENANT ACTION WAS NOT INVALIDATED BY A CHANGE IN THE LAW BASED UPON A COURT OF APPEALS DECISION ISSUED A MONTH AFTER THE STIPULATION; A “MISTAKE OF LAW” DOES NOT INVALIDATE A STIPULATION OF SETTLEMENT (FIRST DEPT).

The First Department determined that a stipulation of settlement in open court was valid, despite a Court of Appeals decision which ruled the Housing Stability and Tenant Protection Act (HSTPA) cannot be applied retroactively. The retroactive application of the HSTPA (to the stipulation) was deemed a “mistake of law” which is not a ground for invalidating a stipulation:

On … the date of trial, the court facilitated settlement negotiations and the parties placed the material terms of their settlement on the record. “The in-court oral stipulation made here . . . evidences [defendant]’s unconditional agreement, through authorized counsel, to settle” for a sum certain of $7.5 million, provide leases at specific monthly rents for plaintiffs still living in the building, and enter into a confidentiality agreement … . “[W]hen the transcript . . . is read in its entirety, it is clear that what was spread upon the record was an oral stipulation and not simply an agreement to agree” … . “The fact that it is necessary for the parties to exchange general releases and execute a confidentiality agreement does not render the agreement invalid”… , nor does the parties’ representation that they would “execute formal settlement papers” demonstrate that there was no agreement on material terms … . …

We reject defendant’s contention that the decision of the Court of Appeals … , issued one month afterwards, requires that the settlement be vacated. While that decision held that the retroactive application of the [HSTPA] would violate due process …, previous interpretations to the contrary constituted “a mistake as to the law,” which is insufficient grounds for vacating a stipulation … . Nieborak v W54-7 LLC, 2022 NY Slip Op 01397, First Dept 3-3-22

 

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PLAINTIFF DID NOT HAVE TO PROVE THE EXISTENCE OF A RETAINER AGREEMENT TO DEMONSTRATE AN ATTORNEY-CLIENT RELATIONSHIP WITH DEFENDANTS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action should not have been dismissed on the ground plaintiff did not demonstrate the existence of an attorney-client relationship. Plaintiff did not have to produce a retainer agreement:

… [T]he Supreme Court erred in granting dismissal of the legal malpractice cause of action based upon the plaintiff’s failure to produce evidence of an attorney-client relationship. An attorney-client relationship does not depend on the existence of a formal retainer agreement … , and the plaintiff had no obligation to demonstrate evidentiary facts to support the allegations contained in the complaint … . Furthermore, the complaint sufficiently alleges the existence of an attorney-client relationship between the plaintiff and the … defendants … , as well as the other elements of legal malpractice, including damages, to support a legal malpractice cause of action … . Ripa v Petrosyants, 2022 NY Slip Op 01336, Second Dept 3-2-22

 

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