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THE BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION; THE APPEAL FROM AN ORDER WHICH WAS NOT THE PRODUCT OF A MOTION ON NOTICE MUST BE DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt which is too comprehensive and detailed to fairly summarize here. determined: (1) the cause of action for breach of implied covenant of good faith and fair dealing was duplicative of the breach of contract cause of action; and (2) an appeal from a supplemental order which was not the product of a motion on notice must be dismissed:

The implied covenant of good faith and fair dealing “embraces a pledge that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract” … , and is breached when a party acts in a manner that deprives the other party of the benefits of the contract (id.). Generally, a breach of the covenant of good faith and fair dealing is a breach of the contract itself … . Therefore, a separate cause of action for breach of the covenant cannot be maintained where, as here, “it is premised on the same conduct that underlies the breach of contract cause of action and is intrinsically tied to the damages allegedly resulting from a breach of the contract” … . Because a breach of the covenant of good faith and fair dealing is a breach of the contract itself, plaintiffs may press their theory that defendants acted in derogation of the covenant in conjunction with their cause of action for breach of the license agreements … . We note that to the extent defendants were entitled to exercise discretion in the manner in which they performed their obligations … , they were, under the covenant (and, by natural extension, under the license agreement itself) prohibited from acting arbitrarily, irrationally, or in bad faith … . …

Defendants’ appeal from the supplemental order is dismissed because that order was not the product of a motion on notice (see CPLR 2214); rather, the supplemental order was issued in response to an inquiry from counsel seeking clarity regarding the court’s decision and order determining the summary judgment motions (see CPLR 5701[a][2] …). Parlux Fragrances, LLC v S. Carter Enters., LLC, 2022 NY Slip Op 01250, First Dept 2-24-22

 

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PLAINTIFF TESTIFIED SHE DID NOT KNOW WHAT CAUSED HER SLIP AND FALL BUT STATED IN HER AFFIDAVIT IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE SLIPPED ON ICE; THE AFFIDAVIT CREATED A FEIGNED ISSUE OF FACT; DEFENDANT’S MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff created only a feigned issue of fact in response to defendant’s motion for summary judgment in this slip and fall case:

In this action in which plaintiff sustained injuries when she slipped and fell on the sidewalk owned by defendant, her affidavit that she slipped on ice on the sidewalk contradicted her earlier deposition testimony that she did not know what she slipped on, and thus created only a feigned issue of fact, which was insufficient to defeat defendant’s motion … .

Plaintiff’s decision to walk on the outside of a shoveled path in front of the building that had been cleared of snow and ice was the sole proximate cause of her accident … . Polanco v Durgaj, 2022 NY Slip Op 01258, First Dept 2-24-22

 

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ELIMINATING THE LONGSTANDING PRACTICE OF REIMBURSING RETIREES’ MEDICARE PART B PREMIUMS IS AN ISSUE THAT MUST BE NEGOTIATED WITH CURRENT EMPLOYEES; PERB DETERMINATION ANNULLED (THIRD DEPT). ​

The Third Department, annulling the determination of the Public Employment Relations Board (PERB), determined eliminating the longstanding practice of reimbursing retirees for Medicare Part B premiums was an issue that must be negotiated with current employees:

In its decision, PERB explicitly found that there was a longstanding practice of reimbursing retirees for their Medicare Part B premiums, rendering negotiation mandatory before the City could make any changes to that past practice for active employees who sought continuation of that benefit. Despite that finding, PERB determined that the improper practice charge must be dismissed because “the City took no action against current employees” since it only notified retirees about the change in the past practice. The fact that PERB only informed retirees of such a change does not mean that it did not affect current employees. PERB’s reasoning in that respect fails to account for the actual hearing testimony, which established that many of petitioner’s witnesses — who were active employees as of January 1, 2010 — either did not receive Medicare Part B reimbursements after that date or were given reason to believe that they would not be so reimbursed in the future despite representations throughout their employment that the practice would continue … . …

Because PERB explicitly found in its decision that “the 25-year[-]long uninterrupted practice” of reimbursing Medicare Part B premiums met the standard of a past practice that was subject to negotiation for active members of petitioner, and there is no dispute that negotiation did not occur between the City and petitioner prior to implementing the change to the reimbursement policy, the matter is remitted to PERB for a final disposition consistent with these findings. Matter of Albany Police Benevolent Assn. v New York Pub. Empl. Relations Bd., 2022 NY Slip Op 01215, Third Dept 2-24-22

 

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PETITIONER, A COURT OFFICER, SLIPPED AND FELL ON A WET FLOOR IN THE COURTHOUSE; THE FALL WAS AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, reversing the Comptroller, determined petitioner court officer suffered a compensable accident when slipped on a wet floor in the courthouse and may therefore be entitled to accidental disability retirement benefits:

Petitioner testified that she was on duty and returning to the security office at the end of her shift when she “slipped on the wet floor” in the courthouse where she was assigned. Having fallen to the ground on her back, she “felt the water on the floor” and observed that the whole area appeared to be wet as though recently mopped. She stated that she did not observe that the floor — which was light in color — was wet before her fall and, further, there had been no signs advising of the hazard. She had never seen anyone mopping in the courthouse and was wearing nonslip shoes as part of her uniform at the time of the fall.

Like the incidents deemed accidental in Matter of Knight v McGuire (62 NY2d 563 [1984] [accident where the petitioner slipped on wet pavement getting into a patrol car]) and Matter of Gasparino v Bratton (92 NY2d 836, 838-839 [1998] [accident where the petitioner slipped in water on a bathroom floor]), the precipitating event here was not a risk of the work performed by petitioner. Her description of the incident also demonstrates that her fall was sudden and unexpected … . Matter of Como v New York State Comptroller, 2022 NY Slip Op 01223, Third Dept 2-24-22

 

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DEFENDANTS NOT LIABLE FOR INJURY SUFFERED WHILE PLAINTIFF WAS DOING WHAT HE WAS HIRED TO DO–REPAIR AN ELEVATOR; ISSUE CONSIDERED EVEN THOUGH RAISED FOR THE FIRST TIME ON APPEAL; IN ADDITION, DEFENDANTS ENTITLED TO THE HOMEOWNER’S EXEMPTION FROM LIABILITY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 200 and common law negligence action should have been granted. Plaintiff was injured doing the work he was hired to do—repairing an elevator. The issue was considered even though it was first raised on appeal. In addition, defendants were entitled to the homeowner’s exemption from liability pursuant to Labor Law 240(1):

We find merit to the defendants’ contention—raised for the first time on appeal but fully briefed by both sides … —that the injured plaintiff cannot succeed in his causes of action alleging a violation of Labor Law § 200 and common-law negligence, as “[n]o responsibility rests upon an owner of real property to one hurt through a dangerous condition which he [or she] has undertaken to fix”… . Indeed, the evidence in the record conclusively establishes that the injury-producing accident was caused by an unidentified defect in the very elevator that the injured plaintiff’s employer had been hired to repair. Accordingly, the defendants were entitled to summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.

… The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). The homeowner’s exemption to liability under Labor Law § 240(1) is available to “owners of one and two-family dwellings who contract for but do not direct or control the work.” Here, the defendants, as owners of the single-family townhouse where the accident occurred, established, prima facie, that they did not direct or control the home improvement work being done by the injured plaintiff and his employer at the time of the subject accident … . Soto v Justin Hochberg 2014 Irrevocable Trust, 2022 NY Slip Op 01193, Second Dept 2-23-22

 

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IT WAS ALLEGED DEFENDANTS-ATTORNEYS DID NOT INSTRUCT THE DECEDENT TO REVOKE THE TOTTEN TRUSTS SO THE FUNDS WOULD BE DISTRIBUTED IN ACCORDANCE WITH HER WISHES AS SET OUT IN THE WILL AND TRUST DRAFTED BY DEFENDANTS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants-attorneys should not have been granted summary judgment in this legal malpractice action brought by the executor of the estate of attorneys’ client. It was alleged two bank accounts were Totten Trusts which passed outside of the will and therefore were not distributed as decedent wished (as was set out in the will and trust drafted by defendants). As a result one of decedent’s sons, whom decedent intended to disinherit, received half of the Totten Trusts:

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the amended complaint. The defendants failed to submit sufficient evidence establishing … that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. In addition, the court erred in determining that the defendants established, prima facie, that the decedent’s estate did not sustain actual and ascertainable damage as a result of the defendants’ alleged negligence in failing to advise the decedent to revoke the Totten Trusts prior to her death. Schmidt v Burner, 2022 NY Slip Op 01191, Second Dept 2-23-22

 

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THERE REMAINED QUESTIONS OF FACT WHETHER DEFENDANTS CREATED THE ICY CONDITION AND WHETHER THEY HAD CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant property-owner’s and defendant property-manager’s motion for summary judgment in this slip and fall action should not have been granted. Plaintiff alleged the defendants created the icy condition and had constructive notice of the condition:

… [T]he plaintiff asserted in his bill of particulars that the defendants were negligent … in failing to maintain the premises, failing to repair the dangerous and defective condition, and in allowing an icy condition to exist. In his fourth supplemental bill of particulars, … the plaintiff clarified that the defendants created the dangerous condition that caused him to slip and fall by permitting the downspouts from the roof of the premises to deposit water directly onto the sidewalk, and alleged violations of various property maintenance codes related thereto. Thus, in support of their motion for summary judgment, the defendants were … required to demonstrate that they did not create the alleged dangerous condition … .. The defendants failed to establish … that the drains played no role in the creation or exacerbation of the icy condition that allegedly caused the accident … . Moreover, the defendants failed to demonstrate that they did not have constructive notice of the allegedly defective downspouts. While [the] property director testified at his deposition that no tenants raised concerns about drainage issues caused by the downspouts, he acknowledged that, after snow events, his on-site maintenance worker would check for “ponding” on the sidewalks around the premises. Messina v Morton Vil. Realty, Inc., 2022 NY Slip Op 01155, Second Dept 2-23-22

 

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PLAINTIFF’S EXPERT RAISED A QUESTION OF FACT WHETHER A DELAY IN DIAGNOSIS AFFECTED THE PROGNOSIS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice action should not have been dismissed. Plaintiff’s expert raised a question of fact about whether a delay in diagnosis affected the prognosis:

On February 26, 2014, the plaintiff’s decedent presented to the emergency department of the defendant Brookdale Hospital Medical Center (hereinafter Brookdale) complaining of swelling in both legs. The attending emergency room physician, the defendant Morombaye Mbaidjol, diagnosed the decedent with “[l]ikely peripheral vascular disease” and discharged her to her home. The decedent’s bilateral leg swelling initially improved, but nine days later, she presented to a different hospital’s emergency department again complaining of bilateral leg swelling. An ultrasound revealed acute deep vein thrombosis (hereinafter DVT) of major veins in both lower extremities. Shortly after the ultrasound was performed, the decedent experienced cardiopulmonary arrest and died. An autopsy of the decedent revealed that she died as a result of bilateral DVT of the lower extremities, which led to a bilateral pulmonary embolism, causing cardiac arrest and death. * * *

“Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” … .. Contrary to the Brookdale defendants’ contention, the opinions of the plaintiff’s expert physician were not speculative and conclusory … . The plaintiff’s expert physician opined … that the Brookdale defendants departed from the standard of care by failing to take a proper history and perform a proper workup of the decedent, failing to rule out DVT, misdiagnosing the decedent, and failing to institute the proper treatment, which resulted in the progression of the DVT, bilateral pulmonary embolism, and ultimately cardiac arrest and death nine days later. Among other things, “[w]hether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury” … . Ivey v Mbaidjol, 2022 NY Slip Op 01152, Second Dept 2-23-22

 

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THE 2007 NOTICE OF DEFAULT IN THIS FORECLOSURE ACTION DID NOT ACCELERATE THE DEBT; THE INITIAL ACTION WAS DISMISSED FOR LACK OF STANDING AND DID NOT, THEREFORE, ACCELERATE THE DEBT (SECOND DEPT),

The Second Department, reversing Supreme Court, determined the 2007 notice of default in this foreclosure action did not accelerate the debt. Also, the initial action was dismissed for lack of standing and, therefore did not accelerate the debt.  Therefore the action should not have been dismissed as time-barred:

Supreme Court erred in denying the defendant’s motion to dismiss the complaint. The defendant established that the mortgage was not accelerated. The language in the 2007 notice of default did not serve to accelerate the loan, as it was nothing more than a letter discussing acceleration as a possible future event which does not constitute an exercise of the mortgage’s optional acceleration clause … . Moreover, since the 2008 foreclosure action was dismissed on the ground that the defendant lacked standing, the commencement of that action as purported acceleration was a nullity, and the statute of limitations did not begin to run at the time of the purported acceleration … . Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.  IPA Asset Mgt., LLC v Bank of N.Y. Mellon, 2022 NY Slip Op 01151, Second Dept 2-23-22

 

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PLAINTIFF’S DISCOVERY REQUESTS IN THIS CHILD VICTIM’S ACT ACTION ALLEGING SEXUAL ABUSE BY A CATHOLIC SCHOOL GYM TEACHER WERE PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s discovery requests in this Child Victim’s Act action against the Archdiocese of New York were palpably improper and should have been denied (the requests were not described in the decision). Plaintiff alleged sexual abuse by a gym teacher when he was a child in the 1960’s:

Notices for discovery and inspection and interrogatories are palpably improper if they are overbroad or burdensome, fail to specify with reasonable particularity many of the documents demanded, or seek irrelevant or confidential information (see CPLR 3120[2] …). Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it … . “The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one” …

Here, the plaintiff’s discovery demand and interrogatories were palpably improper in that they were overbroad and burdensome, sought irrelevant or confidential information, or failed to specify with reasonable particularity many of the documents demanded … .Fox v Roman Catholic Archdiocese of N.Y., 2022 NY Slip Op 01148

 

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