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THE PRIVATE RIGHT OF ACTION CREATED BY THE PUBLIC HEALTH LAW APPLIES TO “RESIDENTIAL HEALTH CARE FACILITIES,” NOT TO “ASSISTED LIVING FACILITIES” (SECOND DEPT).

The Second Department determined the Public Health Law 2801-d and 2803-c causes of action against defendant “assisted living facility” should have been dismissed. The private right of action created by the Public Health Law applies only to “residential health care facilities:

… [T]he plaintiff concedes that the facility in which Kramer was a resident was licensed as an “assisted living” facility, but asserts that it was operated as a de facto residential health care facility by virtue of the health-related services it provided, including management of medications, assistance with dressing and eating, and visits by nursing staff and physicians. Even accepting these allegations as true, they are insufficient to state a claim that the assisted living facility in which Kramer resided was a residential health care facility against which a private right of action pursuant to Public Health Law article 28 may be maintained (see Public Health Law § 2801[3] …). Broderick v Amber Ct. Assisted Living, 2021 NY Slip Op 06981, Second Dept 12-15-21

 

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ALTHOUGH DEFENDANT THEATER MANAGER WAS NOT A SECURITY GUARD, HIS RESPONSIBILITIES INCLUDED DEALING WITH UNRULY PATRONS AND KEEPING THE PREMISES SAFE; THERE WAS A QUESTION OF FACT WHETHER HE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE THREATENED A PATRON WITH A PELLET GUN; THEREBY RAISING A QUESTION OF FACT WHETHER THE THEATER WAS LIABLE FOR THE MANAGER’S ACTIONS UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the defendant movie- theater manager, Adams, may have been acting within the scope of his employment by the theater, AMC, when he threatened plaintiff, a theater patron, with a pellet gun. Therefore AMC’s motion for summary judgment should not have been granted:

… [T]he general manager of the theater, Adams’s supervisor, stated, during his deposition, that managers, like Adams, have security-related responsibilities, including ensuring that the theater is safe for customers and dealing with unruly patrons. And the plaintiff, during his deposition, stated that he believed Adams was a security guard.

When a business employs security guards or bouncers to maintain order, the use of physical force may be within the scope of their employment … . Adams did not hold either of these job titles, but his responsibilities included maintaining order at the theater, ensuring the safety of customers and staff, and, if necessary, facilitating the removal from the theater of “disruptive or potentially violent” customers. The accomplishment of these ends by means prohibited by the AMC defendants’ policy was not necessarily unforeseeable. … Unquestionably, Adams’s response to the plaintiff and his friends was “in poor judgment” …  and contrary to the AMC defendants’ policy, but “this in itself does not absolve [the AMC] defendants of liability for his acts” … . Norwood v Simon Prop. Group, Inc., 2021 NY Slip Op 07006, Second Dept 12-15-21

 

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THERE WAS A QUESTION OF FACT WHETHER THE DEFENDANT DEPARTMENT STORE SHOULD HAVE BEEN AWARE THE PAINT USED ON THE PARKING LOT SURFACE BECAME SLIPPERY WHEN WET AND WAS NOT APPROPRIATE FOR PEDESTRIAN-TRAFFIC AREAS (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the department store, Costco, should have been aware that paint used in its parking lot was slippery when wet:

“A defendant may not be held liable for the application of ‘wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge’ that the product could render the floor dangerously slippery” … . Here, Costco established, prima facie, that it did not have actual, constructive, or imputed knowledge that the subject paint could render the walkway slippery … .

In opposition, however, the plaintiff raised a triable issue of fact … . The plaintiff relied on, among other things, an “application bulletin” for the traffic marking paint used by Appell [the company hired by Costco], which was annexed to the expert report submitted by Appell … . The application bulletin acknowledges the inherent danger present when painted surfaces become wet, and explicitly states that the paint “should not be used to paint large areas subject to pedestrian traffic.” Considering the size of the painted area outside of the store entrance, there was a triable issue of fact as to whether Costco should have known that the product could render the parking lot slippery. Westbay v Costco Wholesale Corp., 2021 NY Slip Op 07023, Second Dept 12-15-21

 

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THE NYC WATER BOARD DETERMINED PETITIONER WAS NOT ENTITLED TO A RETROACTIVE REDUCTION IN SEWER CHARGES BUT WAS NOT NAMED AS A RESPONDENT IN PETITIONER’S ARTICLE 78 ACTION; THE WATER BOARD MUST BE ADDED AS A NECESSARY PARTY (SECOND DEPT).

The Second Department noted that the NYC Water Board was a necessary party in the Article 78 contesting the Board’s ruling on sewer charges. The Article 78 named only the NYC Department of Environmental Protection:

… [T]he appellants correctly contend that the Water Board should be joined as a necessary party to this proceeding. “Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants” (CPLR 1001[a]). In a proceeding pursuant to CPLR article 78, the governmental agency which performed the challenged action must be a named party … . Since the instant petition challenged the Water Board’s … final determination, and the Water Board is the entity which promulgates the rate schedule of sewer rents and wastewater allowances … in the discharge of its duties to fix and collect water and sewer charges in order for the City to maintain the water system … , the Water Board was a necessary party to this proceeding. Indeed, the Water Board would be prejudiced by the judgment purporting to bind its rights when it had no opportunity to be heard … . … [B]ecause the Water Board should have been joined in this action and has not been made a party, and because it is subject to the jurisdiction of the court, the judgment must be vacated, and the Supreme Court should order the Water Board summoned in this proceeding so that it may be heard (see CPLR 1001[b] …). Matter of A&F Scaccia Realty Corp. v New York City Dept. of Envtl. Protection, 2021 NY Slip Op 06995, Second Dept 12-15-21

 

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THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE SUIT SHOULD NOT HAVE BEEN DISMISSED; THERE WAS NO EVIDENCE PLAINTIFF INSISTED ON THE PROCEDURE DESPITE THE RISKS OR DECLINED ANY PROFFERED EXPLANATION OF THE RISKS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court) determined the “lack of informed consent” to back surgery (implantation of an X-STOP device) should not have been dismissed:

As a defense to a medical malpractice action premised upon lack of informed consent, a practitioner may proffer evidence that “the patient assured the medical . . . practitioner that he [or she] would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient assured the medical . . . practitioner that he [or she] did not want to be informed of the matters to which he [or she] would be entitled to be informed” (Public Health Law § 2805-d[4][b]). Here, although [plaintiff’s] deposition testimony made clear that he deferred to [defendant surgeon’s] judgment as to whether he should undergo a procedure and, if so, which procedure, it does not establish that [plaintiff] either insisted on the procedure to implant the X-STOP devices, rather than other treatment options, regardless of risk, or that he refused any proffered advice. On the contrary, the record establishes that, far from insisting on a contraindicated procedure, [plaintiff] relied upon [defendant surgeon’s] professional expertise in determining the correct course of treatment. Likewise, although [defendant surgeon’s] testimony establishes that he explained the benefits of performing the procedure to implant the X-STOP devices rather than a laminectomy, he did not testify that he offered, or that [plaintiff] declined, any proffered explanation of the risks and limitations of the procedure to implant the X-STOP devices. Mirshah v Obedian, 2021 NY Slip Op 06994, Second Dept 12-15-21

 

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DEFENDANTS DIRECTED PLAINTIFF TO REMOVE PAINT BY SPRAYING LACQUER WHICH APPARENTLY LED TO AN EXPLOSION; THERE ARE QUESTIONS OF FACT WHETHER DEFENDANTS SUFFICIENTLY CONTROLLED OR SUPERVISED PLAINTIFF’S WORK SUCH THAT THE HOMEOWNER’S EXEMPTION TO A LABOR LAW 241 (6) CAUSE OF ACTION DID NOT APPLY, AND WHETHER THE DEFENDANTS WERE LIABLE UNDER LABOR LAW 200 AND COMMON-LAW NEGLIGENCE THEORIES (SECOND DEPT).

The Second Department determined there were questions of fact whether the defendants were entitled to the homeowner’s exemption from Labor Law 241 (6) liability, and whether they sufficiently controlled or supervised plaintiff’s work to be liable under Labor Law 200 or a common-law negligence theory. Plaintiff was injured in an explosion when, at the direction of a defendant, he was spraying lacquer to remove paint. The defendant did not want the plaintiff to sand the paint off, apparently plaintiff’s usual practice, because of the resulting dust:

… [T]he defendants failed to eliminate all triable issues of fact as to whether they directed or controlled the injury-producing method of work and failed to establish, prima facie, their entitlement to the homeowner exemption of Labor Law § 241(6) … . * * *

… [T]he defendants failed to establish, prima facie, that they did not have actual or constructive notice of the allegedly dangerous electrical wiring in the kitchen … , and that they did not direct or control the method and manner in which the plaintiff performed the injury-producing work … . Venter v Cherkasky, 2021 NY Slip Op 07022, Second Dept 12-15-21​

 

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IN A FORECLOSURE PROCEEDING, THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 NOTICE MUST BE SENT TO THE BORROWER IN A SEPARATE ENVELOPE; HERE OTHER NOTICES WERE INCLUDED IN THE ENVELOPE ALONG WITH THE RPAPL 1304 NOTICE; DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, determined, in a foreclosure action, the requirement that the RPAPL 1304 notice be sent to the borrower “in a separate envelope from any other mailing or notice” must be strictly complied. Because other notices were included in the same envelope, the defendant’s motion for summary judgment was properly granted:

… [T]he plaintiff acknowledged that the envelope that it sent to the defendants, which contained the requisite notice under RPAPL 1304, also included other information in two notices pertaining to the rights of a debtor in bankruptcy and in military service. Since the plaintiff failed to establish, prima facie, that it strictly complied with the requirements of RPAPL 1304, the Supreme Court properly denied those branches of its motion which were for summary judgment … . … [O]n his cross motion, [defendant] established his … entitlement to judgment as a matter of law dismissing the complaint … by showing that the plaintiff failed to comply with RPAPL 1304 when it sent additional material in the same envelope as the requisite notice under RPAPL 1304. Bank of Am., N.A. v Kessler, 2021 NY Slip Op 06979, Second Dept 12-15-21

 

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PLAINTIFF’S DECEDENT COMMITTED SUICIDE BY JUMPING FROM THE GEORGE WASHINGTON BRIDGE; THE COMPLAINT ALLEGING PORT AUTHORITY FAILED TO MAINTAIN THE BRIDGE IN A SAFE CONDITION SHOULD NOT HAVE BEEN DISMSSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the complaint alleging defendant Port Authority breached its duty to maintain the George Washington Bridge (GWB) in a reasonably safe condition must be reinstated. Plaintiff’s decedent committed suicide by jumping from the bridge:

Plaintiff’s decedent died by suicide when he jumped from the George Washington Bridge (GWB), which is owned and operated by the Port Authority. Contrary to the Port Authority’s contention that the complaint is addressed to actions taken in its governmental capacity, both this Court and the Second Department have recently held, in cases involving similar facts, that the Port Authority’s responsibility for maintaining the guardrail on the pedestrian walkway over the Bridge is a proprietary function rather than a governmental function … . .. [P]laintiff states a cause of action by alleging that the Port Authority, as a property owner, “failed to maintain the GWB in a reasonably safe condition by negligently failing to install suicide barriers along the walkways to prevent suicides,” thus presenting a foreseeable risk of harm in light of the allegations concerning the history of the George Washington Bridge’s walkway as a place where frequent suicides occur. Lomtevas v City of New York, 2021 NY Slip Op 06953, First Dept 12-14-21

 

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IN THIS FAMILY OFFENSE PROCEEDING, THE JUDGE SHOULD NOT HAVE PLACED TIME AND TESTIMONY RESTRICTIONS ON THE HEARING; ORDER REVERSED AND NEW HEARING ORDERED (FIRST DEPT).

The First Department, reversing Family Court and ordering a new hearing in this family offense proceeding, determined the judge should not have placed time and testimony restrictions on the hearing:

Order of fact-finding and disposition … , which, after a hearing, determined that respondent husband committed the family offense of harassment in the second degree, and entered a one-year order of protection directing him … to refrain from assaulting or harassing petitioner wife and the parties’ two children … , unanimously reversed … .

Family Court erred in not conducting a full fact-finding hearing. The court improperly restricted the hearing, without notice to the parties to just 15-20 minutes and limited the testimony, including that of petitioner wife. Given this, Family Court is directed to conduct a full hearing on the petition and make the requisite factual findings … . Matter of Kristina M. v Paul M., 2021 NY Slip Op 06957, First Dept 12-14-21

 

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A CLAIM WHICH ARISES AFTER THE FILING OF A BANKRUPTCY PETITION BELONGS TO THE DEBTOR, NOT TO THE BANKRUPCTY ESTATE (FIRST DEPT).

The First Department, noting its prior rulings to the contrary, determined a claim which arises after the filing of a bankruptcy petition belongs to the debtor, not the bankruptcy estate:

This Court has previously held that a claim which arose after the filing of a bankruptcy petition was the property of the estate (see Barranco v Cabrini Med. Ctr., 50 AD3d 281, 282 [1st Dept 2008]; Williams v Stein, 6 AD3d 197, 198 [1st Dept 2004]). When those cases were decided, there was a split among the federal courts which had addressed the issue. However, there is now uniformity among the Federal Courts of Appeals, which have held that pursuant to section 541(a) of the Bankruptcy Code, a claim which arose after the filing of a bankruptcy petition belongs to the debtor and not the estate … . As this Court is bound by federal law when making a determination on this issue … we follow the … federal holdings and find that because the claims at issue arose after the filing of the bankruptcy petition, the claims belong to Realty [plaintiff]. Thus, Realty has the capacity to sue [defendants]. Moncho v Miller, 2021 NY Slip Op 06960, First Dept 12-14-21

 

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