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ALLOWING DRIVING AND PARKING ON A LONG ISLAND BEACH MAY CONSTITUTE A PRIVATE AND PUBLIC NUISANCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action for private and public nuisance against the town and village, based upon the code provisions and rules allowing vehicles to drive and park on the beach, should not have been dismissed:

… [P]hotographs of the subject beach area as well as the affidavits of [plaintiff] and her family describing the conditions on the beach raised triable issues of fact as to whether driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, was of an unreasonable character. …

“A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . Here, contrary to the court’s conclusion, triable issues of fact existed as to whether summer daytime beach driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, endangered the health and safety of members of the public who use that portion of the beach as well as the beach itself, including the lands seaward of the high-water line, which are held in trust for the public. Thomas v Trustees of the Freeholders & Commonalty of the Town of Southampton, 2022 NY Slip Op 00894, Second Dept 2-9-22

 

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PLAINTIFF ALLEGEDLY TRIPPED OVER AN ELECTRICAL BOX AS SHE STEPPED OFF A TREADMILL; DEFENDANTS RAISED QUESTIONS OF FACT ABOUT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND ABOUT THE CREDIBILITY OF THE PLAINTIFF AND HER WITNESSES, INCLUDING HER EXPERT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this premises liability case should not have been granted. Plaintiff alleged she tripped over an electrical box when she stepped off a treadmill at defendant fitness center. Defendants raised questions of fact about whether the condition was open and obvious and about the credibility of plaintiff and her witnesses, including the expert:

… [T]he defendants cited to the evidence submitted in support of their motion for summary judgment dismissing the complaint, which included photographs allegedly depicting the subject electrical box, and testimony relating to the configuration and installation of the treadmills on the floor of the fitness center. The defendants’ submissions tended to show that the electrical box was open and obvious, and not inherently dangerous … . The defendants’ opposition also raised triable issues of fact relating to “[the] plaintiff’s credibility” … , and the credibility of her other witnesses, including her expert witness … . Sebagh v Capital Fitness, Inc., 2022 NY Slip Op 00892, Second Dept 2-9-22

 

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DEFENDANTS DEMONSTRATED (1) THE PROTRUDING PIPE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, (2) THEY DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK, AND (3) THE INDUSTRIAL CODE PROVISION PROHIBITING THE ACCUMULATION OF DEBRIS DID NOT APPLY; THE LABOR LAW 200 AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment on the Labor Law 200 and 241(6) causes of action should have been granted. Plaintiff, while pouring a concrete floor, tripped over a drainage pipe which had been covered by a blanket to protect it from the concrete. The defendants demonstrated: (1) the pipe was open and obvious and not inherently dangerous; (2) they did not exercise supervisory control over plaintiff’s work; and (3), the Industrial Code provision which addresses accumulation of debris did not apply:

… [T]he defendants met their prima facie burden of demonstrating both that the allegedly dangerous condition was open and obvious and not inherently dangerous, and that they lacked the authority to supervise or control the plaintiff’s work. …

… [T]he defendants demonstrated that 12 NYCRR 23-1.7(e)(2) is inapplicable because the protruding drainage pipe over which the plaintiff allegedly fell was a permanent and an integral part of what was being constructed … . Sanchez v BBL Constr. Servs., LLC, 2022 NY Slip Op 00890, Second Dept 2-9-22

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE AND RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not prove standing to bring the action and compliance with the notice requirements of the mortgage and RPAPL 1304:

Although the plaintiff attached to the complaint copies of the note and an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . …

… [T}he plaintiff failed to demonstrate, prima facie, that a notice of default in accordance with sections 15 and 22 of the mortgage was properly transmitted to the defendant prior to the commencement of this action … . …

… [T]he plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. The plaintiff failed to provide proof of the actual mailing of the 90-day notice required by RPAPL 1304, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Further, although Victoria Wolff, an assistant secretary for the plaintiff, stated in an affidavit that the notices required under RPAPL 1304 were mailed, she did not aver that she had mailed the notices herself or otherwise claim to have personal knowledge of the mailing … . Raymond James Bank, NA v Guzzetti, 2022 NY Slip Op 00888, Second Dept 2-9-22

 

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PETITIONER SOUGHT RECORDS FROM THE NYC TAXI AND LIMOUSINE COMMISSION (TLC) TO DETERMINE HOW THE COMMISSION WAS HANDLING LICENSE APPLICANTS WITH CRIMINAL CONVICTIONS; THE REQUEST SHOULD NOT HAVE BEEN DENIED; MATTER REMITTED FOR IN CAMERA REVIEW (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s request for records from the NYC Taxi and Limousine Commission (TLC), including fitness interview decisions (FID”s) should not have been denied. The matter was remitted to Supreme Court for an in camera review of the records:

The Driver’s Privacy Protection Act (DPPA) (18 USC § 2721 et seq.) does not impose a blanket prohibition on disclosure of all motor vehicle records. Instead, the law restricts disclosure of “personal information,” which includes personal identifiers of the type that petitioner agrees should be redacted. Moreover, even as to such personal information, the DPPA still expressly provides for disclosure in various circumstances, such as for research purposes, where the personal information will not be further disclosed … . Motor vehicle records under the DPPA are thus not the kind of records as to which production is absolutely prohibited, as long as they are redacted … .

The record is not clear as to what extent it is possible to anonymize production of the TLC fitness interview decisions (FIDs), which petitioner seeks in order to assess whether the TLC has been applying fair standards in its decision making on licensing determinations with respect to people with one or more criminal convictions … . Matter of Brooklyn Legal Servs. v New York City Taxi & Limousine Commn., 2022 NY Slip Op 00809, First Dept 2-8-22

 

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THE FALSE IMPRISONMENT CAUSE OF ACTION WAS UNTIMELY BECAUSE IT ACCRUED WHEN DEFENDANT WAS RELEASED UPON ARRAIGNMENT, NOT WHEN HE WAS RELEASED UPON COMPLETION OF HIS SENTENCE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined that the false imprisonment cause of action was untimely because it accrued when plaintiff was released upon arraignment, not when he was released after completing his sentence:

Contrary to the motion court’s finding, the statute of limitations began to run not on the date on which plaintiff was released from incarceration, having completed his sentence, but on the date of his arraignment, when he was released on his own recognizance … . False imprisonment consists of detention without legal process and ends once the accused is held pursuant to legal process, such as arraignment … . Plaintiff’s incarceration following his conviction is not part of his false imprisonment claim and thus is not relevant to determining the date of expiration of the limitations period for the claim. Butler v City of New York, 2022 NY Slip Op 00810, First Dept 2-8-22

 

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PLAINTIFF’S EMPLOYMENT DISCRIMINATION ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were triable issues of fact in this employment discrimination case:

Plaintiff, an African American female, raises triable issues of fact whether her October 2017 termination (adverse employment action) was in retaliation for her verbal complaints (protected activity) concerning racist comments defendant Annie Liu allegedly uttered at work … . A question of fact exists as to whether plaintiff complained in July or August 2017. If plaintiff’s testimony is credited, the time frame between the discriminatory comments, plaintiff’s complaints, and her firing is evidence of a causal connection between the protected activity and her termination two months later … . Contrary to defendants’ argument, it is unclear from the record whether an intervening event occurred to dispel an inference of a causal relationship. Moreover, issues of fact also exist as to whether defendants’ proffered explanation for terminating plaintiff’s employment was pretextual … . Cancel v Global Fertility & Genetics, Inc., 2022 NY Slip Op 00811, First Dept 2-8-22

 

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CLASS CERTIFICATION SHOULD NOT HAVE DENIED THE TENANTS IN THIS RENT-OVERCHARGE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined class certification in this rent overcharge action should not have been denied. The tenants alleged the landlord unlawfully deregulated apartments while receiving J-51 tax benefits:

Class certification was improperly denied. The determination of whether plaintiffs have a cause that may be asserted as a class action turns on the application of CPLR 901. That section provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all” where five factors — sometimes characterized “as numerosity, commonality, typicality, adequacy of representation and superiority” … . The party seeking class certification has the burden of establishing the prerequisites of CPLR 901(a) and thus establishing entitlement to certification … .

Here, plaintiffs met their burden of demonstrating the prerequisites for class action certification under CPLR 901 and 902. Contrary to the motion court’s determination, plaintiffs established numerosity and typicality in their initial motion for class certification. The allegations in the amended complaint taken with the DOF tax bills showed that by June 2017, only 8 of 100 apartments were registered as rent-stabilized. … [T]his Court [has] held that similar bills were sufficient to establish numerosity, i.e., the number of deregulated units. As to typicality, the predominant legal question involves one that applies to the entire class—whether defendant unlawfully deregulated rent-stabilized apartments while receiving J-51 real estate tax abatement benefits. Cupka v Remik Holdings LLC, 2022 NY Slip Op 00812, First Dept 2-8-22

 

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PLAINTIFF STARTED AN ACTION AGAINST DEFENDANT IN NEW YORK; THEN DEFENDANT STARTED AN ACTION AGAINST PLAINTIFF IN ROMANIA; THE RESULTS OF THE ROMANIAN ACTION MAY BE DISPOSITIVE IN THE NEW YORK ACTION; THE NEW YORK ACTION SHOULD HAVE BEEN STAYED PENDING THE OUTCOME OF THE ROMANIAN ACTION, EVEN THOUGH THE NEW YORK ACTION WAS COMMENCED FIRST (FIRST DEPT).

The First Department, reversing Supreme Count, stayed the New York action pending the resolution of a related action brought by the defendant in Romania. the fact that the New York action was commenced first didn’t matter:

In March 2021, plaintiff brought this action to recover on a personal guaranty executed by defendant as consideration for a loan by plaintiff to two Romanian companies partly owned by defendant. Two months later, defendant brought suit against the instant plaintiff in Romania, seeking a declaration that the companies’ payment obligations under the underlying loan agreements were not enforceable.

… [T]he issues to be decided in the Romanian action are potentially dispositive of this action … . …

Although this action was filed first, chronology is not dispositive, “particularly where both actions are at the earliest stages of litigation” … . “[T]he practice of determining priorities between pending actions on the basis of dates of filing is a general rule, not to be applied in a mechanical way, regardless of other considerations” … . Here, both actions are in the early stages and were commenced reasonably close in time and the later-filed action is more “comprehensive” and involves more parties … . E D & F Man Sugar Ltd. v Gellert, 2022 NY Slip Op 00813, first Dept 2-8-22

 

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THE FACT THAT THE CITY BUILDING CODE DID NOT REQUIRE DISABLED-ACCESS TO THE THIRD FLOOR OF DEFENDANT RESTAURANT DID NOT CONFLICT WITH THE FACT THAT THE HUMAN RIGHTS LAW MAY REQUIRE SUCH ACCESS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, a disabled wheelchair user, had standing to bring a discrimination action against defendant restaurant alleging the third floor of the restaurant was not accessible. The fact that the NYC Building Code did not require disabled-access to the third floor based on the square-footage did not conflict with the Human Rights Law which may require access:

The Building Code and disability discrimination laws serve different purposes and can easily be enforced and harmonized. The Building Code serves foremost to ensure safety in construction and maintenance of structures. The accessibility provision at issue simply states that no disabled access is required for building areas which measure less than 2,500 square feet. The provision does not prohibit building owners from providing such access — it simply provides that, for purposes of the Building Code, no such access is required.

The disability discrimination laws are designed, as pertinent here, to ensure that disabled persons have reasonable access to public accommodations. While the Building Code might not require disabled access under the circumstances present here, this does not mean that more may not be required under the State and City Human Rights Laws’ (HRLs) disability discrimination provisions. In this, there is no conflict. To the extent there is any tension between the Building Code’s provisions and the HRLs, such tension may be remedied by the rule of reasonableness which is an integral component of the HRLs’ requirement that disabled persons be reasonably accommodated (see Executive Law § 296[c][i]; Administrative Code of City of NY § 8-107[15][b]). Jones v McDonald’s Corp., 2022 NY Slip Op 00814, First Dept 2-8-22

 

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