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DEFENDANTS DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WET LOADING DOCK WHERE PLAINTIFF SLIPPED AND FELL; GENERAL OBLIGATIONS LAW 5-322.1 (1) APPLIES ONLY TO NEGLIGENT MAINTENANCE ASSOCIATED WITH THE INTEGRITY OF A BUILDING, NOT TO CLEANING SERVICES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate a lack of constructive notice of the wet loading dock. Therefore defendants’ motion for summary judgment should not have been granted. As to the action against the maintenance company charged with keeping the loading dock clean (ABM), General Obligations Law 5-322.1 (1), which imposes liability for negligent maintenance, applies only to maintenance associated with the integrity of a building, not cleaning services:

The defendants failed to establish, prima facie, that they did not have constructive notice of the allegedly dangerous condition in that they failed to offer evidence as to when the loading dock was last cleaned or inspected before the plaintiff’s fall. A security guard hired by the defendants testified that, while he would typically perform a “security walk around” twice every 30 to 60 minutes, on the day of the accident, he did not pay attention to the area where the plaintiff later fell. Further, the testimony of witnesses employed by the defendants and ABM as to general cleaning and inspection procedures for the loading dock area was insufficient to establish lack of constructive notice … . Skerrett v LIC Site B2 Owner, LLC, 2021 NY Slip Op 06386, Second Dept 11-17-21​

 

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DEFENDANT WAS NOT INFORMED HIS GUILTY PLEA COULD RESULT IN DEPORTATION; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO MOVE TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department, remitting the matter to Supreme Court, determined defendant should be given the opportunity to withdraw his guilty plea because he was not informed of the possibility of deportation. The issue was not subject to the preservation requirement for appeal:

… [T]he defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty … . Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant’s pleas of guilty … . Inasmuch as there is no indication in the record that the defendant was aware that he could be deported as a result of his pleas … , the defendant had no “practical ability” to object to the court’s comment about immigration consequences or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation … .

… [W]e remit the matters to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter … . Any such motion shall be made by the defendant within 60 days after the date of this decision and order … . Upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court warned him of the possibility of deportation … . People v Bamugo, 2021 NY Slip Op 06363, Second Dept 11-17,21

 

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THE DENIAL OF THE FOIL REQUEST DID NOT ADVISE PETITIONER OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL; THEREFORE SUPREME COURT SHOULD NOT HAVE DISMISSED THE ARTICLE 78 PETITION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking the production of documents should not have been dismissed on the ground petitioner failed to exhaust administrative remedies. When the FOIL request was denied the denial did not advise petitioner of the availability of an administrative appeal:

Public Officers Law § 89(3)(a) and (4)(a) requires that FOIL requests be granted or denied by an agency within five business days, and that any administrative appeal of a denial, as required for exhausting administrative remedies, be undertaken within 30 days of the denial. 21 NYCRR 1401.7(b) further requires, however, that “[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer.” Since there is no dispute that the subject denial of the petitioner’s FOIL request failed to advise the petitioner of the availability of an administrative appeal and the person to whom the appeal should be directed as required by 21 NYCRR 1401.7(b), the Supreme Court erred in dismissing the petition for failure to exhaust administrative remedies … . Matter of Snyder v Nassau County, 2021 NY Slip Op 06359, Second Dept 11-17-21

 

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THE COMPLAINT SUFFICIENTTLY ALLEGED A BREACH OF THE COVENANT OF GOOD FAITH CAUSE OF ACTION IN THIS INSURANCE COVERAGE DISPUTE; THE “IMPLIED COVENANT” CAUSE OF ACTION ALLEGED CONDUCT DIFFERENT FROM THE BREACH OF CONTRACT CAUSE OF ACTION AND WAS THEREFORE NOT DUPLICATIVE; SUPREME COURT IMPROPERLY REDUCED THE ATTORNEYS’ FEES AWARDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the breach of the implied covenant of good faith and fair dealing cause of action in this insurance coverage dispute should not have been dismissed. The court noted that the “breach of the implied covenant” cause of action was not based on the same conduct as the breach of the insurance policy cause of action and therefore was not “duplicative.” The court also found Supreme Court improperly reduced the attorneys’ fees awards:

This appeal arises out of an insurance coverage dispute between the plaintiff and its insurer, the defendant, in connection with a School Board Legal Liability Policy … (hereinafter the policy). While the policy was in effect, a putative class action entitled Montesa v Schwartz (hereinafter the underlying action) was commenced … in … the Southern District of New York against … the plaintiff and its current and former school board members, alleging various constitutional violations, school segregation, breach of fiduciary duty, and fraud. … [P]laintiff timely submitted a notice of claim to the defendant regarding the underlying action and requested coverage under the policy, and the defendant denied coverage to the plaintiff and its board members. * * *

The plain language of the complaint reflects the plaintiff’s allegation that the defendant breached the implied covenant of good faith and fair dealing. The complaint alleged … that the defendant failed to investigate in good faith the claims in the underlying action, denied coverage to the plaintiff based upon a manufactured and/or “nonexistent” assertion, deviated from industry practices by denying coverage to the plaintiff where “[n]o reasonable insurer would have denied [such] coverage,” and “[disclaimed] coverage with gross disregard for the facts and applicable law” … . In determining the defendant’s motion to dismiss, the court was required to accept as true the facts alleged in the complaint, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged by the plaintiff fit within any cognizable legal theory … . …

… [W]here, as here, the cause of action to recover damages for breach of the policy and the cause of action to recover damages for breach of the implied covenant of good faith and fair dealing allege different conduct on the part of the defendant and seek different categories and/or types of damages, the cause of action seeking damages for breach of the implied covenant of good faith and fair dealing should not be dismissed as “duplicative” of the cause of action alleging breach of contract … . East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 2021 NY Slip Op 06341, Second Dept 11-17-21

 

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PLAINTIFF HAD NO MEMORY OF EVENTS BEYOND WALKING TOWARD THE BUS AT A BUS STOP; SHE SUFFERED A CRUSHED FOOT; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the plaintiff’s verdict in this pedestrian-bus accident case should have been granted. Plaintiff had no memory of the incident beyond walking a couple of feet toward the bus at a bus stop. She suffered a crushed foot. But there was simply no evidence of negligence on the part of the bus driver:

“A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as [*2]a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial” … . In determining such a motion, a court must accept the plaintiff’s evidence as true and accord the plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence presented at trial … . However, “[a] jury verdict must be based on more than mere speculation or guesswork” …

Here, there was no rational process by which the jury could find in favor of the plaintiff and against the defendants on the issue of liability. Even if the circumstantial evidence sufficiently supported a conclusion that the plaintiff was injured due to an impact with a bus, the mere fact that the plaintiff was struck by a bus did not prove the defendants’ negligence … . In addition to establishing the fact of the accident, it was the plaintiff’s burden to demonstrate what actually happened at the time of the accident so as to enable the jury to find that the defendants were negligent and that their negligence was a proximate cause of the accident … . Kirwan v New York City Tr. Auth., 2021 NY Slip Op 06350, Second Dept 11-17-21

 

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PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A BOTTLE CAP; PLAINTIFF’S LABOR LAW 241 (6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 241(6) and 200 causes of action should not have been dismissed. Plaintiff alleged he stepped on a bottle cap which caused him to slip and fall:

The record presents an issue of fact as to whether the bottle cap that caused the injured plaintiff’s slip-and-fall accident on the construction site was part of an accumulation of debris within the meaning of Industrial Code (12 NYCRR) § 23-1.7(e), on which the Labor Law § 241(6) claim is predicated … .

[Defendant] failed to demonstrate, by submitting evidence of when the area was last cleaned or inspected before the injured plaintiff’s accident, that the Labor Law § 200 and negligence claims should be dismissed as against it … . Plaza presented only general testimony by its employees that the area was inspected daily and that debris was removed by laborers. Deleo v JPMorgan Chase & Co., 2021 NY Slip Op 06320, First Dept 11-16-21

 

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THE JURORS IN THIS ATTEMPTED ROBBERY CASE SAW AN INTERNET VIDEO OF DEFENDANT’S CODEFENDANT VIOLENTLY CAUSING A MAN’S DEATH; THE VIDEO HAD NOT BE INTRODUCED OR MENTIONED AT TRIAL; SUPREME COURT SHOULD HAVE GRANTED THE MOTION TO SET ASIDE THE VERDICT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defense motion to set aside the verdict based upon juror misconduct should have been granted. The trial court denied the motion after an extensive hearing. The jurors had seen an Internet video of defendant’s codefendant, Lopez, violently causing a man’s death:

“CPL 330.30 (2) authorizes a court to set aside a verdict on the ground of juror misconduct that ‘may have affected a substantial right of the defendant’ and ‘was not known to the defendant prior to the rendition of the verdict.’ If juror misconduct of the kind outlined in CPL 330.30 (2) is found, the court is not to engage in a separate harmless error analysis. However, ‘[a]bsent a showing of prejudice to a substantial right,’ CPL 330.30 (2) is not implicated in the first place. As such, ‘[e]ach case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered'” … .

Here, the jurors observed an Internet video of defendant’s codefendant, Lopez, violently causing a man’s death. The video did not appear in evidence and there was no testimony or mention of the video at trial. The video created a substantial risk of prejudicing the verdict as it permitted jurors to perceive the codefendant as having a propensity for violence, and then to perceive that same propensity to apply to defendant through a guilt-by-association chain of reasoning. People v Santana, 2021 NY Slip Op 06329, First Dept 11-16-21

 

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THE 1ST DEPARTMENT, OVERRULING PRECEDENT AND JOINING THE OTHER DEPARTMENTS, DETERMINED INDIVIDUAL MUNICIPAL EMPLOYEES NEED NOT BE NAMED IN A NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Scarpulla, determined municipal employees need not be named in a notice of claim. Plaintiff brought negligence, false arrest and false imprisonment causes of action against NYC alleging inhumane treatment by officers at Rikers Island:

The City moved to dismiss plaintiff’s complaint against the NYPD defendants, arguing that plaintiff failed to satisfy General Municipal Law § 50-e because he did not serve a notice of claim that named the NYPD defendants or John/Jane Doe placeholders … . * * *

Upon additional review of the reasoning of our own precedents, the reasoning of … relevant decisions of our sister departments, and reexamination of General Municipal Law § 50-e (2), we now join our sister departments in holding that § 50-e does not mandate the naming of individual municipal employees in a notice of claim. …

… [I]t is well settled that a notice of claim is sufficient so long as it includes enough information to enable the municipal defendant to investigate a plaintiff’s allegations, and “[n]othing more may be required” … . Providing the municipal defendant with the statutorily required elements of the nature of the claim, the time, place and manner in which the claim arose, and the alleged injury, without additionally naming the individual municipal employees involved, does not prevent the municipal defendant from adequately investigating the claim. Armed with the statutorily required information, the municipal defendant is in at least as good a position as the plaintiff to identify and interview the individual municipal employees involved in the claim. Wiggins v City of New York, 2021 NY Slip Op 06335, First Dept 11-16-21

 

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THE CUSTODIAL INTERFERENCE OFFENSES DID NOT TAKE PLACE IN ONTARIO COUNTY AND DID NOT HAVE A PARTICULAR EFFECT ON ONTARIO COUNTY; THEREFORE THE COURT DID NOT HAVE JURISDICTION OVER THEM (FOURTH DEPT).

The Fourth Department determined the custodial interference offenses did not have a “particular effect” in Ontario County, therefore the court did not have jurisdiction over them:

… [I]t is undisputed that all elements of the crime of custodial interference in the first degree were committed outside of Ontario County, the People contend that Ontario County Court could exercise jurisdiction under the ” ‘injured forum’ ” provisions of CPL 20.40 (2) (c) … . That statute provides, in pertinent part, that “[a] person may be convicted in an appropriate criminal court of a particular county, of an offense of which the criminal courts of this state have jurisdiction pursuant to section 20.20, . . . when: . . . [e]ven though none of the conduct constituting such offense may have occurred within such county: . . . [s]uch conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” … . * * *

… [T]he conduct alleged in the counts of the indictment charging defendant with custodial interference in the first degree occurred outside Ontario County and did not have a materially harmful impact on the governmental processes or community welfare of Ontario County. That conduct impacted three people: the children and their mother, none of whom resided in Ontario County, and did not impact the community as a whole … . People v Roth, 2021 NY Slip Op 06257, Fourth Dept 11-12-21

 

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SUPREME COURT SHOULD HAVE CONDUCTED A HEARING ON THE MOTION TO SET ASIDE THE VERDICT ALLEGING RACIAL BIAS AMONG JURORS (FOURTH DEPT).

The Fourth Department, remitting the matter, determined defendant’s motion to set aside the verdict based upon juror misconduct should not have been denied without a hearing:

… [S]etting aside the verdict “is warranted where a juror had an undisclosed preexisting prejudice that would have resulted in his or her disqualification if it had been revealed during voir dire, such as an undisclosed, pretrial opinion of guilt against the defendant”… .

… [T]he court erred in denying defendant’s motion without a hearing because the sworn allegations in support of the motion, including the affidavits of two jurors, indicated that certain other jurors may have had undisclosed preexisting prejudices against people of defendant’s race that may have affected defendant’s substantial right to an impartial jury and fair trial … . … [A]s early as the evening following the verdict, the two jurors alleged in emails sent directly to the court that, during deliberations, certain other jurors directed racist comments at the defendants and that racial bias had played a role in the verdict. … [T]he detailed affidavits of the two jurors recounting specific instances of racist comments by certain other jurors did, in fact, allege that the verdict was influenced by racial bias against the defendants … . People v Woodard, 2021 NY Slip Op 06256, Fourth Dept 11-12-21

 

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