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THE PEOPLE PRESENTED INSUFFICIENT PROOF ON RISK FACTORS 2 AND 4, REQUIRING A 45 POINT REDUCTION (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment by 45 points, without explaining the facts, determined the People did not submit sufficient evidence on two risk factors:

Supreme Court improperly assessed 25 points under risk factor 2 (sexual contact with victim) and 20 points under risk factor 4 (continuing course of sexual misconduct), as the People failed to establish by clear and convincing evidence … that the defendant engaged in sexual contact with the victims or that, under the theory of accessorial liability, he shared the intent of the victims’ clients in engaging in sexual contact … . People v Canady, 2021 NY Slip Op 03618, Second Dept 6-9-21

 

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PLAINTIFF WAS INJURED ATTEMPTING TO HOLD BACK A HAND TRUCK WITH A 500 POUND LOAD AS HE WAS DESCENDING STAIRS; IT WAS POSSIBLE TO LOWER THE LOAD USING RIGGING IN AN ELEVATOR SHAFTWAY BUT PLAINTIFF WAS DIRECTED TO USE THE STAIRS; PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured trying to keep a hand truck from descending stairs too fast with a 500 pound load. The load could have been lowered with rigging equipment in an elevator shaftway but was directed to use the stairs:

Plaintiff was not provided with any hoisting equipment to use on the staircase and defendants had previously refused Dunwell’s [plaintiff’s employer’s] requests to bring equipment through the building’s lobby and down the shaftway of the lobby elevator, which was already outfitted with rigging equipment. Instead, defendants instructed Dunwell to bring their materials through the courtyard behind the building and down an exterior staircase to the basement. Plaintiff testified that he was holding the hand truck by the handles at the top, while his coworkers held it from the bottom to control its descent, and as the hand truck was going down the first step, one of the coworkers, a helper, “kind of let off the pressure” on his side of the hand truck, causing the hand truck to go down the first step “very fast,” which “jerked” plaintiff and caused him to slip on some dirt, gravel, or debris on the step. Plaintiff testified further that at that point he attempted to hold back the weight of the steel bedplate and stop the load’s descent. Plaintiff “yelled out a little bit” and the three workers rested for approximately 30 seconds, before continuing the descent down the stairs. All three workers rested at the bottom of the stairs before moving the bedplate into the building. During this break, plaintiff told his coworkers “I pulled my shoulder out and my back is killing me.” Agli v 21 E. 90 Apts. Corp., 2021 NY Slip Op 03540, First Dept 6-8-21

 

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PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT LANDLORD’S BUILDING, DID NOT RAISE A QUESTION OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER, WHO ENTERED THROUGH AN ALLEGEDLY BROKEN DOOR, OR A TENANT OR AN INVITEE; IF THE ASSAILANT WERE A TENANT OR INVITEE, THE ALLEGEDLY BROKEN DOOR WOULD NOT BE A PROXIMATE CAUSE OF PLAINTIFF’S INJURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant landlord’s motion for summary judgment in this third-party assault case should have been granted. Although there was an issue of fact whether exterior doors to the apartment building were operable in the day plaintiff was assaulted, plaintiff did not raise a question of fact about whether the assailant was an intruder, as opposed to a tenant:

While plaintiff raised an issue of fact as to whether the building’s entrance doors were operable on the day of the incident, plaintiff failed to raise an issue of fact that the assailant was an intruder who gained access to the building through a negligently maintained entrance. Plaintiff testified that the assailant was masked and hooded, with only his eyes and the tip of his nose visible. Plaintiff admitted that she could not identify the assailant. Although plaintiff saw the assailant flee down the stairs, towards the 19th floor, she did not see him exit the building and does not know where he went … . Under the circumstances, no triable issue of fact exists because there is no evidence from which a jury could conclude, without pure speculation, that the assailant was an intruder, as opposed to a tenant or invitee … . Astupina v West Farms Sq. Hous. Dev. Fund Corp., 2021 NY Slip Op 03542, First Dept, 6-8-21

 

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THE CONDITIONAL ORDER OF DISMISSAL DIRECTING THE FILING OF A NOTE OF ISSUE DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the conditional order of dismissal directing plaintiff to file a note of issue did not meet the statutory requirements of CPLR 3216 and, therefore, the action should not have been dismissed:

The conditional order of dismissal directing plaintiff to file a note of issue by February 28, 2019 or the action would be dismissed failed to adhere to the statutory procedure for dismissing an action for failure to file a note of issue. Specifically, the conditional order of dismissal failed to provide plaintiff with the requisite 90 days to file a note of issue, failed to specify the conduct constituting the neglect demonstrating a general pattern of delay, and did not constitute the requisite written notice because it was not signed by the parties (see CPLR 3216[a], [b][3] … ). Flecha v Neira, 2021 NY Slip Op 03548, First Dept 6-8-21

 

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PLAINTIFF STATED CAUSES OF ACTION FOR VIOLATION OF LABOR LAW 193, IMPROPER DEDUCTIONS FROM WAGES, AND LABOR LAW 215, TERMINATION FOR COMPLAINING OF THE IMPROPER DEDUCTIONS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had stated causes of action for violation of Labor Law 193 by making improper deductions from earned wages, and Labor Law 215, by firing plaintiff after she complained of unlawful deductions:

… [P]laintiff alleged that defendants “impermissibly and unlawfully made deductions from [her] wages including the operating costs and expenses of OFRM [her employer] such as, among other things, credit card fees, bank services bills and electric bills.” She also alleged that her draw and net bonus payments constituted “earned wages,” and that defendants had “unlawfully made deductions from [her] [w]ages.” …

Under Labor Law § 193(1)(b), “[n]o employer shall make any deduction from the wages of an employee, except deductions which . . . are expressly authorized in writing by the employee and are for the benefit of the employee.” In order to state a claim for a violation of § 193, “a plaintiff must allege a specific deduction from wages and not merely a failure to pay wages” … . Additionally, a “‘deduction is more targeted and direct than the wholesale withholding’ of wages” … . * * *

Labor Law § 215 provides, in pertinent part, that no employer “shall discharge, threaten, penalize, or in any other manner discriminate against any employee (i) because such employee has made a complaint to his or her employer . . . that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of [the Labor Law].” Schmidt-Sarosi v Offices for Fertility & Reproductive Medicine, P.C., 2021 NY Slip Op 03564, First Dept 6-8-21

 

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ALLEGED MISHANDLING OF DECEDENT’S BODY BEFORE PLAINTIFF TOOK CUSTODY OF IT SUPPORTED THE RIGHT OF SEPULCHER CLAIM (FIRST DEPT).

The First Department, over a dissent, determined the “right of sepulcher” cause of action properly survived summary judgment:

The record demonstrates that there are factual issues as to whether defendant improperly dealt with the decedent’s body. In his deposition testimony, plaintiff described viewing the body of the decedent, his father, in a closet-like room where supplies were kept. Plaintiff testified that his father’s hands and feet were bound, his stomach had become bloated, he was dirty and unshaven, and a tube was placed down his throat. The decedent’s longtime companion further testified that the area where the body was kept “seemed like [a] garbage dump.” This alleged mishandling and presentation of the body is, contrary to our dissenting colleague’s view, sufficient to raise a factual issue requiring resolution at trial … . * * *

… [T]he right of sepulcher safeguards the surviving next of kin’s right to find “solace and comfort in the ritual of burial” … . Burial rituals involve more than simply placing a body in its final resting place. Indeed, one need only consider the Catholic practice of holding a wake or vigil, or the ritual cleansing of a body following death by Jews and Muslims, as examples of the ways in which human tradition has shown respect to the dead in the moments preceding burial itself… . That plaintiff ultimately took custody of the decedent’s body in a timely fashion does not assuage the harm caused by defendant’s having allegedly improperly dealt with it. Almeyda v Concourse Rehabilitation & Nursing Ctr., Inc., 2021 NY Slip Op 03521, First Dept 6-3-21

 

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SUBPOENAS RELATING TO CROSS CLAIMS SHOULD NOT HAVE BEEN QUASHED (FIRST DEPT).

The First Department, reversing Supreme Court, determined subpoenas that related to cross claims should not have quashed

[Defendant’s] motion to quash the nonparty subpoenas … to obtain information related to … cross claims … (CPLR 3101[a][4]) should have been denied. Although the subpoenaed information was unrelated to the interpleader action, in New York, cross claims “may be asserted between defendants for any cause of action at all, whether or not related to the plaintiff’s main claim” ( … CPLR 3019[b]). As the requested information is relevant to the pending cross claims, they could be properly subpoenaed. Thus, we remand the matter for discovery to the extent the requested information is “material and necessary” to the cross claims (CPLR 3101[a][4] …). Feiger v Ray Enters., LLC, 2021 NY Slip Op 03525, First Dept 6-3-21

 

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THE EVIDENCE DID NOT DEMONSTRATE THE DEVELOPMENT OF A PARENT-CHILD RELATIONSHIP BETWEEN RAYMOND F AND THE CHILD; THEREFORE RAYMOND F’S REQUEST FOR A GENETIC MARKER TEST SHOULD NOT HAVE BEEN DENIED (THIRD DEPT).

The Third Department, reversing Family Court, determined Raymond F’s request for a genetic marker test should not have been denied. The evidence did not demonstrate a parent-child relationship such that Raymond F should be equitably estopped from denying paternity:

The application of the doctrine of equitable estoppel does not involve the equities between adult participants to the paternity proceedings … . “Rather, in the context of a paternity proceeding, it is the child’s justifiable reliance on a representation of paternity that is considered and, therefore, the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the subject child” … . …

The trial testimony established that the mother and Trini G., the mother’s boyfriend with whom she and her children lived for nine years (from the time the child was two to three months old), “co-parented” all of the children by contributing financially to their care and feeding, bathing and playing with them. Trini G. referred to the child as “stepson” and the child called him “daddy.” The record established that Reymond F. had no contact with the child since birth, except during sporadic visits between Reymond F. and his two older children. Reymond F. testified that he did not do “anything” with the child during these visits, was not called “dad” and did not call the child “son.” He further testified that he never called the child on the phone, never gave him gifts and never checked on his educational or medical issues. The mother testified that, while she did not encourage the child to have a relationship with Reymond F., the child knew that Reymond F. was his biological father. Matter of Montgomery County Dept. of Social Servs. v Trini G., 2021 NY Slip Op 03489, Third Dept 6-3-21

 

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THE EXAMINATION UNDER OATH (EUO) WAS SCHEDULED BEFORE THE INSURER RECEIVED A CLAIM FORM; THEREFORE THE INSURER DID NOT HAVE TO DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF 11 NYCRR 65-3.5 TO BE ENTITLED TO A DEFAULT DECLARATORY JUDGMENT; THE UNDERLYING TRAFFIC ACCIDENT WAS FOUND TO HAVE BEEN STAGED AND CLAIMANT FAILED TO APPEAR AT SCHEDULED EOU’S (FIRST DEPT).

The First Department noted that where an examination under oath (EUO) is scheduled before the insurance company’s of a claim form, the insurer need not submit the proof of mailing in compliance with 11 NYCRR 65-3.5 to obtain a default declaratory judgment. It was determined the underlying traffic accident was staged and claimant did not appear at scheduled EOU’s:

As to claimant Ronald Marcellus, plaintiff additionally provided sufficient proof that he failed to appear for an examination under oath (EUO) despite receiving proper notice, which vitiates the policy … . Generally, an insurer must provide proof that the EUO requests were timely mailed, within 15 business days of receipt of the prescribed verification forms, in compliance with 11 NYCRR 65-3.5 in order to obtain a default declaratory judgment … . However, that requirement does not apply where, as here, the EUOs are scheduled prior to the insurance company’s receipt of a claim form … . Since Marcellus failed to appear on two or more occasions and the EUO requests were sent prior to plaintiff’s receipt of a claim form, plaintiff did not need to demonstrate compliance for the verification requests under 11 NYCRR 65-3.5. State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 2021 NY Slip Op 03536, First Dept 6-3-21

 

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THE CONTRACTOR HIRED TO CLEAN THE HOTEL LOBBY LAUNCHED AN INSTRUMENT OF HARM BY POURING CLEANING SOLUTION ON THE FLOOR AND FAILING TO PUT DOWN MATS OR POST WARNINGS; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE CONTRACTOR IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant cleaning contractor launched an instrument of harm by pouring cleaning solution on the floor in this slip and fall case. Therefore plaintiff was entitled to summary judgment against the contractor:

Plaintiff alleged [the cleaning contractor] poured a large amount of cleaning solution onto the lobby’s floor without barricading the location to prevent hotel guests from entering the area while he was cleaning, failed to place down safety mats to provide people with a safe passage through the area while the floor was wet, and failed to post appropriate warning signs.

There is video surveillance footage of the accident; no party disputes that the floor was dry when plaintiff first walked through the area to enter the restroom and that it was wet when he returned about five minutes later.

Plaintiff is entitled to partial summary judgment as against Town House, the outside cleaning contractor, since the evidence showed that Town House’s employee launched a force or instrument of harm by negligently mopping or leaving a puddle of water near the guest elevators in the lobby before plaintiff’s fall … . Tobola v 123 Wash., LLC, 2021 NY Slip Op 03537, First Dept 6-3-21

 

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