You are here: / RATHER THAN DISMISSING THE COMPLAINT, SUPREME COURT SHOULD HAVE ORDERED...

Search Results

/

RATHER THAN DISMISSING THE COMPLAINT, SUPREME COURT SHOULD HAVE ORDERED THE NECESSARY PARTIES SUMMONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss should not have been granted on the ground plaintiffs failed to join necessary parties. The court should have ordered the parties summoned:

Necessary parties are those “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” (CPLR 1001[a] …). Here, the Supreme Court correctly determined that the Limited Partnership and the third limited partner, Ai Ying Zheng, are necessary parties to this action … . …

… [A]s the Limited Partnership and Ai Ying Zheng are subject to the jurisdiction of the Supreme Court, the court should have “order[ed][them] summoned,” rather than granting the motion to dismiss the complaint for failure to join necessary parties (CPLR 1001[b]…). Ji Juan Lin v Bo Jin Zhu, 2021 NY Slip Op 00550, Second Dept 2-3-21

 

/ , ,

A PLENARY ACTION WAS REQUIRED TO SET ASIDE THE STIPULATION OF SETTLEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court did not have the authority to declare certain portions of the stipulation of settlement invalid. A plenary action was necessary:

… [A] plenary action was required to seek to set aside the stipulation of settlement, which was incorporated but not merged into the judgment of divorce … . There are exceptions to this general rule, such as where reformation of a separation agreement is sought to conform the agreement with the intent of the parties … , or where the matrimonial action is still pending and was not terminated with entry of a judgment … , or in certain circumstances where enforcement of child support is sought … . None of these exceptions are applicable here.

In view of the foregoing, those branches of the plaintiff’s cross motion which were to vacate the provisions of the stipulation of settlement concerning equitable distribution and maintenance should have been denied. Jagassar v Deonarine, 2021 NY Slip Op 00549, Second Dept 2-3-21

 

/ , ,

EVICTION WAS TOO SEVERE A PENALTY FOR PETITIONER’S MOMENTARY LOSS OF CONTROL DURING WHICH SHE STRUCK A NYC HOUSING AUTHORITY EMPLOYEE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Housing Authority (NYCHA) should not have penalized petitioner for striking a NYCHA employee by evicting her:

The termination of the tenancy of petitioner, a now 64-year-old woman who has been a NYCHA tenant without incident for more than 40 years and will be evicted from her home along with her adult daughter because she suffered a momentary loss of control when she struck respondent’s employee, whom she believed to be in a relationship with her former partner, is “so disproportionate to [her] offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” … .

Given the facts presented as well as the lack of any evidence presented by NYCHA that petitioner’s continued occupancy presents a concern to the safety of NYCHA employees or a risk to the other NYCHA tenants, this Court finds that a lesser penalty is warranted … . Matter of Bryant v Garcia, 2021 NY Slip Op 00521, First Dept 2-2-21

 

/

PLAINTIFF FELL FROM A SCAFFOLD WHICH DID NOT HAVE GUARDRAILS AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION DESPITE DEFENDANTS’ ARGUMENTS THAT PLAINTIFF DID NOT LOCK THE WHEELS ON THE SCAFFOLD AND PLAINTIFF MAY HAVE FAINTED OR STEPPED BACKWARDS OFF THE SCAFFOLD (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1)cause of action. Plaintiff apparently fell from a scaffold which did not have guardrails. Defendants unsuccessfully argued plaintiff did not lock the wheels of the scaffold and therefore was the sole proximate cause of the accident:

… [D]efendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. Given the scaffold’s inadequacy to protect him from falling, plaintiff’s alleged failure to lock the wheels of the scaffold could not be the sole proximate cause of his accident … . It would be at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Defendants’ argument, raised for the first time on appeal, that plaintiff was the sole proximate cause because he was not wearing a safety harness is also unavailing … , as is their suggestion that plaintiff may have fainted and/or stepped backwards off the scaffold … . Ordonez v One City Block, LLC, 2021 NY Slip Op 00529, First Dept 2-2-21

 

/

ALTHOUGH PLAINTIFF FELL FROM A LADDER, HIS LABOR LAW 240(1) CAUSE OF ACTION WAS PROPERLY DISMISSED; THERE WAS A VIDEO OF PLAINTIFF’S FALL WHICH SHOWED THE LADDER WAS SECURED TO THE SCAFFOLDING AND DID NOT MOVE (FIRST DEPT).

The First Department determined plaintiff’s Labor Law 240(1) cause of action was properly dismissed. Plaintiff fell from a ladder, but there was a video of the fall which showed the ladder did not move and was secured to the scaffolding:

Defendant was properly granted summary judgment dismissing the § 240(1) claim. Surveillance footage of plaintiff falling from the ladder demonstrates that it did not move or shake, refuting plaintiff’s testimony to the contrary … . In addition, photographs taken soon after his fall show that the top of the ladder was connected to the sidewalk bridge and scaffolding above, and tied to the scaffolding structure about one-third of the way up. Cordova v 653 Eleventh Ave. LLC., 2021 NY Slip Op 00490, First Dept 1-28-21

 

/ ,

PLAINTIFF, A PROBATIONARY EMPLOYEE, WAS TERMINATED FOR MARIJUANA USE; QUESTIONS OF FACT ABOUT WHETHER AN ACCOMMODATION FOR PLAINTIFF AS A MEDICAL MARIJUANA PATIENT SHOULD HAVE BEEN MADE (FIRST DEPT).

The First Department determined there are questions of fact about whether plaintiff probationary employee was entitled to accommodation under the Human Rights Law (HRL). She was terminated for marijuana use. However, the marijuana use was a treatment for an illness, irritable bowel disease (IBD):

… [T]here are issues of fact, for purposes of plaintiff’s claim for failure to accommodate under the State Human Rights Law (HRL), as to whether defendant adequately engaged in a cooperative dialogue with plaintiff …. to determine whether it could reasonably accommodate her status as a medical marijuana patient (see PHL 3369[2]). Notably, questions of fact exist as to whether defendant improperly cut the dialogue process short when it discovered that plaintiff was a probationary employee, and refused to consider accommodating her — as it regularly did for permanent employees — by, for example, giving her discipline short of termination, or simply overlooking the one-time technical violation in light of her contemporaneously acquired status as a medical marijuana patient … . …

The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not. Although the City HRL must be construed liberally to ensure maximum protection … , certification as a medical marijuana patient is (other than as specified for purposes of claims under the State HRL) a legal classification. It is not a “physical, medical, mental, or psychological impairment,” which is how disabilities are defined under the City HRL (Administrative Code § 8-102).

Nevertheless, plaintiff’s IBD, is a physical impairment and thus a disability under the City HRL. Accordingly, issues of fact exist as to whether defendant should have permitted plaintiff to treat her IBD through the medical use of marijuana, as a reasonable accommodation. Gordon v Consolidated Edison Inc.,2021 NY Slip Op 00492, First Dept 1-28-21

 

/

PLAINTIFF WAS USING A CLOSED A-FRAME LADDER WHEN IT SLIPPED OUT FROM UNDER HIM; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action should have been granted. Plaintiff was using a closed A-frame ladder when it slipped out from under him:

A worker’s decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident,” and plaintiff here “gave a specific reason why he used the ladder in the closed position” … . Defendants also did not elicit any evidence that it would have been plaintiff’s “‘normal and logical response'” to use the taller ladder that they allege was available to plaintiff at the time of his accident … . Similarly, as for plaintiff’s putative recalcitrance, defendants failed to establish that, among other things: plaintiff knew that the taller ladder was available for his use; he was expected to use the taller ladder for his work; he “‘chose for no good reason not to do so'” … ; and, he refused to follow a specific instruction to use the taller ladder for his work … . Ultimately, “[d]efendants’ contentions would amount to, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) violation … . Morales v 2400 Ryer Ave. Realty, LLC, 2021 NY Slip Op 00498, First Dept 1-28-21

 

/ , , ,

A PUBLIC LIBRARY IS NOT SUBJECT TO THE PREVAILING WAGE REQUIREMENTS OF THE LABOR LAW; THEREFORE THE CLEANING CONTRACTOR HIRED BY THE LIBRARY WAS NOT REQUIRED TO PAY ITS EMPLOYEES THE PREVAILING WAGE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined the public library was not subject to the prevailing wage requirements of the Labor Law, Therefore the petitioner cleaning service, hired by the library, was not required to pay its employees the prevailing wage:

Although we are mindful that the prevailing wage law “is to be interpreted with the degree of liberality essential to the attainment of the end in view”… , that mandate does not permit an overly-broad reading of the statute that expands its reach to noncovered entities … . The library at issue undoubtedly performs a public function and is closely intertwined with the school district that it serves, but it is not itself “a municipal corporation, school district, district corporation [or] board of cooperative educational services” — the entities that are considered to be “[p]olitical subdivision[s]” of the state for purposes of public contracts … . By statute, an “education corporation” and a “school district” are separately defined, indicating “that they are mutually exclusive” … . An “education corporation” is a type of corporation formed for reasons “other than for profit” … , whereas a “school district” is a type of “municipal corporation” … . Reflecting its status as a distinct entity, the library’s Board of Trustees is vested with independent decision-making authority and operational control … . Nor do we view the library as “operat[ing] a public improvement” so as to be considered a public benefit corporation within the embrace of Labor Law § 230 (3) … , or as constituting any of the other public entities included within Labor Law article 9. Consequently, we hold that the library at issue is not a public agency within the meaning of Labor Law § 230 (3). Matter of Executive Cleaning Servs. Corp. v New York State Dept. of Labor, 2021 NY Slip Op 00461, Third Dept 1-28-21

 

/ ,

PLAINTIFF HIGH SCHOOL BASEBALL PLAYER ASSUMED THE RISK OF BEING STRUCK WITH A BALL DURING A PRACTICE DRILL WHERE MULTIPLE BALLS WERE IN PLAY; TWO DISSENTING MEMORANDA (THIRD DEPT).

The Third Department, over two separate dissents, determined plaintiff high school baseball player assumed the risk of injury from being struck with a ball during a so-called “Warrior Drill” where multiple balls are in play:

Having more than one ball in play may not be an inherent risk in a traditional baseball game, but the record indicates that it is a risk inherent in baseball team practices … . Although plaintiff asserts that the presence of a screen between certain players may have provided a false sense of security that they would be protected, thereby creating a dangerous condition beyond the normal dangers inherent in the sport, this argument is belied by his testimony unequivocally establishing that he did not rely upon the screen for safety but, rather, thought that the drill was unsafe even in the presence of the screen. Thus, the conditions were “as safe as they appear[ed] to be” … .  As the evidence showed that plaintiff was an experienced baseball player who “knew of the risks, appreciated their nature and voluntarily assumed them,” defendants demonstrated their prima facie entitlement to summary judgment under the primary assumption of risk doctrine … . Grady v Chenango Val. Cent. Sch. Dist., 2021 NY Slip Op 00468, Third Dept 1-28-21

 

/ , ,

BEFORE PETITIONER INMATE’S ARTICLE 78 PETITION WAS CONSIDERED RESPONDENT VOLUNTARILY REVERSED THE GUILTY FINDINGS ON THE PRISON DISCIPLINARY VIOLATIONS; PETITIONER WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT UNDER THE “CATALYST THEORY” (THIRD DEPT).

The Third Department determined petitioner inmate was not entitled to attorney’s fees as a prevailing party pursuant to the Equal Access to Justice Act [EAJA] (CPLR Article 86). Petitioner contested guilty findings on several prison disciplinary violations and brought an Article 78 proceeding. Before the Article 78 petition was considered the respondent reversed the disposition and expunged it from petitioner’s prison record. Petitioner then sought attorney’s fees as the prevailing party:

Petitioner contends that he is entitled to counsel fees because he prevailed in the litigation under the “catalyst theory.” [The catalyst theory posits that a petitioner is a prevailing party if the desired result is achieved because the proceeding brought about the voluntary change in the respondent’s conduct … .] * * *

Although this Court has not decided whether it will adopt the catalyst theory in EAJA cases, when this Court has been asked to adopt the catalyst theory in other counsel fee award cases, it has declined to do so as the “United States Supreme Court has clearly held that a voluntary resolution of a matter lacks the necessary judicial imprimatur to warrant an award of [counsel] fees” … . … [T]he Court of Appeals specifically agreed … . The same reasoning applies here. The change in the legal relationship was accomplished prior to answering the petition, was based on the voluntary actions of the Department of Corrections and Community Supervision, and was “not enforced by a consent decree or judgment of Supreme Court” … . Matter of Clarke v Annucci, 2021 NY Slip Op 00473, Third Dept 1-28-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy