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A LEASE GUARANTY WHICH ALLOWS AMENDMENTS TO THE LEASE WITHOUT NOTICE TO THE GUARANTORS IS VALID AND ENFORCEABLE (SECOND DEPT).

The Second Department determined the guarantors of a lease, Cipolla and Mucci, were liable under the guaranty, even though amendments to the lease could be made without notice to the guarantors:

The plaintiff … submitted a guaranty signed by … Cipolla and Mucci … which provided that the undersigned would become guarantors of the prompt and faithful payment and performance of Corbel under the lease, and that no modifications or amendments to the lease would relieve the guarantors’ obligations … . …

The guaranty provided … that notice to or consent by the guarantors was not required for amendments respecting the lease. … “A guarantor is not relieved of his [or her] obligations where, as here, the written guarant[y] allows for changes in the terms of the guarant[y] and expressly waives notice to the guarantor of these changes” … . 2402 E. 69th St., LLC v Corbel Installations, Inc., 2020 NY Slip Op 02996, Second Dept 5-27-20

 

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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL ARGUED DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT WAS NOT VIABLE (SECOND DEPT). ​

The Second Department, remitting the matter for a determination of defendant’s CPL 330.30 motion to set aside the verdict, determined defendant’s attorney took a position adverse to defendant by arguing defendant’s pro se motion was not viable:

Prior to sentencing, the defendant moved, pro se, to set aside the verdict pursuant to CPL 330.30. At the sentencing hearing, defense counsel stated that the defendant asked him to adopt the motion but that defense counsel did not believe that it was “viable.” He added that, in his opinion, the motion argued matters that were not “for the purview of the [c]ourt.” The Supreme Court declined to review the motion.

As the People concede, defense counsel, by taking a position adverse to that of his client on the motion to set aside the verdict pursuant to CPL 330.30, deprived the defendant of the effective assistance of counsel … . People v Sonds, 2020 NY Slip Op 03036, Second Dept 5-27-20

 

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GOVERNOR HAD THE AUTHORITY TO CANCEL THE SPECIAL ELECTION FOR QUEENS BOROUGH PRESIDENT IN RESPONSE TO THE COVID-19 PANDEMIC (SECOND DEPT).

The Second Department, converting the Article 78 proceeding to a declaratory judgment action, determined the Executive Order canceling the June, 2020, special election for Queens Borough President was a valid exercise of the Governor’s authority in response to the COVID-19 pandemic:

… [T]he Governor demonstrated, prima facie, that the canceling of the special election, which would have been held pursuant to New York City Charter § 81, was the minimum deviation necessary to assist or aid in coping with the COVID-19 pandemic, and was authorized pursuant to the emergency powers granted to the Governor by Executive Law § 29-a(1). Additionally, to the extent that New York City Charter § 81 required the special election to be held, pursuant to the language of Executive Order (Cuomo) No. 202.3 (9 NYCRR 8.202.3), those provisions of the New York City Charter have been suspended … . Matter of Dao Yin v Cuomo, 2020 NY Slip Op 03046, Second Dept 5-28-20

 

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CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS ACTION STEMMING FROM THE POLICE-KILLING OF AN 18-YEAR-OLD BOY AFTER HIS MOTHER CALLED 911 SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the City defendants’ motion for summary judgment in this negligence, wrongful death and civil-rights-violation action should not have been granted. Plaintiffs’ decedent, 18 years old, was shot and killed by police after his mother called 911. The Second Department noted that Supreme Court properly granted summary judgment to defendants on the cause of action based upon defendants’ alleged failure to follow the Patrol Guide for the apprehension of barricaded and emotionally disturbed persons because the relevant actions were discretionary and thus entitled to governmental immunity:

… [A] municipal defendant cannot be held liable for the negligent acts of its employee police officers where it establishes that the alleged negligent acts involved the exercise of discretionary authority … . Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . …

… [T]he defendants submitted the deposition testimony of each of the defendant officers who fired at the decedent, as well as the deposition testimony of a nonparty civilian who observed the incident. … [T]he testimonies of these witnesses demonstrate the existence of triable issues of fact as to whether … the decedent posed a threat of imminent death or serious physical injury to the defendant officers or others sufficient to justify the officers’ use of deadly physical force against the decedent … . …  [T]he City may not rely on the defense of governmental immunity because the defendant officers’ actions, if negligent, would be in violation of the Patrol Guide’s prohibition against the use of deadly physical force, and therefore, not discretionary … . …

… [Re: 42 USC 1983] the defendants failed to demonstrate, prima facie, the absence of triable issues of fact as to whether the defendant officers’ use of deadly physical force against the decedent was objectively reasonable under the circumstances … . The defendants further failed to establish, prima facie, the absence of triable issues of fact as to whether a reasonable officer, facing the same situation, could have believed that deadly physical force was necessary to protect himself or herself or others from death or serious physical injury, and that the defendant officers are thus entitled to qualified immunity … . Owens v City of New York, 2020 NY Slip Op 03019, Second Dept 5-27-20

 

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QUESTIONS OF FACT RAISED ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS RULE, WHETHER THE DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF WAS INJURED BY A CONDITION HE WAS HIRED TO REPAIR; SLIP AND FALL OCCURRED ON DEPARTMENT OF EDUCATION, NOT NYC, PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Education’s (DOE’s) motion for summary judgment in this slip and fall case should not have been granted. Plaintiff slipped and fell on an exterior step of a school. Questions of fact were raised about the applicability of the storm in progress rule, whether the defect was trivial, and whether the plaintiff was injured by the condition he was hired to repair. However, the City’s motion for summary judgment was properly granted because the slip and fall occurred on DOE property, not NYC property:

… [A]lthough it is undisputed that a storm was in progress at the time of the plaintiff’s accident, the defendants failed to eliminate triable issues of fact as to whether an allegedly defective condition with the step caused or contributed to the plaintiff’s injuries … . … There may be more than one proximate cause of an accident, and here, the defendants failed to establish, prima facie, that the alleged unevenness of the step was not a proximate cause of the plaintiff’s accident … . …

… [T]he defendants submitted the DOE’s 2010-2011 building condition assessment survey for the school, which indicated that the step was in “poor” condition, described the deficiency as “stone deteriorated substrate,” and noted “replace substrate and reset” as a potential action. Although “[p]hotographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … , the only photograph submitted by the defendants in their moving papers was a small, black-and-white photograph of the step in the building condition assessment survey for the school, which was indistinct and failed to establish that the alleged defect was trivial as a matter of law … . …

The defendants also failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that the plaintiff was injured by the condition he was responsible for repairing … . Mejias v City of New York, 2020 NY Slip Op 03008, Second Dept 5-27-20

 

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MUNICIPAL EMERGENCY PERSONNEL WERE ENGAGED IN A GOVERNMENTAL FUNCTION RESPONDING TO PLAINTIFFS’ 911 CALL AND THERE WAS NO SPECIAL RELATIONSHIP WITH THE PLAINTIFFS; MUNICIPAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE, WRONGFUL DEATH ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the municipal police and ambulance defendants’ motion for summary judgment was properly granted in this negligence, wrongful death action. Plaintiff’s decedent died after his wife called 911 and the police and ambulance personnel were unable to revive him. The Second Department found that the municipal defendants were engaged in a governmental function and there was no special relationship between the plaintiffs and the municipal defendants:

… [T]he defendants were engaged in a governmental function as a provider of emergency medical services pursuant to a municipal emergency response 911 system, such that the defendants could not be held liable to the plaintiff unless they owed her a special duty … . One way to establish the existence of a special duty is by showing that the defendant assumed a “special relationship” with the plaintiff beyond the duty that is owed to the public generally … . “The plaintiff has the heavy burden of establishing the existence of a special relationship by proving all of the following elements: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) [that] party’s justifiable reliance on the municipality’s affirmative undertaking” … . Of the four factors, the “justifiable reliance” element is “critical” because it “provides the essential causative link between the special duty assumed by the municipality and the alleged injury” … . …

There is nothing in the record to suggest that Officer Kelly or any of the defendants’ agents lulled the plaintiff into a false sense of security, or induced her to forego other avenues to transport her husband to the hospital, and therefore placed the plaintiff in a worse position than she would have been had the defendants never assumed the duty … . Marks-Barcia v Village of Sleepy Hollow Ambulance Corps, 2020 NY Slip Op 03007, Second Dept 5-27-20

 

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THE ‘COVID-19’ EXECUTIVE ORDER GENERALLY TOLLING THE STATUTE OF LIMITATIONS DID NOT EXTEND THE TIME FOR FILING A PETITION TO VALIDATE A DESIGNATING PETITION, WHICH IS GOVERNED BY ANOTHER ‘COVID-19’ EXECUTIVE ORDER (SECOND DEPT). ​

The Second Department determined the petition to validate the appellant’s designating petition was not timely commenced pursuant to Executive Order No. 202.8 passed in response to the COVID-19 pandemic:

… [T]he statute of limitations for commencing this Election Law article 16 proceeding was not tolled by a provision of Executive Order (Cuomo) No. 202.8 (9 NYCRR 8.202.8), issued on March 20, 2020, in response to the COVID-19 pandemic, which generally tolled limitations periods. Rather, this matter is governed by chapter 24 of the Laws of 2020, passed by the Legislature and signed into law by the Governor two days before the issuance of Executive Order No. 202.8, also in response to the COVID-19 pandemic … . That legislation set a new date for the filing of designating petitions and specifically provided that the time to commence an Election Law article 16 proceeding “shall be adjusted accordingly” … . Indeed, tolling the statute of limitations when the primary election will take place on June 23, 2020, is unworkable … for commencing Election Law article 16 proceedings, pertaining to the validity of designating petitions. We note that while the courts ceased accepting papers for filing in many legal matters due to the pandemic, they continued to accept filings of emergency Election Law applications, as such matters were deemed “essential” by the Chief Administrative Judge … . Matter of Echevarria v Board of Elections in the City of N.Y., 2020 NY Slip Op 02992, Second Dept 5-21-20

 

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DESIGNATING PETITION PERMEATED BY FRAUD INVALIDATED; THREE JUDGE DISSENT (CT APP).

The Court of Appeals, in an opinion per curiam, reversing the Appellate Division, over a three-judge dissent, determined the designating petition was permeated by fraud and must be invalidated:

… [W]here appropriate, a court may … conclude that, “because of its magnitude[,]” fraud and irregularity established by clear and convincing evidence “so permeated’ the [designating] petition as a whole to call for its invalidation” … .

Based on the undisputed facts of this matter, which establish, among other things, “that 512 out of 944 signatures submitted in the [designating] petition are backdated to dates preceding the candidate’s receipt of the blank petition pages,” and that “14 of the 28 subscribing witnesses” swore that those signatures were placed on the designating petition before the blank petition pages were obtained from the printer (… cf. Election Law § 6-134 [3]), the lower courts should have concluded that this is one of those rare instances in which the designating petition is so “permeated” by fraud “as a whole as to call for its invalidation” … . Matter of Ferreyra v Arroyo, 2020 NY Slip Op 02994, CtApp 5-21-20

 

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DESPITE THE HARDSHIP IMPOSED BY THE COVID-19 PANDEMIC, THE FAILURE TO TIMELY FILE A COVER SHEET ACCOMPANYING A DESIGNATING PETITION IS A FATAL DEFECT (CT APP).

The Court of Appeals, in an opinion per curiam, reversing the First Department and affirmed the Third Department, over two comprehensive dissenting opinions, determined that, despite the hardship imposed by Covid-19, the failure to timely file a cover sheet accompanying a designating petition is a fatal defect:

In Matter of Seawright v Board of Elections in the City of New York, the Appellate Division, First Department, held that — in light of the “unique circumstances” created by the COVID-19 pandemic — the candidate’s belated filing of a cover sheet and certificate of acceptance did not constitute a fatal defect (2020 NY Slip Op 02900, *1 [1st Dept May 14, 2020]). In Matter of Hawatmeh v New York State Board of Elections, the Appellate Division, Third Department, rejected the First Department’s approach and reached the opposite conclusion, holding that — notwithstanding the “unprecedented circumstances created by the COVID-19 pandemic” — the candidate’s belated filing of a certificate of acceptance was a fatal defect (2020 NY Slip Op 02907, *1-2 [3d Dept May 15, 2020]). …

We granted leave to resolve this departmental split. We now reverse in Seawright and affirm in Hawatmeh. * * *

The COVID-19 pandemic has undoubtedly presented uniquely challenging circumstances for Seawright and Hawatmeh — among countless other candidates for public office. Nonetheless, as in our prior cases, we remain constrained by the express directive of the Election Law: the complete failure to file, by the applicable deadline, either a cover sheet with a designating petition or a certificate of acceptance constitutes a “fatal defect” (Election Law § 1-106 [2]). The First Department’s analysis, employed in Seawright, Mejia (___ NY3d ___ [decided herewith]), and Mujumder (___ NY3d ___ [decided herewith]), directly conflicts with that well-established statutory mandate … . Matter of Seawright v Board of Elections in the City of New York, 2020 NY Slip Op 02993, CtApp 5-21-20

 

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FAILURE TO FILE A COVER SHEET ACCOMPANYING A DESIGNATING PETITION IS A FATAL DEFECT (CT APP).

The Court of Appeals reversing these two election matters, determined the failure to timely file a cover sheet accompanying a designating petition is a fatal defect:

For the reasons stated in Matter of Seawright v Board of Elections in the City of New York (____ NY3d ____ [decided herewith]), the failure to timely file a cover sheet accompanying a designating petition constitutes a fatal defect.

For each case: Order reversed, without costs, and petition to validate the designating petitions denied, in a memorandum. Chief Judge DiFiore and Judges Stein, Fahey, Garcia and Feinman concur. Judge Wilson dissents for reasons stated in his dissenting opinion in Matter of Seawright v Board of Elections in the City of New York and Matter of Hawatmeh v New York State Board of Elections (decided today). Matter of Mejia v Board of Elections in the City of New York, 2020 NY Slip Op 02995, CtApp 5-21-20

 

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