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MERELY LOSING ONE’S BALANCE AND FALLING FROM A LADDER DOES NOT GIVE RISE TO LIABILITY UNDER LABOR LAW 240 (1) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment in this Labor Law 240 (1), 241 (6) and 200 action. There were questions of fact about how the accident happened, whether the plaintiff was employed by a defendant, whether that defendant was employed by the owner, and whether defendant had authority or control over the site or plaintiff. In addition neither the complaint nor the bill of particulars cited a specific Industrial Code violation. The court noted than merely losing one’s balance and falling off a ladder does not give rise to liability under Labor Law 240 (1):

A defendant is not liable on a Labor Law § 240 (1) cause of action unless it is an owner or “a general contractor or an agent of an owner or general contractor with the authority to supervise and control the work of . . . the injured plaintiff” … and, in order for the statute to apply, “a plaintiff must demonstrate that he [or she] was both permitted or suffered to work on a building or structure and that he [or she] was hired by someone, be it owner, contractor or . . . agent [thereof]” … . …

Defendant would not be liable under Labor Law § 240 (1) if plaintiff merely lost his balance and fell off a ladder … . … Pelonero v Sturm Roofing, LLC, 2019 NY Slip Op 06327, Fourth Dept 8-22-19

 

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CRITERIA FOR A MOTION TO RENEW WERE NOT MET, DISSENTERS ARGUED THE COURT HAD THE DISCRETION TO CONSIDER THE MOTION AS A MOTION TO REARGUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the motion to renew should not have been granted. The dissenters argued the motion could have been considered a motion to reargue in the exercise of discretion:

It is well settled that “[a] motion for leave to renew must be based upon new facts that were unavailable at the time of the original motion . . . and, inter alia, that would change the prior determination” (… see CPLR 2221 [e] [2]). Further, “[a]lthough a court has discretion to grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ . . . , it may not exercise that discretion unless the movant establishes a reasonable justification for the failure to present such facts on the prior motion’ ” ( …see CPLR 2221 [e] [3]). In particular, “[l]eave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion” … . …

We reject our dissenting colleagues’ conclusion that the court would have been “justified” in exercising discretion to treat the motion to renew as a motion to reargue, and that it effectively did so in granting Camelot’s motion. We disagree. There is no justification in this case to “deem” Camelot’s motion as one seeking reargument and we decline to do so because, in our view, Camelot actively foreclosed that avenue of relief. The Walton & Willet Stone Block, LLC v City of Oswego Community Dev. Off., 2019 NY Slip Op 06245, Fourth Dept 8-22-19

 

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COMPLAINT DID NOT STATE CAUSES OF ACTION FOR BREACH OF CONTRACT, NEGLIGENT HIRING AND SUPERVISION OR PRIMA FACIE TORT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff, the assignee of no-fault benefits, did not state valid causes of action against the insurer for breach of contract, negligent hiring and supervision, and prima facie tort. The claims were paid by the defendant and plaintiff alleged flaws and delays in the processing of the claims:

The amended complaint, however, failed to identify the specific insurance contracts that plaintiff had performed services under or the contract provisions that defendant allegedly breached. Inasmuch as bare legal conclusions without factual support are insufficient to withstand a motion to dismiss, we conclude that the amended complaint fails to state a cause of action for breach of contract. …

Although “[a]n employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act”… , the amended complaint failed to allege that the acts of defendant’s employees were committed independent of defendant’s instruction or outside the scope of employment … . …

“There can be no recovery [for prima facie tort] unless a disinterested malevolence to injure [a] plaintiff constitutes the sole motivation for [the] defendant[‘s] otherwise lawful act” … . Here, the amended complaint alleged that defendant acted in “bad faith” and intentionally caused harm to plaintiff by requesting verifications and examinations under oath. Those conclusory allegations, however, failed to state that defendant had ” a malicious [motive] unmixed with any other and exclusively directed to [the] injury and damage of [plaintiff]’ ” … . Furthermore, it is “[a] critical element of [a prima facie tort] cause of action . . . that plaintiff suffered specific and measurable loss” … . Medical Care of W. N.Y. v Allstate Ins. Co., 2019 NY Slip Op 06243, Fourth Dept 8-22-19

 

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EVIDENCE DID NOT SUPPORT A LEVEL THREE RISK ASSESSMENT, REDUCED TO LEVEL TWO; STANDARD OF PROOF IS PREPONDERANCE NOT CLEAR AND CONVINCING (FOURTH DEPT).

The Fourth Department determined there was insufficient evidence to justify a level three risk assessment. The assessment was reduced to level two. The court noted that County Court should have applied the preponderant evidence standard, not a clear and convincing standard:

… [T]he People did not establish by clear and convincing evidence that defendant had the requisite pattern of drug use, and there is no “indication in the record that drugs . . . played a role in the instant offense” … . * * *

… [T]he hearsay statement by defendant’s ex-wife that he is a “marijuana addict” is entitled to no weight. Not only is that statement conclusory and unsupported by any other evidence, nothing in the record suggests that defendant’s ex-wife is qualified to diagnose addiction. * * *

… [T]he court erred in assessing him 10 points under risk factor 12, for failure to accept responsibility, given that he “pleaded guilty, admitted his guilt, appeared remorseful when interviewed in connection with the preparation of a presentence report, and apologized” for his conduct  … . People v Kowal, 2019 NY Slip Op 06325, Fourth Dept 8-22-19

 

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TWELVE YEAR SENTENCE FOR CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE THIRD DEGREE DEEMED UNDULY HARSH AND SEVERE, REDUCED TO SEVEN YEARS IN THE INTEREST OF JUSTICE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice partial dissent, reduced defendant’s sentence in this “criminal possession of a controlled substance third degree” case from 12 to seven years. The period of post-release supervision was reduced from three to one and a half years. Defendant was found in possession of over 35 ounces of cocaine:

… [W]e agree with defendant that, under the circumstances of this case, the resentence is unduly harsh and severe. We therefore modify the resentence as a matter of discretion in the interest of justice by reducing the sentence of imprisonment to a determinate term of seven years and the period of PRS to a period of 1½ years … . People v Loiz, 2019 NY Slip Op 06240, Fourth Dept 8-22-19

 

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MORTGAGE WAS NOT ACCELERATED UNTIL THE FORECLOSURE ACTION WAS COMMENCED IN OCTOBER 2016; ACTION FOR THE INSTALLMENT PAYMENTS MISSED DURING THE SIX YEARS PRIOR TO OCTOBER 2016 IS TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage was not accelerated until the foreclosure action was commenced in October, 2016. Therefore the action was not time-barred, except for the mortgages payments due but not paid more than six years prior to October 2016 (missed payments prior to October 2010):

… [C]ontrary to the defendant’s contention, he did not establish that the complaint should be dismissed on statute of limitations grounds through the notices sent to the defendant in February 2009 and May 2009, as those notices did not accelerate the mortgage. The notices indicated that acceleration was a possible future event, but did not constitute an exercise of the mortgage’s acceleration clause … . Rather, the mortgage was only accelerated in October 2016, when the plaintiff served the foreclosure complaint on the defendant seeking immediate payment of the balance of the principal indebtedness. Thus, the Supreme Court should not have granted dismissal of the complaint in its entirety as time-barred. Specifically, the defendant failed to show that the causes of action in the complaint, insofar as they relate to unpaid mortgage installments which accrued within the six-year period immediately preceding the plaintiff’s October 2016 commencement of this foreclosure action, to wit, the unpaid installments which accrued on or after October 6, 2010, were time-barred … .

However, where, as here, the mortgage was payable in installments, there are “separate causes of action for each installment accrued, and the Statute of Limitations [begins] to run, on the date each installment [becomes] due” … . Therefore, since the plaintiff alleged that the defendant made his last payment on mortgage in January 2009 and this action was not commenced until October 6, 2016, the defendant established that any unpaid installments of the mortgage which accrued before the six-year period prior to the plaintiff’s commencement of this mortgage foreclosure action, to wit, unpaid installments from January 2009 through October 5, 2010, are time-barred … . Ditech Fin., LLC v Reiss, 2019 NY Slip Op 06208, Second Dept 8-21-19

 

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PARTY AND ITS ATTORNEYS ORDERED TO PAY SANCTIONS FOR FAILING TO INFORM THE APPELLATE COURT OF THE SETTLEMENT OF ACTIONS ON APPEAL (SECOND DEPT).

The Second Department imposed sanctions on a party and its attorneys for failure to inform the appellate court of the settlement of matters on appeal:

… Gross Polowy, LLC, trial counsel for the respondent, is directed to pay a sanction in the [*2]sum of $1,000 to the Lawyers’ Fund for Client Protection of the State of New York … . …

… Day Pitney, LLP, appellate counsel for the respondent, is directed to pay a sanction in the sum of $250 to the Lawyers’ Fund for Client Protection of the State of New York … . …

… Bank of New York Mellon is directed to pay a sanction in the sum of $500, and shall deposit the sum of $500 with the Clerk of this Court for transmittal to the Commissioner of Taxation and Finance … . Bank of N.Y. Mellon v Smith, 2019 NY Slip Op 06228, Second Dept 8-13-19

 

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DEFENDANT SHOULD NOT HAVE BEEN DESIGNATED A PREDICATE SEX OFFENDER BASED UPON A MICHIGAN CONVICTION OF “BREAKING AND ENTERING AN OCCUPIED DWELLING WITH THE INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE” (SECOND DEPT).

The Second Department determined defendant should not have been classified as a predicate sex offender based upon a Michigan conviction of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree:

Supreme Court should not have, in effect, designated the defendant a predicate sex offender based upon his 1983 Michigan conviction. Where the prior conviction was in a jurisdiction other than New York State, the offense in the other jurisdiction must include all of the essential elements of a crime enumerated as a “sex offense” or “sexually violent offense” in the Correction Law or must require registration as a sex offender in the jurisdiction in which the conviction occurred  … . Although the crime of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree in Michigan is equivalent to the offense of burglary in the second degree in New York … , burglary is not classified by the Correction Law as a “sex offense” or a “sexually violent offense” … , and the People did not rely on the 1983 Michigan conviction as constituting a sexually motivated felony. Moreover, the crime of which the defendant was convicted in 1983 is not considered a sex offense requiring registration as a sex offender in Michigan … . Accordingly, the designation of the defendant as a predicate sex offender was improper … . People v Smith, 2019 NY Slip Op 06181, Second Dept 8-21-19

 

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ALTHOUGH THE MEDICAL MALPRACTICE ACTION WAS COMMENCED IN DECEDENT’S NAME AFTER DECEDENT HAD DIED, THE ACTION WAS NOT A NULLITY AND WAS PROPERLY REVIVED WITHIN SIX MONTHS PURSUANT TO CPLR 205 (a); SUPREME COURT SHOULD NOT HAVE DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court and ruling on some issues of first impression, determined plaintiffs’ medical malpractice action should not have been dismissed. The decision is too detailed and comprehensive to be fairly summarized here. The medical malpractice action was started in 2013 in decedent’s name three months after decedent’s death. Supreme Court erroneously declared that action a nullity. The order dismissing the 2013 action did not include the reasons for the dismissal as is required by the statute. In a later order, Supreme Court attempted to supply the missing reason as “neglect to prosecute.” The Second Department held that the 2013 action was not a nullity and it was properly revived within six months of the dismissal. The subsequent attempt to provide the reason for the dismissal as “neglect to prosecute,” which would preclude reviving the action within six months, was ineffective. The Second Department’s summary of its holding states:

The plaintiff, pursuant to CPLR 205(a), was entitled to commence this action upon the termination of the 2013 action. The order dated November 6, 2015, directing the dismissal of the 2013 action did not set forth on the record a specific pattern of conduct constituting a neglect to prosecute required by CPLR 205(a) to preclude the commencement of subsequent litigation against the defendants, the plaintiff’s nonviable substitution motion does not constitute evidence of neglect to prosecute, and the erroneous naming of the decedent as a plaintiff in the 2013 action does not preclude the application of CPLR 205(a). In addition, CPLR 5019(a) is inapplicable, as the June 6, 2016, order cannot be utilized to substantively change the order dated November 6, 2015.

Accordingly, the judgment entered August 23, 2016, is reversed, on the law, the complaint is reinstated … . Sokoloff v Schor, 2019 NY Slip Op 06176, Second Dept 8-21-19

 

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TRIAL EVIDENCE SUPPORTED THE RULING THAT TWO FACIALLY AMBIGUOUS RELEASES EXECUTED BY PRIOR OWNER OF THE GAS STATION APPLIED TO THE CONTAMINATION OF THE PROPERTY BY LEAKED GASOLINE; THE CURRENT OWNER OF THE GAS STATION COULD NOT, THEREFORE, RECOVER THE CLEANUP COSTS FROM THE DEFENDANT GASOLINE SUPPLIER (SECOND DEPT).

The Second Department determined the trial evidence supported the ruling that two facially ambiguous releases executed by the (a gasoline supplier) and the former owner of the gas station precluded an action by plaintiff, the current owner of the gas station, to recover from defendant plaintiff’s expenditures for the cleanup of leaked gasoline.:

Where a releasee asserts a lack of liability based upon a general release, the burden of proof is on the releasor to show that “the general language of the release, valid on its face and properly executed, is to be limited because of a mutual mistake, or otherwise does not represent the intent of the parties” … . ” [I]t is not a prerequisite to the enforceability of a release that the releasor be subjectively aware of the precise claim he or she is releasing'” … . Thus, at a trial encompassing an assertion by a defendant that it is not liable for the damages claimed by the plaintiff due to a general release that contains equivocal language, rendering it ambiguous on its face, the plaintiff must be afforded an opportunity to establish that the releases were not intended to deprive him or her of the claimed damages … .

Here, although the releases were ambiguous on their faces as to whether they encompassed unknown claims for environmental contamination, the plaintiff failed to adduce evidence at the trial sufficient to support a finding that they did not, whereas the defendant adduced evidence showing that the releases were intended to be general releases. Burnside 711, LLC v Amerada Hess Corp., 2019 NY Slip Op 06165, Second Dept 8-21-19

 

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