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THE ZONE OF DANGER THEORY OF LIABILITY IS AVAILABLE ONLY TO THE IMMEDIATE RELATIVES OF THE INJURED PARTY; PETITIONERS’ CHILDREN WITNESSED THE FATAL INJURY TO ANOTHER STUDENT WHO WAS NOT RELATED; PETITIONERS’ REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT ALLEGING INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the school district should not have been granted. The petitioners are the parents of students who were participating in football training when the pole or log they were carrying dropped and fatally injured another student. The late notice of claim asserted intentional and negligent infliction of emotional distress based upon the petitioners’ children being in the “zone of danger.” However, the “zone of danger” theory can be raised only by the immediate relatives of the injured party:

“The zone-of-danger rule . . . allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family” … . Here, the petitioners’s children were not immediate family members of the decedent. Thus, they have no legally cognizable claim to recover damages for emotional distress they allegedly sustained from witnessing the accident … , or based upon the District’s alleged refusal to provide continued counseling and maintain the coaching staff support system, as such damages are a financial consequence of their emotional trauma … . Moreover, the District demonstrated that, under the circumstances presented, it was not authorized to pay for continued outside counseling services for the petitioners’ children, and the record reflects that the District provided ongoing counseling from mental health professionals employed by the District. Under the circumstances, the proposed claim against the District is patently meritless … . Matter of Kmiotek v Sachem Cent. Sch. Dist., 2019 NY Slip Op 07583, Second Dept 10-23-19

 

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MOTHER’S CUSTODY PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; CUSTODY PETITION MAY BE HEARD JOINTLY WITH A PERMANENCY HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined than mother’s petition for custody should not have been dismissed without a hearing and noted that a custody petition may be heard jointly with a permanency hearing:

The appeal from the order dated September 27, 2018, has not been rendered academic by the permanency hearing order dated November 13, 2018, which apparently changed the permanency goal from working toward legal guardianship by the maternal grandmother to guardianship by a different relative. The order appealed from denied the mother’s petition for custody, and the issue of whether that order was proper will continue to affect the mother’s rights … .

Custody determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . Here, the record does not reveal the existence of circumstances that would bring this case within the narrow exception to the general right to a hearing … .

However, the petition for custody may be heard jointly with any permanency hearing held pursuant to Family Court Act article 10-A (see Family Ct Act § 1089-a[a] …). Matter of Barcene v Parrilla, 2019 NY Slip Op 07575, Second Dept 10-23-19

 

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UNLOADING A HEAVY AIR CONDITIONING COIL FROM A TRUCK IS AN ACTIVITY COVERED BY LABOR LAW 240 (1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that unloading a heavy coil from and truck was an activity covered by Labor Law 240 (1):

Plaintiff was injured when an air conditioning system coil that weighed at least 300 pounds and was being transported secured to two dollies fell on his leg as he and three coworkers unloaded it from a truck. After plaintiff and his coworkers had brought the coil to ground level on the truck’s lift gate and were attempting to move it off the lift gate, a wheel of a dolly became caught in a gap on the lift gate, and the coil tipped over.

In view of the weight of the coil and the amount of force it was able to generate, even in falling a relatively short distance, plaintiff’s injury resulted from a failure to provide protection required by Labor Law § 240(1) against a risk arising from a significant elevation differential … . Moving the coil safely required either hoisting equipment or a device designed to secure the coil against tipping or falling over … . Ali v Sloan-Kettering Inst. for Cancer Research, 2019 NY Slip Op 07544, First Dept 10-22-19

 

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INSTALLING WINDOW SHADES IS NOT ‘ALTERING’ WITHIN THE MEANING OF LABOR LAW 240 (1) AND WAS NOT PART OF THE GENERAL CONTRACTOR’S RESPONSIBILITIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment  on the Labor Law 240 (1), 241 (6) and 200 causes of action should have been dismissed. Plaintiff’s work was not “altering” within the meaning of Labor Law 240 (1) and was not part of the general contractor’s (Greenlight’s) contract with the apartment owners (the Dixons):

Because plaintiff Martin Topoli’s work installing window shades at the time of the accident does not constitute “altering” within the meaning of Labor Law § 240(1), that claim is dismissed …. The Labor Law § 241(6) claim is also dismissed, since plaintiff’s work is separate and distinct from the larger construction project … . Third-party defendants and apartment owners, Rebecca Dixon and Adam Dixon, modified the contract with general contractor Greenlight Construction Management Corp. to remove the provision and installation of window treatments from the scope of its work. The Dixons directly contracted with plaintiff’s employer for the installation of the window shades after the construction work was completed and they had moved in to the apartment. Greenlight’s return to the work site after the completion of construction, done to accommodate the Dixons’ new desire for larger window valances, was limited in nature and separate from plaintiff’s work. Topoli v 77 Bleecker St. Corp., 2019 NY Slip Op 07537, First Dept 10-22-19

 

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PLAINTIFF’S ‘DENIAL OF A FAIR TRIAL’ ACTION PURSUANT TO 42 USC 1983 SHOULD NOT HAVE BEEN DISMISSED BEFORE PLAINTIFF’S CASE WAS CLOSED; THE MOTION FOR A DIRECTED VERDICT WAS PREMATURE AND SHOULD NOT HAVE BEEN GRANTED, EVEN IF PLAINTIFF’S ULTIMATE SUCCESS WAS UNLIKELY; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing Supreme Court, setting aside the verdict, and ordering a new trial, determined that the motion for a directed verdict should not have been granted prior to the close the plaintiff’s case. Plaintiff had brought an action against the City of New York pursuant to 42 USC 1983 alleging he had not received a fair trial:

The denial of a fair trial claim is a stand alone cause of action (see e.g. Garnett v Undercover Officer C0039, 838 F3d 265, 278-279 [2d Cir 2016]), which should not have been dismissed prior to the conclusion of plaintiff’s case in chief. CPLR 4401 permits a party to move for a directed verdict “after the close of the evidence presented by an opposing party with respect to such cause of action or issue.” “[I]t is reversible error to grant a motion for a directed verdict prior to the close of the party’s case against whom a directed verdict is sought” … , even if the ultimate success of a plaintiff’s cause of action is unlikely … . Cromedy v City of New York, 2019 NY Slip Op 07527, First Dept 10-22-19

 

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THE APPEAL OF AN UNPRESERVED ISSUE DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS, THREE JUDGES DISSENTED (CT APP).

The Court of Appeals, over an extensive two-judge dissenting opinion, and another dissent, determined that the modification by the Appellate Division could not be appealed:

“[A]n Appellate Division reversal [or modification] based on an unpreserved error is considered an exercise of the Appellate Division’s interest of justice power” … . Moreover, the Appellate Division’s characterization of its own holding (i.e., “on the law” or “on the facts”) is not binding; in determining jurisdiction, we look behind that characterization to discern the basis of the ruling … . …

Here, it is undisputed that, in vacating the first-degree robbery count (without disturbing the second-degree robbery convictions …), the Appellate Division relied upon an unpreserved argument concerning the proper interpretation of and minimum proof required to establish the weapon display element of the first-degree offense … . As we have repeatedly recognized, for jurisdictional purposes an unpreserved issue of this nature does not present a question of law. Thus, the Appellate Division determination — the basis of the order of modification — was not “on the law alone” but was necessarily made as a matter of discretion in the interest of justice … . People v Allende, 2019 NY Slip Op 07523, Ct App 10-22-19

 

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PROOF PRESENTED TO THE GRAND JURY DID NOT SUPPORT ATTEMPTED THIRD OR FOURTH DEGREE LARCENY, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, reversing (modifying) the Appellate Division, determined the evidence presented to the grand jury was not sufficient to support attempted third or fourth degree larceny. Apparently defendant used a sticky object to “fish” mail out of a mailbox. Although there were money orders in the mailbox, the money orders were not stuck to the object:

Viewed in the light most favorable to the People, the evidence presented to the grand jury was insufficient to demonstrate that defendant came dangerously close to taking property valued in excess of $3,000 or $1,000. There was no evidence that the items attached to defendant’s mailbox fishing apparatus had any monetary value, no evidence of the volume of the mail contained in the mailbox or whether it was physically possible for defendant to procure the two money orders deposited in the mailbox by the government investigators amidst the other mail, no evidence as to whether the fishing device was immediately reusable, and no evidence that defendant intended to make successive attempts at fishing out the contents of the mailbox in question. Furthermore, the fact that defendant stated he would be paid $100 for each mailbox fished does not establish that he came dangerously close to stealing property valued at more than $3,000 or $1,000. People v Deleon, 2019 NY Slip Op 07522, CtApp 10-22-19

 

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JUROR MISCONDUCT WARRANTED A NEW TRIAL IN THIS MURDER CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, affirming the Appellate Division, determined juror misconduct deprived defendant [Dr. Neulander] of a fair trial:

The Appellate Division concluded that the trial court abused its discretion by denying [defendant’s] CPL 330.30 motion to set aside the verdict against him based on that juror misconduct. … [H]e is entitled to a new trial. “Nothing is more basic to the criminal process than the right of an accused to a trial by an impartial jury” … .

… [A] jury convicted Dr. Neulander of murdering his wife and tampering with physical evidence. Throughout the trial, one of the jurors, Juror 12, sent and received hundreds of text messages about the case. Certain text messages sent and received by Juror 12 were troublesome and inconsistent with the trial court’s repeated instructions not to discuss the case with any person and to report any attempts by anyone to discuss the case with a juror. Juror 12 also accessed local media websites that were covering the trial extensively. In order to hide her misconduct, Juror 12 lied under oath to the court, deceived the People and the court by providing a false affidavit and tendering doctored text message exchanges in support of that affidavit, selectively deleted other text messages she deemed “problematic,” and deleted her now-irretrievable internet browsing history. The cumulative effect of Juror 12’s extreme deception and dishonesty compels us to conclude that her “improper conduct . . . may have affected a substantial right of defendant” (CPL 330.30[2]). People v Neulander, 2019 NY Slip Op 07521, CtApp 10-22-19

 

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DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) RULING ALLOWING SNOWMOBILES TO USE A ROADWAY IN THE ADIRONDACK PARK UPHELD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions (three judges) held that the determination by the Department of Environmental Conservation (DEC) to allow snowmobiles to use an existing roadway in the Adirondack Park was not irrational and should stand:

Our state’s constitutional commitment to conservation for more than a century has ensured the continued protection of the region’s iconic landscapes while providing extraordinary outdoor recreational experiences to citizens of this state and tourists from around the world. Agencies charged with managing park property must balance, within applicable constitutional, statutory and regulatory constraints, the preeminent interest in maintaining the character of pristine vistas with ensuring appropriate access to remote areas for visitors of varied interests and physical abilities. In this appeal, we review a challenge brought by environmental groups to a determination of the New York State Department of Environmental Conservation (“DEC”) made in consultation with the Adirondack Park Agency (“APA”) that, among other things, permits seasonal snowmobile use on an existing roadway on property recently acquired by the State and added to the Adirondack Forest Preserve. Because we are unpersuaded by petitioners’ contention that the determination either contravenes controlling motor vehicle use restrictions in the Adirondack Park State Land Master Plan (“Master Plan”) and Wild, Scenic and Recreational Rivers System Act (ECL 15-2701 et seq. [“Rivers Act”]) or is otherwise irrational, we affirm the challenged portion of the Appellate Division order. Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 2019 NY Slip Op 07520, CtApp 10-22-19

 

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CLASS ACTION CLAIM BY TENANTS ALLEGING VARIOUS FORMS OF RENT OVERCHARGES PROPERLY SURVIVED A PRE-ANSWER MOTION TO DISMISS AND SHOULD PROCEED TO THE CERTIFICATION STAGE PURSUANT TO CPLR 902 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, determined the pre-answer motion to dismiss a class action claim by tenants alleging various forms of rent overcharges was properly denied and the matter should move on for a ruling on whether the prerequisites for a class action under CPLR 902 are met:

… [T]here is an element of truth to defendants’ suggestion that the class claims — particularly those based on the alleged misrepresentation and inflation of the costs of IAIs [individual apartment improvements]— may require separate proof with respect to each plaintiff. Along those lines, defendants note that the operative complaint “alleges overcharges for inflated IAI increases of [various] amounts” — 136%, 97%, 82%, 104%, 113%, 33%, or 254% for various apartments — which they contend supports the idea that the alleged overcharges are separate wrongs to separate persons that do not form the basis for a class action … .

That leads to the friction point on this appeal: are we to look at the common basis for a damages claim or the degree of damage alleged? On the one hand, if, as defendants suggest, the differences in the specific means of harm is considered — that is, if at this stage the Court contemplates nuances of how those overcharges allegedly were accomplished — then plaintiffs may struggle to satisfy the factual component of CPLR 901 (a) (2). On the other hand, as plaintiffs note, to focus on potential idiosyncrasies within the class claims — distinctions that speak to damages, not to liability — at this juncture would potentially be to reward bad actors who execute a common method to damage in slightly different ways. * * *

Here the complaint addresses harm effectuated through a variety of approaches but within a common systematic plan … , and its class claims should not be dismissed at this juncture. Maddicks v Big City Props., LLC, 2019 NY Slip Op 07519, CtApp 10-22-19

 

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