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HARDSHIP WAIVER TO ALLOW CONSTRUCTION OF A SINGLE FAMILY HOME IN THE CORE PRESERVATION AREA OF THE LONG ISLAND CENTRAL PINES BARRENS PROPERLY DENIED, ACCOMPANYING ACTION FOR DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN SUMMARILY DENIED, SUA SPONTE, BY THE JUDGE BECAUSE THERE WAS NO REQUEST FOR THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the Article 78 petition for a hardship waiver to allow petitioner to build a single family residence on property within the core preservation area of the Long Island Central Pines Barrens was properly denied. However, the accompanying declaratory judgment action (alleging the denial of the waiver was an unconstitutional taking) should not have been summarily dismissed by the judge absent a motion for that relief:

… [C]ontrary to the petitioner’s contention, the Commission’s determination to deny its application for an extraordinary hardship waiver had a rational basis and was not arbitrary and capricious. In particular, the Commission rationally found, inter alia, that the alleged hardship was not the result of any unique circumstances peculiar to the subject property (see ECL 57-0121[10][a][i] …) and, in any event, that the alleged hardship was self-created (see ECL 57-0121[10][a][ii], [iii] …). The Commission also rationally found that the application did not satisfy the requirements of ECL 57-0121(10)(c) and reasonably distinguished the application from prior applications for which it granted an extraordinary hardship waiver … . …

“In a hybrid proceeding and action, separate rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand” … . “The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment”… . “Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action” … . Matter of Armand Gustave, LLC v Pavacic, 2019 NY Slip Op 05125, Second Dept 6-26-19

 

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REMOVING PORTABLE LIGHTING EQUIPMENT IS NOT ‘ALTERING’ A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240(1), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff (McCarthy) was not engaged in activity covered by Labor Law 240 (1) when he fell from the roof of a broadcast booth when removing portable lighting:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1), through the submission of, inter alia, a transcript of McCarthy’s deposition testimony, which demonstrated that the work McCarthy was performing did not constitute “altering” within the meaning of the statute. McCarthy testified that his work consisted of, inter alia, bringing in and removing portable lighting equipment. McCarthy testified that one of his coworkers had attached the scrim, which is a “double-weave fabric” that is used to equalize lighting levels during filming, to the exterior of the domestic broadcast booth using C-clamps, which are screw-based clamps, and rope. McCarthy testified that on the day of the accident, he walked along the ledge outside of the broadcast booth, cut the rope holding the scrim, removed the scrim, and placed those items in the hallway. He testified that he went back out on the ledge to retrieve three C-clamps, which were screwed into the roof, and fell backwards onto the stadium below. McCarthy’s work of bringing in and removing portable lighting equipment did not constitute altering of any building or structure … . Further, under these circumstances, the placement of a lighting scrim, secured to the exterior of the broadcast booth with screw-based C-clamps, involved no significant physical change to a structure … . McCarthy v City of New York, 2019 NY Slip Op 05121, Second Dept 6-26-19

 

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DOCUMENTARY EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT MEET THE CRITERIA REQUIRED BY CPLR 3211(a)(1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer’s (Reliastar’s) motion to dismiss based on documentary evidence should not have been granted. Plaintiffs sued for breach of contract when Reliastar canceled the life insurance policy:

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law”… . “In order for evidence to qualify as documentary,’ it must be unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” … . Here, in support of that branch of its motion which was pursuant to CPLR 3211(a)(1), Reliastar submitted the policy and certain policy notices, which, according to Reliastar, refuted the plaintiffs’ contention that the policy cancellation was the result of Reliastar’s breach of its obligations under the policy. The policy notices, however, were, in effect, letters, which fail to meet the requirements for documentary evidence within the meaning of CPLR 3211(a)(1) … . Magee-Boyle v Reliastar Life Ins. Co. of N.Y., 2019 NY Slip Op 05118, Second Dept 6-26-19

 

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SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF’S MOTION TO AMEND THE COMPLAINT, DESPITE THE PASSAGE OF SIX YEARS SINCE THE ACTION WAS COMMENCED, THE COURT DOES NOT EXAMINE THE MERITS OF THE PLEADING UNLESS THE LACK OF MERIT IS CLEAR AND FREE FROM DOUBT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend its complaint, which originally stemmed from the alleged encroachment of defendant’s pipes (since removed), should have been granted, despite the passage of six years (during which a default judgment was vacated):

The Supreme Court should have granted that branch of the plaintiff’s cross motion which was for leave to amend the complaint. Permission to amend a pleading should be “freely given” (CPLR 3025[b] …), where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that the amendment would prejudice or surprise the opposing party … . Mere lateness is not a basis for denying an amendment; ” [i]t must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'” … . The burden of establishing prejudice is on the party opposing the amendment … .

Here, notwithstanding the lengthy gap in time between the commencement of the action and the plaintiff’s cross motion for leave to amend the complaint, the defendant has made no showing that it was surprised by the new allegations or would be significantly prejudiced … . Moreover, some portion of that delay is attributable to the defendant’s effort to vacate its default and the parties’ subsequent motion practice and negotiations, and there is no contention that discovery has been concluded … .

Contrary to the defendant’s contentions, the proposed amendment is not palpably insufficient or patently devoid of merit. “No evidentiary showing of merit is required under CPLR 3025(b)'” … , and “a court shall not examine the legal sufficiency or merits of a pleading unless [the] insufficiency or lack of merit is clear and free from doubt” … . The allegations of the proposed amendment and the submissions in support of it adequately set forth the requisite elements for causes of action alleging private nuisance and trespass … . Krakovski v Stavros Assoc., LLC, 2019 NY Slip Op 05112, Second Dept 6-26-19

 

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SUPREME COURT SHOULD HAVE SUMMONED A NECESSARY PARTY WHICH WAS SUBJECT TO THE JURISDICTION OF THE COURT PURSUANT TO CPLR 1001; SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF’S SECOND MOTION FOR AN EXTENSION OF TIME TO SERVE A DEFENDANT IN THE INTEREST OF JUSTICE, DESPITE THE EXPIRATION OF THE STATUTE OF LIMITATIONS AND LAW-OFFICE-FAILURE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s second motion to extend the time to serve defendant (Bandolos). after the statute of limitations had run, should have been granted. The court further held that Supreme Court should have summoned a necessary party (Mother of Pearl, the record owner) because the party was subject to the court’s jurisdiction:

The Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, for leave to join Mother of Pearl as a party to the action … . “A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the court should not proceed in the absence of a person who should be a party” (CPLR 3211[a][10]). However, CPLR 1001(b) provides that where the party “is subject to the jurisdiction of the court, the court shall order him [or her] summoned.” Mother of Pearl, as the record owner of the property, is a necessary party to this action (see CPLR 1001[a]; RPAPL 1311[1]) subject to the jurisdiction of the court. Consequently, the court should have ordered Mother of Pearl summoned, rather than granting that branch of the mortgagors’ cross motion which was pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against them … . …

Further, under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 306-b for leave to extend the time to serve the summons and complaint upon Kelly Bandalos by publication in the interest of justice … . While the action was timely commenced, the statute of limitations has since expired. Although the plaintiff’s only excuse for not serving Kelly Bandalos by publication is law office failure, it did make diligent efforts to serve her prior to the first extension of time to serve and the issuance of the order of publication. Further, Kelly Bandalos had actual notice of the action within 120 days of its commencement, she served and filed an answer, and there is no identifiable prejudice to her attributable to the delay in service … .  Deutsche Bank Natl. Trust Co. v Bandalos, 2019 NY Slip Op 05106, Second Dept 6-26-19

 

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DESPITE LOSS OF THE NOTE, THE BANK CAN DEMONSTRATE STANDING WITH A LOST NOTE AFFIDAVIT WHICH MEETS THE REQUIREMENTS OF UCC 3-803 (SECOND DEPT).

The Second Department determined plaintiff bank properly established standing in this foreclosure proceeding, despite the note having been lost, with a lost note affidavit which met the requirements of UCC 3-803:

… “[P]ursuant to UCC 3-804, the owner of a lost note may maintain an action upon due proof of [1] his [or her] ownership, [2] the facts which prevent his [or her] production of the instrument and [3] its terms'” … . Accordingly, we agree with the referee that, as long as the affidavit of lost note meets the requirements of UCC 3-804, a mortgagee may establish standing based on its possession of the note, even where the original note has been lost. Here, the parties stipulated that “the factual criteria for the application of § 3-804 ha[ve] been satisfied.” Moreover, while ownership of the note may be easier to establish where there is a valid assignment of the note and mortgage … , due proof of the plaintiff’s ownership may also be provided by an affidavit of lost note setting forth details such as who acquired possession of the note and “when the search for the note occurred, who conducted the search, the steps taken in the search for the note, or when or how the note was lost” … . Bank of N.Y. Mellon v Hardt, 2019 NY Slip Op 05100, Second Dept 6-27-29

 

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SEARCH OF A SUITCASE WAS A VALID SEARCH INCIDENT TO ARREST JUSTIFIED BY EXIGENT CIRCUMSTANCES, DESPITE THE FACT THAT DEFENDANT HAD BEEN HANDCUFFED AND WAS IN THE PRESENCE OF AS MANY AS EIGHT POLICE OFFICERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, over an extensive, two-justice dissenting opinion, determined that the search of a suitcase was a valid search incident to arrest, even though defendant, who had let go of the suitcase, had been handcuffed. Defendant had been observed by the arresting officer (Ayala) coming out of several stores and placing apparently stolen items into the suitcase. At the time the suitcase was searched, defendant was handcuffed and had been approached on the street by approximately eight police officers:

Officer Ayala’s testimony that a knife was recovered from both defendant and Chauncey also established that there were exigent circumstances justifying the search of the suitcase … . …

… [A]n officer need not affirmatively testify to the exigency … . Rather, the exigent circumstances need only be inferred from the circumstances of the arrest … . …

Ayala’s search of the suitcase was also justified to prevent the loss or destruction of evidence, as Ayala believed defendant and codefendant Chauncey had stolen clothing from approximately three stores and placed the clothing in the suitcase … . The dissent continues to ignore the facts that the suitcase was large enough to conceal a weapon and that the officer had just seen defendant stealing merchandise and placing it in the suitcase. Officer Ayala did not know whether there were weapons contained in the bag. …

The testimony of Officer Ayala established that the suitcase was not in the exclusive control of the police at the time of the search. It remained at defendant’s feet where he dropped it. Additionally, it has been consistently held that “[w]hether in fact defendant could have had access to the briefcase at the moment it was being searched is irrelevant” … .

That defendant was handcuffed in no way negates a finding of exigent circumstances justifying a warrantless search … . Although defendant was handcuffed during the search of the suitcase, there was a “realistic possibility” that he could have used means other than his hands “such as kicking or shoving the arresting officer – to disrupt the arrest process in order to gain a weapon or destroy evidence” … . People v Harris, 2019 NY Slip Op 05099, First Dept 6-25-19

 

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PLAINTIFF’S BREACH-OF-AN-EMPLOYMENT-CONTRACT ACTION SHOULD NOT HAVE BEEN DISMISSED, DESPITE THE FACT THAT DEFENDANT NEVER SIGNED IT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s breach-of-an-employment-contract action should not have been dismissed. The defendant never signed the contract. However, plaintiff performed and was paid according to the contract. When plaintiff was terminated, defendant refused to pay the six month’s severance which was provided for in the contract:

The fact that defendant never signed the agreement is not, at this pleading stage, an impediment to a finding that the parties intended to be bound … . There is nothing in the agreement stating that it will not be binding until executed by both sides … . The counterparts clause provides that each party may indicate its assent by signing a separate counterpart; it does not state that the parties can assent only by signing. The merger and written amendments clauses provide only that the agreement, and any subsequent amendments, must be in writing; they do not state that the parties may convey their assent only by affixing signatures.

The complaint also sufficiently alleges causes of action for promissory estoppel … and recovery of severance as unpaid wages under Labor Law article 6 … . However, plaintiff fails to sufficiently allege a claim for unjust enrichment as he does not allege he was not paid for the work he actually performed … . Lord v Marilyn Model Mgt., Inc., 2019 NY Slip Op 05093, First Dept 6-25-19

 

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ABUTTING PROPERTY OWNER HAS A NON-DELEGABLE DUTY TO MAINTAIN THE SIDEWALK WHICH IS NOT DIMINISHED BY HIRING AN INDEPENDENT CONTRACTOR TO WORK ON THE SIDEWALK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant abutting property owner’s (Hillman’s) motion for summary judgment in this sidewalk slip and fall case was properly denied. Hillman had hired an independent contractor to do concrete work on the sidewalk, but that did not relieve Hillman of his nondelegable duty to keep the sidewalk in good repair (NYC Administrative Code):

Although the “general rule is that a party who retains an independent contractor . . . is not liable for the independent contractor’s negligent acts,” an exception arises when the hiring party “is under a specific nondelegable duty” … . Here, Hillman, as the property owner, had a nondelegable duty to maintain the sidewalk, including the sidewalk around the subject sign post stump …

Contrary to Hillman’s contention, the motion court did not conclude that Hillman is, in fact, liable for any alleged wrongs committed by the independent contractor in performing cement sidewalk resurfacing work. Rather, the motion court correctly found that under these circumstances the record raises issues of fact as to whether the cement work ordered by this defendant, the property owner, caused or exacerbated a hazardous tripping condition, and whether Hillman had actual or constructive knowledge of the metal protrusion on the sidewalk outside its building. Factual issues are also presented as to whether the condition was open and obvious, or, alternatively the defect trivial … . Vullo v Hillman Hous. Corp., 2019 NY Slip Op 05087, First Dept 6-25-19

 

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ALTHOUGH PLAINTIFF FELL DURING A STORM, THERE WAS EVIDENCE THE AREA WAS ICY BEFORE THE STORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this slip and fall case was properly denied. Although a storm was in progress when plaintiff fell, there was evidence there was ice in that area before the storm:

Although the meteorological records and the expert meteorological affidavits demonstrate that there was a storm in progress when the accident happened, a warehouse associate employed by [defendant] testified at his deposition that he saw ice on the ground the loading dock about a week before plaintiff’s fall and defendants submitted no evidence as to when the area was last inspected or cleaned before the accident. In these circumstances, there are triable issues of fact as to whether plaintiff’s fall was caused by pre-existing ice on the ground or the storm in progress and whether [defendants] had a reasonable time to remedy any alleged icy condition before the date of plaintiff’s fall … . Perez v Raymours Furniture Co., Inc., 2019 NY Slip Op 05083, First Dept 6-25-19

 

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