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PETITION SEEKING TO INVALIDATE THE ORGANIZATIONAL MEETING OF THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking to invalidate the organizational meeting of the Suffolk County Committee of the Conservative Party should have been denied. The decision is fact specific and deals with many Election Law procedural issues that cannot be fairly summarized here:

… [W]e are mindful that “a court’s jurisdiction to intervene in election matters is limited to the powers expressly conferred by statute” … . The ” internal issues arising within political parties are best resolved within the party organization itself and judicial involvement should only be undertaken as a last resort'” … . While the courts “will act to protect the rights of committee persons to be present and to vote at meetings of the committee” … , ” [j]udicial intervention is only warranted upon a clear showing that a party or its leaders have violated [the Election Law] or the party’s own rules adopted in accordance with law, or otherwise [have] violat[ed] the rights of party members or the electorate'” … . No such showing was made in this case. Matter of Auerbach v Suffolk County Comm. of the Conservative Party, 2019 NY Slip Op 02515, Second Dept 4-3-19

 

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NOTE HOLDER’S COMPLIANCE WITH NOTICE REQUIREMENTS OF RPAPL 1304 NOT DEMONSTRATED, MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined respondent (the holder of the note) did not demonstrate compliance with the notice provisions of RPAPL 1304. Therefore respondent’s motion for summary judgment in this foreclosure action should not have been granted:

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … . “The statute requires that such notice . . . be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower” … . …

The respondent, which submitted only a copy of the required notice, and did not submit any evidence that the notice was mailed in the manner required by the statute, failed to meet its prima facie burden with respect to the notice requirements of RPAPL 1304. Specifically, the respondent did not submit “an affidavit of service, [or] proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]” … , or “proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” … . Marchai Props., L.P. v Fu, 2019 NY Slip Op 02511, Second Dept 4-3-19

 

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NO PRIVATE RIGHT OF ACTION UNDER NEW YORK’S MENTAL HEALTH PARITY LAW (TIMOTHY’S LAW) (SECOND DEPT).

The Second Department determined that New York’s mental health parity law (Timothy’s Law, Insurance Law 3221(1)(5) and 4303(g)) did not create a private right of action over and above the administrative enforcement provisions. Plaintiff alleged the health insurance benefits administered by defendants were far more restrictive for mental health than for general medical claims:

… [T]he Court of Appeals has held that ” regardless of its consistency with the basic legislative goal, a private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme'” … . Thus, where “the legislature clearly contemplated administrative enforcement of the statute, “[t]he question then becomes whether, in addition to administrative enforcement, an implied private right of action would be consistent with the legislative scheme”‘” …  . …

… .[D]eterminations of whether the law had been violated require[] complex, fact-based determinations about medical necessity, and DFS [NYS Department of Financial Services] had implemented a comprehensive system to evaluate appeals following denials of coverage  … . … “[A]llowing people to litigate these issues in court might yield duplicative or inconsistent results” … . Kamins v United Healthcare Ins. Co. of N.Y., Inc., 2019 NY Slip Op 02507, Second Dept 4-3-19

 

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IT WAS (HARMLESS) ERROR TO ALLOW THE ARRESTING OFFICER TO TESTIFY THAT DEFENDANT WAS DEPICTED IN THE VIDEOTAPE WHICH WAS BEING PLAYED (FIRST DEPT).

The First Department determined it was (harmless) error to fail to sustain defense counsel’s objection to the arresting officer’s unprompted identification testimony that the defendant was depicted in the videotape that was being played:

The officer was not previously familiar with defendant, and there was no basis to conclude he was “more likely to correctly identify the defendant from the [videotape] than [was] the jury” … . However, this isolated instance of apparent lay opinion was plainly harmless. After the overruled objection, the prosecutor immediately elicited that the officer could not “make out the face of the person” in the video whom he had said was defendant. The officer’s testimony as a whole made clear that he did not claim to recognize defendant in the video, but that he was testifying about similarities between the appearance and distinctive clothing of the man in the video and that of defendant when he was arrested. People v Calderon, 2019 NY Slip Op 02468, First Dept 4-2-19

 

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ABUTTING PROPERTY OWNER NOT RESPONSIBLE FOR TRIP AND FALL IN TREE WELL NEAR THE SIDEWALK, THE TREE WELL IS NOT UNDER THE PROPERTY OWNER’S CONTROL (FIRST DEPT).

The First Department determined defendant property owner’s (Val-Mac’s) motion for summary judgment in this sidewalk slip and fall case was properly granted. Plaintiff fell in a tree well near the sidewalk abutting defendant’s property:

Plaintiff tripped and fell in a tree well as he walked on the sidewalk in front of Val-Mac’s property, which was undergoing repairs to a sewer line running to the street. Absent evidence that Val-Mac controlled the construction or made special use of the sidewalk, there is no issue of fact as to whether it proximately caused the accident, rather than “merely furnish[ing] the condition or occasion for the occurrence of the event” … . As the tree well is not part of the sidewalk under Val-Mac’s control, the court properly granted summary judgment … . Schwartz v City of New York, 2019 NY Slip Op 02465, First Dept 4-2-19

 

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PLAINTIFF WAS SHOT INSIDE DEFENDANT’S BUILDING, DEFENDANT LANDLORD DEMONSTRATED IT DID NOT HAVE NOTICE OF AN ALLEGED BROKEN LOCK, THE EVIDENCE DID NOT DEMONSTRATE THE ASSAILANT WAS AN INTRUDER AS OPPOSED TO AN INVITED GUEST, AND THERE WAS EVIDENCE PLAINTIFF WAS THE VICTIM OF A TARGETED ATTACK, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Housing Authority’s (NYCHA’s) motion for summary judgment should have been granted in this third-party assault case. Plaintiff was shot inside the building. Defendant demonstrated it did not have notice of an alleged broken lock which would have allowed an intruder to enter the building. And the evidence did not demonstrate the assailant was an intruder as opposed to an invited guest. In addition, plaintiff admitted he was the victim of a targeted attack, which severed any causal relationship with defendant’s alleged negligence:

… [P]laintiff alleges that he was injured when, while visiting his wife in NYCHA’s building, he was shot by defendant Lawrence, who was able to enter the building because of a broken lock on the building’s front door. The record establishes that NYCHA lacked notice of a broken lock inasmuch as NYCHA submitted evidence showing that although the front door lock had been repaired a number of times in the months leading up to the incident, NYCHA’s supervisor of caretakers testified that the lock was working on the morning of the incident, and for almost a full week beforehand … .

The evidence also fails to show that the alleged assailant was an unauthorized intruder, rather than an invited guest … . The alleged assailant testified that he lived across from the subject building, that he had numerous family members and friends who lived in the building, and that he was a frequent visitor of the building. Furthermore, plaintiff admitted that he was the victim of a targeted attack by the alleged assailant, which severed the causal nexus between NYCHA’s alleged negligence and plaintiff’s injuries … . Roldan v New York City Hous. Auth., 2019 NY Slip Op 02462, First Dept 4-2-19

 

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MISSING CHAIR IN FRONT OF A SLOT MACHINE IS OPEN AND OBVIOUS AND NONACTIONABLE, PLAINTIFF WAS INJURED WHEN SHE ATTEMPTED TO SIT IN FRONT OF A MACHINE WHERE THERE WAS NO CHAIR (FIRST DEPT).

The First Department determined the absence of a chair in front of a slot machine was open and obvious and nonactionable:

… [P]laintiff was injured when she fell while attempting to sit down at a slot machine that did not have a chair. Defendants showed that the missing chair was an open and obvious condition that was not inherently dangerous by submitting videotape footage showing the subject slot machine without a chair. Plaintiff also testified that she had previously noticed chairs missing from slot machines at the casino, and that she had been seated next to the subject machine that was without a chair for 20 to 25 minutes before her fall … .

Plaintiff’s opposition failed to raise a triable issue of fact. Her argument that slot machines are distracting to the point of being all-encompassing, is unavailing, as she did not provide any probative evidence as to how distracted a person becomes when she or he uses slot machines. Plaintiff’s testimony that she was distracted by the slot machines does not lead to a conclusion that they are so distracting that their mere existence makes an open and obvious condition such as a missing chair any less open and obvious … . Furthermore, that a similar accident apparently occurred at defendant casino does not lead to the conclusion that a missing chair is a latent or inherently dangerous condition. Vasquez v Yonkers Racing Corp., 2019 NY Slip Op 02461, First Dept 4-2-19

 

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UNLOADING STEEL PLATES USED TO COVER EXCAVATED AREAS AT A CONSTRUCTION SITE WAS A COVERED ACTIVITY UNDER LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured unloading a two-ton steel plate used to cover excavated areas at a construction site. The defendant’s argument that the plate was not unloaded for construction work. but rather for storage, was rejected:

Plaintiff made a prima facie showing that the work he was performing as an employee of Clean at the time of his accident was covered under section 240(1). There is no dispute that plaintiff was injured in the course of unloading an approximately two-ton steel plate at a construction site owned by defendant Con Ed, after transporting the plate to the site by truck. Witnesses consistently indicated that Clean routinely unloaded steel plates at the site for the purpose of covering areas excavated for electrical work. Clean performed this work pursuant to a contract that required it to provide steel plates at excavation sites owned by defendant including the subject site, and also required Clean to perform work ancillary to other tasks enumerated under Labor Law § 240(1) such as removing construction-related debris and installing barricades for excavation work … . Moreover, plaintiff performed this work on an active construction site while another worker on the site was building a removable roof for a transformer vault.

Clean failed to raise triable issues of fact as to whether plaintiff’s work was covered by Labor Law § 240(1). It does not avail Clean to assert that plaintiff unloaded the plate merely for the purpose of storage. The Court of Appeals has rejected an interpretation of Labor Law § 240(1) that “would compartmentalize a plaintiff’s activity and exclude from the statute’s coverage preparatory work essential to the enumerated act” … . Saquicaray v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 02460, First Dept 4-2-19

 

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THERE WAS CONFLICTING EVIDENCE WHETHER PLAINTIFF, WHO HAD NO MEMORY OF THE ACCIDENT, FELL FROM AN A-FRAME LADDER OR A SCAFFOLD, BOTH WERE DEEMED INADEQUATE SAFETY DEVICES AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the conflicting evidence, indicating plaintiff either fell from an A-frame ladder or from a scaffold, did not preclude summary judgment in plaintiff’s favor on his Labor Law 240 (1) cause of action. Plaintiff had no memory of the accident. The court reasoned that both the step ladder and the scaffold constituted an inadequate safety device under the circumstances:

As to the “ladder version,” although plaintiff has no specific recollection of the ladder moving, he also testified that, immediately before the fall, he was standing on the second to the last rung up, with his hands over his head toward the duct, which he could barely reach. Such testimony establishes prima facie that the ladder did not provide proper protection for plaintiff … . Because the record is clear that the ladder did not prevent him from falling, his inability to identify the precise manner in which he fell is immaterial … . As to the “scaffold version,” it is undisputed fact that the scaffold from which plaintiff purportedly fell had no guardrails. This fact establishes prima facie that it was an inadequate safety device  … . Under either version, defendants have not raised a triable issue of fact as to whether plaintiff’s negligence was the sole proximate cause of his accident … . Ajche v Park Ave. Plaza Owner, LLC, 2019 NY Slip Op 02456, First Dept 4-2-19

 

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DEFENDANT’S REFUSING TO TESTIFY WAS DEEMED A VIOLATION OF THE WRITTEN COOPERATION AGREEMENT, HIS MOTION TO WITHDRAW HIS GUILTY PLEA WAS PROPERLY DENIED (CT APP).

The Court of Appeals, affirming the denial of defendant’s motion to withdraw his guilty plea, over an extensive two-judge dissent, determined that defendant’s refusal to testify against a person who had participated in a home invasion violated the written cooperation agreement:

As part of a plea agreement and in exchange for a favorable sentence, defendant entered into a written cooperation agreement whereby he promised to “cooperate completely and truthfully with law enforcement authorities, including the police and the District Attorney’s Office, on all matters in which his cooperation is requested, including but not limited to the prosecution of [defendant’s accomplices] on charges related to the murder of Jose Sanchez and the assault of [Sanchez’s brother].” Prior to entering into the cooperation agreement, defendant had confessed to his involvement in the Sanchez murder and assault, explaining that the crimes were retaliation for a prior invasion of defendant’s home by Sanchez and his associates, including Jose Marin. When defendant signed the agreement, he already had testified to Marin’s involvement in the home invasion before the grand jury in the Sanchez matter, and he also had assisted the police with their investigation of the home invasion by identifying Marin in a photo array. …

… [D]efendant’s refusal to testify against Marin violated the express terms of his cooperation agreement. The plain language of the agreement was objectively susceptible to but one interpretation … . County Court, therefore, did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea based on his claimed subjective misinterpretation of the agreement or by concluding, to the contrary, that defendant reasonably understood that his cooperation in the Marin prosecution was required … . People v Rodriguez, 2019 NY Slip Op 02444, CtApp 4-2-19

 

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