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THE RELATIONSHIP BETWEEN THE ONLINE PLATFORM WHICH CONNECTED PERSONS WITH CERTAIN SKILLS TO THOSE SEEKING TO HIRE FOR ODD JOBS WAS NOT AN EMPLOYER-EMPLOYEE RELATIONSHIP, CLAIMANT WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Board, determined claimant was not entitled to unemployment benefits after leaving TaskRabbit, an online platform which connected people with certain skills to clients looking people to hire for odd jobs (taskers). The relationship between TaskRabbit and the taskers was not an employer-employee relationship:

By virtue of the nature of the platform, TaskRabbit exercised absolutely no control over the manner in which the taskers completed the jobs that they obtained from clients. Indeed, the taskers bidded on the jobs posted on the platform and were awarded jobs either by a client selecting the most competitive bid or by being the first tasker to submit a bid on a particular job. All communications regarding the job were between the client and the tasker. Although TaskRabbit required taskers to submit to an identification verification process and criminal background check, complete an online questionnaire and take a quiz on use of the platform, it did not review their qualifications, provide them with training or evaluate their work performance. TaskRabbit provided customer service support to both clients and taskers, but it was directed at helping them use the platform. Similarly, the guidelines that it provided to taskers were designed to assist them in effectively using the platform, and no penalties were imposed for noncompliance. Both taskers and clients were rated based upon the feedback that they received without any input from TaskRabbit. TaskRabbit, however, did require taskers and clients to comply with its terms of use and retained the authority to curtail a tasker’s access to the platform for safety and/or security reasons. Nevertheless, it used a third-party payment provider to facilitate payments between clients and taskers, did not provide taskers with any equipment, supplies or uniforms, and did not reimburse them for expenses. Furthermore, taskers were free to cancel jobs and to provide their services on other platforms. Matter of Walsh (Taskrabbit Inc.–Commissioner of Labor), 2019 NY Slip Op 00649, Third Dept 1-31-19

 

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STATUTORY PRESUMPTION THAT THE PAINT CONTAINED LEAD DID NOT APPLY BECAUSE THERE WAS NO EVIDENCE THE INTERIOR OF THE BUILDING WAS PAINTED PRIOR TO JANUARY 1, 1960; HOWEVER QUESTIONS OF FACT WERE RAISED ABOUT THE PRESENCE OF LEAD PAINT AND THE CONNECTION BETWEEN THE PAINT AND INFANT PLAINTIFF’S LEAD POISONING, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined that questions of fact were raised about the landlord’s (New York City Housing Authority’s, NYCHA’s) responsibility for the lead poisoning of infant plaintiff (A.L.). Successive blood tests revealed increasing lead levels as the child aged, and a decrease after the apartment was repainted. The first issue the court dealt with was whether Local Law 1, which creates a presumption that the paint in the apartment contains more than .5 percent lead for buildings “erected” prior to January 1, 1960, applied. The certificate of occupancy for the building was issued in March, 1961, but there was evidence the building was under construction in 1959. “Erected” was (apparently) interpreted to mean when the apartment was painted, so the statutory presumption did not apply:

Here, A.L.’s elevated blood lead level suggests … a hazardous condition may have existed in the apartment during the relevant period. While there are other sources of lead poisoning, housing is a prime source …  The circumstantial evidence of a hazardous lead-based paint condition is also supported by an affirmation by Dr. Douglas B. Savino and an affidavit by lead paint expert William Savarese. Dr. Savino concluded that the apartment contained a hazardous level of lead-based paint, given the “chronology of the infant plaintiff’s blood lead levels,” which was “environmentally and temporally related to the infant plaintiff’s residence.” He noted that A.L.’s blood levels increased over time until he was diagnosed with 16 ug/dl on March 19, 2003, coinciding with the repainting of the apartment on March 5-6, 2003. Dr. Savino attributed the lead spike in A.L.’s blood to A.L. ingesting an excessive amount of lead dust. Dr. Savino further pointed out that A.L.’s blood lead levels declined gradually after the 2003 apartment repair and the 2004 removal of the chipped and peeling interior doors. William Savarese echoed Dr. Savino’s statements and conclusions. A.L. v New York City Hous. Auth., 2019 NY Slip Op 00702, First Dept 1-31-19

 

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PLAINTIFF FELL ABOUT NINE FEET FROM ONE FLOOR TO ANOTHER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell from one floor to another, a distance of about nine feet:

There is no dispute that plaintiff fell from the seventh floor to the sixth floor of the building on which he was working, a distance of approximately nine feet. Further, it is undisputed that there were no safety harnesses or other safety devices for plaintiff to use. “Thus, the fact that the parties offered different versions of plaintiff’s accident makes no difference with respect to defendants’ liability under Labor Law § 240(1). Under either version, defendants . . . failed to secure an area at a construction site from which a fall could occur, thereby exposing the injured worker to an elevation-related risk” … .

However, the motion court properly denied the cross motion of defendants/third-party plaintiffs on the Labor Law §§ 241(6), 200, and common-law negligence claims, since there are triable issues of fact as to exactly how, where and why the underlying incident occurred … . Cashbamba v 1056 Bedford LLC, 2019 NY Slip Op 00690, Second Dept 1-31-19

 

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PLAINTIFF’S HOSTILE WORK ENVIRONMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department determined that plaintiff’s hostile work environment cause of action should not have been dismissed. Plaintiff alleged employment discrimination pursuant to the New York State and New York City Human Rights Law (HRL):

Plaintiff submitted evidence that his supervisors repeatedly made racially derogatory comments, including calling him “Bubbles,” which he testified was a reference to Michael Jackson’s pet chimpanzee, and referring to him as “boy” using a Southern accent. Plaintiff also asserts that he was told that he was “too old for the job,” that he worked like he “just came back from surgery,” and that he had “too many worker’s comp cases and . . . should resign.” According to plaintiff, the supervisors’ comments were continuous in nature and occurred on a regular basis. This evidence, viewed in the light most favorable to plaintiff, raises issues of fact as to whether plaintiff was subjected to a hostile work environment based on race, age and disability under both the State and City HRLs … . Sims v Trustees of Columbia Univ. in the City of N.Y., 2019 NY Slip Op 00672, First Dept 1-31-19

 

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FOUNDATION FOR OPINION EVIDENCE OUTSIDE PLAINTIFF’S EXPERT’S FIELD WAS NOT LAID, DEFENDANT SURGEON’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s decedent died from a pulmonary embolism five days after knee replacement surgery. Plaintiff contended decedent was not given the proper dosage of a medication designed to prevent deep vein thrombosis (DVT). The Second Department noted that the plaintiff’s expert was a forensic pathologist and a proper foundation for expert opinion outside the expert’s field was not laid:

“While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable”… . “Thus, where a physician provides an opinion beyond his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered”… . Here, the plaintiff’s expert, who specialized in forensic pathology, did not indicate that he had any specific training or expertise in orthopaedic surgery, or prophylactic anticoagulation treatment to prevent DVT, and failed to “set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice” … . Noble v Kingsbrook Jewish Med. Ctr., 2019 NY Slip Op 00608, Second Dept 1-30-19

 

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CEMETERY’S APPLICATION FOR A USE VARIANCE TO CONSTRUCT A CREMATORY SHOULD NOT HAVE BEEN DENIED BY THE ZONING BOARD, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined Supreme Court had properly annulled the zoning board’s denial a cemetery’s application for a use variance to allow the construction of a crematory:

“To qualify for a use variance premised upon unnecessary hardship there must be a showing that (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created” … .

With regard to the first element, “[i]t is well settled that a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses'” … . … [T]here was no rational basis for the Board’s finding that the Cemetery was not experiencing a financial hardship.

As to the third element, the Board improperly determined that the 1,800-square-foot crematory would alter the essential character of the neighborhood. The unrebutted evidence demonstrated that the crematory would be shielded from view, would be odorless and not emit visible smoke, and had passed all necessary emissions and air quality testing. Matter of White Plains Rural Cemetery Assn. v City of White Plains, 2019 NY Slip Op 00606, Second Dept 1-30-19

 

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REQUEST WAS PROPERLY DEEMED AN APPLICATION FOR AN AREA VARIANCE, NOT A USE VARIANCE, AND WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined: (1) RAM’s request for permission to build a hotel was a request for an area variance, not a use variance; (2) the statutory factors for granting a use variance were considered by the zoning board; (3) the board complied with the State Environmental Quality Review Act (SEQRA); and (4) the area variance was properly granted:

Pursuant to Town Law § 267(1)(b), an area variance is defined as the “authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations” … . One aspect of RAM’s request for a variance related to a provision of the Town’s Zoning Law which required that a hotel have its “principal frontage” on a state or county highway … . We agree with the ZBA and the Supreme Court that the “principal frontage” requirement is a “physical requirement,” rather than a use restriction, and that RAM’s application is thus properly regarded as one for an area variance. We note that the other aspect of RAM’s application for an area variance related to the height of the roof of the proposed hotel, and there is no dispute that that aspect of RAM’s application was properly categorized as a request for an area variance. …

In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community … . Town Law § 267-b(3)(b) provides that in making its determination, the zoning board shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety, and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. In applying the balancing test set forth in Town Law § 267-b(3)(b), a zoning board need not justify its determination with supporting evidence with respect to each of the five statutory factors as long as its ultimate determination balancing the relevant considerations is rational … . Matter of Route 17K Real Estate, LLC v Zoning Bd. of Appeals of the Town of Newburgh, 2019 NY Slip Op 00605, Second Dept 1-30-19

 

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PLAINTIFF, AFTER FAILING TO ARGUE THAT DEFENDANTS WAIVED THE LACK OF STANDING DEFENSE BEFORE SUPREME COURT, COULD NOT RAISE DEFENDANTS’ WAIVER OF THE DEFENSE FOR THE FIRST TIME ON APPEAL, PLAINTIFF DID NOT DEMONSTRATE STANDING TO COMMENCE THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff did not demonstrate standing to bring the foreclosure action, and, further, could not raise defendant’s waiver of the lack-of-standing defense for the first time on appeal:

The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense (see CPLR 3018[b]…). Here, in opposition to the plaintiff’s motion for summary judgment and in support of their cross motion to dismiss, the defendants argued that the plaintiff lacked standing to commence this action. The plaintiff, in its “reply . . . in further support of plaintiff’s motion for summary judgment, and in opposition to defendant’s [sic] cross-motion to dismiss,” entirely disregarded the defendants’ waiver of the standing defense. Instead, the plaintiff sought to establish that it had standing to commence the action. Now, having litigated the standing defense on the merits in the Supreme Court—both on the original motion and in opposition to reargument—the plaintiff argues on appeal that the issue of standing was waived. Having neglected to raise that dispositive issue in the Supreme Court, the plaintiff may not raise it for the first time on this appeal … .

The plaintiff also failed, on the merits, to establish prima facie that it had standing to commence the action. The loan servicer’s affidavit, which asserted that the named plaintiff “was in possession of the Note at the time of commencement of this action,” provided no specifics as to the date of delivery or the date of commencement. The plaintiff’s conclusory assertion as to possession on the date of commencement is insufficient to establish standing … . BAC Home Loans Servicing, LP v Alvarado, 2019 NY Slip Op 00584, Second Dept 1-30-19

 

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THE LETTER OF ENGAGEMENT SPELLED OUT WHAT THE ATTORNEYS AGREED TO DO, DEFENDANT-ATTORNEYS’ MOTION TO DISMISS THE LEGAL MALPRACTICE COMPLAINT ON THE BASIS OF DOCUMENTARY EVIDENCE WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department found that the retainer agreement determined the scope of what the attorneys agreed to do and the motion to dismiss the legal malpractice complaint was properly granted. The plaintiff had retained the defendants after he was expelled form the New York College of Osteopathic Medicine:

The letter of engagement provided, in relevant part, that: “Our services will include all activities necessary and appropriate in our judgment to investigate and consider options that may be available to urge administrative reconsideration of your dismissal from the New York College of Osteopathic Medicine (the College’). This engagement does not, however, encompass any form of litigation or, to the extent ethically prohibited in this circumstance, the threat of litigation, to resolve this matter. This engagement will end upon your re-admittance to the College or upon a determination by the attorneys working on this matter that no non-litigation mechanisms are available to assist you. The scope of the engagement may not be expanded orally or by conduct; it may only be expanded by a writing signed by our Director of Public Service.” * * *

An attorney may not be held liable for failing to act outside the scope of a retainer (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428). Therefore, since the defendant’s alleged failure to negotiate with the school, its alleged failure to commence litigation against the school, and its alleged failure to properly advise the plaintiff on the efficacy of a defamation action against nonschool parties fell outside the scope of the parties’ letter of engagement, dismissal of the cause of action alleging legal malpractice was warranted, pursuant to CPLR 3211(a)(1), on documentary evidence grounds. Attallah v Milbank, Tweed, Hadley & McCloy, LLP,  2019 NY Slip Op 00583, Second Dept 1-30-19

 

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PLAINTIFF BANK DID NOT DEMONSTRATE NOTICE BY PROOF WHICH MET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, THEREFORE THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 and, therefore, the bank’s motion for summary judgment should not have been granted:

… [T]he plaintiff failed to submit an affidavit of service or proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304. Contrary to the plaintiff’s contention, its submission of an affidavit of the employee of its servicer was not sufficient to establish that the notices were sent to the defendant in the manner required by RPAPL 1304. While mailing may be proved by documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518 … , here, the affiant did not aver that he was familiar with the servicer’s mailing practices and procedures and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . The affiant’s unsubstantiated and conclusory statements were insufficient to establish that the RPAPL 1304 notice was mailed to the defendant by first-class and certified mail … . Wells Fargo Bank, N.A. v Moran, 2019 NY Slip Op 00637, Second Dept 1-30-19

Similar issue and result in Fifth Third Mtge. Co. v Seminario, 2019 NY Slip Op 00589, Second Dept 1-30-19

 

 

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