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HOMEOWNER’S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER’S ESTATE, ENTITLED TO HOMEOWNER’S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT’S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER’S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT).

The Second Department determined one of decedent homeowner's children, Nina, who was the executrix of decedent's estate, was entitled to dismissal of the Labor Law 240 (1) and 241 (6) causes of action pursuant to the homeowner's exemption, but there was a question of fact whether decedent's son, Stephen, was liable as an agent of the owner. Plaintiff, who was hired to paint the interior of decedent's home, alleged Stephen instructed him to use a ladder to enter the house through a window. Plaintiff fell when the ladder slipped out from under him:

… [T]he defendants established the entitlement of Nina, as executrix of the decedent's estate, to the protection of the homeowner's exemption by submitting evidence that the decedent owned the one-family residence at which the work was being performed and that the decedent did not direct or control the work being done … . …

… Stephen did not own the subject residence and, therefore, was not entitled to the homeowner's exemption … . …

… [T]the defendants failed to demonstrate, prima facie, that liability for violations of Labor Law §§ 240(1) and 241(6) could not be imposed upon Stephen as an agent of the owner. “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured”… . “To impose . . . liability [under the Labor Law], the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition” … . Here, a triable issue of fact exists as to whether Stephen had the authority to supervise and control the plaintiff's work. Stephen told the plaintiff which rooms to paint and, according to the plaintiff, directed him to use a ladder to access the house through a window. Diaz v Trevisani, 2018 NY Slip Op 05823, Second Dept 8-22-18

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/HOMEOWNER'S EXEMPTION (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/TRUSTS AND ESTATES (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/AGENCY (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))

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CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the conditional order requiring that a note of issue or motion be filed by plaintiff bank within ninety days did not meet the requirements of a notice pursuant to CPLR 3216. Therefore the administrative dismissal of the foreclosure action was invalid:

“CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with” … . As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon the party against whom such relief is sought' in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'” … . While a conditional order of dismissal may have “the same effect as a valid 90-day notice pursuant to CPLR 3216” … , the conditional order here “was defective in that it failed to state that the plaintiff's failure to comply with the notice will serve as a basis for a motion' by the court to dismiss the action for failure to prosecute” … . Moreover, the conditional order failed to satisfy the notice requirement on the additional ground that there was “no indication that the plaintiff's counsel was present at the status conference at which the court issued the conditional order of dismissal,” nor was there “evidence that the order was ever properly served upon the plaintiff” … . In the absence of proper notice, “the court was without power to dismiss the action for the plaintiff's failure to comply with the conditional order of dismissal” … . Lastly, the Supreme Court erred in administratively dismissing the action without further notice to the parties and without benefit of further judicial review … . Deutsche Bank Natl. Trust Co. v Bastelli, 2018 NY Slip Op 05822, Second Dept 8-22-18

CIVIL PROCEDURE (CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT))/FORECLOSURE (CIVIL FORECLOSURE, CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT))/CPLR 3216 (CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT))

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ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department determined Supreme Court had, in effect, granted plaintiff's motion for reargument of his opposition to the city's motion for summary judgment and therefore the related order was appealable. The Second Department further determined it would hear the appeal, even though plaintiff's prior appeal of the original order had been abandoned rather than withdrawn. Plaintiff, a bicyclist, alleged he had been injured by a defect in the bicycle lane. The city demonstrated it did not have prior written notice of the defect. The Second Department rejected plaintiff's argument that the “special use” exception to the prior written notice requirement applied because the city did not derive a special benefit from the bicycle lanes unrelated to the public use:

“Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies” … . “Where the City establishes that it lacked prior written notice under [Administrative Code of City of NY § 7-201], the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality”… . The special use exception is reserved for situations where a municipality derives a special benefit from the property unrelated to the public use … .

It is undisputed that the City demonstrated, prima facie, that it lacked prior written notice of the alleged defect. It is further undisputed that the record contains no evidence that the City created the condition that allegedly caused the plaintiff's accident. The plaintiff contends that this case falls within the special use exception because bicycle lanes provide a special benefit to the City by “enhancing its status” and “attracting residents and tourists.” However, the plaintiff failed to demonstrate that the implementation of bicycle lanes on City roadways bestowed a special benefit upon the City unrelated to the public use or that it constituted a special use of the roadways … . Budoff v City of New York, 2018 NY Slip Op 05817, Second Dept 8-22-18

NEGLIGENCE (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/CIVIL PROCEDURE (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/APPEALS  (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/SPECIAL USE EXCEPTION (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))

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OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT).

The Third Department determined that the plaintiffs, who own land (parcel A) which adjoins land owned by defendant (parcel B), did not have standing to enforce the “forever wild” covenant in the deed to parcel B:

The standing issue requires that we determine whether the forever wild restriction is personal or runs with the land … . In making that determination, “we are guided by the general principles that because the law favors free and unencumbered use of real property, covenants purporting to restrict such use are strictly construed and restraints will be enforced only when their existence has been established by clear and convincing proof by the owner of the dominant estate” … . “One of the elements of a restrictive covenant that runs with the land is that the 'parties [to the conveyance that created the covenant] intended its burden to attach to the servient parcel and its benefit to run with the dominant estate'” … .

Although there is evidence that the parties intended that the burden of the forever wild restriction run with parcel B, the record is bereft of evidence suggesting they intended that parcel A benefit from the restriction. …

… [T]he forever wild restriction does not fall within the category of restrictive covenants that is recognized as being enforceable by an owner of a parcel that derives from a common grantor. In that regard, covenants that are entered into to implement a general, or common, scheme for the improvement or development of real property are enforceable by any grantee … . … Here, there is no scheme of development or covenant that is common to all three parcels. Gorman v Despart, 2018 NY Slip Op 05795, Third Dept 8-16-18

REAL PROPERTY LAW (OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))/DEEDS (OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))/COVENANTS (DEEDS, FOREVER WILD, OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))/ENVIRONMENTAL LAW (DEEDS, COVENANTS, FOREVER WILD, OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))/FOREVER WILD (DEEDS, COVENANTS, OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT))

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BUSINESS PURSUITS EXCLUSION IN THE HOMEOWNER’S INSURANCE POLICY DID NOT APPLY BECAUSE THE FIRE WOULD HAVE OCCURRED IRRESPECTIVE OF THE OPERATION OF THE BUSINESS, A RESPITE HOME FOR ELDERLY AND SPECIAL NEEDS ADULTS, THREE OF THE RESIDENTS DIED IN THE FIRE STARTED BY CHILDREN PLAYING IN THE GARAGE (THIRD DEPT)

The Third Department determined that an exclusion in defendant-insurer's policy applied and coverage for the death's of three residents of a respite home for the elderly and special needs adults should not have been disclaimed. The respite home was a private residence. The homeowners' son, who was 11, and other children, were playing with a gas grill in the garage and a fire started, killing the three residents. Although the policy excluded coverage for business-related injuries, incidents that would have occurred irrespective of the presence of the business were covered:

It is undisputed that the act of the insureds' son and the other children in playing with the gas grill lighter and accelerants was the impetus for the fire. Although the insureds' negligence in operating their business — i.e., the failure to have an adequate fire evacuation plan — may have been a contributing cause of decedents' deaths, it cannot be said as matter of law that the fire also was not a contributing cause. In other words, the fire would have occurred regardless of the insureds' business operations, thereby rendering the exception to the business pursuits exclusion applicable. Because the record discloses that decedents' deaths were not caused solely by acts that fell wholly within the business pursuits exclusion, defendant cannot escape its indemnity obligations with respect to decedents' deaths … . Waddy v Genessee Patrons Coop. Ins. Co., 2018 NY Slip Op 05794, Third Dept 8-15-18

INSURANCE LAW (BUSINESS PURSUITS EXCLUSION IN THE INSURANCE POLICY DID NOT APPLY BECAUSE THE FIRE WOULD HAVE OCCURRED IRRESPECTIVE OF THE OPERATION OF THE BUSINESS, A RESPITE HOME FOR ELDERLY AND SPECIAL NEEDS ADULTS, THREE OF THE RESIDENTS DIED IN THE FIRE STARTED BY CHILDREN PLAYING IN THE GARAGE (THIRD DEPT))/BUSINESS PURSUITS EXCLUSION (INSURANCE LAW, BUSINESS PURSUITS EXCLUSION IN THE INSURANCE POLICY DID NOT APPLY BECAUSE THE FIRE WOULD HAVE OCCURRED IRRESPECTIVE OF THE OPERATION OF THE BUSINESS, A RESPITE HOME FOR ELDERLY AND SPECIAL NEEDS ADULTS, THREE OF THE RESIDENTS DIED IN THE FIRE STARTED BY CHILDREN PLAYING IN THE GARAGE (THIRD DEPT))/CONTRACT LAW  (INSURANCE LAW, BUSINESS PURSUITS EXCLUSION IN THE INSURANCE POLICY DID NOT APPLY BECAUSE THE FIRE WOULD HAVE OCCURRED IRRESPECTIVE OF THE OPERATION OF THE BUSINESS, A RESPITE HOME FOR ELDERLY AND SPECIAL NEEDS ADULTS, THREE OF THE RESIDENTS DIED IN THE FIRE STARTED BY CHILDREN PLAYING IN THE GARAGE (THIRD DEPT))

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DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE’S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a concurring opinion, determined that the decision to allow the withdrawal of life support from an 80-year-old developmentally disabled person (M.G.), who was in a vegetative state, did not violate M.G.'s right to equal protection under the law. Although M.G. had died, the appeal was considered as an exception to the mootness doctrine:

This is an appeal from an order that authorized petitioner physician, after a hearing pursuant to the Surrogate's Court Procedure Act (SCPA-1750-b), to withdraw life-sustaining treatment from a developmentally disabled person (M.G.), in accordance with the decision of his guardian. Applying SCPA 1750-b's best interests standard, Supreme Court granted the order over the objection of Mental Hygiene Legal Service (MHLS) that a meaningful inquiry into M.G.'s end-of-life wishes should have been conducted because M.G. had some prior capacity to make health care decisions … . This case presents a similar equal protection claim to the one this Court rejected in [Matter of Chantel Nicole R. (Pamela R.) 34 AD3d 99]: whether treating an intellectually and developmentally disabled person who had some prior capacity to make health care decisions differently from a previously competent, non-disabled person violates the equal protection rights of the intellectually and developmentally disabled person. In Chantel, we concluded that there was no violation of the Equal Protection Clause, because intellectually and developmentally disabled persons are not similarly situated to once competent persons and that the disparate treatment of the SCPA 1750-b was rationally related to a “legitimate [government] interest in advancing the right of [intellectually and developmentally disabled] persons to be free from prolonged suffering” … . … [w]e reject the equal protection challenge in this case as well. * * *

MHLS moved to summarily dismiss the petition, arguing that petitioner should proceed under article 29-CC of the Public Health Law and not SCPA 1750-b, since M.G. was previously found to have capacity to request life-sustaining treatment, and thus a meaningful inquiry into his end-of-life wishes should control, rather than merely a “best interests” analysis, and that proceeding otherwise would violate his equal protection rights. Dr. Sloane, however, argued that the application was properly brought under SCPA 1750-b, since M.G. was in a permanent vegetative state, lacked capacity to make health care decisions, was developmentally disabled with a full-scale IQ of 47, had no advanced directives in place, and had not discussed his wishes with his guardian, who lived in Chicago, or anyone at his community residence. * * *

… [W]e are satisfied that Supreme Court's decision with regard to M.G. was consistent with SCPA 1750-b's requirements for withdrawal of life-sustaining treatment. The undisputed medical evidence establishes that before his demise, M.G. was in a permanent vegetative state; he suffered from multiple organ failure of the lungs, kidneys, and brain. M.G. had no neurologic function and did not respond to stimuli or breathe without a ventilator. The medical expert's opinion was that the need for hemodialysis, the chest tubes, and ventilation were ongoing, that M.G.'s lack of cognitive ability could not be cured, and that there was no chance of meaningful neurological recovery. It was thus abundantly clear that M.G. was completely unable to interact with his environment, and that the medical probability that he would ever return to a cognitive sentient state, as distinguished from a chronic vegetative existence, was virtually non-existent. Any medical treatment administered would have provided minimal, if any, benefit and would only have postponed M.B.'s death rather than improve his life. In short, M.G.'s condition was irreversible, and treatment would have imposed an extraordinary burden on him… . The best interests of the patient under SCPA 1750-b embraces not only recovery or the avoidance of pain but also a dignified death. The guardian's decision conformed with the obligation to promote the patient's well-being, and to the extent possible, the decision of M.G. himself. Matter of Sloane v M.G., 2018 NY Slip Op 05800, First Dept 8-16-18

MENTAL HYGIENE LAW (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))/TRUSTS AND ESTATES (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT)/CONSTITUTIONAL LAW  (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))/LIFE SUPPORT  (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))/SURROGATE'S COURT PROCEDURE ACT ((DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))/DEVELOPMENTALLY DISABLED  (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))

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LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT).

The First Department, over a dissent, determined the defendants-landlords had properly calculated a rent overcharge by going back four years from a date deemed to be when the tenants would have filed a rent overcharge complaint (none had been filed because the relevant law was unclear at the time):

Defendants chose May 1, 2010 as the date on which plaintiffs would be deemed to have filed a claim for overcharges, in the absence of any such claim having been filed, and then used these 2526.1(a) standards to fix the base date for determining the overcharge as May 1, 2006, the date four years before they undertook their review. Defendants then reduced plaintiffs' rent and forwarded payment to them for the overcharges so reflected. In June 2010 defendants filed registrations for the years 2006, 2007, 2008 and 2009 in accordance with these recalculations. Raden v W 7879, LLC, 2018 NY Slip Op 05799, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CIVIL PROCEDURE (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CPLR 213-a (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))

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WHERE THERE IS NO FRAUD ON THE LANDLORD’S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT).

The First Department, reversing the NYC Department of Housing and Community Renewal (DHCR), over an extensive two-justice dissent, determined the DHCR erred when it looked back more than for years from the date of the rent overcharge complaint to determine the base rent for calculating the amount of the overcharge. There was no dispute that the landlord was receiving J-51 tax benefits and was therefore subject to the Rent Stabilization Law (RSL), which had a four-year statute of limitations:

The primary question presented in this appeal is how to determine the proper rent on the base date. * * *

… [I]n the absence of evidence of fraud, this Court has declined to look back more than four years before the filing of the overcharge complaint to set the base date rent … .

In the case at bar, DHCR was not arbitrary and capricious in finding that landlord did not engage in a fraudulent scheme to evade the Rent Stabilization Law. As a consequence, DHCR was prohibited from looking at the unit's rental history before November 2, 2005 [four years before the overcharge complaint]. …

[The legislature] not only set a four-year limitations period, but it also explicitly barred any “examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint” (RSL § 26-516[a][2]). The Court of Appeals has found that the purpose of the four-year limitations period is “to alleviate the burden on honest landlords to retain rent records indefinitely” … . The Court of Appeals has made what we have called a “limited exception” to the four-year limitations period in cases where landlords act fraudulently … . To expand this exception to landlords who have not engaged in fraud would create a much broader exception that would appear to negate the temporal limits contained in the Rent Stabilization Law and the CPLR. Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 05797, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT OVERCHARGE  (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CPLR 213-a (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))

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SUPREME COURT PROPERLY GRANTED DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT).

The Second Department determined defendant's motion to set aside the verdict i(CPLR 4404(a)) n this personal injury case was properly granted. Supreme Court ordered a new trial unless plaintiff agreed to a reduction from $1.2 million to $750,000 for past pain and suffering, and from $3 million to $1.25 million for future pain and suffering. Plaintiff had injured his back after a fall of two feet:

A jury's determination with respect to awards for past and future pain and suffering will not be set aside unless the award deviates materially from what would be reasonable compensation (see CPLR 5501[c]… ). “The reasonableness' of compensation must be measured against relevant precedent of comparable cases” … . “Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation”… . Considering the nature and the extent of the injuries sustained by the plaintiff, the awards for past pain and suffering and future pain and suffering, as reduced by the Supreme Court, do not deviate materially from what would be reasonable compensation … . Garcia v CPS 1 Realty, LP, 2018 NY Slip Op 05753, Second Dept 8-15-18

CIVIL PROCEDURE (SET ASIDE VERDICT, PERSONAL INJURY, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))/CPLR 4404  (SET ASIDE VERDICT, PERSONAL INJURY, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))/CPLR 5501 (SET ASIDE VERDICT, PERSONAL INJURY, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))/DAMAGES (PAIN AND SUFFERING, SET ASIDE VERDICT, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))/PAIN AND SUFFERING (SET ASIDE VERDICT, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))

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MATTER SENT BACK TO RECONSTRUCT THE RECORD ABOUT POSSIBLE BRADY MATERIAL THAT WAS TO BE REVIEWED BY THE JUDGE, CURRENT RECORD IS SILENT ON THE ISSUE (SECOND DEPT).

The Second Department sent the matter back for a hearing to reconstruct the record as to what, if any, material was provided to the court for in camera review. Defendant alleged statements which constituted Brady material were to be given to the judge for a determination whether the material should be provided to the defense. But the record gave no indication what the materials were:

On appeal, the defendant argues that the failure to disclose the requested material constituted a Brady violation. The People were unable to provide to this Court any material they provided to the trial court for in camera review. They indicate that they have no record in their files of what material may have been submitted to the trial court. The People assert that, nevertheless, the defendant's Brady claim is based on matter dehors the record, and thus cannot be reviewed on direct appeal. However, to the extent that material was produced to the trial court for in camera review, it is properly part of the record, and the defendant's Brady claim would thus be reviewable on direct appeal. Under these circumstances, we deem it appropriate to remit the matter for a hearing to reconstruct the record as to what, if any, material was provided to the trial court for in camera review … , and thereafter to report to this Court with all convenient speed. The appeal is held in abeyance in the interim, and we do not decide any other issues at this time. People v DeFelice, 2018 NY Slip Op 05781, Second Dept 8-15-18

CRIMINAL LAW (APPEALS, RECORD, MATTER SENT BACK TO RECONSTRUCT THE RECORD ABOUT POSSIBLE BRADY MATERIAL THAT WAS TO BE REVIEWED BY THE JUDGE, CURRENT RECORD IS SILENT ON THE ISSUE (SECOND DEPT))/APPEALS (CRIMINAL LAW, RECORD, MATTER SENT BACK TO RECONSTRUCT THE RECORD ABOUT POSSIBLE BRADY MATERIAL THAT WAS TO BE REVIEWED BY THE JUDGE, CURRENT RECORD IS SILENT ON THE ISSUE (SECOND DEPT))

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