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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DEMONSTRATED THE FAILURE OF A TOE BOARD WAS AT LEAST A CONTRIBUTING CAUSE OF PLAINTIFF’S FALL FROM A ROOF, CONTRIBUTORY NEGLIGENCE IS NOT A BAR TO RECOVERY AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff fell from a roof after a toe board became detached from the roof:

“Plaintiff[s] met [their] initial burden by establishing that [plaintiff’s] injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk” … . “[T]he question of whether [a] device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its [intended] function of supporting the worker and his or her materials” … . Here, plaintiffs established that, on the morning of the accident, plaintiff had been instructed to work on a pitched roof on which “toe boards,” i.e., two- by six-inch boards nailed directly to the roof approximately two to three feet up from the bottom edge of the roof, had already been installed, and defendants failed to submit non-speculative evidence to the contrary. There is no dispute that the toe boards detached from the roof while plaintiff was working, causing him to fall and sustain injuries. The failure of that safety device constituted a violation of Labor Law § 240 (1) as a matter of law  …, and that violation was, at minimum, ” a contributing cause of [plaintiff’s] fall’ “… . Thus, contrary to defendants’ contentions, plaintiff’s alleged failure to utilize other safety devices available on the job site, including his alleged failure to reinstall the toe boards with additional supporting roof jacks, raises no more than an issue of contributory negligence … . Provens v Ben-Fall Dev., LLC, 2018 NY Slip Op 05426, Fourth Dept 7-25-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DEMONSTRATED THE FAILURE OF A TOE BOARD WAS AT LEAST A CONTRIBUTING CAUSE OF PLAINTIFF’S FALL FROM A ROOF, CONTRIBUTORY NEGLIGENCE IS NOT A BAR TO RECOVERY AS A MATTER OF LAW (FOURTH DEPT))

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DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined defendant publisher (Bloomberg) was not entitled to dismissal of a defamation action based upon the publication of articles about police investigations of a Hong Kong investment company. The court found that the Civil Rights Law privilege for reporting on a judicial proceeding could not be applied as a matter of law at the pre-discovery stage:

New York Civil Rights Law § 74 states, in pertinent part: “A civil action cannot be maintained . . . for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” Here, we disagree with the Supreme Court’s determination that the privilege is inapplicable to reporting on foreign official proceedings … . Nevertheless, we agree with the court’s denial of that branch of Bloomberg’s motion which was to dismiss pursuant to CPLR 3211(a)(7), inasmuch as the challenged statements were not privileged under Civil Rights Law § 74. When the challenged statements are viewed in context, it cannot be said as a matter of law that the statements provide a substantially accurate reporting of the two police investigations … . Moreover, we agree with the court’s determination that the plaintiff, at this pre-discovery stage, adequately alleged the element of gross irresponsibility … . Stone v Bloomberg L.P., 2018 NY Slip Op 05515, Second Dept 7-25-18

DEFAMATION (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))/CIVIL RIGHTS LAW (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))/PRIVILEGE (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))

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PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action for violation of the “prevailing wage” requirement of the Labor Law when plaintiff did work for a contractor (Zoria Housing) on properties owned by the NYC Housing Authority (NYCHA):

… [T]he plaintiff stated viable breach of contact causes of action based on violations of statutorily mandated provisions in agreements between Zoria Housing and NYCHA, requiring the payment of prevailing wages and overtime pay. “In situations where the Labor Law requires the inclusion of a provision for payment of the prevailing wage in a labor contract between a public agency and a contractor, a contractual obligation is created in favor of the contractor’s employees, and an employee covered by or subject to the contract, in his or her status as third-party beneficiary to the contract, possesses a common-law cause of action against the contractor to recover damages for breach of such a contractual obligation” … . Here, the complaint alleges, in effect, that Zoria Housing failed to pay the plaintiff “prevailing wages” and overtime pay in breach of municipal contracts that included prevailing-wage and overtime provisions pursuant to the Labor Law (see generally Labor Law §§ 220, 231). The complaint thus stated viable breach of contract causes of action … . Singh v Zoria Hous., LLC, 2018 NY Slip Op 05513, Second Dept 7-25-18

EMPLOYMENT LAW (PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/LABOR LAW (PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/CONTRACT LAW (EMPLOYMENT LAW, PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FELL WHEN A PLANK ON A SCAFFOLD HE WAS ERECTING BROKE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (MJRB’S) motion for summary judgment in this Labor Law 240 (1) action should not have been granted. Plaintiff fell when a plank on a scaffold he was erecting broke:

… [T]he plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that he was not provided with necessary protection from the gravity-related risk of his construction work, and that the absence of the necessary protection was a proximate cause of his injuries … . In opposition, MJRB failed to raise a triable issue of fact … . MJRB contends that the plaintiff’s failure to use a safety harness was the sole proximate cause of his accident. There was, however, no evidence that the plaintiff was informed as to where the harnesses were kept and that he was instructed in their use … . Moreover, MJRB’s contention that the plaintiff was the sole proximate cause of the accident because the scaffold from which he fell was one which he himself was constructing is without merit … . Rapalo v MJRB Kings Highway Realty, LLC, 2018 NY Slip Op 05512, Second Dept 7-25-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FELL WHEN A PLANK ON A SCAFFOLD HE WAS ERECTING BROKE (SECOND DEPT))/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FELL WHEN A PLANK ON A SCAFFOLD HE WAS ERECTING BROKE (SECOND DEPT))

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DEFENDANTS IN THIS SLIP AND FALL CASE DID NOT DEMONSTRATE WHEN THE AREA WAS LAST CLEANED OR INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court determined defendants did not demonstrate when the area where plaintiff slipped and fell had last been inspected or cleaned and did not demonstrate the handrail was not defective:

… [T]he defendants failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous conditions. While the deposition testimony of the premises’ porter and an affidavit of its superintendent, submitted by the defendants in support of their motion, demonstrated that the porter and the superintendent inspected and cleaned the premises on a regular basis, the defendants failed to present evidence of when the specific area where the plaintiff fell was last cleaned or inspected before the accident … . Quinones v Starret City, Inc., 2018 NY Slip Op 05510, Second Dept 7-25-18

NEGLIGENCE (SLIP AND FALL, DEFENDANTS IN THIS SLIP AND FALL CASE DID NOT DEMONSTRATE WHEN THE AREA WAS LAST CLEANED OR INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (DEFENDANTS IN THIS SLIP AND FALL CASE DID NOT DEMONSTRATE WHEN THE AREA WAS LAST CLEANED OR INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT)

The Fourth Department, reversing defendant’s conviction on two of three counts, determined the trial court abused its discretion when, in response to a jury note, it instructed the jury, for the first, that the intent to use a weapon may be presumed from possession of a weapon. The jury had asked specific questions concerning the issue of intent and the judge’s “presumption” instruction did not address those questions. Rather, the instruction allowed the jury to avoid the questions by applying the presumption:

The Criminal Procedure Law allows the jury to ask the court to clarify an instruction “[a]t any time during its deliberation” (CPL 310.30). Upon receiving such a request, the court must ” perform the delicate operation of fashioning a response which meaningfully answer[s] the jury’s inquiry while at the same time working no prejudice to the defendant’ ” … . “[T]he court has significant discretion in determining the proper scope and nature of the response”… . In determining whether the court’s response constituted an abuse of discretion, ” [t]he factors to be evaluated are the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant’ ” … .

We conclude that the court failed in its duty to fashion a response that meaningfully answered the jury’s question and to avoid prejudicing defendant. The jury notes demonstrate that the jury had thoughtful questions about intent and was carefully weighing the conflicting testimony of the witnesses to determine whether and when defendant in fact formed the intent to use the gun unlawfully against another. The court, however, instructed the jury that defendant’s possession of the gun was presumptive evidence of intent to use it unlawfully, and that the jury may not need or want to consider additional evidence in light of that presumption. That answer was not responsive to either note. Moreover, the court’s response prejudiced defendant by introducing new principles of law after summations, when defense counsel no longer had the opportunity to argue that, despite the presumption, the evidence established that defendant lacked the requisite intent … . People v Wood, 2018 NY Slip Op 05422, Fourth Dept 7-25-18

CRIMINAL LAW (ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT))/JURY NOTES  (CRIMINAL LAW, ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT))

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DEFENDANT’S ABSENCE FROM AN IN CAMERA INTERVIEW WITH A JUROR CONCERNING POSSIBLE DISQUALIFICATION WAS NOT SHOWN TO HAVE HAD A SUBSTANTIAL EFFECT ON THE DEFENDANT’S ABILITY TO DEFEND AGAINST THE CHARGES (SECOND DEPT).

The Second Department determined defendant’s right to be present at all material stages of the trial was not violated by his absence from an in camera interview with a sworn juror about possible disqualification:

The defendant’s right to be present at all material stages of the trial was not violated by his absence from an in camera interview with a sworn juror, conducted in the presence of the prosecutor and defense counsel, to determine whether there was a possible juror disqualification. Although a defendant has a statutory right to be present at all material stages of the trial … , this right is only a qualified right where the proceedings involved are ancillary … . A conference to determine whether a sworn juror should be excluded … is an ancillary proceeding … . As such, the defendant’s presence is required only if it could have had “a substantial effect on [his or her] ability to defend against the charges” … , or “where defendant has something valuable to contribute” …  Given that the issue of whether a seated juror is grossly unqualified is, generally, a legal determination… , and, given the circumstances presented here, there is no basis to conclude that the defendant’s presence at the in camera interview would have had a substantial effect on the defendant’s ability to defend against the charges, or that the defendant would have made a valuable contribution to the proceeding … . People v Robinson, 2018 NY Slip Op 05496, Second Dept 7-25-18

CRIMINAL LAW (DEFENDANT’S ABSENCE FROM AN IN CAMERA INTERVIEW WITH A JUROR CONCERNING POSSIBLE DISQUALIFICATION WAS NOT SHOWN TO HAVE HAD A SUBSTANTIAL EFFECT ON THE DEFENDANT’S ABILITY TO DEFEND AGAINST THE CHARGES (SECOND DEPT))/MATERIAL STAGE (CRIMINAL LAW, DEFENDANT’S ABSENCE FROM AN IN CAMERA INTERVIEW WITH A JUROR CONCERNING POSSIBLE DISQUALIFICATION WAS NOT SHOWN TO HAVE HAD A SUBSTANTIAL EFFECT ON THE DEFENDANT’S ABILITY TO DEFEND AGAINST THE CHARGES (SECOND DEPT))/JUROR DISQUALIFICATION DEFENDANT’S ABSENCE FROM AN IN CAMERA INTERVIEW WITH A JUROR CONCERNING POSSIBLE DISQUALIFICATION WAS NOT SHOWN TO HAVE HAD A SUBSTANTIAL EFFECT ON THE DEFENDANT’S ABILITY TO DEFEND AGAINST THE CHARGES (SECOND DEPT))

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THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT)

The Fourth Department, modifying Supreme Court, determined the zoning board of appeals (ZBA) did not follow town code procedure when it refused to consider the review and comments submitted by the planning board in connection with area variances of lot-width requirements for a proposed subdivision. The court also noted that a declaratory judgment is not an available remedy for challenging an administrative determination:

The Town’s Zoning Code (Code) provides that “[t]he [ZBA] shall refer applications for variance requests to the Planning Board for review and comments. The Planning Board shall forward comments within 30 days of the close of a public hearing of the [ZBA]” … . Here, the Planning Board conducted a meeting on June 20, 2016, and voted to approve the relevant variances. On June 27, 2016, the ZBA held a public hearing and postponed its decision on the variance application until certain residents could comment at an upcoming July 18, 2016 Planning Board meeting. At the July 18, 2016 Planning Board meeting, various residents opposed the variances, and the Planning Board reversed its initial June 20, 2016 determination and voted not to approve the area variances. Thereafter, the ZBA determined that the Planning Board did not have the authority to reverse its prior determination and that the July 18, 2016 vote was null and void. The ZBA met on August 22, 2016 and voted to approve the area variances without considering the Planning Board’s July 18, 2016 review and comments.

” It is well established that [c]ourts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure’ ” … . Here, inasmuch as no ZBA public hearing took place until June 27, 2016, the June 20, 2016 action on the variance application by the Planning Board was procedurally improper … . The ZBA’s refusal to consider the procedurally compliant July 18, 2016 review and comments submitted by the Planning Board therefore violated the procedure set forth in section 302 (G) of the Code. We thus conclude that the ZBA’s grant of the area variances was “made in violation of lawful procedure [and] was affected by an error of law” (CPLR 7803 [3]). Matter of Schulz v Town of Hopewell Zoning Bd. of Appeals, 2018 NY Slip Op 05418, Fourth Dept 7-25-18

ZONING (THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT))/ADMINISTRATIVE LAW (ZONING, THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT))/CIVIL PROCEDURE (ZONING, THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT))/VARIANCES (ZONING, ADMINISTRATIVE LAW, THE COURT REVERSED THE ZONING BOARD OF APPEALS BECAUSE THE BOARD FAILED TO FOLLOW THE PROCEDURE MANDATED BY THE TOWN CODE WHEN IT GRANTED AREA VARIANCES, THE COURT ALSO NOTED THAT A DECLARATORY JUDGMENT IS NOT AN AVAILABLE REMEDY FOR CHALLENGING AN ADMINISTRATIVE DETERMINATION (FOURTH DEPT))

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AN UNPLEADED AFFIRMATIVE DEFENSE MAY BE SUCCESSFULLY RAISED TO DEFEAT A MOTION FOR SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department noted that an unpleaded affirmative defense may be successfully raised to defeat a motion for summary judgment:

Defendants allegedly embezzled over $100,000 from plaintiffs, their alleged former employers. Plaintiffs then commenced this action for fraud, conversion, and breach of fiduciary duty. Defendants both counterclaimed for, inter alia, slander per se and the violations of Labor Law §§ 162 (2), 191 (3), 195 (1) (a), and 195 (5). Defendant Carrie Massaro also counterclaimed for a violation of section 198 and for unpaid overtime under the Federal Fair Labor Standards Act (FLSA) … . * * * … [T]he affidavit of plaintiff …. raises triable issues of fact regarding their potential entitlement to the affirmative defense provided by [Labor Law] section 198 (1-b) (ii). Contrary to defendants’ contention, ” [a]n unpleaded affirmative defense may be invoked to defeat a motion for summary judgment’ ” … . Thus, although the court properly refused to dismiss the [Labor Law] section 195 (1) (a) counterclaims, the court erred in granting defendants summary judgment on those same counterclaims given plaintiffs’ potential entitlement to the affirmative defense under [Labor Law] section 198 (1-b) (ii) … . Salahuddin v Craver, 2018 NY Slip Op 05429, Fourth Dept 7-25-18

 

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ALTHOUGH THE FOREIGN CORPORATION MIGHT BE LIABLE FOR CONTAMINATION OF PLAINTIFFS’ PROPERTY, THE CORPORATION HAS NO PRESENT CONTACTS IN NEW YORK AND THEREFORE IS NOT SUBJECT TO THE COURT’S JURISDICTION (FOURTH DEPT)

The Fourth Department, reversing Supreme Court, determined that New York does not have jurisdiction over a foreign corporation which might be liable for contamination of plaintiffs’ property, but which has no present contacts in New York. Successor liability is a tort concept which cannot be used to gain jurisdiction over the successor corporation:

It is undisputed that defendant, a foreign corporation with no present contacts in this State, is not subject to personal jurisdiction in New York under either CPLR 301 or 302 (a) (see Semenetz v Sherling & Walden, Inc., 21 AD3d 1138, 1139-1140 [3d Dept 2005], affd on other grounds 7 NY3d 194 [2006]). Nevertheless, plaintiffs contend that personal jurisdiction exists over defendant because it ostensibly bears successor liability for a predecessor corporation that was itself subject to personal jurisdiction in New York. The 3rd Department, however, expressly rejected that jurisdictional theory in Semenetz (see id. at 1140). The “successor liability rule[s],” wrote the Semenetz court, “deal with the concept of tort liability, not jurisdiction. When and if [successor liability] is found applicable, the corporate successor would be subject to liability for the torts of its predecessor in any forum having in personam jurisdiction over the successor, but the [successor liability rules] do not and cannot confer such jurisdiction over the successor in the first instance” (id.) BRG Corp. v Chevron U.S.A., Inc., 2018 NY Slip Op 05425, Fourth Dept 7-25-18

 

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