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PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT).

The Fourth Department reversed the dismissal, by a Referee, of the petition brought seeking joint custody of children born to respondent, with whom petitioner had had a romantic relationship, on the basis of an agreement that petitioner and respondent would raise the children as a family. The court noted that a dismissal pursuant to CPLR 4401 for failure to make out a prima facie case can not take into account credibility determinations:

Petitioner commenced this proceeding seeking joint custody of, and visitation with, the five subject children, all of whom were born to respondent and conceived by the implantation of fertilized eggs. With respect to her standing to commence this proceeding, petitioner alleged that she and respondent had previously been involved in a romantic relationship, and that they entered into an agreement to raise and co-parent the child that was alive when the parties met. Petitioner further alleged that, prior to the conception of the younger four children, the parties also agreed that respondent would conceive additional children and the parties would jointly raise them as a family. The Referee granted a hearing on the issue of petitioner’s standing to seek custody of the children, at which petitioner’s testimony was consistent with the petition. … At the conclusion of petitioner’s case, the Referee granted respondent’s motion pursuant to CPLR 4401 to dismiss the petition. …

… “[I]n determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom . . . The question of credibility is irrelevant, and should not be considered” … .

Here, the Referee made credibility determinations and weighed the probative value of the evidence in making a determination on the motion to dismiss. Consequently, we reverse the order, reinstate the petition and remit the matter to Family Court to determine, after a full hearing, whether petitioner, by clear and convincing evidence, has established with respect to the four younger children that she “has agreed with the biological parent of the child[ren] to conceive and raise [them] as co-parents” … , and whether, despite being a “partner without such an agreement [she] can establish standing” with respect to the older child … . Matter of deMarc v Goodyear, 2018 NY Slip Op 05095, Fourth Dept 7-6-18

FAMILY LAW (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/CUSTODY (FAMILY LAW, PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT)))CIVIL PROCEDURE (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/CPLR 4401  (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/STANDING (FAMILY LAW, CUSTODY, PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))

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RESENTENCING IN SUPREME COURT AFTER CONVICTION IN COUNTY COURT WAS ILLEGAL (FOURTH DEPT).

The Fourth Department determined defendant, who had been convicted in County Court was illegally resentenced in Supreme Court:

We agree with defendant … that he was illegally resentenced in Supreme Court after his trial was conducted in County Court. It is well settled that “in order to remove a criminal action from County Court to Supreme Court, the Uniform Rules for the New York State Trial Courts require that such removal be authorized by the Chief Administrator and that it occur prior to the entry of a plea or commencement of trial” … . Here, although the case was removed by the Chief Administrator, it did not occur prior to the commencement of trial. Thus, Supreme Court lacked authority to resentence defendant, thereby rendering the resentence illegal … . People v Williams, 2018 NY Slip Op 05090, Fourth Dept 7-6-18

​CRIMINAL LAW (RESENTENCING IN SUPREME COURT AFTER CONVICTION IN COUNTY COURT WAS ILLEGAL (FOURTH DEPT))

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IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that it was reversible error to allow the jury to hear evidence of two allegedly forged checks in the second forgery trial after defendant had been acquitted of the charges related to those checks in the first trial. The People were collaterally estopped from introducing evidence related to the acquittals:

At the new trial, notwithstanding that defendant was acquitted of the prior charged criminal conduct involving check numbers 61512 and 61519, the People were permitted to use those checks, over defendant’s objection, in their case-in-chief as evidence of, inter alia, defendant’s criminal intent and motive with respect to check number 61517. In instructing the jury concerning the purpose for which check numbers 61512 and 61519 could be considered, County Court referred to defendant’s alleged involvement with those checks as “uncharged conduct.” The court also instructed the jury: “Regarding evidence of other crimes, there may have been evidence that on another occasion the defendant engaged in criminal conduct.” Defendant contends, inter alia, that the People were collaterally estopped at the new trial from using check numbers 61512 and 61519 as evidence with respect to count two involving check number 61517, and that the court committed reversible error in permitting such evidence. We agree.

We conclude that it was improper for the court to characterize any evidence concerning defendant’s alleged possession of forged checks numbered 61512 and 61519 as “uncharged conduct” or “criminal conduct.” Defendant in fact had been charged, tried, and acquitted of criminal possession of a forged instrument in the second degree with respect to those checks. We therefore further conclude that the People were collaterally estopped by the earlier verdict from presenting any evidence related to check numbers 61512 and 61519 at the new trial … . People v Williams, 2018 NY Slip Op 05089, Fourth Dept 7-6-18

​CRIMINAL LAW (EVIDENCE, IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE, IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT))/PRIOR CRIMES AND BAD ACTS  (CRIMINAL LAW, EVIDENCE, IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT))

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THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeJoseph, reversing Supreme Court, determined that the medical professionals involved with review of an x-ray of plaintiff’s decedent’s chest on behalf of plaintiff’s decedent’s employer did not have a duty to report the findings to the decedent or decedent’s physician. The mass that was seen on the x-ray apparently was cancer and plaintiff’s decedent was not informed. He later asked his employer, NYSEG, about the findings but by then the cancer was incurable:

The chest x ray was performed at defendant Lockport Memorial Hospital and decedent signed a consent form prior to the procedure. The consent form provided, in pertinent part, the following: “I, [decedent], understand that medical examinations done at this facility are for evaluation purposes for either employment suitability or worker’s compensation injury/illness treatment. The examinations done here are not intended to detect all underlying health conditions and do not replace the medical care provided by my personal physician. I hereby consent to the examination for the stated purposes or request the services stipulated of [WNYOM]. Furthermore, I understand that all medical information related to my ability to perform the functions of my job will be reported to the designated employer representatives at my place of employment.” …

“The failure to communicate significant medical findings to a patient or his treating physician is not malpractice but ordinary negligence” … . * * *

… [T]there is no dispute that defendants correctly interpreted the results of the x ray and timely conveyed the results to decedent’s employer. Notably absent from the record is the identity or even existence of decedent’s treating physician. Nor is there any indication that defendants were made aware of any treating physician. Furthermore, the consent form, executed by decedent, specifically indicated that decedent “underst[oo]d that all medical information related to [his] ability to perform the functions of [his] job w[ould] be reported to the designated employer representatives at [his] place of employment.” There is also no dispute that defendants adhered to the requirements set forth in the consent form. We therefore conclude that … there was no duty to decedent and, as stated by the Court of Appeals, “[w]e have been reluctant to expand a doctor’s duty of care to a patient to encompass nonpatients. A critical concern underlying this reluctance is the danger that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs” … . Kingsley v Price, 2018 NY Slip Op 05088, Fourth Dept 7-6-18

​NEGLIGENCE (THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT))/EMPLOYMENT LAW  (THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT))

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PETITION SEEKING TO ANNUL A NEGATIVE DECLARATION UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) CONCERNING A TRUCK STOP PROJECT PROPERLY DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, TOWN PLANNING BOARD DID NOT ACT ARBITRARILY AND CAPRICIOUSLY WHEN IT FAILED TO FOLLOW A LOCAL LAW WHICH CONFLICTED WITH SEQRA (FOURTH DEPT).

The Fourth Department determined petitioner did not exhaust administrative remedies before bringing a petition to annul the town’s negative declaration under the State Environmental Quality Review Act (SEQRA) for a truck stop project. The court further found that the town planning board did not act arbitrarily and capriciously when it failed to follow a Local Law (which required an environmental impact statement (EIS)) because the Local Law conflicted with SEQRA and was therefore invalid:

… [W]e conclude that petitioner failed to exhaust its administrative remedies … . The record establishes that the Planning Board, as the lead agency on the project, held a public hearing that petitioner’s counsel attended, but during which he remained silent. Although petitioner made a FOIL request two days after the public hearing, that request did not alert the Planning Board of any specific concerns. …

“A local law that is inconsistent with SEQRA’ must be invalidated” … . “[I]nconsistency has been found where local laws prohibit what would have been permissible under State law or impose prerequisite additional restrictions on rights under State law, so as to inhibit operation of the State’s general laws” … . Here, section 59-3 (A) of the Town Code provided that “Type I actions are likely to have an effect on the environment and will, therefore, require the preparation of an environmental impact statement.” SEQRA, on the other hand, provides that, “[t]he lead agency must determine the significance of any Type I . . . action . . . [and,] [t]o require an EIS for a proposed action, the lead agency must determine that the action may include the potential for at least one significant adverse environmental impact” … . Thus, Chapter 59 is inconsistent with SEQRA because SEQRA permits a negative declaration for Type I actions, whereas Chapter 59 effectively precluded a negative declaration in such actions. Matter of Pilot Travel Ctrs., LLC v Town Bd. of Town of Bath, 2018 NY Slip Op 05082, Fourth Dept 7-6-18

​ENVIRONMENTAL LAW ((PETITION SEEKING TO ANNUL A NEGATIVE DECLARATION UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) CONCERNING A TRUCK STOP PROJECT PROPERLY DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, TOWN PLANNING BOARD DID NOT ACT ARBITRARILY AND CAPRICIOUSLY WHEN IT FAILED TO FOLLOW A LOCAL LAW WHICH CONFLICTED WITH SEQRA (FOURTH DEPT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PETITION SEEKING TO ANNUL A NEGATIVE DECLARATION UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) CONCERNING A TRUCK STOP PROJECT PROPERLY DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, TOWN PLANNING BOARD DID NOT ACT ARBITRARILY AND CAPRICIOUSLY WHEN IT FAILED TO FOLLOW A LOCAL LAW WHICH CONFLICTED WITH SEQRA (FOURTH DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, PETITION SEEKING TO ANNUL A NEGATIVE DECLARATION UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) CONCERNING A TRUCK STOP PROJECT PROPERLY DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, TOWN PLANNING BOARD DID NOT ACT ARBITRARILY AND CAPRICIOUSLY WHEN IT FAILED TO FOLLOW A LOCAL LAW WHICH CONFLICTED WITH SEQRA (FOURTH DEPT))/ADMINISTRATIVE LAW (ENVIRONMENTAL LAW, MUNICIPAL LAW, (PETITION SEEKING TO ANNUL A NEGATIVE DECLARATION UNDER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) CONCERNING A TRUCK STOP PROJECT PROPERLY DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, TOWN PLANNING BOARD DID NOT ACT ARBITRARILY AND CAPRICIOUSLY WHEN IT FAILED TO FOLLOW A LOCAL LAW WHICH CONFLICTED WITH SEQRA (FOURTH DEPT))

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THERE ARE QUESTIONS OF FACT WHETHER THE BROKER REPRESENTED BOTH SELLERS AND BUYER WITHOUT DISCLOSING THE DUAL REPRESENTATION, A BREACH OF A FIDUCIARY DUTY, AND THERE ARE QUESTIONS OF FACT WHETHER THE SELLERS WERE FRAUDULENTLY INDUCED BY THE BROKER TO ENTER THE PURCHASE AGREEMENT, BROKER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant real estate broker, JRMR, breached a fiduciary duty owed to the sellers of real property, and whether JRMR fraudulently induced the sellers to enter the purchase agreement. Although JRMR represented the sellers, emails between JRMR and the buyer raised a question of fact whether JRMR was acting on behalf of both the buyer and the sellers without disclosing the dual representation (a breach of a fiduciary duty):

It is well settled that, “because of a broker’s fiduciary duties, he [or she] has the affirmative duty not to act for a party whose interests are adverse to those of the principal, unless he [or she] has the consent of the principal given after full knowledge of the facts . . . Accordingly, he [or she] cannot act as agent for both seller and purchaser of property in a real estate transaction” … . “Where a broker’s interests or loyalties are divided due to . . . [the] representation of multiple parties, the broker must disclose to the principal . . . the material facts illuminating the broker’s divided loyalties”… . Indeed, “[a] failure to disclose any interest tending to influence the [broker] . . . constitutes a breach of [the broker’s] fiduciary obligation and precludes [the broker] from recovering for services rendered” … . * * *

… [The sellers’] evidence raised issues of fact whether [the broker] made misrepresentations to them concerning the value of their properties and the willingness of [the buyer] to purchase different property, and whether [the broker] knew of the falsity of those statements and made them with the intent to induce [the sellers’] reliance on them. [The sellers] also submitted evidence raising triable issues of fact whether they justifiably relied on [the broker’s] misrepresentations and suffered damages as a result. Northland E., LLC v J.R. Militello Realty, Inc., 2018 NY Slip Op 05078, Fourth Dept 7-6-18

​REAL ESTATE (THERE ARE QUESTIONS OF FACT WHETHER THE BROKER REPRESENTED BOTH SELLERS AND BUYER WITHOUT DISCLOSING THE DUAL REPRESENTATION, A BREACH OF A FIDUCIARY DUTY, AND THERE ARE QUESTIONS OF FACT WHETHER THE SELLERS WERE FRAUDULENTLY INDUCED BY THE BROKER TO ENTER THE PURCHASE AGREEMENT, BROKER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/FRAUD (REAL ESTATE, THERE ARE QUESTIONS OF FACT WHETHER THE BROKER REPRESENTED BOTH SELLERS AND BUYER WITHOUT DISCLOSING THE DUAL REPRESENTATION, A BREACH OF A FIDUCIARY DUTY, AND THERE ARE QUESTIONS OF FACT WHETHER THE SELLERS WERE FRAUDULENTLY INDUCED BY THE BROKER TO ENTER THE PURCHASE AGREEMENT, BROKER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/BROKERS (REAL ESTATE, THERE ARE QUESTIONS OF FACT WHETHER THE BROKER REPRESENTED BOTH SELLERS AND BUYER WITHOUT DISCLOSING THE DUAL REPRESENTATION, A BREACH OF A FIDUCIARY DUTY, AND THERE ARE QUESTIONS OF FACT WHETHER THE SELLERS WERE FRAUDULENTLY INDUCED BY THE BROKER TO ENTER THE PURCHASE AGREEMENT, BROKER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/FIDUCIARY DUTY (REAL ESTATE, BROKERS, THERE ARE QUESTIONS OF FACT WHETHER THE BROKER REPRESENTED BOTH SELLERS AND BUYER WITHOUT DISCLOSING THE DUAL REPRESENTATION, A BREACH OF A FIDUCIARY DUTY, AND THERE ARE QUESTIONS OF FACT WHETHER THE SELLERS WERE FRAUDULENTLY INDUCED BY THE BROKER TO ENTER THE PURCHASE AGREEMENT, BROKER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined Supreme Court exceeded its authority when it vacated an arbitration award and the court did not acquire personal jurisdiction over the police officer (Lee) seeking Municipal Law 207-c benefits in another arbitration proceeding handled by a union lawyer:

Lee established that the court failed to acquire personal jurisdiction over her in the proceeding to confirm the arbitration award … because the City never properly served her … . Nor did the court acquire personal jurisdiction over Lee by the unauthorized appearance of the Union’s attorney “on behalf of Katherine Lee.” Contrary to the City’s contention, there is no evidence that Lee expressly or implicitly authorized the Union’s attorney to represent her at any stage of the proceedings. …

We further conclude that the court erred in sua sponte vacating its prior order and judgment, which confirmed the arbitration award … , and directing further arbitration. … A court has authority to “vacate its own judgment for sufficient reason and in the interests of substantial justice” … . That authority, however, is not unlimited… . “A court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” … .

In vacating the order and judgment, … the court “exceeded the narrow bounds within which courts are authorized to alter [arbitration] awards” … . None of the bases in CPLR 7511 (b) or (c) for vacating or modifying an arbitration award applies to the arbitrator’s failure to award the City a specific dollar amount for the value of benefits received by Lee, and the court had no power to disturb the award apart from the grounds set forth in those subdivisions  … . Matter of City of Syracuse (Lee), 2018 NY Slip Op 05077, Third Dept 7-6-18

​ARBITRATION (MUNICIPAL LAW, COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT))/MUNICIPAL LAW (COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT))/ATTORNEYS (MUNICIPAL LAW, COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT))/CIVIL PROCEDURE (ARBITRATION,  COURT EXCEEDED ITS AUTHORITY WHEN IT VACATED AN ARBITRATION AWARD, COURT DID NOT ACQUIRE PERSONAL JURISDICTION OVER A POLICE OFFICER SEEKING MUNICIPAL LAW 207-c BENEFITS BECAUSE THE OFFICER NEVER AUTHORIZED THE UNION ATTORNEY TO REPRESENT HER (FOURTH DEPT))

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PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT).

The Second Department determined plaintiff was a proper plaintiff pursuant to Labor Law 240 (1) and 241 (6). Plaintiff owned a single family home and plaintiff’s company hired defendant subcontractor to work on plaintiff’s property. Plaintiff was inspecting defendant’s work when he slipped and fill on oil which allegedly came from defendant’s equipment. In addition, the Second Department determined there were questions of fact whether defendant had control of the work site and was delegated safety responsibilities:

Labor Law § 240(1) requires that persons “employed in,” inter alia, the “alteration” of a building be provided with proper protective devices. Labor Law § 241(6) requires contractors and owners and their agents who are performing excavation work to comply with the provisions of the Industrial Code to protect “the persons employed therein or lawfully frequenting such places.” “Employee” is defined in Labor Law § 2(5) as “a mechanic, workingman or laborer working for another for hire.” A plaintiff who seeks to recover under Labor Law §§ 240(1) and 241(6) must show that he or she was both permitted to work on a building or structure and was hired by someone … . Those provisions may apply to the president of the general contractor for the project, who is inspecting work performed by subcontractors … . Inspecting the work on behalf of a general contractor is a protected activity covered by these Labor Law provision … . …

Here, the plaintiff alleged that the defendant was working alone at the site and the plaintiff was merely on-site to inspect the progress of the work. The plaintiff further claims that he “did not direct or control the work . . . and played no role in implementing safety procedures or taking safety measures,” since safety measures were in the exclusive control of the defendant. Thus, although the defendant does not own the property and did not appear to be acting as a general contractor, there are triable issues of fact as to whether the defendant could be liable under Labor Law §§ 240(1) and 241(6) on the ground that it had control of the work site and was delegated the duty to enforce safety protocols at the time the accident occurred. Eliassian v G.F. Constr., Inc., 2018 NY Slip Op 05020, Second Dept 7-5-18

LABOR LAW-CONSTRUCTION LAW PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT))

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FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT).

The Second Department determined the fee sharing agreement violated Judiciary Law 491 and could not be enforced by a court:

With respect to the merits of the appeal, Judiciary Law § 491 prohibits any person, partnership, or corporation from sharing any fee or compensation charged or received by an attorney-at-law, in consideration of having placed in the hands of such attorney-at-law a claim or demand of any kind … .

Under the purported fee-sharing agreement, the plaintiffs would provide the defendant attorneys with proprietary information regarding potential clients, investigate claims, interview potential plaintiffs, and otherwise assist with litigation. In exchange, the defendant attorneys would pay the plaintiffs 20% of their fee for each case. This purported fee-sharing agreement whereby the plaintiffs attempt to recover from the defendant attorneys is illegal, and the plaintiffs are proscribed from seeking the assistance of the courts in enforcing it … . Ballan v Sirota, 2018 NY Slip Op 05014, Second Dept 7-5-18

​ATTORNEYS (FEE-SHARING, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))/FEE-SHARING AGREEMENT (ATTORNEYS, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))/JUDICIARY LAW 491 (ATTORNEYS, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))

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PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff’s claim for treble damages in this timber trespass claim should not have been dismissed. There was a question of fact whether defendant made adequate efforts to ensure the timber was not taken from plaintiff’s land:

Defendant concedes that it trespassed upon the subject property and cleared trees, rendering it liable (see RPAPL 861 … . Accordingly, in order to avoid an award of treble damages, defendant was obliged to show by clear and convincing evidence that it “had cause to believe . . . [that it had] a legal right to harvest” timber from the subject property (RPAPL 861 [2]…). Defendant endeavored to do so with the deposition of its vice-president, who stated that D’Assy represented that he had obtained permission from plaintiff to remove trees from the subject property. The vice-president acknowledged, however, that no efforts were made to confirm that D’Assy’s account was correct. He further admitted that he did not recall if this conversation with D’Assy occurred before or after the actual trespass. The foregoing proof, particularly in view of the aim of RPAPL 861 to encourage timber harvesters to be more diligent in preventing inadvertent timber trespass … , is not at all clear as to whether defendant had a good faith basis for believing that it had permission from plaintiff to remove timber from the subject property at the time it did so. Defendant therefore failed to meet its initial burden of demonstrating the absence of “factual questions with regard to whether plaintiff is entitled to treble damages pursuant to RPAPL 861” … .

Finally, plaintiff correctly points out that he is entitled not only to “‘the stumpage value or $250 per tree, or both’ for an unlawful taking” … , but also reparations for “any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation” … . Supreme Court, upon remittal, should consider all of those items in calculating its award of damages. DiSanto v D’Assy, 2018 NY Slip Op 05007, Third Dept 7-5-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (TIMBER TRESPASS, PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT))/TIMBER TRESPASS (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PLAINTIFF’S CLAIM FOR TREBLE DAMAGES IN THIS TIMBER TRESPASS ACTION SHOULD NOT HAVE BEEN DISMISSED, THERE EXIST QUESTIONS OF FACT WHETHER DEFENDANT MADE ADEQUATE EFFORTS TO ENSURE IT HAD THE LEGAL RIGHT TO HARVEST THE TIMBER (THIRD DEPT))

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