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THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT).

The First Department determined the derivative action for breach of an Amended and Restated Pooling and Servicing Agreement (PSA) was properly dismissed because plaintiffs did not fulfill all of the conditions precedent for bringing the suit, which alleged the defendants’ failure to determine the fair value of a loan. Whether the contractual conditions precedent were met turned on whether the term “event of default” in one provision was synonymous with the term “default” in another provision. Because the two terms were deemed to mean the same thing, a condition precedent for the suit was not met:

Because the uncontroverted and unambiguous documentary evidence demonstrates that plaintiff failed to satisfy the terms of section 7.01(a)(iii) defining the Event of Default here at issue, plaintiff’s compliance with the conditions precedent of section 12.03(c) does not suffice to afford it standing to sue, as it has failed to demonstrate an actionable Event of Default under the PSA. Thus, KeyBank and Berkadia have conclusively established a defense to plaintiff’s asserted claims as a matter of law … and the motion court correctly granted both defendants’ CPLR 3211(a)(1) motions to dismiss. Alden Global Value Recovery Master Fund, L.P. v KeyBank N.A., 2018 NY Slip Op 02241, First Dept 3-29-18

CONTRACT LAW (THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))/DEFAULT (CONTRACT LAW, THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))/EVENT OF DEFAULT (CONTRACT LAW, THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))

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APPLYING THE CLEAR AND CONVINCING EVIDENTIARY STANDARD, THE DEPARTMENT OF MOTOR VEHICLES’ (DMV’S) SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE BASED UPON STRIKING A PEDESTRIAN WAS NOT SUPPORTED BY EVIDENCE OF THE EXTENT OF THE INJURY OR ANY CONNECTION BETWEEN THE INJURY AND THE PEDESTRIAN’S DEATH A MONTH LATER, DETERMINATION ANNULLED AND LICENSE REINSTATED (FIRST DEPT).

The First Department, annulling the determination of the Department of Motor Vehicles (DMV), over a two-justice dissenting opinion, determined the record did not support the suspension of petitioner-bus-driver’s license for a violation of Vehicle and Traffic Law 1146. The court noted that the standard of proof in the DMV hearing is “clear and convincing” and the standard of proof in the instant Article 78 proceeding is “substantial evidence.” Effectively, therefore, the “clear and convincing” standard applies to the Article 78. Here, on a dark and rainy night, an 88-year-old pedestrian apparently came into contact with the bus in the crosswalk when the bus was turning. The man died a month later. In the opinion of the majority, the hearing evidence did not demonstrate how seriously the man was injured by the bus, or a connection between any injury and the man’s death a month later:

Here, DMV was required to establish that petitioner violated Vehicle and Traffic Law § 1146(c)(1), which imposes liability on “[a] driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care.” The referenced definition of “serious physical injury” includes “physical injury . . . which causes death,” … which is presumably the basis for the charge against petitioner since he was not issued a summons until after the pedestrian died in the hospital. Thus, DMV was required to present clear and convincing evidence of both failure to exercise care and that such failure led to the pedestrian’s demise. * * *

To be sure, one could speculate, as does the dissent, that the pedestrian suffered a “serious physical injury.” But to engage in speculation would be to ignore the underlying standard of clear and convincing evidence, which even the dissent agrees applied in the administrative proceeding and is relevant to our review. “Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened . . . and it is evidence that is neither equivocal nor open to opposing presumptions”… . Given that standard, and the remarkable lack of compelling evidence before us, we would be abdicating our role were we simply to defer to the conclusions drawn by the Administrative Law Judge, and raising a serious question as to the very purpose of having any appellate review in this matter. Matter of Seon v New York State Dept. of Motor Vehs., 2018 NY Slip Op 02240, First Dept 3-29-18

 

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NEW YORK CITY POLICE DEPARTMENT, IN RESPONSE TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST, PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a partial dissenting opinion and a two-judge dissenting opinion, determined that the New York City Police Department, pursuant to a request for records of surveillance of Talib Abdur-Rashid, Samir Hahsmi, a mosque and a university student association, properly refused to confirm or deny such records existed:

The agency denied the requests, stating in each case that the information, “if possessed by the NYPD”, would be protected from disclosure under various statutory exemptions, including the law enforcement, public safety and personal privacy provisions. After the NYPD adhered to those decisions on administrative appeal, petitioners commenced separate CPLR article 78 proceedings challenging the determinations. Petitioners asserted that the NYPD was engaged in an ongoing domestic surveillance program in which, as alleged in press articles, it had targeted Muslim individuals, places of worship, businesses, schools, student groups and the like. It was in this context that petitioners attempted to ascertain whether they were subjects of surveillance or investigation, noting that they had supplied certifications of identity waiving their personal privacy interests and authorizing the NYPD to release responsive records to their attorneys. …

The NYPD’s response, although styled as a motion to dismiss the petition in each case, did not assert a procedural objection but defended the FOIL responses on the merits. The agency explained the basis for its denial of the FOIL requests and its refusal to disclose whether it possessed responsive documents in a 22-page affidavit of its Chief of Intelligence, Thomas Galati. Without offering any specific information relating to petitioners, Chief Galati described the NYPD’s ongoing and wide-ranging counterterrorism efforts, acknowledging that the agency was actively engaged in covert surveillance and other intelligence gathering in its effort to preempt acts of terrorism in New York City, which remains a prime target in the wake of the World Trade Center attacks. The Galati affidavit averred that disclosure of whether the NYPD possesses records responsive to the FOIL requests would necessarily reveal whether petitioners had been the subjects of its investigation, information which — particularly if aggregated — would provide unprecedented and invaluable information concerning NYPD counterterrorism strategies, operations, tactics and techniques to those planning future terrorist attacks. The Galati affidavit also averred that the NYPD intelligence strategies are monitored by individuals and organizations with the goal of developing counterintelligence measures, and the greatest vulnerability to the NYPD Intelligence Bureau is the release of even “seemingly innocuous information” which would inexorably reveal sources from which information is gathered by the NYPD. Matter of Abdur-Rashid v New York City Police Dept., 2018 NY Slip Op 02206, CtApp 3-29-18

FREEDOM OF INFORMATION LAW (FOIL) (NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/POLICE (FOIL, SURVEILLANCE, COUNTERTERRORISM,  (NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/SURVEILLANCE (POLICE, COUNTERTERRORISM, FOIL, NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/COUNTERTERRORISM (SURVEILLANCE, POLICE, FOIL, NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))

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TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined that the statutory language supported a ten-year, as opposed to a five-year, probation sentence for a youthful offender’s (Teri W’s) sexual abuse adjudication:

The version of [the] statute in effect when Teri W. committed her offense provided that “For a felony, other than a class A-II felony defined in article two hundred twenty of this chapter or the class B felony defined in section 220.48 of this chapter, or any other class B felony defined in article two hundred twenty of this chapter committed by a second felony drug offender, or a sexual assault, the period of probation shall be five years” … . Pursuant to the exception above, “[f]or a felony sexual assault, the period of probation shall be ten years” … . * * *

Because [the relevant] definition includes sex offenses that are class E felonies, a probation period of 10 years for a felony sexual assault is a sentence “authorized to be imposed upon a person convicted of a class E felony” … . Concordantly, Penal Law § 65.00 (3) (a) (i) exempts “sexual assaults” from the shorter probationary period applicable to non-sexual assault class E felonies. People v Teri W., 2018 NY Slip Op 02210, CtApp 3-29-18

CRIMINAL LAW (YOUTHFUL OFFENDER, TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))/SENTENCING (YOUTHFUL OFFENDER, TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))/YOUTHFUL OFFENDER (TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))/SEXUAL OFFENSES (YOUTHFUL OFFENDER, TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))PROBATION (YOUTHFUL OFFENDER, SEXUAL OFFENSE, TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))

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DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that an exchange of correspondence supported plaintiff’s allegation of the existence of an employment contract and a breach of that contract. The documentary evidence submitted by the defendant did not utterly refute the allegations in the complaint. Therefore the defendant’s motion to dismiss was properly denied:

… [W]e conclude that, based on all the documentary evidence proffered by defendant, a reasonable fact-finder could determine that a binding contract was formed. Ertel’s [the CEO’S] initial email to plaintiff stated that “[t]he terms of our offer are the same [as the] terms of your existing contract” — apart from “a clarification” concerning an issue that plaintiff characterizes as minor — and outlined the core terms that were included in the 2009 Agreement. He added that, if plaintiff had “[a]ny further questions” he should consult his “existing contract.” Inasmuch as this email explained that “the terms of the offer” were to be nearly identical to the terms of plaintiff’s existing contract, a reasonable fact-finder could interpret it as evincing an objective manifestation of defendant’s intent to enter into a bargain, such that plaintiff was justified “in understanding that his assent to that bargain [was] invited and [would] conclude it”… . Put differently, it could reasonably be inferred that Ertel’s email constituted a valid offer by defendant. In response to that email, plaintiff wrote “I accept. pls [sic] send contract,” to which Ertel replied, “Mazel. Looking forward to another great run.”… Affording plaintiff the benefit of every favorable inference, this exchange — in essence, we “offer” and “I accept,” followed by an arguably congratulatory exclamation, coupled with a forward-looking statement about the next stage of the parties’ continuing relationship — sufficiently evinces an objective manifestation of an intent to be bound for purposes of surviving a motion to dismiss … . Although Ertel’s email referenced one outstanding “clarification,” the parties’ further communications indicate that such clarification was incorporated into the first draft of the new agreement sent by Zeliger [general counsel] to plaintiff, and no evidence was offered to suggest that plaintiff resisted that change to the terms of the 2009 Agreement. We reject defendant’s argument that plaintiff’s contract claim should have been dismissed because the additional correspondence defendant proffered in support of its motion to dismiss reflects a lack of mutual assent to material terms — such as plaintiff’s minimum guaranteed compensation and the length of the non-compete term — and that this indefiniteness renders the purported contract invalid as a matter of law. As the Appellate Division concluded, that correspondence does not conclusively refute contract formation … . Kolchins v Evolution Mkts., Inc., 2018 NY Slip Op 02209, CtApp 3-29-18

CONTRACT LAW (CORRESPONDENCE, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/EMPLOYMENT LAW (CONTRACT LAW, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CIVIL PROCEDURE (MOTION TO DISMISS, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CPLR 3211 (DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CORRESPONDENCE (CONTRACT LAW,  DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/EMAILS (CONTRACT LAW,  DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/LETTERS (CONTRACT LAW,  DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))

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IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that, although the image of a person (an avatar) in a video game can constitute a portrait within the meaning of the Civil Rights Law, the image in this case was not recognizable as the plaintiff, Lindsay Lohan. “Inasmuch as she did not provide written consent for the use of what she characterizes as her portrait and her voice in GTAV [Grand Theft Auto V], plaintiff commenced this action seeking, among other things, compensatory and punitive damages for invasion of privacy in violation of Civil Rights Law §§ 50 and 51:”

The primary questions on this appeal are whether an avatar (that is, a graphical representation of a person, in a video game or like media) may constitute a “portrait” within the meaning of Civil Rights Law §§ 50 and 51 and, if so, whether the images in question in the video game central to this matter are recognizable as plaintiff. We conclude a computer generated image may constitute a portrait within the meaning of that law. We also conclude, however, that the subject images are not recognizable as plaintiff, and that the amended complaint, which contains four causes of action for violation of privacy pursuant to Civil Rights Law §§ 50 and 51, was properly dismissed. Lohan v Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, CtApp 3-29-18

CIVIL RIGHTS LAW (IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/PORTRAITS (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/VIDEO GAMES (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))/AVATARS  (CIVIL RIGHTS LAW, IMAGE IN VIDEO GAME NOT RECOGNIZABLE AS PLAINTIFF, CIVIL RIGHTS LAW (RIGHT TO PRIVACY) CAUSES OF ACTION PROPERLY DISMISSED (CT APP))

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PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner’s motion for summary judgment in this slip and fall case should have been granted. The risk to plaintiff was inherent in her work:

… [T]he plaintiff testified that at the time of the accident she was employed by a nonparty to clean the subject building. Her duties included the weekly removal of garbage and material to be recycled from the basement of the building. The plaintiff was engaged in the performance of that task when the accident occurred. When asked what caused her to fall, she explained that “there was a lot of garbage” in the basement, including “cardboard all around.”

Where, as here, the plaintiff is a worker whose claim is based upon premises liability, the landowner’s duty is to provide the worker with a safe place to work. A landowner “need not guard against hazards inherent in the worker’s work, hazards caused by the condition the worker is engaged to repair, or hazards which are readily observed by someone of the worker’s age, intelligence, and experience” … .

Under the circumstances here, the defendant established its prima facie entitlement to judgment as a matter of law by showing that the risk of slipping on a piece of cardboard in the building’s basement was inherent in the plaintiff’s work … . Rojas v 1000 42nd St., LLC, 2018 NY Slip Op 02194, Second Dept 3-28-18

NEGLIGENCE (SLIP AND FALL, EMPLOYMENT LAW, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (EMPLOYMENT LAW, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (SLIP AND FALL, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that summary judgment should not have been granted in favor of plaintiff in this traffic accident case. Both the defendant driver (Abbott) and the plaintiff passenger (Crystal) had consumed alcohol before the accident. The action was brought by Crystal’s mother on behalf of Crystal. Abbott had attempted a u-turn and was struck by the car behind her (driven by another defendant, Diederich):

Contrary to the plaintiff’s contention, she failed to establish, prima facie, that Crystal was free from culpable conduct with regard to the causation of her injuries. In support of her motion, the plaintiff relied upon, inter alia, the deposition transcripts of Abbott and Crystal. The testimony of Abbott and Crystal that they had consumed alcohol at a fraternity party prior to the subject accident raised questions of fact as to whether Crystal had knowledge that Abbott may have been intoxicated, which raised triable issues of fact regarding her comparative negligence … . Since triable issues of fact existed as to the comparative negligence of Crystal, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability against the appellants (… . Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion. Vuksanaj v Abbott, 2018 NY Slip Op 02199, Second Dept 3-28-18

NEGLIGENCE (TRAFFIC ACCIDENTS, INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/INTOXICATION (TRAFFIC ACCIDENTS, COMPARATIVE NEGLIGENCE, PASSENGER,  BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT).

The Second Department determined the Rockland County Solid Waste Authority (Authority) was a public benefit corporation which was subject to the Public Authorities Law, not the Municipal Law. Therefore the Authority properly accepted a bid for recycling services which was not the lowest bid:

General Municipal Law § 103(1) provides that all contracts for public work involving expenditures in excess of $35,000 must be awarded to “the lowest responsible bidder.” However, that provision applies only to contracts to which “political subdivision[s] or . . . any district therein” are parties … . Contrary to the petitioner’s contention, public benefit corporations such as the Authority are ” legal entities separate from the State, enjoying an existence separate and apart from the State, its agencies and political subdivisions'” … . As such, any limitations placed on the Authority’s power to contract must come from the Authority’s enabling statute, not the General Municipal Law. The Authority’s enabling statute broadly permits it “[t]o contract with . . . persons within or without the county, for the purpose of receiving, treating and disposing of solid waste or for any other purpose authorized hereunder, including, without limitation, the power to contract with . . . persons for the delivery of all solid waste generated within a stated area to a specific solid waste management facility” … . Unlike General Municipal Law § 103, the Authority’s enabling statute does not require contracts such as the one at issue here to be awarded to the “lowest responsible bidder.” Thus, the petitioner’s contention that the Authority acted beyond its grant of power is without merit. Matter of AAA Carting & Rubbish Removal, Inc. v Town of Stony Point, N.Y., 2018 NY Slip Op 02203, Second Dept 3-28-18

MUNICIPAL LAW (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/PUBIC BENEFIT CORPORATIONS  (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/CORPORATION LAW (PUBLIC BENEFIT CORPORATIONS, BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/PUBLIC AUTHORITIES LAW (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/SOLID WASTE AUTHORITY (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/RECYCLING  (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/BIDS (SOLID WASTE AUTHORITY, BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))

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ATTORNEYS WHO HAD ACCEPTED A RETAINER TO CONTEST THE REMOVAL OF A GUARDIAN WERE NOT REQUIRED TO RETURN THE RETAINER BECAUSE IT WAS PAID FROM THE INCAPACITATED PERSON’S FUNDS, NO PROOF THE ATTORNEYS WERE AWARE OF THE SOURCE OF THE FUNDS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined that the attorneys (the appellants), who had accepted a retainer to contest the removal of a guardian (the daughter) for an incapacitated person (Domenica P.), were not required to return the retainer which had been paid from the incapacitated person’s funds. The Second Department determined there was no evidence the attorneys were aware of the source of the funds:

This particular proceeding is substantially different from a Mental Hygiene Law § 81.43 proceeding brought directly against the incapacitated person’s attorney-in-fact … , or directly against someone having a different type of fiduciary and confidential relationship with the incapacitated person … . This turnover proceeding was brought against the law firm retained by the daughter to challenge the Supreme Court’s decision to remove her as guardian of the person of her incapacitated mother, with whom she had been living for some time. In the absence of any indicia that the appellants colluded with the daughter in converting her mother’s funds, or had substantial knowledge that the money used for the retainer was derived from funds belonging to Domenica P., no judgment against them is warranted.

Contrary to the Supreme Court’s determination, the inquiry by the appellants was sufficient. The appellants accepted a check from the daughter’s individual checking account. After the appellants asked the daughter if this was her own money or if it belonged to Domenica P., she told them that the $20,000 came from her own savings. Under these circumstances, the appellants had no reasonable obligation to further investigate, or assess the truthfulness of, their prospective client. What is most revealing is that the appellant law firm rightfully rejected a subsequent check from the daughter drawn on an account held jointly in names of the daughter and Domenica P. Matter of Domenica P., 2018 NY Slip Op 02151, Second Dept 3-28-18

MENTAL HYGIENE LAW (GUARDIANSHIP, ATTORNEYS, ATTORNEYS WHO HAD ACCEPTED A RETAINER TO CONTEST THE REMOVAL OF A GUARDIAN WERE NOT REQUIRED TO RETURN THE RETAINER BECAUSE IT WAS PAID FROM THE INCAPACITATED PERSON’S FUNDS, NO PROOF THE ATTORNEYS WERE AWARE OF THE SOURCE OF THE FUNDS, SUPREME COURT REVERSED (SECOND DEPT))/GUARDIANSHIP (MENTAL HYGIENE LAW, ATTORNEYS WHO HAD ACCEPTED A RETAINER TO CONTEST THE REMOVAL OF A GUARDIAN WERE NOT REQUIRED TO RETURN THE RETAINER BECAUSE IT WAS PAID FROM THE INCAPACITATED PERSON’S FUNDS, NO PROOF THE ATTORNEYS WERE AWARE OF THE SOURCE OF THE FUNDS, SUPREME COURT REVERSED (SECOND DEPT))/ATTORNEYS (MENTAL HYGIENE LAW, RETAINER, ATTORNEYS WHO HAD ACCEPTED A RETAINER TO CONTEST THE REMOVAL OF A GUARDIAN WERE NOT REQUIRED TO RETURN THE RETAINER BECAUSE IT WAS PAID FROM THE INCAPACITATED PERSON’S FUNDS, NO PROOF THE ATTORNEYS WERE AWARE OF THE SOURCE OF THE FUNDS, SUPREME COURT REVERSED (SECOND DEPT))

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