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THE THIRD DEPARTMENT DETERMINED THE NEW YORK STATE UNIFORM FIRE PREVENTION AND BUILDING CODE PROVIDES SUFFICIENT STANDARDS AND MECHANISMS FOR ENFORCEMENT OF THE CODE PROVISIONS; A TENANT WHOSE BUILDING WAS DECLARED UNSAFE AFTER ORDERS TO REMEDY DEFECTS WERE IGNORED BY THE LANDLORD BROUGHT A PETITION FOR A WRIT OF MANDAMUS TO COMPEL THE SECRETARY OF STATE TO STRENGTHEN CODE ENFORCEMENT STANDARDS AND MECHANISMS; THE PETITION WAS DENIED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, over a two-justice dissent, determined that the regulations associated with the enforcement of the NYS Uniform Fire Prevention and Building Code (Uniform Code) are adequate. Petitioner, a former tenant in a building which was ultimately declared unsafe after several orders to remedy building-defects were ignored […]

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DISPUTES ABOUT ENCROACHMENTS ON EASEMENTS RESOLVED; UNCLEAN HANDS AND LACHES DEFENSES REINSTATED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, modifying Supreme Court, determined the unclean hands and laches defenses should not have been dismissed in this complicated case resolving the removal of encroachments from easements. The case is too complex and entails too much minutia to fairly summarize. 214 Lafayette House LLC v Akasa Holdings […]

THERE EXISTS A STATUTORY CAUSE OF ACTION FOR AN EMPLOYER’S FAILURE TO ADOPT AND IMPLEMENT A WHISTLEBLOWER POLICY (FIRST DEPT).

The First Department noted that plaintiff sufficiently alleged a cause of action under N-PCL 715-b (a) based on the employer’s (ZOA’s) alleged failure to adopt and implement whistleblower policies: … [P]laintiff has sufficiently alleged a cause of action under N-PCL 715-b(a). This statute requires certain nonprofit organizations to adopt and implement whistleblower policies to protect […]

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HERE THE LIQUIDATED DAMAGES CLAUSE WAS DEEMED AN UNENFORCEABLE PENALTY BECAUSE THERE WAS NO RELATONSHIP BETWEEN THE AMOUNT OF THE LIQUIDATED DAMAGES AND THE ACTUAL DAMAGES (SECOND DEPT). ​

The Second Department noted that a liquidated damages clause in a contract will constitute an unenforceable penalty if the amount bears no relation to the actual damage. Here, pursuant to the real estate purchase agreement,  $35,000 was put in escrow pending the resolution of three open building permits. The purchaser demanded the escrow funds because […]

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THE VICTIM DIED BY STRANGULATION; THE DEFENSE WAS DEFENDANT DID NOT INTEND TO KILL; THE VICTIM’S HEARSAY STATEMENTS ABOUT DOMESTIC VIOLENCE WERE NOT ADMISSIBLE TO SHOW THE DEFENDANT’S, AS OPPOSED TO THE VICTIM’S, STATE OF MIND; CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s murder conviction, determined the victim’s hearsay statements about domestic violence should not have been admitted. There was no applicable exception the the hearsay rule and Molineux evidence of prior bad acts must be in admissible form. The victim died of strangulation. The defense argued defendant did not intend to kill […]

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STANDING OUTSIDE A VEHICLE AND REACHING INSIDE IS NOT “OCCUPYING” THE VEHICLE SUCH THAT THE AUTOMOBILE PRESUMPTION OF POSSESSION OF THE CONTENTS OF A VEHICLE CAN BE CHARGED TO THE JURY (SECOND DEPT). ​

The Second Department, reversing defendant’s possession of a weapon conviction, determined the judge should not have charged the jury with the automobile presumption which ascribes possession of contraband inside a vehicle to the occupants of the vehicle. The evidence did not support the allegation that defendant “occupied” the vehicle. He was seen standing outside the […]

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EVEN THOUGH MOTHER DID NOT APPEAR IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, FAMILY COURT SHOULD NOT HAVE DISPENSED WITH THE DISPOSITIONAL HEARING WITHOUT THE CONSENT OF THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge in this termination-of-parental-rights proceeding in which mother did not appear should not have dispensed with the dispositional hearing without the consent of thee parties: The petitioner commenced this proceeding pursuant to Social Services Law § 384-b to terminate the mother’s parental rights to the subject child […]

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THE DEFENDANT SCHOOL DID NOT ELIMINATE TRIABLE QUESTIONS OF FACT ABOUT WHETHER IT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S ABUSIVE PROPENSITIES; THE NEGLIGENT HIRING AND NEGLIGENT SUPERVISION CAUSES OF ACTION IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the negligent hiring and negligent supervision causes of action against defendant school stemming from a teacher’s alleged abuse of plaintiff-student should not have been dismissed. There was a question of fact about whether the school district had constructive notice of the teacher’s […]

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THE INABILITY TO IDENTIFY THE SLIPPERY SUBSTANCE WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS FATAL TO THE LAWSUIT; ALLEGING THE FLOOR WAS SHINY OR SLIPPERY IS NOT ENOUGH, CRITERIA EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s inability to identify the cause of her slip and fall was fatal to the lawsuit. Evidence that the floor was shiny or slippery was not enough to survive a summary judgment motion: The plaintiff expressly testified that she did not know what caused her to fall […]

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COURTS HAVE THE POWER TO LIMIT THE REACH OF OVERLY BROAD RESTRICTIVE COVENANTS IN COMMERCIAL CONTRACTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connelly, affirming Supreme Court, discussed in detail the courts’ power to limit the reach of overly broad restrictive covenants in commercial contracts. Here the plaintiff and defendant collaborated for decades in the design and manufacture of fabrics to be used in solar shades. Upon terminating the […]

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