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THE ELECTRICAL-CONTRACTOR CORP WAS NOT LICENSED TO DO ELECTRICAL WORK IN NYC; THE FACT THAT THE CORPORATION’S VICE PRESIDENT WAS LICENSED AND THE VICE PRESIDENT’S COMPANY, WHICH DID THE ELECTRICAL WORK AS A SUBCONTRACTOR, WAS LICENSED DOESN’T MATTER; THE CORPORATION CAN NOT SUE FOR BREACH OF CONTRACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff electrical-contractor corporation could not sue for breach of contract because the corporation was not licensed in NYC to do electrical work, even though plaintiff’s vice president was licensed and the vice president’s company (QNCC) which did the work as plaintiff corporation’s subcontractor was licensed:

Administrative Code § 27-3017(a) states that it shall be unlawful for any person to, inter alia, perform electrical work in the City of New York unless that person is a licensed master electrician or special electrician. Licensing statutes are to be strictly construed … . …

The plaintiff’s contention that recovery should not be denied because QNCC was a duly licensed subcontractor which performed the electrical work is without merit. This Court has previously held that such a relationship is insufficient to permit an unlicensed contractor to recover for work performed in the City … . “‘So strict has been judicial construction of the statutory requirement through concern for the public health and welfare that the requirement may not be satisfied by employing or subletting’ the work to an appropriately licensed person” … . Moreover, that the plaintiff’s vice president had a master electrician’s license, and that the defendant’s architect knew that the electrical work permits were issued to an entity other than the plaintiff, does not bar the application of the above rule … . Electrical Contr. Solutions Corp. v Trump Vil. Section 4, Inc., 2024 NY Slip Op 01907, Second Dept 4-10-24

Practice Point: The NYC Administrative Code requirement that electrical work must be done by licensed entities or persons is strictly construed. Here the electrical-contractor corporation’s vice president was licensed and the vice president’s company which did the work as a subcontractor was licensed, but the corporation was not. The corporation could not sue for breach of contract.

 

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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 by the landlord, brought a petition for a writ of mandamus requiring the NYS Secretary of State to provide standards for the enforcement of the Uniform Code. The petition was dismissed after an exhaustive discussion of the relevant regulations and enforcement standards and mechanisms. The opinion is too detailed to fairly summarize here. Matter of Clements v New York Secretary of State, 2024 NY Slip Op 01756, Third Dept 3-28-24

 

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THE DECLARATORY RULING BY THE PUBLIC SERVICE COMMISSION (PSC) WAS FINAL AND THEREFORE WAS A PROPER SUBJECT OF AN ARTICLE 78 PETITION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the ruling by the Public Service Commission (PSC) was ripe for an Article 78 review and, therefore, the PSC’s motion to dismiss the petition should not have been granted. The declaratory ruling by the PSC was final and could not be altered by he PSC:

“A declaratory ruling shall be binding upon the agency unless it is altered or set aside by a court” by virtue of a CPLR article 78 proceeding (State Administrative Procedure Act § 204 [1]). Particularly relevant here, State Administrative Procedure Act § 204 (1) does not permit an agency to “retroactively change a valid declaratory ruling,” only allowing such changes to apply “prospectively.” Thus, the explicit language of State Administrative Procedure Act § 204 did not allow the PSC to modify its initial ruling … . * * *  … [T]he … declaratory ruling issued by the PSC is quasi-judicial in nature and, at the moment it was issued, was “accorded the [same] conclusiveness that attaches to judicial judgments,” thus rendering it ripe for review … . Matter of Clean Air Coalition of W. N.Y., Inc. v New York State Pub. Serv. Commission, 2024 NY Slip Op 01233, Third Dept 3-7-24

Practice Point: A declaratory ruling by the Public Service Commission (PSC) is final and cannot be altered by the Commission. Therefore the ruling is ripe for an Article 78 review by a court.

 

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ALTHOUGH THE SPECIFIC CONTRACT WAS NOT IDENTIFIED IN THE COMPLAINT, THE NATURE OF THE BREACH OF CONTRACT CLAIM WAS SUFFICIENTLY ALLEGED BY REFERENCE TO THE NYC ADMINISTRATIVE CODE AND NYC DEPARTMENT OF TRANSPORTATION PERMITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of contract cause of action was sufficiently alleged. Although the complaint did not specifically identify the breached contract, the reference to the relevant provisions of the NYC Administrative Code and the NYC Department of Transportation (DOT) permits gave sufficient notice of the nature of the claim:

… [P]laintiffs alleged that Con Edison failed to ensure payment of prevailing wages by codefendant … as required by the permits issued by the City Department of Transportation (DOT), in that it breached agreements required to be made, pursuant to Administrative Code of City of NY § 19-142, prior to obtaining such permits. Administrative Code § 19-142 required Con Edison “to agree that . . . the prevailing scale of union wages shall be the prevailing wage for similar titles as established by the fiscal officer pursuant to section [220] of the labor law, paid to those so employed,” and provides that “[n]o permit shall be issued until such agreement shall have been entered into with the” DOT. As required by the Administrative Code, the DOT permits issued to Con Edison stated that the permittee was required, “before such permit may be issued, to agree . . . that the prevailing scale of union wages shall be the prevailing wage for similar titles” established pursuant to Labor Law § 220 … …

… [T]he fact that the breach of contract cause of action in the complaint does not specifically identify the relevant contract but instead refers to “the promises required to be made pursuant to New York City Administrative Code § 19-142 prior to obtaining such permits,” does not require dismissal. Despite the non-specificity, the complaint “give[s] sufficient notice of the nature of the claim” by referencing Administrative Code § 19-142 and the DOT permits … . Ross v No Parking Today, Inc., 2024 NY Slip Op 00880, First Dept 2-20-24

Practice Point: Here the failure to identify the specific contract which was breached did not require dismissal of the breach of contract cause of action because the nature of the action was sufficiently alleged by reference to the applicable NYC Administrative Code provision and NYC Department of Transportation permits.

 

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A LETTER FROM AN ATTORNEY THREATENING LITIGATION CAN CONSTITUTE “RETALIATION” AGAINST THOSE WHO MAKE HOUSING DICSRIMINATION COMPLAINTS PURSUANT TO THE HUMAN RIGHTS LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Division, determined a letter sent by an attorney for the landlord, Pine Ridge, to the respondent CityVision, a not-for-profit corporation which tests whether housing facilities engage in discrimination, constituted “retaliation” against those who make discrimination complaints. Here a CityVision employee, Renner, posed as a prospective tenant and allegedly was steered to a different apartment complex because she had children (discrimination based on familial status). CityVision’s complaint to the NYS Division of Human Rights (DHR) was dismissed. An attorney for Pine Ridge then sent a letter to CityVision which mentioned seeking damages. CityVision then filed a second complaint alleging the letter constituted “retaliation:” Although the matter was remitted to DHR because it was CityVision’s, not Pine Ridge;s, burden to show it was engaged in a protected activity, the Court of Appeals held that the threat of litigation can constitute “retaliation” in this context.

… [A] plaintiff bears the burden to establish a prima facie retaliation claim … . To meet that burden, the plaintiff must show that (1) they have “engaged in protected activity,” (2) the defendant “was aware that” the plaintiff “participated in” the protected activity, (3) the plaintiff suffered adverse action based upon the activity, and (4) “there is a causal connection between the protected activity and the adverse action” (id.). Only the first and third elements of CityVision’s retaliation claim are at issue here. ***

… [T]he record established that [the attorney’s] letter “shocked” CityVision’s employees and forced CityVision to expend resources and “scramble . . . to locate counsel” to address the threat. … [I]t was rational for DHR to conclude that the threatening letter caused CityVision to divert resources and could have dissuaded a person from pursuing a discrimination claim to protect their rights under the Human Rights Law. Indeed, a potential plaintiff might be chilled from filing a discrimination complaint when weighing the harm caused by the threat of retaliatory litigation, let alone the injury potentially occasioned by actual retaliatory litigation. DHR’s determination that the litigation threat amounted to adverse action in this case was rational and, thus, supported by substantial evidence. Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 2024 NY Slip Op 00793, CtApp 2-15-24

Practice Point: Here a not-for-profit filed a complaint against a landlord alleging housing discrimination. After the complaint was dismissed, an attorney for the landlord sent a letter to the not-for-profit arguably threatening litigation. The letter constituted “retaliation” within the meaning of the Human Rights Law.

 

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THE DENIAL OF RELIGIOUS EXEMPTIONS TO THE COVID VACCINE MANDATE WAS NOT ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, determined that the respondent NYS Unified Court System did not act arbitrarily and capriciously when it denied the petitioners’ (29 nonjudicial employees’) requests for religious exemptions from the COVID vaccine mandate. The Appellate Division, disagreeing with Supreme Court, held it was appropriate to deny exemptions based upon the employees’ acknowledging they have taken medication which was tested using fetal cells but now claim the testing of the COVID vaccine using fetal cells violated their religious beliefs:

Supreme Court found that respondents irrationally adopted an “all-or-nothing” approach by concluding that these petitioners could not have rejected the vaccine on religious grounds, without also rejecting the use or contemplated use of other medications or vaccinations developed using the same fetal cell lines. Supreme Court reasoned that it would not be inconsistent for an applicant to continue and/or consider taking other medications “critical to their lives or well-being, such as thyroid medication or hydroxychloroquine.” We disagree with Supreme Court’s thesis. The very purpose of the vaccine mandate was to protect and preserve the public health by “[s]temming the spread of COVID-19[, which] is . . . a compelling interest” … . From our perspective, the Committee could and did rationally conclude that an applicant’s continued and/or contemplated use of other medications or vaccinations tested on fetal cell lines — including the current version of medications originating before fetal cell lines were developed, but now tested utilizing fetal cell lines — while refusing to take the COVID-19 vaccination on that very basis, reflected an inconsistency undermining the sincerity of that applicant’s religious beliefs. Matter of Ventresca-Cohen v DiFiore, 2024 NY Slip Op 00664, Third Dept 2-8-24

Practice Point: The inquiry here was whether the request for exemption from the COVID vaccine mandate was based upon sincerely held religious belief. The fact that petitioners had taken other medication tested with fetal cells indicated the “fetal-cell-testing” objection to the COVID vaccine was not based upon a sincerely held religious belief.

 

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DENYING THE APPLICATION FOR A PISTOL PERMIT WITHOUT A HEARING BASED UPON PRIOR ARRESTS WHICH DID NOT INVOLVE VIOLENCE OR A WEAPON WAS ARBITRARY AND CAPRICIOUS; MATTER REMITTED FOR A HEARING (SECOND DEPT).

The Second Department, reversing County Court in this Article 78 proceeding, determined that the respondent-judge’s denial of petitioner’s application for a pistol permit without a hearing was arbitrary and capricious. Although petitioner had prior arrests, none involved violence or a weapon:

Although the respondent was entitled to consider the petitioner’s prior arrests, the record reflects, among other things, that none of the petitioner’s arrests involved violent crimes or a weapon. The record also contains the petitioner’s explanation of the circumstances surrounding his prior arrests; his activities since, which include employment, home ownership, charitable work, and abstinence from alcohol; evidence of the petitioner’s having successfully completed a firearms course; and the opinion of a psychologist that the petitioner has no current risk factors that renders him unsuitable to own and carry a firearm. Further, based upon the record before us, it is apparent that the respondent did not give the petitioner an opportunity to respond to the stated objections to his pistol permit application … .

Accordingly, we annul the determination denying the petitioner’s application for a pistol permit and remit the matter to the respondent to afford the petitioner the opportunity to respond to the stated objections to his pistol permit application at a hearing, after which the respondent shall make a new determination of the petitioner’s application. In remitting this matter to the respondent for a new determination, we express no opinion as to the merits of the new determination. Matter of Maher v Hyun Chin Kim, 2024 NY Slip Op 00425, Second Dept 1-31-24

Practice Point: Although prior arrests which were not violence- or weapon-related can be considered by the judge re: an application for a pistol permit, the application should not be denied without a hearing allowing the applicant to address the objections to the application.

 

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PLAINTIFF CONTRACTOR DID NOT POSSESS THE REQUIRED NYC HOME IMPROVEMENT CONTRACTOR’S LICENSE; THE CONTRACTOR’S BREACH OF CONTRACT ACTION SEEKING PAYMENT FOR THE RENOVATION WORK PLAINTIFF COMPLETED WAS PROPERLY DISMISSED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Higgitt, determined the plaintiff contractor was required to have a home improvement contractor’s license by the New York City Administrative Code. Therefore plaintiff’s breach of contract, unjust enrichment, account stated and quantum meruit causes action against the owner of the property plaintiff worked on was correctly dismissed. The First Department determined the LLC which owned the property was an “owner” within the meaning of the Administrative Code, and the contract was a home improvement contract within the meaning of the meaning of the code:

Obtaining a home improvement contractor’s license is neither a ministerial act nor a mere technicality … . Rather, “strict compliance with the licensing statute [i.e. Administrative Code § 20-387] is required, with the failure to comply barring recovery regardless of whether the work performed was satisfactory, whether the failure to obtain the license was willful or, even, whether the homeowner knew of the lack of a license and planned to take advantage of its absence” … .

There is no dispute that plaintiff is a “contractor” for licensing purposes (see Administrative Code § 20-386[5]), and that plaintiff did not have a valid license. The controversy here essentially distills to whether defendant owners are “owners” within the meaning of Administrative Code § 20-387(a), and, if so, whether the agreement between the parties was a “home improvement contract” (Administrative Code § 20-386[6]). If the answer to both of those questions is yes, then plaintiff was required to have a home improvement contractor’s license to recover for the work; if the answer to either question is no, then plaintiff did not need a license. KSP Constr., LLC v LV Prop. Two, LLC, 2024 NY Slip Op 00356, First Dept 1-25-24

Practice Point: A contractor who does renovation work in New York City without a NYC Home Improvement Contractor’s license cannot sue for payment for the work.

 

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THE OWNER OF A COOPERATIVE BUILDING WAS PROPERLY FOUND LIABLE FOR FAILING TO REMEDIATE LEAD PAINT IN A SHAREHOLDER’S APARTMENT WHICH WAS SUBLET TO PLAINTIFF AND HER YOUNG DAUGHTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined the owner of the building (Windsor) in which a cooperative shareholder, Sersch, sublet her cooperative apartment to plaintiff, had constructive knowledge plaintiff’s young daughter was living with plaintiff. Plaintiff’s daughter was diagnosed with lead poisoning and peeling lead paint was found in the apartment. Summary judgment finding Windsor liable for failing to remediate the lead paint problem was affirmed:

Windsor’s agents’ frequent and consistent interactions with plaintiff and the infant plaintiff were sufficient to provide constructive notice to Windsor … . Windsor failed to proffer an affidavit from any of the doormen stating that they did not know plaintiff and the infant plaintiff or were unaware of their residence. Under these circumstances, Windsor failed to raise a triable issue of fact as to the issue of constructive notice … . * * *

Windsor argues that section [NYC Administrative Code] 27-2056.15(c) exempts it from the duty to remediate and abate the lead paint in the apartment because Sersch “occupied” the apartment during plaintiffs’ subtenancy. Here, the terms of the sublease and the stipulation of settlement clearly indicate that the apartment was not “occupied” by Sersch during plaintiffs’ subtenancy. E.S. v Windsor Owners Corp., 2024 NY Slip Op 00267, First Dept 1-23-24

Practice Point; Here the owner of a cooperative building was deemed liable under New York City law for failure to remediate lead paint in a shareholder’s apartment which had been sublet to plaintiff and her young daughter.

 

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TEACHERS EMPLOYED AT STATE CORRECTIONAL FACILITIES WORKED FROM SEPTEMBER TO JUNE BUT WERE PAID AN ANNUAL SALARY; WHEN EXTRA SUMMER WORK WAS CANCELLED DUE TO COVID THEY APPLIED FOR UNEMPLOYMENT INSURANCE BENEFITS; BECAUSE THEY WERE NOT UNEMPLOYED THEY WERE NOT ENTITLED TO BENEFITS (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Egan. affirming the Unemployment Insurance Appeal Board, determined claimants, who worked as teachers at state correctional facilities from September through June but were paid an annual salary, were not entitled to unemployment insurance benefits for the additional summer employment which was not available due to COVID. The fact that the claimants could elect to either be paid every month or only during the school year was not determinative. The claimants had an “annual” salary and therefore were not unemployed during the summer:

Under state law, regular unemployment insurance benefits require total unemployment …, which is defined as “the total lack of any employment on any day” (Labor Law § 522 [emphasis added]). “Whether a claimant is totally unemployed and thereby entitled to receive unemployment insurance benefits is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence” … . In finding that claimants were not totally unemployed during the summer 2020 recess, the Board properly relied upon Civil Service Law § 136, which applies to teachers and instructors at state institutions, including those operated by DOCCS, and provides that the “annual salary” for those employees may be paid over 10 months or 12 months … . If they are required to work outside of the academic year, they must receive “additional compensation” beyond their annual salary, which, by definition, compensates them for the entire 12-month year including the summer recess … .

The fact that optional, additional work was not available over the summer of 2020, as it had been in prior years, does not change the analysis or conclusion that claimants remained employed over the summer recess, i.e., they were not totally unemployed … . Matter of Almindo (New York State Dept. of Corr. & Community Supervision–Commissioner of Labor), 2023 NY Slip Op 06424, 3rd Dept 12-14-23

Practice Point: Teachers who are paid an annual salary, even if paid September through June, are not unemployed during the summer. Therefore, if additional summer work becomes unavailable (due to COVID for example), the teachers are not entitled unemployment benefits for the summer months.

 

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