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PLAINTIFF DID NOT CITE A VIOLATION OF ANY INDUSTRIAL CODE PROVISION IN THE COMPLAINT OR BILL OF PARTICULARS, WHICH WOULD ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION; HOWEVER PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS TO ADD A CODE VIOLATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff should have been allowed to amend the bill of particulars to allege a violation of an Industrial Code provision describing the construction of platforms. Plaintiff was walking on a rebar mat when he fell. The rebar mat could be considered to be a “platform” which, under the Industrial Code, requires planking:

Regarding the Labor Law § 241(6) claim, defendants “made a prima facie showing of entitlement to [summary] judgment” because “plaintiff did not cite any Industrial Code provision that allegedly was violated here in his complaint [or] bill of particulars” … . “However, this failure is not necessarily fatal to a section 241(6) claim and, in the absence of unfair surprise or prejudice, may be rectified by amendment, even where a note of issue has been filed” … . Plaintiff, in seeking to amend the bill of particulars, asserted a violation of Industrial Code § 23-1.22(c)(1), which requires that “[a]ny platform used as a working area or used for the unloading of wheelbarrows, power buggies, hand carts or hand trucks” to “be provided with a floor of planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or metal of equivalent strength.” “[T]he platforms contemplated by that section are those used to transport vehicular and/or pedestrian traffic” … . Since it is uncontroverted that plaintiff was traversing the rebar mat carrying more rebar, and workers were expected to walk over the rebar mat, there is at least an issue of fact as to whether the rebar mat qualified as a platform used to transport pedestrian traffic. Plaintiff’s “belated identification of th[is] section[] entails no new factual allegations, raises no new theories of liability, and results in no prejudice to the defendant[s]” … . Thus, plaintiff is granted leave to amend his bill of particulars on this point, and summary judgment dismissing the § 241(6) claim is denied. Marte v Tishman Constr. Corp., 2024 NY Slip Op 00231, First Dept 1-18-24

Practice Point: Here in this Labor Law 240(1) action, plaintiff was allowed to amend his bill of particulars to cite a violation of the Industrial Code. Where there is no prejudice this type of amendment can be allowed even after the note of issue is filed.

 

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DEFENDANT CANNOT APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE SORA RISK-LEVEL PROCEEDING; HE MUST FIRST BE ADJUDICATED BY THE SORA COURT AND MAY SUBSEQUENTLY APPEAL REQUESTING AN ANNULMENT (FIRST DEPT). ​

The First Department, in full-fledged opinion by Judge Pitt-Burke, determined the defendant could not appeal an interlocutory order which denied his motion to dismiss the SORA proceeding. Defendant had been convicted of a federal offense and argued the Penal Law did not criminalize the use of morphed images which did not depict actual sexual conduct by a child. The First Department held the defendant must go through with the SORA hearing and subsequently make this argument on appeal:

By its plain language, Correction Law § 168-n (3) only permits an appeal “as of right” from the SORA court’s risk level determination order. To find otherwise would be to ignore the legislative intent of the statutory language … . Namely, the procedural safeguards afforded to defendant in Correction Law § 168-n (3) require the SORA court to conduct a risk assessment hearing before it renders an order requiring him to register as a sex offender in New York and assigns him a risk level designation. Until a hearing is held and a determination made, the defendant’s liberty interest as related to the SORA proceeding has not yet been adjudicated (see Correction Law § 168-n [3]). …

Under to CPLR 5701 (a) (2) (v), “[a]n appeal may be taken to the appellate division as of right . . . from an order . . . where the motion it decided was made upon notice and it . . . affects a substantial right.” Even assuming defendant’s interpretation of Correction Law § 168-n (3) is correct, the interlocutory order appealed from does not require defendant to register as a sex offender. In fact, the very procedural safeguards noted above prevent the SORA court from issuing such an order without a hearing. People v Lewis, 2024 NY Slip Op 00248, First Dept 1-18-24

Practice Point: Defendant could not appeal the denial of his motion to dismiss the SORA risk-level proceeding before it was conducted. Defendant contended the federal offense of which he was convicted involved morphed images that did not depict actual sexual conduct by a child, a circumstance, he argued, not covered by the New York Penal Law.

 

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PETITIONERS, RESIDENTIAL HEALTH CARE FACILITIES, SOUGHT A WRIT OF MANDAMUS PURSUANT TO CPLR ARTICLE 78 COMPELLING THE NYS DEPARTMENT OF HEALTH TO HEAR RATE APPEALS WHICH CHALLENGE MEDICAID RATE PAYMENTS; BECAUSE THE REQUESTED RELIEF REQUIRED THE EXERCISE OF DISCRETION ON THE PART OF THE DEPARTMENT OF HEALTH, MANDAMUS RELIEF WAS NOT AVAILABLE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined that petitioners, 23 residential health care facilities which participate in the federal and state Medicaid programs administered by the NYS Department of Health, did not meet the criteria for mandamus relief pursuant to CPLR Article 78. Petitioner sought to compel the respondent to hear rate appeals which challenge payment rates:

… [I]t is axiomatic that “[a] writ of mandamus is an extraordinary remedy that is available only in limited circumstances. Such remedy will lie only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law. While mandamus to compel is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which a public officer may exercise judgment or discretion” … . “A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … .

To be entitled to such relief, petitioners must establish both a clear legal right to the relief demanded and a corresponding nondiscretionary duty — both are equally necessary for mandamus to lie. Petitioners, relying on Klostermann v Cuomo (61 NY2d 525 [1984]), contend that respondent’s duty to process rate appeals is clear and that respondent is mandated to process the appeals even if the statutory cap prevents respondent from paying the amount due. However, even if we agree with petitioners that respondent has a duty to process appeals, the determination of whether something has taken place within a reasonable time necessarily “involves a discretionary determination” … and thus precludes mandamus relief. Matter of Woodside Manor Nursing Home, Inc. v Zucker, 2024 NY Slip Op 00211, Third Dept 1-18-24

Practice Point: Only ministerial acts can be compelled by a writ of mandamus pursuant to CPLR Article 78. If, as here, the requested relief requires the exercise of discretion, mandamus is not available.

 

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THERE IS NO INDICATION MOTHER WAS INFORMED OF HER COUNSEL’S WITHDRAWAL BEFORE THE PERMANENCY HEARING WAS HELD IN MOTHER’S AND COUNSEL’S ABSENCE; NEGLECT FINDING REVERSED; TWO DISSENTERS ARGUED NO APPEAL LIES FROM A DEFAULT AND MOTHER’S ONLY REMEDY IS A MOTION TO VACATE (THIRD DEPT).

The Third Department, reversing Family Court in this neglect proceeding, determined it was not demonstrated mother was informed of her counsel’s intent to withdraw from representing her before the judge conducted the permanency hearing in counsel’s and mother’s absence and found against her. The two-justice dissent argued no appeal lies from a default and mother’s recourse was to move to vacate the default pursuant of CPLR 5015(a):

It is well established that the mother, as a respondent in a proceeding pursuant to article 10 of the Family Ct Act, had both a constitutional and a statutory right to the assistance of counsel … . Once counsel has been assigned, an attorney of record may withdraw from representation only upon reasonable notice to his or her client … . Such requirement remains true even where a party fails to appear at proceedings or there are allegations of a breakdown in communication between the client and the attorney … .

Here, there is no indication in the record that the mother’s assigned counsel had informed her that she was seeking to withdraw as counsel … . Nor does the record reveal that Family Court made any inquiry into such notice or whether there was good and sufficient cause for such withdrawal … . Matter of Richard TT. (Kara VV.), 2024 NY Slip Op 00215, Third Dept 1-18-24

Practice Point: There is no evidence mother in this neglect proceeding was informed of her counsel’s withdrawal before the court made the neglect finding in her and her counsel’s absence. Matter reversed and remitted.

Practice Point: Two dissenters argued no appeal lies from a default and mother’s only remedy is a motion to vacate the default.

 

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THE LABOR LAW DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION ALLOWING A WORKER TO SUE FOR LIQUIDATED DAMAGES, PREJUDGMENT INTEREST, AND ATTORNEY’S FEES BECAUSE THE WORKER WAS PAID BIWEEKLY, NOT WEEKLY AS REQUIRED BY LABOR LAW 191 (SECOND DEPT).

The Second Department, disagreeing with the First Department, over a partial dissent, determined that Labor Law 191, entitled “Frequency of payments,” does not create a private right of action which would allow an employee, who was fully paid, to sue for liquidated damages, prejudgment interest and attorney’s fees because the employee was paid “biweekly,” not “weekly” as required by the statute:

… {The] … legislative history reveals that Labor Law § 198(1-a) was aimed at remedying employers’ failure to pay the amount of wages required by contract or law. There is no reference in the legislative history of Labor Law § 198 to the frequency or timing of wage payments, and nothing to suggest that the statute was meant to address circumstances in which an employer pays full wages pursuant to an agreed-upon, biweekly pay schedule that nevertheless does not conform to the frequency of payments provision of law.

[W]e conclude that Labor Law § 198 does not expressly provide for a private right of action to recover liquidated damages, prejudgment interest, and attorneys’ fees where a manual worker is paid all of his or her wages biweekly, rather than weekly, in violation of Labor Law § 191(1)(a). Grant v Global Aircraft Dispatch, Inc., 2024 NY Slip Op 00183, Second Dept 1-17-24

Practice Point: The Labor Law does not provide a private right of action allowing a worker to sue for liquidated damage, prejudgment interest and attorney’s fees because the worker was paid biweekly, not weekly as required by Labor Law 191.

 

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THE 2020 AMENDMENTS TO THE ANTI-SLAPP STATUTE DO NOT APPLY AS A DEFENSE TO THIS DEFAMATION ACTION BASED UPON DEFENDANTS’ CRITICISM OF PLAINTIFF DOG-GROOMER POSTED ON SOCIAL MEDIA (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, in a matter of first impression in the Second Department, determined the 2020 anti-SLAPP amendments, which expanded the scope of the statute to some defamatory statements made on social media, did not apply retroactively. Therefore the defendants in the defamation action (the Sproules) were not entitled to dismissal of the defamation complaint pursuant to the anti-SLAPP statute. The Sproules had left their puppy at plaintiff VIP’s dog-grooming facility. The dog allegedly had trouble breathing when the Sproules picked him up. They took him to a veterinarian who concluded the dog had water in his lungs. When the dog failed to improve on a ventilator he was put to sleep. Robert Sproule posted a description of the incident on Yelp and Google urging readers to avoid using VIP:

The 2020 amendments to the Civil Rights Law expanded the pool of parties that may raise anti-SLAPP defenses, counterclaims, and cross-claims in their actions, now including journalists, consumer advocates, survivors of sexual abuse, and others. The expansion will naturally lead to an increase in the occasions where anti-SLAPP statutes shall be litigated in the courts. In fact, some upswing is already noted in this developing area of law. * * *

… [T]he Sproules did not establish that this action constitutes an action involving public petition and participation under the anti-SLAPP statute in the form that existed when this action was commenced … . Thus, to decide whether the standards under CPLR 3211(g) and Civil Rights Law § 76-a(2) apply, we must address whether the 2020 amendments to the anti-SLAPP statute apply retroactively or prospectively…. * * *

We hold that the presumption of prospective application has not been overcome here. Indeed, the remedial nature of a statutory amendment, which is generally at play with many amendments, is not a basis, in and of itself, for ignoring the long-standing legal presumption that new enactments be prospective, particularly where there is no expressed provision that a new law be given retroactive effect … . VIP Pet Grooming Studio, Inc. v Sproule, 2024 NY Slip Op 00205, Second Dept 1-17-24

Practice Point: The 2020 amendments to the anti-SLAPP statute, which expanded the scope of the statute to include some critical social media posts, do not apply retroactively. Here defendants in a defamation action based on their social media posts alleging plaintiff dog-groomer’s incompetence and negligence could not take advantage of the 2020 amendments as a defense to the action.

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THE CONTRACT CALLED FOR LIQUIDATED DAMAGES AS THE “SOLE REMEDY” FOR BREACH; HOWEVER NOTHING IN THE CONTRACT LANGUAGE WAIVED THE NONBREACHING PARTY’S RIGHT TO PREJUDGMENT INTEREST PURSUANT TO CPLR 5001(A) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, determined the contract language, which provided that liquidated damages constituted the “sole remedy” for breach, did not waive the nonbreaching party’s  right to prejudgment interest pursuant to CPLR 5001 (a):

At issue in this appeal is whether the parties’ contract language specifying that purchaser’s “sole remedy” in the event of sellers’ breach is the return of its downpayment constitutes a clear waiver of CPLR 5001 (a) as defined by the Court of Appeals in J. D’ Addario & Co., Inc. v Embassy Indus., Inc. (20 NY3d 113 [2012]) and requires denying the nonbreaching party statutory prejudgment interest. … [W]e conclude that it does not and hold that CPLR 5001 (a) requires that plaintiff …, the nonbreaching purchaser, be awarded prejudgment interest on its $626,250.00 downpayment, at the statutory rate of 9% … . IHG Harlem I LLC v 406 Manhattan LLC,2024 NY Slip Op 00164, First Dept 1-16-24

Practice Point: The contract provided that liquidated damages constituted the “sole remedy” for breach. However, nothing in the contract language indicated the nonbreaching party’s right to prejudgment interest pursuant to CPLR 5001 (a) was waived.

 

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THE NEW JERSEY ORDER AND JUDGMENT SHOULD HAVE BEEN ACCORDED FULL FAITH AND CREDIT IN THE NEW YORK FORECLOSURE ACTION; CRITERIA EXPLAINED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined a New Jersey order and judgment should have been accorded full faith and credit in this foreclosure action:

“A judgment rendered by a court of a sister State is accorded ‘the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced’ ” … . Our review of the foreign judgment at issue is “limited to determining whether the rendering court had jurisdiction” … . It is undisputed that the New Jersey court had jurisdiction as the defendants appeared in the action and vigorously litigated the matter for years, thus, “inquiry into the merits of the underlying dispute is foreclosed” … and “the merits of [the] judgment of a sister state may not be collaterally attacked” … . Accordingly, a “decree of a sister [s]tate in which [the] parties were subject to personal jurisdiction in that [s]tate is entitled to full faith and credit in the courts of New York” … . Sjogren v Land Assoc., LLC, 2024 NY Slip Op 00009, Third Dept 1-4-24

Practice Point: A New York court’s only function in determining whether a foreign state’s order and judgment should be accorded full faith and credit is assessing whether the foreign court had jurisdiction over the matter.

 

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THE MOTION FOR SUMMARY JUDGMENT WAS PREMATURE (MADE BEFORE ISSUE WAS JOINED) AND SHOULD NOT HAVE BEEN GRANTED; ALTHOUGH NOT PRESERVED THE ISSUE COULD BE HEARD ON APPEAL BECAUSE IT PRESENTED A QUESTION OF LAW THAT COULD NOT HAVE BEEN AVOIDED IF RAISED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment which was brought before issue was joined should not have been granted. Although the issue was not preserved for appeal, the Second Department heard the appeal because it presented a pure question of law that could not have been avoided if it was brought up below:

“A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” … . Since H Mart’s motion was made prior to joinder of issue, the Supreme Court should not have granted that branch of the motion which was for summary judgment on the cause of action to recover damages for breach of contract alleging failure to procure insurance … . “Although this argument is raised for the first time on appeal, we reach the argument because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture” … . Maurizaca v CW Highridge Plaza, LLC, 2023 NY Slip Op 06734, Second Dept 12-27-23

Practice Point: A motion for summary judgment will be denied if made before issue is joined.

Practice Point: An issue that is not preserved for appeal may be decided on appeal if it presents a pure question of law which could not have been avoided if it had been raised below.

 

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THE RESPONDENT CITY HAD TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS SURROUNDING THE BUS-VEHICLE COLLISION AND WAS NOT PREJUDICED BY THE TEN MONTH DELAY IN FILING THE NOTICE OF CLAIM; PETITIONER’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, EVEN IN THE ABSENCE OF AN ADEQUATE EXCUSE (LAW OFFICE FAILURE) (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent city in this bus-vehicle accident case had timely knowledge of the essential facts of the incident and therefore was not prejudiced by the late notice of claim. The court noted that law office failure is not an adequate excuse for failing to timely file a notice of claim, but using that excuse did not mandate denial of the motion:

Supreme Court improvidently exercised its discretion in denying petitioner’s application, as petitioner established that respondents acquired actual knowledge of the essential facts within the statutorily prescribed filing period … . As the record showed, the accident involved an NYCTA-owned bus and an NYCTA driver, and was immediately investigated by an NYCTA supervisor. Therefore, petitioner sustained his burden of showing that respondents would not be substantially prejudiced in maintaining a defense on the merits if he were permitted leave to file a late notice of claim … .

In response to petitioner’s showing, respondents offered no particularized evidence suggesting that they would be prejudiced by the delay. Therefore, respondents have failed to rebut petitioner’s showing … . Clarke v New York City Tr. Auth., 2023 NY Slip Op 06591, First Dept 12-21-23

Practice Point: If the municipality has timely knowledge of the essential fact underlying a claim (here a bus-vehicle accident) and is not prejudiced by the delay, a motion for leave to file a late notice of claim may be granted even in the absence of an adequate excuse.