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THE TERM “ECONOMIC SECURITY” IN THE NYU FACULTY HANDBOOK DID NOT PROHIBIT A POLICY (THE “REF” POLICY) TYING A TENURED FACULTY MEMBERS’ SALARY-REDUCTION TO THE AMOUNT OF GRANTS PROCURED IN A GIVEN YEAR; THE REF POLICY WAS NOT A DISCIPLINARY PROCEDURE; A SPECIFIC SALARY FIGURE IN A TENURED FACULTY MEMBER’S CONTRACT, HOWEVER, COULD NOT BE REDUCED PURSUANT TO THE REF POLICY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice OIng, modifying Supreme Court, determined: (1) the term “economic security” in the faculty handbook was prefatory language that did not prohibit the university (NYU) from tying salary reductions for tenured faculty to the amount of grant-money procured by a faculty member (the REF policy); (2) the salary reductions were not part of disciplinary procedure; and (3) the provision in the contract with one of the faculty members, Samuels, setting his salary at a specific amount prohibited the salary reductions tied to grants as to him:

Assuming that the term “economic security” gives rise to contractual rights, we reject the argument advanced by the Professors and amici curiae that “economic security” is an ambiguous term of art and that custom and usage in academia define it as prohibiting retroactive salary reductions pursuant to such policies as the REF Policy. * * *

A faculty member’s failure to comply with the REF Policy is simply not conduct that is subject to discipline. * * *

We find that NYU breached the terms of the “2001 Contract” when it reduced Professor Samuels’s salary pursuant to the REF Policy and that he is entitled to summary judgment on this claim. Monaco v New York Univ., 2022 NY Slip Op 01125, First Dept 2-22-22

 

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DEFENDANT, BASED ON ITS STATUS AS BAILOR OF THE MACHINE WHICH ALLEGEDLY INJURED PLAINTIFF, MAY BE LIABLE UNDER BREACH OF WARRANTY AND STRICT PRODUCTS LIABILITY CAUSES OF ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decisions addressing many issues not summarized here, noted that breach of warranty and strict products liability causes of action can arise from a bailment. Here plaintiff alleged she was injured by a machine (called a “table”) and defendant was the “owner” of the table by virtue of its status as bailor:

In light of … material issues of fact as to whether defendant owned and/or was bailor of the table, we find that Supreme Court erred in granting defendant’s motion for summary judgment as to the breach of implied warranty cause of action. As “[t]here is, in fact, no substantive distinction between [the theories of breach of implied warranty and strict products liability] in the context of this case” … , we reach this same conclusion as to the strict products liability cause of action. Reese v Raymond Corp., 2022 NY Slip Op 01077, Third Dept 2-17-22

 

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DEFENDANT MADE GOOD FAITH EFFORTS TO COMPLY WITH THE TERMS OF HER PLEA AGREEMENT; SENTENCE REDUCED AND CONVICTION MODIFIED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s sentence and modifying her conviction in the interest of justice, determined defendant had made good faith efforts to complete the anger-management program that was part of her plea agreement:

… [D]efendant entered into a plea agreement whereby she would plead guilty to second-degree assault, third-degree assault and endangering the welfare of a child, and the case would be adjourned for one year to allow her to complete a 12-week anger management program. If defendant completed the program, complied with an order of protection and had no new arrests, the People would allow her to withdraw her guilty plea to second-degree assault, and she would be sentenced to conditional discharges on the two misdemeanor convictions. Despite defendant’s diligent, repeated efforts to complete an anger management program, legitimate issues such as her inability to arrange childcare for her two young children after her 75-year-old grandmother, who had been caring for the children while defendant attended the sessions, broke her hip, prevented her from attending all the sessions. She enrolled in the program three times, each time beginning from the start, but could not complete the 12 weeks. At the time of sentencing, she had found, enrolled in and almost completed a different program close to her home with a schedule that allowed her to work and pick up her children after school. Although she did not complete the anger management program, defendant satisfied the remaining terms of the plea agreement. Under these circumstances, in the interests of justice we accordingly reduce the conviction and modify the sentence … . People v Perez, 2022 NY Slip Op 01104, Second Dept 2-17-22

 

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THE BREACH OF THE IMPLIED COVENANT OF GOOD FAITH SHOULD HAVE BEEN DISMISSED AS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION (THIRD DEPT).

The Third Department, modifying Supreme Court, determined the breach of the implied covenant of good faith should have been dismissed as duplicative of the breach of contract action:

Supreme Court … erred by denying that part of defendants’ motion seeking dismissal of the cause of action alleging breach of the implied covenant of good faith and fair dealing. A review of the allegations in the amended complaint discloses that this cause of action is based upon the same set of facts and seeks similar damages as the breach of contract cause of action. In view of this, the breach of the implied covenant of good faith and fair dealing cause of action is duplicative of the breach of contract cause of action and, therefore, it should have been dismissed … . Shmaltz Brewing Co., LLC v Dog Cart Mgt. LLC, 2022 NY Slip Op 01086, Third Dept 2-17-22

 

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PLAINTIFF REAL ESTATE BROKER DID NOT ESTABLISH IT WAS ENTITLED TO A BROKERAGE FEE; THE BROKERAGE AGREEMENT EXPIRED BY ITS OWN TERMS BEFORE THE LEASE TOOK EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court after a bench trial, determined plaintiff real estate broker was not entitled to a brokerage commission:

“In order to recover a real estate brokerage commission, [a] broker must establish: (1) that [it] is duly licensed, (2) that [it] had a contract, express or implied, with the party to be charged with paying the commission, and (3) that [it] was the procuring cause of the [transaction]” … . …

Although the agreement entitled the plaintiff to collect a commission “[i]f within 60 days after the expiration . . . of th[e] . . . agreement, a lease is signed or negotiations continue and ultimately lead to a signed lease of the Property to a person or entity” on a list of potential tenants to be provided by the plaintiff within 10 days of expiration of the brokerage agreement, the lease was not signed within 60 days of the expiration of the brokerage agreement, and the plaintiff did not present any evidence that it supplied a list of potential tenants to the defendant. Thus, the brokerage agreement, by its terms, expired months before the defendant entered into a binding lease … . Cpex Real Estate, LLC v Tomtro Realty Corp., 2022 NY Slip Op 00999, Second Dept 2-16-22

 

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SUPREME COURT, IN THE CONTEXT OF A MOTION TO DISMISS, SHOULD NOT HAVE DETERMINED AS A MATTER OF LAW THAT THE DEFENDANTS WERE NOT “AFFILIATES” WITHIN THE MEANING OF THE LANGUAGE OF A RELEASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Supreme Courts should have simply denied the motion to dismiss instead of deciding what parties were included in the term “affiliates” in the release at issue:

Supreme Court erred in finding, as a matter of law, that the word “affiliates” in the release entered into between plaintiffs and Siddiqui could not be read to include defendants Cernich and Huan Tseng … . The word “affiliates” may apply to individuals, and is “not commonly understood to apply only to entities” … . Furthermore, the arbitrator’s conclusion, in an earlier arbitration against different parties, that the release did not apply to nonparty Ming Dang does not serve as a conclusive basis for finding that the release did not apply to defendants. Accordingly, the scope of the release language with respect to Cernich and Tseng was ambiguous, and Supreme Court should have simply denied the motion to dismiss without determining the meaning of the release language as a matter of law. Apollo Mgt., Inc. v Cernich, 2022 NY Slip Op 00964, First Dept 2-15-22​

 

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THE NYC LOFT BOARD PROPERLY REMITTED THE MATTER FOR FURTHER PROCEEDINGS IN THIS ACTION CONCERNING A SETTLEMENT AGREEMENT IN WHICH THE TENANTS PURPORTED TO WITHDRAW THEIR APPLICATION FOR LOFT LAW COVERAGE (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the NYC Loft Board properly remitted the matter for further proceedings in this proceeding involving a settlement agreement in which the tenants purported to withdraw their application for Loft Law coverage:

… [T]he matter [is] remitted to the Appellate Division with directions to remand to the New York City Loft Board for further proceedings in accordance with this memorandum.

In accordance with its regulations (see 29 RCNY § 1-06 [j] [5]), the Loft Board reviewed and rejected the parties’ proposed settlement agreement as perpetuating an illegal living arrangement. The rationality of that determination is not before us … . Under these limited circumstances, it was not irrational for the Board to remand for further proceedings, thereby declining to give effect to a provision of the settlement agreement in which tenants purported to withdraw their application for Loft Law coverage. Matter of Callen v New York City Loft Bd., 2022 NY Slip Op 00957, Ct App 2-15-22

 

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ANSWERING A CERTIFIED QUESTION FROM THE SECOND CIRCUIT, THE COURT OF APPEALS DETERMINED THE RELEVANT PROVISIONS OF THE CIVIL SERVICE COLLECTIVE BARGAINING AGREEMENTS (CBA’S) DID NOT PROVIDE RETIREES WITH A VESTED RIGHT SUCH THAT THE HEALTH INSURANCE BENEFITS AWARDED AT RETIREMENT WOULD NOT BE REDUCED BY THE PROVISIONS OF SUBSEQUENT CBA’S (CT APP).

The Court of Appeals, addressing certified questions from the US Court of Appeals, Second Circuit, determined the relevant provisions of the civil-service collective bargaining agreements (CBA’s) did not create a vested right in the health insurance benefits afforded retirees. In other words, the CBA’s did not provide that the coverage of health insurance premiums vested at retirement such that reductions in coverage in subsequent CBA’s would not apply:

… [N]one of the CBA provisions identified by the Second Circuit in the first certified question establish a vested right to lifetime fixed premium contributions, either singly or in combination. Donohue v Cuomo, 2022 NY Slip Op 00910, CtApp 2-10-22

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AFTER MAKING THE LIFE INSURANCE PREMIUM PAYMENTS FOR 15 YEARS ON THE PREMIUM DUE DATE (JANUARY 14), PAYMENT WAS NOT TIMELY MADE IN 2018 AND DECEDENT DIED ON FEBRUARY 18, 2018, AFTER THE EXPIRATION OF THE 31-DAY GRACE PERIOD; COVERAGE WAS PROPERLY DENIED; TWO DISSENTERS ARGUED THE POLICY WAS AMBIGUOUS AND SHOULD BE INTERPRETED SUCH THAT THE GRACE PERIOD HAD NOT EXPIRED AT THE TIME OF DEATH (CT APP).

The Court of Appeals, affirming the Appellate Division, over a two-judge dissent, determined the decedent’s life insurance policy was unambiguous about the date premiums were due–January 14 or at the end of the 31-day grace period thereafter. After paying the premiums by January 14 for 15 years, the premium was not paid on time in 2018. The insured died on February 26, 2018, just days after the grace period expired. The insurer denied the claim arguing the coverage had lapsed. The Court of Appeals agreed with the insurer. The dissent argued the policy was ambiguous because it also stated the term of the policy was annual and the very first payment was made on January 31, which would place the decedent’s death within the grace period:

Plaintiff is not entitled to benefits under the policy. The terms of the policy clearly and unambiguously tie the due date of the annual premium to the date of issue, January 14, 2002, and expressly state that January 14 is the premium due date. That the insurance policy uses the term “annual” but the premium payment period—which runs from January 14th, the “Date of Issue” and “premium due date”—may not cover a full year creates no ambiguity in light of the clear policy language identifying January 14th as the “premium due date” … . Furthermore, any claimed ambiguity in the definition of “policy date” is irrelevant inasmuch as the policy does not tie the premium due date to the “policy date” but, rather, the date of issue, which is January 14th. Because the insured failed to pay the 2018 premium by January 14, 2018 or within the 31-day grace period, the policy lapsed prior to the insured’s death. Bonem v William Penn Life Ins. Co. of N.Y., 2022 NY Slip Op 00908. CtApp 2-10-22

 

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THE SENTENCING COURT SHOULD NOT HAVE ENHANCED DEFENDANT’S SENTENCE BASED ON A POSITIVE DRUG TEST; DEFENDANT DID NOT VIOLATE ANY OF THE TERMS OF THE PLEA AGREEMENT AS IT WAS DESCRIBED ON THE RECORD BY THE COURT; DEFENDANT SUCCESSFULLY COMPLETED THE RESIDENTIAL DRUG TREATMENT PROGRAM, WHICH IS WHAT THE PLEA AGREEMENT CALLED FOR (SECOND DEPT).

The Second Department determined Supreme Court should not have imposed an enhanced sentence because there was no showing that defendant had violated any condition of the plea agreement:

It was undisputed that the defendant successfully completed the 90-day in-patient residential program, which was the only specific program identified by the court at the plea proceeding. Indeed, the court’s actual instruction to the defendant at the plea proceeding was to “complete the . . . residential program.” The court did not indicate at the plea proceeding that the defendant would be subject to continuous and open-ended treatment, or that a single positive drug test at any time would constitute a violation of the plea agreement. While the court referenced “the conditions of the program” at the beginning of the plea proceeding, there was no subsequent reference in the record to these conditions, and no allegation that the defendant breached any of them. Although the court could have directed the defendant to successfully engage in ongoing treatment up until the date of the sentence, it did not explicitly impose such a condition here … . The court “never stated” that the defendant was required to continue his treatment beyond the residential program identified on the record … , and “only the failure to comply with explicit conditions can form the basis of a violation” … . People v Martinez, 2022 NY Slip Op 00880, Second Dept 2-9-22

 

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