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IN THIS SLIP AND FALL CASE, THE PARKING LOT WAS THE SUBJECT OF A LICENSE AGREEMENT BETWEEN THE CITY AND THE ATHLETIC CLUB, NOT A LEASE, THEREFORE THE OUT OF POSSESSION LANDLORD DOCTRINE WAS NOT APPLICABLE, ALTHOUGH THE LICENSE AGREEMENT REQUIRED THE ATHLETIC CLUB TO MAINTAIN THE PARKING LOT, THE LICENSE AGREEMENT IMPOSED CERTAIN MAINTENANCE DUTIES ON THE CITY AS WELL, THE CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant city did not demonstrate that it had relinquished control over the parking lot where plaintiff allegedly fell into an access pit. The access pit was exposed because a snow removal contractor pushed the cover off when plowing snow. The city had a license agreement with an athletic club, Fitmar, which required Fitmar to maintain the parking lot. Fitmar had hired the snow removal contractor. The city argued it was an out of possession landlord and the parking lot was solely Fitmar’s responsibility. The Second Department held that the parking lot was subject to a license agreement, not a lease, and therefore the out of possession landlord doctrine did not apply. The Second Department went on to find that the terms of the license agreement did not demonstrate as a matter of law that the city had relinquished control over the maintenance of the parking lot:

… [T]he license agreement granted Fitmar a license to use the premises, and not a leasehold interest … . Thus, the standard applied to out-of-possession landlords is inapplicable here … . Rather, the City, “as landowner, remains in presumptive control over its property and subject to the attendant obligations of ownership until it is found that control was relinquished” … .

The City failed to meet its prima facie burden of demonstrating that it relinquished control of the premises such that it owed no duty to the plaintiff to remedy the allegedly defective condition. While the license agreement assigned responsibility for maintenance of the premises, and specifically of the parking lot, to Fitmar, it vested the City with ultimate approval authority over Fitmar’s operating procedures. The City had unfettered access to the premises and could sponsor or promote its own special events at the premises. The agreement required a yearly inspection of the premises by the City to determine the extent of any repairs to be performed by Fitmar, and the City was permitted to inspect the premises at any time and direct Fitmar to undertake repairs. The City could maintain field personnel at the premises to observe the means and methods of anticipated construction work by Fitmar, and also reserved the right for the City to perform construction or maintenance work at the premises at any time. Fitmar’s former general manager testified at his deposition that the City conducted regular inspections of the premises, and that representatives of the Parks Department would often show up unannounced to conduct inspections. Agbosasa v City of New York, 2019 NY Slip Op 00250, Second Dept 1-16-19

 

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INSURER SOUGHT A DECLARATION IT WAS NOT OBLIGATED TO DEFEND THE PROPERTY OWNER IN THIS FATAL ACCIDENT CASE, THE COURT ACCEPTED IN EVIDENCE A COPY OF THE POLICY WHICH DID NOT MEET THE REQUIREMENTS OF THE BEST EVIDENCE RULE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial, determined that the best evidence rule was violated when the court accepted a copy of the insurance policy. The plaintiff insurer (PLM) sought a declaration it was not obligated to defend the property owner in the action brought by a worker who fell through a skylight and was killed:

The copy of the policy admitted into evidence … did not specify a location for which the policy applied. Moreover, the copy of the policy admitted into evidence provided a different description of an endorsement titled “Exclusion- Designated Ongoing Operations” than a copy of the policy that PLM had produced during discovery. …

The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven … . Under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” … .

Here, PLM failed to offer any explanation as to the unavailability of the primary evidence, i.e., the original policy. PLM also did not establish that the copy of the policy proffered at trial was a “reliable and accurate portrayal of the original” … . Pennsylvania Lumbermens Mut. Ins. Co. v B&F Land Dev. Corp., 2019 NY Slip Op 00292, Second Dept 1-16-19

 

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QUESTIONS OF FACT WERE RAISED ABOUT DEFENDANT CON ED’S AUTHORITY AND RESPONSIBILITIES IN THIS LABOR LAW 241 (6) AND 200 ACTION, IN PART BY THE TERMS OF A CONTRACT, CON ED’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF WAS USING AN EXCAVATOR WHEN IT TIPPED OVER INTO A CREEK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Con Ed’s motion for summary judgment in this Labor Law 241 (6), Labor Law 200 and common law negligence action should not have been granted. Plaintiff was using an excavator in a narrow, sloped area when the excavator tipped over into a creek. The terms of a contract raised questions of fact about Con Ed’s supervisory authority and responsibilities:

Con Ed did not demonstrate, prima facie, that Industrial Code § 23-4.2(c), which requires supervision for certain excavation work, was inapplicable here, nor did it demonstrate, prima facie, that this regulation was not violated … . Further, Con Ed did not demonstrate, prima facie, that Industrial Code §§ 23-4.2(a) and 23-4.4(a), which require, inter alia, proper footing for certain work using excavators and similar equipment, were inapplicable here, or that these regulations were not violated in this case … . Con Ed also did not demonstrate, prima facie, that Industrial Code §§ 23-9.4(c), and 23-9.5(a), which require, inter alia, the use of shoring and/or temporary sheeting for certain excavation work, were inapplicable here, or that these regulations were not violated in this case … . Further, Con Ed did not show that any alleged violations of the aforementioned regulations did not constitute a proximate cause of the occurrence … . Any comparative negligence on the part of the plaintiff does not preclude liability founded upon a violation of Labor Law § 241(6)  … . * * *

There are “two broad categories of actions that implicate the provisions of Labor Law § 200” … . The first category involves worker injuries arising out of alleged dangerous or defective conditions on the premises where the work is performed … . In those circumstances, “[f]or liability to be imposed on the property owner, there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time” … . “The second broad category of actions under Labor Law § 200 involves injuries occasioned by the use of dangerous or defective equipment at the job site” … . A property owner will be held liable under this category only if it possessed the authority to supervise or control the means and methods of the work … . The requisite supervision or control exists for Labor Law § 200 purposes when the property owner bears responsibility for the manner in which the work is performed … . “The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right'” … . Moscati v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 00112, Second Dept 1-9-19

 

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CONTRACT RAISED QUESTIONS OF FACT WHETHER CONSTRUCTION MANAGER HAD SUFFICIENT AUTHORITY AND CONTROL TO BE HELD LIABLE FOR A FALL FROM A SCAFFOLD IN THIS LABOR LAW 200, 240 (1) AND 241 (6) ACTION (SECOND DEPT).

The Second Department determined there was a question fact whether defendant construction manager (Walsh) exercised sufficient supervision and control to be liable for plaintiff’s injury when he fell from a scaffold in this Labor Law 200, 240 (1) and 241 (6) action:

A construction manager of a work site is generally not responsible for injuries under Labor Law §§ 200, 240(1), or 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the plaintiff’s injury … . Here, a triable issue of fact exists as to whether Walsh had the authority to supervise or control the activity that brought about the plaintiff’s injury … . Among other things, in a “Project Management Services Proposal” agreement (hereinafter the agreement) entered into between Walsh and Bakers Dozen, Walsh agreed, inter alia, to provide certain services as “agent” of Bakers Dozen. The agreement further stated that, during the construction implementation phase, Walsh would “[i]ssue directives, clarifications and notices” and “monitor the site as required to maintain the progress of construction work.” Maurisaca v Bowery at Spring Partners, L.P., 2019 NY Slip Op 00109, Second Dept 1-9-19

 

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THERE EXISTS A QUESTION OF FACT WHETHER DEFENDANT’S FAILURE TO APPEAR AT THE LAW DAY CLOSING WAS WILLFUL WITHIN THE MEANING OF THE REAL ESTATE CONTRACT, PLAINTIFFS’ MOTION SEEKING SUMMARY JUDGMENT ON THE ACTION TO RETAIN THE DOWN PAYMENT PROPERLY DENIED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SEEKING THE RETURN OF THE DOWN PAYMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that defendant’s motion for summary judgment in plaintiffs’ action to retain the defendant’s down payment because defendant did not appear at the real estate closing should not have been granted. Although plaintiffs demonstrated they were ready and willing close on the time-of–the-essence closing date, defendant raised a question of fact whether the failure to appear was “willful” within the meaning of the real estate contract. Defendant submitted evidence his application for credit in connection with a mortgage on the property had been declined. Plaintiff’s motion for summary judgment was properly denied. But defendant’s motion for summary judgment seeking return of his down payment should not have been granted:

“The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent” … . The best evidence of the parties’ intent is their own writing… . A written agreement that is complete, clear, and unambiguous on its face is to be enforced according to the plain meaning of its terms … . Here, the contract provided that a party would be considered in breach if a default was willful, and that the plaintiffs could retain the down payment as liquidated damages only if the defendant “willfully” defaulted under the contract. The defendant submitted a copy of a “Statement of Credit Denial” from his lender which indicated that his application for an extension or renewal of credit with respect to a mortgage on the property had been declined. Consequently, a triable issue of fact existed as to whether the defendant had a lawful excuse for defaulting given the denial of his application to extend or renew his mortgage commitment, or whether he willfully defaulted.

Accordingly, we agree with the Supreme Court’s determination denying the plaintiffs’ motion for summary judgment on the complaint.

However, the Supreme Court should not have, upon searching the record, awarded summary judgment to the defendant dismissing the complaint and directing the return of the down payment to the defendant. A buyer who defaults on a real estate contract without ” lawful excuse'” cannot recover the down payment amount, “at least where . . . that down payment represents 10% or less of the contract price” … . Since a triable issue of fact existed as to whether the defendant’s failure to close was willful, the Supreme Court should not have determined, at this juncture, that he was entitled to the return of his down payment. Goetz v Trinidad, 2019 NY Slip Op 00099, Second Dept 1-9-19

 

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ARBITRATOR DID NOT EXCEED HIS AUTHORITY IN FINDING THAT THE COLLECTIVE BARGAINING AGREEMENT REQUIRED DUE PROCESS PROTECTIONS, INCLUDING NOTICE, BEFORE AN EMPLOYEE COULD BE TERMINATED FOR ALLEGED MISCONDUCT, ARBITRATOR’S AWARD SHOULD HAVE BEEN CONFIRMED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitration award in this employment matter should have been confirmed. The grievant was employed by the respondent town as a school crossing guard. Without notice, the town’s chief of police called the grievant to his office and fired her for alleged misconduct. The arbitrator determined the collective bargaining agreement (CBA) required limited due process protections, including notice, and found termination of the grievant was without just cause:

“[A]n arbitrator exceed[s] his [or her] power’ under the meaning of the statute where his [or her] award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ “… .

“Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact’ ” … . “An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be” … . The court lacks the power to review the legal merits of the award, or to substitute its own judgment for that of the arbitrator, “simply because it believes its interpretation would be the better one” … . …

The “for cause” language contained in the management rights provision expressly circumscribed respondent’s right to discipline or discharge the grievant. The arbitrator interpreted that language, consistent with arbitral precedent, as incorporating a just cause standard that encompasses a right to due process. We thus conclude that “the arbitrator merely interpreted and applied the provisions of the CBA, as [he] had the authority to do” … . Matter of Town of Greece Guardians’ Club, Local 1170 (Town of Greece), 2018 NY Slip Op 08775, Fourth Dept 12-21-18

 

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CITY EMPLOYEE’S CONTRACTUAL RIGHT TO MEDICAL BENEFITS VESTED BEFORE THE COLLECTIVE BARGAINING AGREEMENT WAS TERMINATED (FOURTH DEPT).

The Fourth Department determined that plaintiff city employee’s medical benefits vested before the collective bargaining agreement (CBA) was terminated:

“As a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement . . . However, [r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement’ . . . , and we must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right. [A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms’ ”  … . …

… [W]e conclude that the court properly determined that the plain meaning of the provisions at issue in the … CBA establishes that plaintiff has a vested right to medical benefits, those rights vested when he completed his 20th year of service, and plaintiff became eligible to receive said benefits when he reached retirement age… . Plaintiff’s right to medical benefits vested when he satisfied the criteria in the … CBA, and there is no language in the … CBA indicating that employees would forfeit or surrender their vested rights if they transferred jobs or unions prior to reaching retirement age. We thus conclude that the court’s interpretation of the … CBA ” give[s] fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized . . . [and does] not . . . leave one of its provisions substantially without force or effect’ ” … . Timkey v City of Lockport, 2018 NY Slip Op 08792, Fourth Dept 12-21-18

 

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PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE KNOWLEDGE OF THE SNOW AND ICE CONDITION IN THIS SLIP AND FALL CASE, AND THE SNOW REMOVAL CONTRACTOR DID NOT OFFER ANY EVIDENCE OF THE STATE OF THE AREA WHERE PLAINTIFF FELL, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the property owner’s (PA’s) and snow removal contractor’s (Cristi’s) motions for summary judgment in this parking lot snow and ice slip and fall case. PA did not demonstrate a lack of constructive knowledge of the condition and Cristi offered no evidence of the actual state of the area where plaintiff fell:

To demonstrate lack of constructive notice, a defendant must “produc[e] evidence of its maintenance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned” … . PA failed to produce such evidence. PA’s representative testified that PA’s logs for the day of and day prior to the accident did not identify any icy conditions in the parking lot. However, he also admitted that it would not necessarily be documented in these logs (or elsewhere) if a PA employee noticed an icy condition. Moreover, he testified that checking for icy conditions was not the focus of PA’s inspections. …

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, there are exceptions to this rule, including where “the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm'” by “creat[ing] or exacerbat[ing]” a dangerous condition… . It is undisputed that Cristi performed snow removal and salting in the area of the accident and that it had a continuing obligation to inspect and maintain the area even after snow removal was complete, but it offered no evidence regarding the actual state of the area at issue prior to the accident. Its “silence with respect to the actual snow removal operations at issue” renders Cristi’s prima facie showing “patently insufficient” … . Barrett v Aero Snow Removal Corp., 2018 NY Slip Op 08753, First Dept 12-20-18

 

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LEASE INCLUDED AN EXPRESS PROVISION ALLOWING TENANT TO WITHHOLD RENT IF THE PREMISES IS DAMAGED AND NOT REPAIRED, THEREFORE WITHHOLDING RENT WAS NOT AN ELECTION OF REMEDIES AND THE TENANT COULD WITHHOLD RENT AND SUE FOR DAMAGES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that an express lease provision allowed the tenant to withhold rent when the property is damaged, and therefore the withholding of rent did not constitute an election of remedies:

The second affirmative defense stated that the tenant elected a remedy by not paying rent, and therefore the tenant is not entitled to damages. However, the lease contained an express provision that the tenant could withhold rent if the premises were damaged and not repaired. Generally, a tenant’s duty to continue to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord breaches its obligations under the lease, unless there is an express provision in the lease declaring the circumstances under which the tenant may withhold rent … . Such an express provision was present here. Therefore, the withholding of rent was not an election of remedies. Fifth Line, LLC v Fitch, 2018 NY Slip Op 08630, Second Dept 12-19-18

 

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