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THE QUESTION WHETHER THE SEXUAL ASSAULT OF PLAINTIFF IN DEFENDANT GYM’S STEAM ROOM WAS FORESEEABLE SHOULD NOT HAVE BEEN DECIDED AGAINST THE PLAINTIFF AS A MATTER OF LAW; THERE WAS EVIDENCE OF PRIOR SIMILAR ASSAULTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact about the foreseeability of the underlying incident, an alleged sexual assault in the steam room at defendant Equinox’s gym, which precluded summary judgment. Although Equinox had no prior notice with respect to the person who allegedly assaulted plaintiff, there was evidence Equinox was aware of other similar incidents in the steam room:

The Court of Appeals has “repeatedly emphasized” that “[o]nly in rare cases” can questions concerning foreseeability be decided as a matter of law … . * * *

Here, the motion court determined that plaintiff’s alleged attack was not foreseeable because “the ‘notice’ plaintiff relies upon concerns other alleged incidents in the steam room, none of which involved plaintiff’s assailant” and that “some of the other incidents]appear to involve consensual behavior.” New York courts, however, have never required prior incidents to have been committed by the same assailant or even be of the same type of conduct to which the plaintiff was subjected … . … [A]t least three of the other gym members reported that they had been sexually harassed, including the member who complained mere weeks before the assault on plaintiff … .

The motion court additionally found that, even if defendants did have a duty to plaintiff to prevent his alleged assault, “they met their duty to implement reasonable policies to decrease the likelihood of such an incident” and plaintiff failed to present a material issue of fact “with respect to these policies and procedures.”  * * *

We find that whether plaintiff’s alleged assault was foreseeable to Equinox and whether Equinox implemented adequate security measures to decrease the likelihood of such incidents are questions of fact and plaintiff’s negligence claim should advance to a jury trial. We cannot say, as a matter of law, that another gym member allegedly assaulting plaintiff against the backdrop of multiple complaints of inappropriate sexual conduct inside the steam room was “extraordinary under the circumstances or not foreseeable in the normal course of events” … . Crandall v Equinox Holdings, Inc., 2024 NY Slip Op 04902, First Dept 10-8-24

Practice Point: Whether an injury to plaintiff was foreseeable from defendant’s perspective can rarely be decided as a matter of law.

 

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THE IDENTITIES OF THE SUBJECTS OF TWO SCHOLARLY ARTICLES LINKING TALCUM-POWDER PRODUCTS WITH MESOTHELIOMA SHOULD BE RELEASED; THE INFORMATION IS NOT PROTECTED BY HIPAA OR THE FEDERAL COMMON RULE; PRODUCTION OF THE INFORMATION WOULD NOT BE UNDULY BURDENSOME AND WOULD NOT DETER FUTURE RESEARCH (FIRST DEPT).

The First Department, reversing Supreme Court’s denial of a petition to enforce an out-of-state subpoena, determined the identities of the subjects of two scholarly articles linking cosmetic talcum powder products with mesothelioma were not protected by HIPAA’s privacy rule or the federal Common Rule:

The information sought by the subpoenas … is clearly relevant to the underlying New Jersey personal injury action. It goes directly to the credibility of these articles, which speak to the central issues in dispute and are relied on by three testifying experts, and whose author was to testify as an expert until she voluntarily withdrew … .

The information sought by the subpoenas is not protected from disclosure by HIPAA’s privacy rule, which does not apply where, as here, the health care providers did not provide physician services in connection with the articles and the subjects were never their patients … .

The information sought by the subpoenas is also not protected from disclosure by the federal Common Rule because the articles to which they relate fall within the exemption for secondary research based on publicly available identifiable private information or biospecimens … .The burden was on the party opposing the subpoenas to prove that this information was produced in the underlying litigations subject to a protective order … . Neither party opposing disclosure of the information has offered any such proof.

Production of the information sought by the subpoenas would not be unduly burdensome, nor is it likely to have a chilling effect on future medical research. The subject information consists of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought processes of the researchers. Moreover, the subjects never actually agreed to participate in any research, having released their information in connection with public litigation, and so it is unclear how allowing disclosure of their identities might deter future research participation … . Matter of Johnson & Johnson v Northwell Health Inc., 2024 NY Slip Op 04909, First Dept 10-8-24

Practice Point: The decision outlines the issues involved in seeking the identities of the subjects of two scholarly articles linking talcum-powder products with mesothelioma.

 

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FAILURE TO PRESERVE VIDEO SHOWING THE AREA WHERE PLAINTIFF SLIPPED AND FELL PRIOR TO THE FALL WARRANTED AN ADVERSE INFERENCE CHARGE; UNDER THE FACTS, STRIKING DEFENDANT’S ANSWER WAS TOO SEVERE A SANCTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined striking defendant’s answer for destruction of video evidence in this slip and fall case was not warranted, an adverse inference jury instruction was a sufficient sanction. Defendant provided video of plaintiff’s fall in compliance with plaintiff’s attorney’s request. Nine months later plaintiff’s attorney requested video showing the area prior to the fall, but it had been overwritten by then:

Plaintiffs’ counsel sent defendants a preservation letter approximately seven days following the accident. Defendants responded by producing several minutes of video of the accident itself, which was reasonably compliant with plaintiffs’ request for video surveillance of “the incident.” However, there was no pre-fall video footage provided to aid plaintiffs in establishing defendants’ actual or constructive notice of the alleged hazardous condition on the floor. Defendants’ employee, who culled the video footage provided, was no longer in defendants’ employ and was not available to be deposed as to his or her reasons for selecting particular video footage. Plaintiff’s counsel did not alert defendants of a need for additional video footage depicting the pre-fall circumstances at the accident site until nine months after receipt of the initial video clip, which was well after the software that operated defendants’ surveillance cameras had overwritten the video surveillance from plaintiff’s accident date.

Plaintiff’s proof established that defendants had control over the relevant surveillance and preserved it to the extent requested, but absent deposition testimony from defendant’s former employee who prepared the video clip as to his reasons for selecting the footage he or she did, the culpability issue cannot be definitively resolved. Nevertheless, the destroyed evidence video compromised the fairness of the litigation so as to warrant an adverse inference sanction … . Lev v Eataly USA LLC, 2024 NY Slip Op 04910, First Dept 10-8-24

Practice Point: Plaintiff’s counsel requested video of “the incident” in this slip and fall case, which was provided. Nine months later plaintiff’s counsel requested video showing the area prior to the fall re: the issue of defendant’s notice of the condition. By that time the video had been overwritten. Plaintiff was entitled to an adverse inference jury instruction. Striking the defendant’s answer was deemed too severe a sanction.

 

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THE ARBITRATOR’S INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT WAS NOT IRRATIONAL; THE AWARD MUST BE CONFIRMED EVEN WHERE THE COURT DISAGREES WITH THE INTERPRETATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator’s ruling that petitioner firefighters were entitled to paid emergency leave should have been confirmed. In recent weeks, the appellate courts across the state have been emphasizing the finality of an arbitrator’s award, even where the court might have decided the matter differently:

“[J]udicial review of arbitration awards is extremely limited” … . “The court must vacate an arbitration award where the arbitrator exceeds a limitation on his or her power as set forth in the CBA [collective bargaining agreement]” … . The court, however, lacks the authority to “examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one” … .

Here, the arbitrator merely interpreted and applied the provisions of the relevant CBA, as he had the authority to do … . We are powerless to set aside that interpretation even if we disagree with it … . Contrary to respondent’s urging, the arbitrator’s determination was not irrational; nothing in the CBA suggests that a request for emergency leave may not be made prior to the start of a tour of duty, and the arbitrator provided a justification for his determination … . Matter of Local 32, Intl. Assn. of Fire Fighters, A.F.L.-C.I.O.-C.L.C. (City of Utica), 2024 NY Slip Op 04878, Fourth Dept 10-4-24

Practice Point: The appellate courts are making it clear that an arbitrator’s award should not be tampered with by the courts as long as the arbitrator has not exceeded his or her powers.

 

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INFANT PLAINTIFFS ALLEGED MULTIPLE INSTANCES OF SEXUAL MISCONDUCT BY A MALE STUDENT ON THE SCHOOL BUS FROM KINDERGARTEN THROUGH SECOND GRADE; THE FOURTH DEPARTMENT DETERMINED THE DEFENDANT SCHOOL’S EVIDENCE DID NOT CONCLUSIVELY ESTABLISH A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the negligent supervision causes of action against the defendant school, school district, board of education and department of transportation should not have been dismissed. Infant plaintiffs alleged they were subjected to sexual misconduct on a school bus by a male student from kindergarten through second grade. The Fourth Department found that the evidence submitted by the defendants did not demonstrate a lack of notice:

Defendants, as parties moving for summary judgment, had the initial burden of establishing as a matter of law that they lacked actual or constructive notice of “the dangerous conduct which caused injury” … . Here, we conclude that defendants did not meet that burden. In support of their motion, defendants submitted, inter alia, the deposition testimony of the principal of the school at the time of the alleged misconduct. The principal, when asked at his deposition whether he had been aware of any prior “incidents of student sexual assaults” on the bus and whether he had ever had to deal with any student at the school who had been characterized as “sexually violent,” answered both questions in the negative … . That testimony was insufficient to meet defendants’ burden because it failed to address whether the principal knew of incidents within the broader category of sexual misconduct alleged by plaintiffs in their complaints. Plaintiffs alleged that the perpetrator engaged in a wide range of sexual misconduct—some of which was not equivalent to “sexual assault [ ]” and was not “sexually violent.” In short, the principal’s testimony failed to establish that defendants had no actual or constructive notice of any sexual misconduct of the types alleged by plaintiffs … .

Additionally, to the extent that defendants submitted deposition testimony of various other witnesses—including the infant plaintiffs and the bus driver—we conclude that it was insufficient to satisfy defendants’ initial burden with respect to actual or constructive notice. In particular, although the infant plaintiffs and the bus driver testified that they did not report instances of the alleged misconduct to defendants, they were not in a position to know whether there had been prior incidents of sexual misconduct involving the perpetrator and, if so, whether defendants had actual or constructive notice of any of those incidents prior to the sexual misconduct alleged in the complaint … . Their testimony could not establish whether defendants obtained notice by other means … . Porschia C. v Sodus Cent. Sch. Dist., 2024 NY Slip Op 04885, Fourth Dept 10-4-24

Practice Point: Here, on defendant school’s motion for summary judgment in this negligent supervision case, the Fourth Department looked carefully at the school’s evidence of a lack of notice of a student’s sexual misconduct and found the evidence did not address all the possible scenarios which could demonstrate liability and therefore did not support summary judgment.

 

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THE FACT THAT THE POLICE WERE AWARE THE VAN THEY STOPPED HAD REPORTEDLY BEEN INVOLVED IN TWO PRIOR INCIDENTS—(1) A ROAD RAGE SHOOTING AND (2) NEARLY RUNNING OVER A TRAFFIC AGENT ABOUT TO ISSUE A PARKING TICKET—PROVIDED REASONABLE SUSPICION SUPPORTING THE LEVEL THREE TRAFFIC STOP, DESPITE THE FACT THE POLICE DID NOT KNOW WHO WAS DRIVING THE VAN DURING THE PRIOR INCIDENTS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice O’Neill, affirming defendant’s conviction, over an extensive dissent, determined the police had reasonable suspicion supporting a level three traffic stop. The registration number of the van defendant was driving had been the subject of police reports for two prior incidents, a road rage incident during which a firearm was discharged, and nearly running a traffic agent over when the agent was about to place a parking ticket on the van. When the van was stopped, the driver was asked to step out of van because of the firearm incident. Defendant refused to get out and picked up a firearm. One of the officers tased the defendant three times and he was arrested:

A forceable stop and detention is authorized “[w]here a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor” … .

“Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” … .

Here, before stopping the van, the BOLO [be-on-the-lookout] alert notified Officers Amaral and Stokes of the criminal activity involving the van on April 28th; the officers were also aware of the May 17th incident because they both responded to the traffic enforcement agent’s call for backup. The officers’ knowledge of either incident alone furnished reasonable suspicion of criminal activity at hand … . People v Zubidi, 2024 NY Slip Op 04824, First Dept 10-3-24

Practice Point: Here the fact that defendant’s van had reportedly been involved in a road rage shooting and had nearly run over a traffic agent about to issue a parking ticket provided reasonable suspicion justifying a level three traffic stop, despite the fact that the identity of the driver involved in the prior incidents was not known at the time of the stop.

 

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​ THE EXISTENCE OF A WRITTEN CONSULTING AGREEMENT BETWEEN THE PARTIES RELATING TO SALES AND MARKETING DID NOT, PURSUANT TO THE PAROL EVIDENCE RULE, PRECLUDE EVIDENCE OF AN ALLEGED ORAL AGREEMENT BETWEEN THE SAME PARTIES RELATING TO THE FORMATION AND OWNERSHIP OF A BUSINESS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the counterclaim for breach of an oral contract should not have been dismissed. The court explained when the parol evidence rule does not exclude evidence of an oral contract. Here there was a written consulting agreement for defendant’s marketing and sales services. The alleged oral agreement related to the formation and ownership of a company (ION):

… ” … [A] written agreement does not exclude proof of a parol collateral agreement made even between the same parties, where the written contract is not intended to embody the whole agreement and does not on its face purport to cover completely the subject-matter of the alleged collateral agreement” … . For a prior oral agreement to be enforceable, “(1) the agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) it must be one that parties would not ordinarily be expected to embody in the writing; or put in another way, an inspection of the written contract, read in the light of surrounding circumstances must not indicate that the writing appears to contain the engagements of the parties, and to define the object and measure the extent of such engagement. Or again, it must not be so clearly connected with the principal transaction as to be part and parcel of it” … .

Here, the consulting agreement did not completely cover the same subject matter as the alleged oral agreement, as the alleged oral agreement related to the formation and ownership of ION and the consulting agreement only related to the compensation that Ovadia [defendant] would receive for performing certain marketing and sales services … . Further, the alleged oral agreement did not vary, alter, or supplement any terms of the consulting agreement, which did not address ownership interests in ION … . Moreover, it would not ordinarily be expected that the subject matter of the alleged oral agreement would be addressed in the consulting agreement … . Parizat v Meron, 2024 NY Slip Op 04776, Second Dept 10-2-24

Practice Point: Consult this decision for a clear explanation of the application of the parol evidence rule. Here evidence of an alleged oral contract between the parties was not precluded by the existence of a written consulting agreement because the two agreements covered different subjects and the terms did not conflict.

 

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DEFENDANT PLED GUILTY TO THE SEXUAL ABUSE OF HIS GIRLFRIEND’S DAUGHTER; THE GIRLFRIEND ALLEGED SHE WAS UNABLE TO WORK BECAUSE OF THE RESULTING STRESS AND SOUGHT RESTITUTION FOR UNPAID RENT AND HOUSEHOLD EXPENSES; THE CLAIM FOR LOST WAGES WAS NOT DIRECTLY CAUSED BY DEFENDANT’S OFFENSES (FOURTH DEPT).

The Fourth Department modified the judgment by eliminating the restitution aspect of the sentence. The ordered restitution was not directly caused by defendant’s offenses. Defendant pled guilty to sexual abuse of his girlfriend’s daughter:

The girlfriend requested restitution for the unpaid balance of rent for the house she had shared with defendant and for a bill for garbage and recycling collection that was not yet due. The People argued that the girlfriend was entitled to restitution for those expenses because, according to the girlfriend’s statements, defendant’s offenses caused the victim emotional and psychological harm and caused the girlfriend stress that resulted in serious health issues and several hospitalizations, all of which rendered her unable to work, thereby ultimately resulting in financial hardship and her inability to pay the claimed household expenses. The court, over defense counsel’s objection that the claimed expenses were not directly caused by defendant’s offenses, imposed the requested restitution. That was error.

“Penal Law § 60.27 (1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to ‘make restitution of the fruits of [their] offense or reparation for the actual out-of-pocket loss caused thereby’ ” … . Restitution and reparation may be required for expenses that “were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime” … . Conversely, the statute “does not impose a duty on the defendant to pay for the costs associated [ ]with . . . expenses [that] are not directly caused by the defendant’s crime” … .

Here, we conclude that the claimed expenses do not constitute “actual out-of-pocket loss caused” by defendant’s offenses (Penal Law § 60.27 [1]) inasmuch as the girlfriend’s unpaid rent and utility bill are costs “not directly caused by . . . defendant’s crime[s]” … . Contrary to the People’s assertion, the girlfriend’s request did not constitute a claim for lost wages directly caused by defendant’s offenses … . People v Figueroa, 2024 NY Slip Op 04691, Fourth Dept 9-27-24

Practice Point: Restitution applies only to expenses or losses “directly caused by defendant’s offenses.” Here defendant pled guilty to sexual abuse of his girlfriend’s daughter. The girlfriend alleged she could not work because of the resulting stress and was unable to pay her rent. That loss was not “directly caused by defendant’s offenses” and, therefore, restitution was not available for the girlfriend’s lost wages.

 

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A SAFE ON A HIGH SHELF IN A HOTEL ROOM FELL ON PLAINTIFF; DEFENDANT HOTEL DID NOT ADDRESS WHEN THE SAFE WAS LAST INSPECTED; THEREFORE THE HOTEL DID NOT SHOW IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE SAFE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant did not sufficiently demonstrate a lack of constructive notice of the allegedly dangerous condition—a 40-t0-60-pound safe which fell from a high shelf in a hotel-room closet, apparently because it was not securely attached to the wall:

Plaintiff commenced this personal injury action after a 40-to-60-pound safe fell on him while he was staying at defendant hotel in January 2022. In moving for summary judgment, defendant failed to meet its prima facie burden that it neither created nor had actual or constructive notice of the dangerous condition by submitting evidence that the room was inspected two years earlier. The inspection report did not have probative value because it was performed two years before plaintiff’s accident, and failed to provide any specific details as to the inspection so as to establish defendant’s lack of notice … . Defendant did not address how often the hotel safes were inspected, and what, if any, steps were taken to ensure that a safe, which in this case was placed on a high closet shelf, remained securely affixed to the wall … . Here, a physical inspection of the in-room safe would have been reasonable and revealed whether the safe was firmly secured to the wall … . Swallows v W N.Y. Times Sq., 2024 NY Slip Op 04629, First Dept 9-26-24

Practice Point: A defendant’s motion for summary judgment in a premises liability case must demonstrate when the area or object in question was last inspected and found safe. A motion that does not address that issue fails to show a lack of constructive notice of the condition and will be denied.

 

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THE MOTION TO INTERVENE BY A PARTY WHICH PURCHASED THE PROPERTY IN FORECLOSURE SHOULD HAVE BEEN GRANTED; THE BANK DID NOT PROVE THE BORROWER’S DEFAULT BECAUSE THE RELEVANT BUSINESS RECORDS WERE NOT ATTACHED TO THE VICE PRESIDENT’S AFFIDAVIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the motion to intervene by a party (the LLC) which had purchased the property subject to foreclosure should have been granted, (2) noncompliance with the notice requirement of RPAPL 1304 and 1306 and the mortgage agreement cannot be raised by the intervenor, a stranger to the note and mortgage, and (3) the bank did not prove the borrower’s default because the relevant business records were not attached to the bank’s affidavit:

…. [T]he LLC established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale (see CPLR 1012[a][2], [3]; 6501 …). …[T]he fact that the LLC obtained its interest in the premises after the action was commenced and the notice of pendency was filed does not definitively bar intervention … . * * *

… [The bank] failed to provide evidence in admissible form of the borrower’s default in payment of the note … . In his affidavit submitted in support of U.S. Bank’s motion, Bennett [vice president of the bank’s servicer] averred that he was personally familiar with Rushmore’s record-keeping practices and that, based on his review of Rushmore’s business records, the borrower “defaulted under the terms of the loan documents by failing to make the monthly installment due on January 1, 2015 and has remained in default to the present date.” However, Bennett’s assertion regarding the borrower’s alleged default constituted inadmissible hearsay, as he failed to annex to his affidavit the business records on which he relied … . U.S. Bank N.A. v Medina, 2024 NY Slip Op 04588, Second Dept 9-25-24

Practice Point: Here the party which purchased the property in foreclosure should have been allowed to intervene.

Practice Point: In foreclosure proceedings affidavits which purport to describe the contents of business records which are not attached constitute inadmissible hearsay.

 

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