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LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT).

The Third Department, in a matter of first impression, determined the damages award for loss of Seabury’s pension benefits in this sexual harassment case was properly calculated using the “total offset” method:

We … reject petitioner’s contention that SDHR [State Division of Human Rights] erred by failing to reduce the damages awarded for loss of pension benefits to present value. Citing Stratton v Department of Aging for City of New York (132 F3d 869, 882 [2d Cir 1997]), SDHR explained that it had not discounted the award to present value because it had not factored future salary increases into its award … . Whether the Human Rights Law (see Executive Law art 15) requires that awards for future damages be discounted to present value is an issue of first impression in the appellate courts of New York. However, the Court of Appeals has noted that federal case law is instructive in the employment discrimination context… . We acknowledge that the award for Seabury’s lost pension benefits can only be a “rough approximation” of the amount necessary to restore her to the position that she would have occupied had she not been the victim of sexual harassment, because neither her lost income stream nor the effect of future price inflation can be predicted with complete confidence … . One permissible method for approximating damages that arises from a loss of future income — known as the “total offset” method — is to neither consider future salary increases nor discount the damages to present value based on the presumption that future salary increases are offset by the discount rate used to calculate the present value of a damages award… . Thus, SDHR did not err by adopting the total offset method to determine the value of Seabury’s lost pension benefits … . Matter of Rensselaer County Sheriff’s Dept. v New York State Div. of Human Rights, 2018 NY Slip Op 05719, Third Dept 8-9-18

EMPLOYMENT LAW (HUMAN RIGHTS LAW, SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/HUMAN RIGHTS LAW (SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/DAMAGES (HUMAN RIGHTS LAW, EMPLOYMENT LAW, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/MUNICIPAL LAW (HUMAN RIGHTS LAW, SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/TOTAL OFFSET METHOD (DAMAGES, HUMAN RIGHTS LAW, SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))/PENSION BENEFITS, LOSS OF  (DAMAGES, HUMAN RIGHTS LAW, SEXUAL HARASSMENT, LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT))

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PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over an extensive two-justice dissenting opinion, determined plaintiff had stated a cause of action for gender discrimination under the NYC Human Rights Law, which was deemed broader in scope than the state Human Rights Law. Plaintiff alleged she was treated less well than other employees after she rejected a sexual advance by her supervisor (Cirullo). The supervisor allegedly squeezed plaintiff’s thigh when he sat next to her:

In 2005, the City Council passed the Local Civil Rights Restoration Act of 2005 ,,, , finding that the provisions of the City Human Rights Law had been “construed too narrowly to ensure protection of the civil rights of all persons covered by the law.” The Restoration Act revised the City Human Rights Law … to state: “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed.” * * *

… [T]o establish a gender discrimination claim under the City Human Rights Law, a plaintiff need only demonstrate “by a preponderance of the evidence that she has been treated less well than other employees because of her gender” … . … [F]ederal and state law, limiting actionable sexual harassment to “severe or pervasive” conduct, [is] not appropriate for the broader and more remedial City Human Rights Law … . ,,, [W]e recognize[] an affirmative defense whereby defendants can avoid liability if the conduct amounted to nothing more than what a reasonable victim of discrimination would consider “petty slights and trivial inconveniences” … . * * *

The jury must decide whether Cirullo made a sexual overture, and whether Cirullo created a hostile work environment because Suri rebuffed that overture … . Sexual advances are not always made explicitly. The absence of evidence of a supervisor’s direct pressure for sexual favors as a condition of employment does not negate indirect pressure or doom the claim … . Suri v Grey Global Group, Inc., 2018 NY Slip Op 05627, First Dept 8-2-18

EMPLOYMENT LAW (GENDER DISCRIMINATION, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, GENDER DISCRIMINATION, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/MUNICIPAL LAW (GENDER DISCRIMINATION, EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/GENDER DISCRIMINATION (NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/SEXUAL ADVANCES (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))

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CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT).

The First Department determined the city was immune from suit stemming from alleged interference with the right of sepulcher during Hurricane Sandy, which flooded the Bellevue Hospital morgue. The court further determined there was no special relationship between plaintiff and the city:

Contrary to plaintiffs’ argument, the right of sepulcher does not, by definition, trump governmental immunity … acted in its governmental capacity at all relevant times… . The specific act from which plaintiffs’ claims arise is the City’s treatment of the decedent’s body in the context of Hurricane Sandy, i.e., as the hurricane approached, once it had struck, and in its aftermath. Plaintiffs seek to ignore or minimize the significance of that context. However, their claims directly implicate the City’s emergency preparations and the decisions it made during and immediately after the unprecedented hurricane, which caused, among other things, unprecedented flooding in the Bellevue Hospital morgue — all quintessential governmental functions. Moreover, these preparations and decisions were discretionary, not ministerial … . Thus, the record demonstrates the elements of governmental function immunity from liability as a matter of law … .

Plaintiffs failed to establish the special relationship with the City required for holding the City liable for their injury … . In support of their contention that the City violated a statutory duty enacted for their benefit, they rely on statutes that do not contemplate private rights of action and, in any event, are not relevant to this case, which does not involve autopsy, dissection or unclaimed remains (see Public Health Law § 4215) or individuals fighting for control over the disposition of those remains … . Nor did plaintiffs establish that, in its treatment of the decedent’s body in the wake of Hurricane Sandy,the City voluntarily assumed a duty that generated their justifiable reliance … . Lee v City of New York, 2018 NY Slip Op 05626, First Dept 8-2-18

SEPULCHER (CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/MUNICIPAL LAW (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/NEGLIGENCE (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/NEGLIGENCE (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/IMMUNITY (MUNICIPAL LAW, SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))

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THE LOW AND MODERATE INCOME APARTMENT BUILDING WAS SUBJECT TO FEDERAL HUD REGULATION UNTIL THE HUD MORTGAGE WAS PAID OFF IN 2011, AFTER THAT THE BUILDING WAS SUBJECT TO THE NYC RENT STABILIZATION LAW (FIRST DEPT).

The First Department, in this suit against the landlord by the tenant’s association, determined the apartment building for low and moderate income tenants was subject to federal Housing and Urban Development (HUD) regulation until the HUD mortgage was paid off in April, 2011. Once the mortgage was paid off, the building became subject to the Rent Stabilization Law (RSL):

While we find that the RSL was preempted as to the subject building through April 11, 2011, defendant owner is not entitled to a declaration that the RSL is preempted for the duration of the Use Agreement. Owner fails to demonstrate how HUD had the authority to extend preemption of the RSL beyond April 11, 2011, to 2016 and again to 2026. Accordingly, we limit the declaration in defendant owner’s favor to April 11, 2011, and declare in plaintiffs’ favor that the building was subject to the Rent Stabilization Law as of April 12, 2011.

As long as the building was a project financed by a HUD mortgage, it was subject to the HUD Handbook, based on that loan and the terms of the related Regulatory Agreement. However, once the loan was paid off and the Regulatory Agreement terminated, the building ceased to be such a project. Plaintiffs failed to identify any continuing basis for applying the HUD Handbook to a building that had since been regulated pursuant to the terms of the Use Agreement requiring the preservation of low-income housing.  435 Cent. Park W. Tenant Assn. v Park Front Apts., LLC, 2018 NY Slip Op 05625, First Dept 8-2-18

LANDLORD-TENANT (MUNICIPAL LAW, THE LOW AND MODERATE INCOME APARTMENT BUILDING WAS SUBJECT TO FEDERAL HUD REGULATION UNTIL THE HUD MORTGAGE WAS PAID OFF IN 2011, AFTER THAT THE BUILDING WAS SUBJECT TO THE NYC RENT STABILIZATION LAW (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, THE LOW AND MODERATE INCOME APARTMENT BUILDING WAS SUBJECT TO FEDERAL HUD REGULATION UNTIL THE HUD MORTGAGE WAS PAID OFF IN 2011, AFTER THAT THE BUILDING WAS SUBJECT TO THE NYC RENT STABILIZATION LAW (FIRST DEPT))

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POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined that a police report was not sufficient to timely notify the town of the essential facts of potential lawsuit stemming from a collision between petitioner’s vehicle and a town snow plow. The petition for leave to file a late notice of claim was properly denied:

… [T]he petitioner failed to demonstrate that the Village obtained timely, actual knowledge of the essential facts constituting the claim. The late notice of claim served upon the Village approximately three months after the 90-day statutory period had elapsed did not provide the Village with actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the statutory period … . Furthermore, the police accident report alone, without any evidence of further investigation by the Village, cannot be considered actual knowledge of the essential facts underlying the claim against the Village … . Matter of Vega v Incorporated Vil. of Freeport, 2018 NY Slip Op 05598, Second Dept 8-1-18

MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, OLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/POLICE REPORTS (NEGLIGENCE, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should not have been granted. Infant plaintiff was allegedly injured when he tripped and fell over a discarded metal frame on village property. The court noted that the mother’s derivative cause of action was time-barred because the infancy toll of the statute of limitations did not apply to her:

… [T]he Supreme Court should have denied that branch of the petition which was for leave to serve a late notice of claim upon the Village on behalf of the mother in her individual capacity, as the statute of limitations for her derivative cause of action had expired at the time the proceeding was commenced … . The infancy toll (see CPLR 208) is personal to the infant and does not extend to a parent’s derivative cause of action … . Matter of R.N. v Village of New Sq., 2018 NY Slip Op 05595, Second Dept 8-1-18

MUNICIPAL LAW (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)/NEGLIGENCE (CIVIL PROCEDURE, MUNICIPAL LAW, INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STATUTE OF LIMITATIONS  (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/INFANCY TOLL (STATUTE OF LIMITATIONS, (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the class action complaint by tenants alleging the failure to provide rent-stabilized leases should not have been dismissed at the pre-answer stage:

“Pursuant to CPLR 902, a motion to determine whether a class action may be maintained is to be made within 60 days after the time to serve the responsive pleading has expired” … . Because the time to make such a motion had not occurred, it was premature, in this case, for the court to engage in a detailed analysis of whether the requirements for class certification were met … .

It does not appear conclusively from the complaint that, as a matter of law, there is no basis for class action relief… . For example, plaintiffs allege that some defendants receive J-51 tax benefits and are therefore required to provide tenants with rent-stabilized leases but failed to do so. This claim was also made in Borden (see 24 NY3d at 390), and the Court of Appeals found that the plaintiffs satisfied the class action requirements of numerosity, predominance of common issues of law or fact, typicality of the named plaintiffs’ claims, adequate representation, and superiority of class action versus other methods (see id. at 399-400).

Although the instant action involves 11 buildings and 8 owners, all the buildings are allegedly managed by Big City Realty Management, and all the owners are allegedly part of one holding company, Big City Acquisitions. Moreover, Downing — another putative class action about J-51 (see 107 AD3d at 88) — involved “a residential complex owned by defendants” (id.). Maddicks v Big City Props., LLC, 2018 NY Slip Op 05523, First Dept 7-26-18

CIVIL PROCEDURE (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/CPLR 902 (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/LANDLORD-TENANT (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))

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CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint adequately pled a class action concerning defendants-landlords’ alleged mishandling of security deposits, including allegations of conversion and co-mingling:

… [P]laintiffs adequately alleged all of the prerequisites to class certification… . Plaintiffs alleged that the class of tenants consists of more than 200 members, thereby satisfying the numerosity requirement … . Plaintiffs also alleged that the common issue is whether, by commingling the security deposits of their tenants, defendants acted unlawfully, and that the individual issues are the amount of the security deposit and defendants’ entitlement to deductions therefrom… . Thus, we conclude that plaintiffs sufficiently alleged that the common issues predominate (see CPLR 901 [a] [2]). Regarding the typicality requirement, plaintiffs alleged that their claims arise from “the same course of conduct and are based on the same theories as the other class members” … . Plaintiffs also alleged that they can fairly and adequately protect the interests of the class inasmuch as they do not have conflicting interests with other class members.. . Plaintiffs satisfied the superiority requirement by alleging that the damages likely suffered by each of the tenants range between $475 and $4,500, and “the cost of prosecuting individual actions would deprive many of the putative class members of their day in court” … . …

… [T]the amended complaint adequately alleges a cause of action for conversion in violation of General Obligations Law § 7-103 … . …

… [T]he court erred in granting the motion with respect to the second cause of action, alleging that defendants violated Property Conservation Code of the City of Syracuse § 27-125, inasmuch as that section gives rise to a private cause of action … . …

…[T]the lease includes a clause requiring tenants to pay attorneys’ fees if they breach the lease and, pursuant to Real Property Law § 234, the tenant has the “same benefit [to attorneys’ fees as] the lease imposes in favor of the landlord” … . Rubman v Osuchowski, 2018 NY Slip Op 05416, Fourth Dept 7-25-18

CIVIL PROCEDURE (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/LANDLORD-TENANT  (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/MUNICIPAL LAW (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/REAL PROPERTY LAW  (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/CONVERSION (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

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PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action for violation of the “prevailing wage” requirement of the Labor Law when plaintiff did work for a contractor (Zoria Housing) on properties owned by the NYC Housing Authority (NYCHA):

… [T]he plaintiff stated viable breach of contact causes of action based on violations of statutorily mandated provisions in agreements between Zoria Housing and NYCHA, requiring the payment of prevailing wages and overtime pay. “In situations where the Labor Law requires the inclusion of a provision for payment of the prevailing wage in a labor contract between a public agency and a contractor, a contractual obligation is created in favor of the contractor’s employees, and an employee covered by or subject to the contract, in his or her status as third-party beneficiary to the contract, possesses a common-law cause of action against the contractor to recover damages for breach of such a contractual obligation” … . Here, the complaint alleges, in effect, that Zoria Housing failed to pay the plaintiff “prevailing wages” and overtime pay in breach of municipal contracts that included prevailing-wage and overtime provisions pursuant to the Labor Law (see generally Labor Law §§ 220, 231). The complaint thus stated viable breach of contract causes of action … . Singh v Zoria Hous., LLC, 2018 NY Slip Op 05513, Second Dept 7-25-18

EMPLOYMENT LAW (PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/LABOR LAW (PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/CONTRACT LAW (EMPLOYMENT LAW, PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))

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ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion, determined that petitioner (Ciafone), an attorney, who used several buildings owned by his corporate entities for exterior signs promoting his law practice, engaged in unauthorized outdoor advertising and was properly penalized. Ciafone argued that the corporate entitles formed by him which owned the buildings were not “others” within the meaning of the NYC Administrative Code provision which defined an outdoor advertising company as an entity which makes advertising space available to “others:”

Administrative Code § 28-502.1 states that an OAC [outdoor advertising company] is “[a] person, corporation, partnership or other business entity that as a part of the regular conduct of its business engages in or, by way of advertising, promotions or other methods, holds itself out as engaging in the outdoor advertising business.” An Outdoor Advertising Business is “[t]he business of selling, leasing, marketing, managing, or otherwise either directly or indirectly making space on signs situated on buildings and premises within the city of New York available to others for advertising purposes, whether such advertising directs attention to a business, profession, commodity, service or entertainment conducted, sold, or offered on the same or a different zoning lot . . . .” … .

… [P]etitioners, which are corporations, made space on signs available to Ciafone’s law practice (a professional corporation), a separate and distinct entity. Of course, it is fundamental that individuals, corporations, and partnerships are each recognized as separate legal entities, and in this statutory context constitute “others” regardless of the common principal ownership or connection between the entities. Indeed, “[a]s a general rule, the law treats corporations as having an existence separate and distinct from that of their shareholders”… . …

ECB [New York City Environmental Control Board] rationally rejected petitioners’ argument that they had not made the signs available to “others.” The record shows that the building owners are not Ciafone or Ciafone P.C, but separate corporate entities, and that the advertising signs promoted legal services by Ciafone, not any services of the corporate entities that own the buildings. Contrary to petitioners’ argument, there is no basis for overturning ECB’s determination that, in these circumstances, the advertising space was made available “to others.” Nor is ECB’s interpretation of the statutory language arbitrary or irrational. Matter of Franklin St. Realty Corp. v NYC Envtl. Control Bd., 2018 NY Slip Op 05407, First Dept 7-19-18

ADMINISTRATIVE LAW (MUNICIPAL LAW, ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT))/MUNICIPAL LAW (NYC, ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT))/CORPORATION LAW  (MUNICIPAL LAW, ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT))/ADVERTISING (SIGNS, MUNICIPAL LAW, ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT))

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