JUST RELEASED

December Page I

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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ADMINISTRATIVE LAW (HEARSAY, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))/HEARSAY (ADMINISTRATIVE LAW, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))

 

ADMINISTRATIVE LAW, EVIDENCE.

HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT).

The Second Department, in upholding a fine imposed upon a bar by the NYS Liquor Authority relating to an altercation, the court explained the use of hearsay in an administrative proceeding:

"Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence" ... . Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ... . It is "[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" ... . " The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable'" ... . The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible... . Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency's determination, unless it is seriously controverted ... . Matter of Bracco's Clam & Oyster Bar, Inc. v New York State Liq. Auth., 2017 NY Slip Op 08516, Second Dept 12-6-17

 

 

 

 

 

 

 

 

 

 

CIVIL PROCEDURE (DISCOVERY, PLAINTIFF'S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))/DISCOVERY (CIVIL PROCEDURE, PLAINTIFF'S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))/CPLR 3126 (DISCOVERY,  PLAINTIFF'S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))

 

CIVIL PROCEDURE.

PLAINTIFF'S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT).

The Second Department determined plaintiff's family to comply with discovery demands and a conditional order warranted dismissal of the complaint pursuant to CPLR 3126:

If a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action (see CPLR 3126[3]). "While actions should be resolved on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party's] failure to comply with a disclosure order was the result of willful and contumacious conduct" ... .

Here, the willful and contumacious character of the plaintiff's actions can be inferred from its repeated failure to respond adequately to the defendant's notice for discovery and inspection and interrogatories, and the absence of any adequate explanation for its failure to timely comply with those requests, or the deadline set forth in the preliminary conference order... .

When the plaintiff failed to provide full and complete responses to the defendant's discovery demands within the specified time, the conditional order became absolute ... . To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiff was required to demonstrate a reasonable excuse for its failure to provide full and complete responses to the defendant's discovery demands and that its cause of action was potentially meritorious ... . The plaintiff's submission of an unsworn and unsigned affidavit from its owner did not demonstrate either. Corex-SPA v Janel Group of N.Y., Inc., 2017 NY Slip Op 08502, Second Dept 12-6-17

 

CIVIL PROCEDURE (RELIGIOUS CORPORATION, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGIOUS CORPORATION, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/RELIGION (CIVIL PROCEDURE, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/CORPORATION LAW (RELIGIOUS CORPORATION, CIVIL PROCEDURE, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))

 

CIVIL PROCEDURE, CONSTITUTIONAL LAW.

DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT).

The Second Department determined Supreme Court had jurisdiction to rule on a dispute among members of a religious corporation (Mandir). The dispute involved whether votes were cast by persons ineligible to vote for the board of trustees. The dispute could be resolved without the court's intrusion into religious issues:

"The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs" ... . However, "[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution" ... .. In applying neutral principles of law, "courts may rely upon internal documents, such as a congregation's bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine"... .

 

Here, resolution of the instant dispute, including determining whether any votes were cast by individuals who were not eligible to vote in the election, does not "require[ ] intrusion into constitutionally protected ecclesiastical matters"... .. Rather, this question may be resolved based upon neutral principles of law and reference to the secular provisions of the Mandir's internal documents ... . Queens Branch of the Bhuvaneshwar Mandir, Inc. v Sherman, 2017 NY Slip Op 08546, Second Dept 12-6-17

CIVIL PROCEDURE (BORROWING STATUTE, CONTRACT LAW, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK'S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/BORROWING STATUTE (CIVIL PROCEDURE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK'S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/CONTRACT LAW (CIVIL PROCEDURE, BORROWING STATUTE, STATUTE OF LIMITATIONS, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK'S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/SECURITIES (MORTGAGE-BACKED SECURITIES, CONTRACT LAW, CIVIL PROCEDURE, BORROWING STATUTE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK'S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/TRUSTS AND ESTATES (MORTGAGE-BACKED SECURITIES TRUST, BREACH OF CONTRACT, CIVIL PROCEDURE, BORROWING STATUTE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK'S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))

CIVIL PROCEDURE, CONTRACT LAW, SECURITIES, TRUSTS AND ESTATES.

BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK'S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT).

The First Department determined this breach of contract action stemming from a mortgage-backed-securities trust, brought by a California plaintiff (trustee) ,and concerning California lenders must be timely under both California and New York law. The action, although timely in New York, was not timely under California law, which has a four-year statute of limitations. The New York choice-of-law provisions in the agreements did not expressing incorporate the NY statute of limitations:

CPLR 202 requires that an action brought by a nonresident plaintiff, "based upon a cause of action accruing without the state," be timely under the respective statutes of limitations of both New York and "the place without the state where the cause of action accrued." In Global Fin. Corp. v Triarc Corp. (93 NY2d 525, 529-530 [1999]), the Court of Appeals set forth the general rule that, in cases where (as here) the alleged injury is purely economic, a cause of action is deemed, for purposes of CPLR 202, to have accrued in the jurisdiction of the plaintiff's residence. ...

it is undisputed that the domiciles of the trust beneficiaries, which are in various jurisdictions, do not provide a workable basis for determining the place of accrual. As to the New York choice-of-law clauses of the relevant agreements, because these provisions do not expressly incorporate the New York statute of limitations, they "cannot be read to encompass that limitation period" ... . By contrast, the subject trust in each action comprises a pool of mortgage loans, originated by California lenders and encumbering California properties, either exclusively ... or predominantly ,,,, and ... administered in California by plaintiff, a California-based trustee .... Further, it is undisputed that the relevant pooling and servicing agreement (PSA) for each trust contemplates the payment of state taxes, if any, in California ... . To the extent the physical location of the notes memorializing the securitized mortgage loans has relevance to the analysis, each trust's PSA contemplates that the notes may be maintained in California, but neither contemplates maintaining the notes in New York ... . ​Deutsche Bank Natl. Trust Co. v Barclays Bank PLC, 2017 NY Slip Op 08459, First Dept 12-5-17

CIVIL PROCEDURE (NEGLECT TO PROSECUTE, BANK'S FAILURE TO COMPLY WITH COURT'S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/NEGLECT TO PROSECUTE (BANK'S FAILURE TO COMPLY WITH COURT'S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/FORECLOSURE (NEGLECT TO PROSECUTE, BANK'S FAILURE TO COMPLY WITH COURT'S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/CPLR 3216 (NEGLECT TO PROSECUTE, BANK'S FAILURE TO COMPLY WITH COURT'S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))

 

CIVIL PROCEDURE, FORECLOSURE.

BANK'S FAILURE TO COMPLY WITH COURT'S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank's failure to comply with the court's order to move for summary judgment within 60 days could not be the basis for dismissal for neglect to prosecute, which requires a 90-day notice:

"A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met" ... . The September order could not be deemed a 90-day demand pursuant to CPLR 3216 because it gave US Bank only 60 days within which to file a motion for summary judgment (see CPLR 3216[b][3]). Since the dismissal order ... , merely effectuated the September order, which did not meet the statutory preconditions set forth in CPLR 3216, there was a failure of a condition precedent, and the Supreme Court was not authorized to dismiss the action on its own motion ... . In any event, there was no evidence that the plaintiff intended to abandon the action, that the default was willful, or that the defendants were prejudiced ... . US Bank, N.A. v Mizrahi, 2017 NY Slip Op 08548, Second Dept 12-6-17

 

CONTRACT LAW (STATUTE OF FRAUDS, EMAILS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/STATUTE OF FRAUDS (EMAILS, ATTACHMENTS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/EMAILS (CONTRACT LAW, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/ATTACHMENTS (EMAILS, CONTRACT LAW, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/ELECTRONIC SIGNATURES AND RECORDS ACT (CONTRACT LAW, EMAILS, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))

 

CONTRACT LAW.

ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT).

The Third Department, in a comprehensive "offer and acceptance" decision too detailed to fairly summarize here, determined that the defendant's motion for summary judgment in this breach of a real estate contract action was properly granted on statute of frauds grounds. Although a typed name on an email is the equivalent of a signature, the same is not true for an attachment to an email, which can easily be signed by the sender. Here plaintiff's breach of contract theory depended upon an attachment to an email sent by the defendant to the plaintiff. Because the attachment was not signed, there was no contract:

Under ESRA [Electronic Signatures and Records Act}, plaintiff would have a viable argument that defendant signed the emails she sent, as they are electronic records and she typed her name at the end of each. As confirmed at oral argument, however, plaintiff does not contend that the emails constituted signed documents forming the contract, but that defendant's typed name at the end of the proposed side letter constituted her signature. That document was separately typed and attached to emails for transmission. Although emails are electronic records, not every attachment to an email qualifies as an electronic record under ESRA. One of the purposes of ESRA is "to promote the use of electronic technology in the everyday lives and transactions" of government entities, businesses and average citizens... . To fulfill this purpose, it was necessary for the Legislature to permit emails to be considered equivalent to signed writings when that was the sender's intent ... , because it was not possible to place a handwritten signature on an email or similar electronic record that was being transmitted electronically.

 

The same logic does not apply to ordinary typed documents that are scanned and attached to emails, because a party could easily affix a handwritten signature to those documents. Solartech Renewables, LLC v Vitti, 2017 NY Slip Op 08574, Third Dept 12-6-17

 

CONSTITUTIONAL LAW (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/ANIMAL LAW (ANIMAL RIGHTS, PUBLIC PROTESTS, FIRST AMENDMENT, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FREE SPEECH (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/CIVIL PROCEDURE (PRELIMINARY INJUNCTION, FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/INJUNCTION  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/BUFFER ZONE  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))

 

CONSTITUTIONAL LAW, ANIMAL LAW, CIVIL PROCEDURE.

PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, upheld for the most part a preliminary injunction placing restrictions on protests by animal rights advocates against Central Park Sightseeing which operates horse-drawn carriages in New York City's Central Park. The court found that Central Park Sightseeing was likely to prevail on its public nuisance and tortious interference with contract causes of action. The First Department modified the injunction's "floating buffer zone" provision, paragraph 3, however:

The court granted plaintiff's motion for a preliminary injunction to the extent of enjoining and restraining defendants "and/or anyone else who becomes aware of this Decision and Order" from

"1. physically blocking, impeding, or obstructing any persons from seeking or taking, or providing ... a lawful horse-carriage ride disembarking from Central Park South ...;

"2. physically touching, pushing, shoving, or grabbing any such persons or horses;

"3. yelling or shouting at, or aggressively accosting, any such persons, or any carriage horses, from a distance of less than nine feet (... three yards...);

"4. physically blocking, impeding, or obstructing the progress of any such horse-carriage ride;

"5. handing literature to persons situated within a horse carriage; and

"6. counseling, facilitating, aiding, or abetting any other person from doing such things."

The court made it clear that "[b]oth sides agree that defendants can protest, including picket, hold signs, hand out literature, bear witness, and raise their voices," noting that "the content of the speech is not at issue here; the manner of delivery is." ...

We ... modify paragraph 3 of the injunction to prohibit any person from knowingly approaching within nine feet of another person in the loading/unloading zone, without that person's consent, for the purpose of handing a leaflet or bill or displaying a sign or engaging in oral protest or education of such other person ... . * * *

The nine-foot zone represents a "conversational distance," allowing normal communication ... . Central Park Sightseeing LLC v New Yorkers for Clean, Livable & Safe Sts., Inc., 2017 NY Slip Op 08619, First Dept 12-7-17

CORPORATION LAW (LIMITED LIABILITY COMPANY, DERIVATIVE LAWSUITS, ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT))/LIMITED LIABILITY COMPANY LAW (DERIVATIVE LAWSUITS, ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT))/DERIVATIVE LAWSUITS (LIMITED LIABILITY COMPANY LAW, ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT))

CORPORATION LAW, LIMITED LIABILITY COMPANY LAW.

ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT).

The Second Department determined the causes of action brought by a minority shareholder in a limited liability company (LLC) were derivative in nature. The complaint was filed in 2012 and plaintiff withdrew from the LLC in 2015. Therefore plaintiff lacked standing to sue:

 

[Plaintiff] first cause of action sought an accounting, his second cause of action sought damages for breach of fiduciary duty, his third cause of action sought the appointment of a receiver ... , his fourth cause of action sought the imposition of a constructive trust, and his fifth cause of action was to recover damages for waste. ...

"[M]embers of a limited liability company (LLC) may bring derivative suits on the LLC's behalf" ... . In a derivative suit, "[t]he remedy sought is for wrong done to the corporation; the primary cause of action belongs to the corporation; [and] recovery must enure to the benefit of the corporation"... . In the context of a corporation, "the standing of the shareholder is based on the fact that . . . he [or she] is defending his [or her] own interests as well as those of the corporation" ... . "Where the plaintiff voluntarily disposes of the stock, his [or her] rights as a shareholder cease, and his [or her] interest in the litigation is terminated. Being a stranger to the corporation, the former stockowner lacks standing to institute or continue the suit" ... . The same is true in the context of an LLC. In order to maintain a derivative cause of action, a plaintiff must be a member of the LLC ... . Thus, the Supreme Court properly held that, once the plaintiff withdrew from WIC, he lost standing to maintain any derivative causes of action on behalf of the company, notwithstanding his possible right to a future payment for the value of his membership interest upon his withdrawal ... . Jacobs v Cartalemi, 2017 NY Slip Op 08506, Second Dept 12-6-17

 

 

CRIMINAL LAW (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER'S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/PAROLE (RESCISSION, PAROLE PROPERLY RESCINDED BASED UPON PETITIONER'S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))/VICTIM IMPACT STATEMENTS (PAROLE PROPERLY RESCINDED BASED UPON PETITIONER'S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT))

 

CRIMINAL LAW.

PAROLE PROPERLY RESCINDED BASED UPON PETITIONER'S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT).

The Third Department determined petitioner-inmate's release on parole was properly rescinded based upon his behavior at the rescission hearing and victim impact statements. The victim's family had not be notified of the initial parole hearing and therefore had not submitted victim impact statement prior to petitioner's release:

In October 1995, petitioner approached a vehicle at the end of his driveway that contained his friend Steven Sedore and petitioner's ex-wife, who were there to pick up the daughter of petitioner and his ex-wife. Petitioner shot and killed Sedore as he sat in the vehicle, and viciously attacked his ex-wife, causing serious injuries. Petitioner ultimately pleaded guilty to manslaughter in the first degree and attempted manslaughter in the first degree and was sentenced to an aggregate prison term of 20 to 40 years. ...

... [W]e disagree with Supreme Court's finding that respondent improperly relied upon these statements solely because they were submitted after his open release date had been set. The court based this determination upon the Court of Appeals' decision in Matter of Costello v New York State Bd. of Parole (23 NY3d 1002 [2014]), in which the Court concluded that respondent improperly rescinded a parole release based upon information in victim impact statements that had been submitted after it had set an open release date ... . ... [W]e do not interpret the Court's decision as precluding respondent from ever considering victim impact statements submitted after an open release date has been granted in determining whether parole should be rescinded ... .

 

The victim impact statements at issue were submitted by three of Sedore's sisters and a brother-in-law. One of the sisters had already provided an impact statement at petitioner's sentencing hearing, but the other family members had not done so. The statements submitted by the other sisters referenced specific threats that petitioner had made to them — including during sentencing where he allegedly pointed his finger at one sister and mouthed the words "you are dead," and also ran his finger across his throat while looking at the family. One of the sisters also stated that petitioner sent her letters and a get well card from prison when she was in the hospital, which made her feel uncomfortable knowing that "he knew everything that was going on in my life." These incidents, which had not previously been disclosed, constitute "significant information" and provide substantial evidence supporting respondent's rescission of parole ... . Matter of Thorn v New York State Bd. of Parole, 2017 NY Slip Op 08566, Third Dept 12-7-17

CRIMINAL LAW (ATTORNEYS, EVIDENCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT, INEFFECTIVE ASSISTANCE,  DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/INEFFECTIVE ASSISTANCE (CONFLICT OF INTEREST, CRIMINAL LAW (ATTORNEYS, EVIDENCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))

 

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

 

DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant's attorney's conflict of interest deprived defendant of effective assistance of counsel and, upon retrial, the testimony which resulted from the conflict can not be presented:

 

In this observation drug sale case, defendant, an alleged seller, was appointed the same attorney at his Criminal Court arraignment as Edward Jones, one of the alleged buyers. During the course of counsel's simultaneous representation of defendant and Jones, Jones accepted a plea that required him to allocute to a description of one of the drug sellers. Jones allocuted to a description fitting defendant, and testified consistently with the allocution as a prosecution witness at trial. Since we find that counsel's simultaneous representation of defendant at the time of Jones's plea constituted an actual conflict, we reverse and remand for a new trial. In addition, because Jones's testimony is interwoven with a violation of defendant's New York State and Federal right to the effective assistance of counsel, we preclude the People from using Jones's testimony at any retrial. * * *

During cross-examination, Jones admitted that he did tell the Assistant District Attorney, in his office, that defendant did not sell him crack cocaine. During redirect, Jones explained that he believed he did not have to tell the prosecutor the truth in his office, but that, now that he was under oath, he was "not going to perjure [him]self. . . ." * * *

Here, defendant's right to the effective assistance of counsel was infringed by an actual conflict. At the time of their simultaneous representation and Jones's plea, the interests of defendant and Jones were clearly opposed. Jones had an interest in avoiding a criminal conviction by allocuting to identify defendant as one of the people who had sold him drugs. Defendant had an interest in not being so identified. Counsel was thus placed in the "very awkward position of a lawyer subject to conflicting demands" ... . Indeed, despite defendant's right to representation by an attorney single-mindedly devoted to his best interests, counsel pursued a strategy in Jones's case directly at odds with defending defendant from the drug sale charges that he faced ... .. After swearing to a description of one of the sellers that fit defendant, Jones became unavailable to defendant as a trial witness and his strength as a prosecution witness was enhanced ... . Counsel's actions with respect to Jones were inconsistent with representing defendant in the best way possible, so defendant was denied the "right to receive advice and assistance from an attorney whose paramount responsibility is to that defendant alone" ... . People v Peters, 2017 NY Slip Op 08497, First Dept 12-5-17

 

 

\

CRIMINAL LAW (ATTORNEYS, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE'S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE'S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT OF INTEREST. THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE'S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, , THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE'S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE'S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the trial judge should have granted the People's application to relieve defense counsel. Defense counsel had interviewed a prosecution witness alone. During the interview the witness had recanted his identification of the defendant as the shooter. Defendant wanted defense counsel to continue representing him but did not waive the conflict:

... [D]efense counsel's actions of interviewing the prosecution's main witness alone and being the only person who could testify to the witness's recantation of his identification of the defendant as a shooter created an actual conflict of interest. Defense counsel was faced with the choice of testifying on behalf of his client, which would result in his disqualification, or not presenting evidence of an exculpatory statement ... . Under the circumstances, especially in light of the defendant's refusal to waive any conflict, the County Court erred in denying the People's application to relieve defense counsel. People v Lawrence, 2017 NY Slip Op 08538, Second Dept 12-6-17

 

CRIMINAL LAW (ASSAULT, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/ASSAULT (CRIMINAL LAW, SUBSTANTIAL PAIN, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/SUBSTANTIAL PAIN (ASSAULT THIRD, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ASSAULT, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))

CRIMINAL LAW, EVIDENCE.

SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT).

The First Department determined the proof of the "substantial pain" element of assault third was sufficient to support conviction:

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence ... . There is no basis for disturbing the jury's credibility determinations. The jury reasonably believed that defendant intended to forcibly take the victim's property when he hit the victim in the head and immediately grabbed at his pocket ... .

 

There was also ample proof of physical injury, because the victim testified that due to the severe pain in his mouth, it was difficult for him to open his mouth for two days, and he could not eat during that time... .. The statutory element of "substantial pain" may be satisfied by relatively minor injuries causing moderate, but "more than slight or trivial pain"..., even in the absence of any medical treatment ... . People v Cordero, 2017 NY Slip Op 08466, First Dept 12-5-17

 

ENVIRONMENTAL LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT, STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STANDING (ENVIRONMENTAL LAW, STATE ENVIRONMENTAL QUALITY REVIEW ACT, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}

 

ENVIRONMENTAL LAW, MUNICIPAL LAW.

FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT).

The Second Department determined the board of commissioners of a fire district (a municipal corporation) did not have standing to contest the negative declaration under the State Environmental Quality Review Act (SEQRA) made by the town planning board regarding a residential development. Among other things, the fire district argued that the increased number of residents would burden the fire district with increased service calls. The Second Department noted that the increase burden was an economic concern, not an environmental concern:

"To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA" ... . To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature Although raising economic concerns does not foreclose standing to also raise environmental injury ... , economic injury is not by itself within the zone of interests which SEQRA seeks to protect ... . Here, the petitioner's concerns that an increase in the number of residents in its district would result in an increase in the number of service calls made by it, which would result in a financial burden on it, were insufficient to establish its standing since such concerns are solely economic in nature ... . Matter of Board of Fire Commr. of the Fairview Fire Dist. v Town of Poughkeepsie Planning Bd., 2017 NY Slip Op 08514, Second Dept 12-6-17

FORECLOSURE (BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BUSINESS RECORDS, (BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, EVIDENCE, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4518 [a] (FORECLOSURE, EVIDENCE, BUSINESS RECORDS, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

FORECLOSURE, EVIDENCE.

BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure proceeding and therefore the bank's motion for summary judgment should not have been granted:

... [T]he plaintiff failed to meet its prima facie burden of establishing its standing ... . In support of its motion, the plaintiff submitted the affidavit of Dara Foye, a document coordinator for Bayview Loan Servicing, LLC ... , the loan servicer. Foye averred, based on her review of Bayview's business records, that the original, endorsed consolidated note was delivered to the plaintiff on January 24, 2007, and that the plaintiff "maintained possession of the original note since that date up until and including the date the action was commenced on May 24, 2010." However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Foye under the business records exception to the hearsay rule (see CPLR 4518[a]), since Foye did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff ... . The plaintiff also failed to establish its standing based on the purported assignment of the note and mortgage to it by MERS [Mortgage Electronic Registration Systems, Inc.], as it failed to submit any evidence establishing delivery or assignment of the note to MERS prior to its execution of the assignment to the plaintiff ... . Bank of N.Y. Mellon v Alli, 2017 NY Slip Op 08501, Second Dept 12-6-17

 

 

 

INSURANCE LAW (LANDLORD-TENANT, CONTRACT LAW, TENANT DID NOT HAVE STANDING TO SUE LANDLORD'S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/LANDLORD-TENANT (INSURANCE LAW, CONTRACT LAW,  TENANT DID NOT HAVE STANDING TO SUE LANDLORD'S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, LANDLORD-TENANT, TENANT DID NOT HAVE STANDING TO SUE LANDLORD'S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))

 

INSURANCE LAW, LANDLORD-TENANT, CONTRACT LAW.

TENANT DID NOT HAVE STANDING TO SUE LANDLORD'S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT).

The Third Department determined plaintiff lessee's lawsuit against the lessor's insurance carrier for denial of a claim for water damage was properly dismissed. Under New York law plaintiff could not sue the landlord's carrier directly unless plaintiff first procured a judgment against the landlord which was not satisfied:

... [I]t was well-established under the common law that an injured party has no direct cause of action against the insurer of a tortfeasor ... . That is, an injured party, as a stranger to the policy between the insured tortfeasor and its insurer, could not, at common law, bring a claim against the tortfeasor's insurer due to the lack of privity between the injured party and the insurer, even where the injured party had obtained a judgment against the insured ... . As a result of the hardships and inequities this rule created, the Legislature created a "limited statutory cause of action on behalf of injured parties directly against insurers," which is applicable where the injured party has obtained a judgment against an insured and the judgment has gone unsatisfied for 30 days ... . It is undisputed that plaintiff has not obtained a judgment against [the landlord], which is "a condition precedent to a direct action" against [the landlord's] insurer and, thus, plaintiff cannot avail itself of this limited statutory cause of action ... . Thus, even liberally construing the complaint, accepting the facts as alleged as true and affording plaintiff the benefit of every inference, plaintiff has not stated a statutory cause of action against [the insurer]. ... . As plaintiff is not a named insured under the policy and did not obtain a judgment against [the landlord], Supreme Court properly granted Cincinnati's motion dismissing the complaint due to plaintiff's lack of standing and failure to state a cause of action ... . GM Broadcasting, Inc. v Cornelius Enters., LLC, 2017 NY Slip Op 08593, Third Dept 12-7-17

 

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT))

 

LABOR LAW-CONSTRUCTION LAW.

QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined a question of fact precluded summary judgment on the Labor Law 240 (1) cause of action. Plaintiff was struck by falling bricks outside a building. If the bricks fell accidentally, Labor Law 240 (1) would cover the injury, if the bricks were deliberately dropped, Labor Law 240 (1) would not cover the injury. In addition, the Labor Law 241 (6) cause of action was deemed properly dismissed because the incident occurred outside the building:

Plaintiff was allegedly struck by falling bricks while working near one of four connected buildings on a construction site. The motion court correctly denied both plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and defendants' motion for summary judgment dismissing that claim, as there are issues of fact about whether the bricks fell accidently or were deliberately dropped by demolition workers. If the latter, then the bricks did not constitute falling objects pursuant to Labor Law § 240(1) ... . ...

The motion court correctly dismissed the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-3.3(g), based on plaintiff's testimony that his accident occurred outside rather than "within [a] building" (12 NYCRR 23-3.3[g]). Torres v Love Lane Mews, LLC, 2017 NY Slip Op 08467, First Dept 12-5-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, HEAVY ROLL OF WIRE FELL BECAUSE OF ABSENCE OF A SAFETY DEVICE (FIRST DEPT))

 

LABOR LAW-CONSTRUCTION LAW.

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, HEAVY ROLL OF WIRE FELL BECAUSE OF ABSENCE OF A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured when a heavy roll of wire fell as it was being moved up a ramp made of planks in a loading area:

Plaintiff established entitlement to judgment as a matter of law on the issue of liability where he was injured during the course of his employment when a reel of electrical wire weighing 500 to 1,000 pounds fell and struck his foot. Workers were rolling the reel up two wooden planks for loading onto a van when it fell, and although there are questions as to whether plaintiff was actually involved in moving the reel, plaintiff demonstrated that he sustained injuries from the falling reel due to absence of an adequate safety device... .

 

Defendants and third-party defendants (collectively defendants) fail to raise a triable issue of fact. They contend that issues exist as to whether a forklift was available onsite, and whether plaintiff was a recalcitrant worker for failing to use it despite being aware of it... . However, even if a forklift was available and plaintiff was aware of it, defendants have not offered evidence showing that he was actually instructed to use it... . Rather, it is undisputed that plaintiff's foreman had instructed the workers to move the reel as they did, and to the extent defendants rely on the testimony of plaintiff's employer that plaintiff was not to blindly follow the foreman's instructions, such overlooks the realities of construction work ... .

 

Nor is there a triable issue as to whether plaintiff was the sole proximate cause of the accident. Even assuming that plaintiff did assist in moving the reel and in the course of doing so, removed his hand from the reel, such was not the sole proximate cause of the accident, as he was not provided with an adequate safety device to hoist the reel in the first instance ... .

 

The contention that Labor Law § 240(1) is inapplicable because the loading of the reel did not fall within the scope of construction work, is unavailing. Although it was not actual construction work, and occurred in the loading area of the construction site, it was still part of the construction project ... . Gutierrez v 451 Lexington Realty LLC, 2017 NY Slip Op 08475, First Dept 12-5-17

 

 

MUNICIPAL LAW (FIREFIGHTERS, GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER'S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER'S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/GENERAL MUNICIPAL LAW 205-a FIREFIGHTERS (FIREFIGHTER'S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER'S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/FIREFIGHTERS (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER'S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER'S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))/NEGLIGENCE (GENERAL MUNICIPAL LAW 205-a, FIREFIGHTER'S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER'S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT))

 

MUNICIPAL LAW, NEGLIGENCE.

FIREFIGHTER'S GENERAL MUNICIPAL LAW 205-a CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ACTION ONLY REQUIRES A CONNECTION BETWEEN A CODE VIOLATION AND A FIREFIGHTER'S INJURY IN A FIRE, NOT A PROXIMATE-CAUSE RELATIONSHIP (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff firefighter's General Municipal Law 205-a cause of action should not have been dismissed. It was alleged that the fire which caused plaintiff's injury was started by a warming plate that was left on when defendant left her apartment in violation of the NYC Fire Code. Although the defendant's act was not the proximate cause of plaintiff's injury, the General Municipal Law 205-a cause of action requires only a connection between the injury and a code violation:

Plaintiff firefighter was injured while attempting to fight a fire that had originated in defendant's apartment. Issues of fact exist as to whether defendant was negligent in leaving a warming tray/hot plate plugged into a timer, in the "on" position, when she left her apartment to go to a friend's home for dinner. The Fire Marshall concluded that the fire originated in the area of the warming tray/hot plate and timer. Although the motion court correctly concluded that defendant's alleged negligence was not a proximate cause of plaintiff's injuries, General Municipal Law § 205-a imposes liability where there is a practical or reasonable connection between a statutory or code violation and the firefighter's injury or death ... . Plaintiff's expert fire investigator opined that, by leaving the apartment with the electrical heating devices on, defendant delayed the discovery of the fire and allowed it to grow and spread. Accordingly, there is a sufficient connection between defendant's alleged negligence and plaintiff's injury ... . The court also improperly found that the New York City Fire Code (Administrative Code of City of NY tit 29, ch 2) § FC 305.4 was inapplicable to the facts of this case. That section is not limited to "combustible waste," but expressly includes "combustible material." Moreover, while combustible waste that has economic value to a premises is considered combustible material ... , combustible material is not so limited, but is any material capable of combustion. The materials in defendant's kitchen were clearly combustible. Walsh v Michelson, 2017 NY Slip Op 08616, First Dept 12-7-17

 

 

MUNICIPAL LAW (NEGLIGENCE, WRITTEN NOTICE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF'S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, WRITTEN NOTICE,  EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF'S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, NEGLIGENCE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF'S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))

 

MUNICIPAL LAW, NEGLIGENCE.

EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF'S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT).

The Second Department determined the complaint against the village was properly dismissed because the village did not have written notice of the defect which caused injury. Apparently the village had abandoned a manhole in the street and the state had paved over it. An explosion beneath the manhole lifted up plaintiff's car which came down on the opposite side of the street:

Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition, or an exception to the written notice requirement applies ... . "Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it"... .

 

Here, the Village established its prima facie entitlement to judgment as a matter of law by submitting evidence, including an affidavit from the Village Clerk, demonstrating that it did not receive prior written notice of the condition alleged. The Village further established, prima facie, that it did not create the alleged condition through an affirmative act of negligence, which was the only exception alleged in the plaintiff's pleadings ...  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village had prior written notice or whether an exception to that requirement applied ... . Dibble v Village of Sleepy Hollow, 2017 NY Slip Op 08503, Second Dept 12-6-17

 

 

MUNICIPAL LAW (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, ROAD DEFECTS,  COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/HIGHWAYS AND ROADS (TRAFFIC ACCIDENTS, ROAD DEFECTS, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, ROAD DEFECTS,  COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))/NEGLIGENCE (MUNICIPAL LAW, ROAD DEFECTS, WRITTEN NOTICE REQUIREMENT, COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT))

MUNICIPAL LAW, NEGLIGENCE.

COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT).

The Third Department determined that the defendant county's motion for summary judgment in this road-defect action by an injured motorcyclist was properly denied. Although the county had a written notice requirement as a prerequisite for an action based upon a road defect, the Highway Law also applies and will impose liability if the county had notice of the defect:

The general rule is that if a municipality enacts a prior written notice statute, unless such notice is duly furnished, "a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective . . . highway" ... . However, where Highway Law § 139 is applicable — in the case of county roads — "[e]ven if a local law exists requiring prior written notice of a defect, a civil action may be commenced absent such notice against a municipality for injuries resulting from a defect in a highway under its care if the 'defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence'" ... . Thus, to establish entitlement to summary judgment, a county must show both that it received no prior written notice of the alleged defect and that it had no actual or constructive notice thereof ... . Pasternak v Chenango, 2017 NY Slip Op 08578, Third Dept 12-7-17

 

NEGLIGENCE (QUESTION FACT ABOUT THE APPLICABILITY OF THE RES IPSA LOQUITUR DOCTRINE IN THIS ELEVATOR ACCIDENT CASE (FIRST DEPT))/RES IPSA LOQUITUR (ELEVATOR ACCIDENT, QUESTION FACT ABOUT THE APPLICABILITY OF THE RES IPSA LOQUITUR DOCTRINE IN THIS ELEVATOR ACCIDENT CASE (FIRST DEPT))/ELEVATOR ACCIDENTS (RES IPSA LOQUITUR, QUESTION FACT ABOUT THE APPLICABILITY OF THE RES IPSA LOQUITUR DOCTRINE IN THIS ELEVATOR ACCIDENT CASE (FIRST DEPT))

 

NEGLIGENCE.

QUESTION FACT ABOUT THE APPLICABILITY OF THE RES IPSA LOQUITUR DOCTRINE IN THIS ELEVATOR ACCIDENT CASE (FIRST DEPT).

The First Department determined defendant's motion for summary judgment in this elevator accident case was properly denied. The elevator fell from the 20th to the 11th floor. Although defendant demonstrate a lack of notice, there was a question of fact under the doctrine of res ipsa loquitur:

Plaintiff submitted evidence to support each of the elements of res ipsa loquitur, namely "(1) that the occurrence would not ordinarily occur in the absence of negligence, (2) that the injury was caused by an agent or instrumentality within the exclusive control of defendant, and (3) that no act or negligence on the plaintiff's part contributed to the happening of the event" ... .

 

The testimony of plaintiff, together with that of a witness who was in the elevator with her when the elevator allegedly dropped, is sufficient to raise an issue of fact as to whether the elevator did in fact drop suddenly ... . A free-fall or sudden drop of an elevator does not ordinarily happen in the absence of negligence ... . We reject, as we have previously, defendant's argument that it lacked exclusive control of the elevator because a passenger in the elevator activated the emergency stop button and jumped to try to stop the free fall once the elevator suddenly dropped ... . Although it is not necessary to consider the affidavit of plaintiff's expert witness, we note that plaintiff's testimony is also supported by the opinion of her expert, who explained how the accident could have occurred as plaintiff described. The expert affidavit is properly part of the appellate record since it was submitted by defendant and expressly incorporated by plaintiff into her opposition papers. Colon v New York City Hous. Auth., 2017 NY Slip Op 08463, First Dept 12-5-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF'S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER'S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF'S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER'S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/REAR-END COLLISIONS (NEGLIGENCE, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF'S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER'S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

NEGLIGENCE.

MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF'S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER'S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should have been to the driver of the middle car in this three-car rear-end collision case. The middle driver demonstrated the driver of the last car struck the middle car and propelled the middle car into the first car, driven by plaintiff:

"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" (Vehicle and Traffic Law § 1129[a]...). Hence, "[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" ... . "Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation" ... . 

 

Here, [the driver of the middle car] established his entitlement to judgment as a matter of law by demonstrating, prima facie, that his vehicle was slowing down in response to a traffic condition ahead, and that his vehicle was then propelled forward into the plaintiff's vehicle after his vehicle was struck in the rear by [the car behind]. Pomerantsev v Vladimir Kodinsky, 2017 NY Slip Op 08545, Second Dept 12-6-17

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS' VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION,   PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS' VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENCE PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS' VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

NEGLIGENCE, EDUCATION-SCHOOL LAW.

PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS' VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school's (Department of Education's, DOE's) motion for summary judgment in this negligent supervision action should not have been granted. Plaintiff, after a confrontation in the school cafeteria, was later beaten up by the same students involved in the cafeteria confrontation. At least one of the attackers had assaulted a student before and the attackers were known to be in a gang. The Second Department determined the DOE's proof did not sufficiently demonstrate a lack of notice or the provision of adequate security:

Here, the defendants' submissions failed to eliminate all triable issues of fact as to whether the DOE had actual or constructive notice of the fellow students' potential for causing harm, and whether, under the circumstances, the DOE provided adequate supervision at the end of the lunch period in the area where the assault occurred... .. The defendants failed to proffer any evidence demonstrating that the DOE lacked actual or constructive notice of any prior violent behavior by any of the infant plaintiff's assailants. Moreover, given the witnesses' testimony regarding the disciplinary history of one of the infant plaintiff's assailants, there were triable issues of fact as to whether the DOE had specific knowledge of that student's dangerous propensities ... . The defendants failed to proffer sufficient evidence demonstrating the general security measures at the school, including the number of school safety officers on duty, where the school safety officers were assigned in the vicinity of the cafeteria and stairwell, and the frequency of violence in the hallways and stairwells between class periods and after lunch.

 

Contrary to the defendants' contentions, they also failed to eliminate triable issues of fact as to whether inadequate security was a proximate cause of the infant plaintiff's injuries... . In determining whether an incident occurs "in so short a span of time that even the most intense supervision could not have prevented it" ... , "[t]he issue is not the speed of the punch, but the circumstances leading up to and surrounding" the incident... .. According to the infant plaintiff's section 50-h hearing testimony, the four assailants left the cafeteria prior to the end of the lunch period and were able to block access to the stairwell when the lunch period ended. There was an absence of supervisory personnel or security in the subject stairwell when it would be expected that a large number of students would be exiting the cafeteria and using that stairwell ... . "Proximate cause is a question of fact for the jury where varying inferences are possible," and "[p]roper supervision depends largely on the circumstances surrounding the event" ... . Here, the circumstances leading up to and surrounding the assault upon the infant plaintiff raised triable issues of fact as to whether adequate supervision would have prevented the assault. K.J. v City of New York, 2017 NY Slip Op 08508, Second Dept 12-6-17

NEGLIGENCE (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/IMMUNITY (STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/GOVERNMENTAL IMMUNITY (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/POLICE  (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/WRONGFUL DEATH (POLICE, GOVERNMENTAL IMMUNITY,  STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/TRAFFIC STOPS (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/DRIVING WHILE INTOXICATED (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/SPECIAL RELATIONSHIP (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))

NEGLIGENCE, IMMUNITY.

STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT).

The Third Department determined the wrongful death action against state police officers who stopped plaintiff's decedent (for following too closely) but did not issue a traffic ticket was properly dismissed. Decedent told the officers he had had two drinks, was tired and would call his brother to take him home. The officers left decedent on the side of the road. Decedent was later found dead in his car. Although decedent's blood alcohol content was above the legal limit, the officers testified they did not see any signs of intoxication when they spoke with decedent. The court found there was no special relationship between the decedent and the officers and the state was therefore immune from suit:

Where, as here, a claim arises out of the performance of an act undertaken for the protection and safety of the public pursuant to general police powers ... , the governmental entity is immune from liability for the negligent performance of that governmental function, unless it owed a special duty to the injured party... . As relevant here, a special duty arises when the governmental entity "voluntarily assumed a duty to the [injured party] beyond what was owed to the public generally" ... . To establish a special duty through voluntary assumption, the injured party must demonstrate that the governmental agents assumed, through promises or actions, an affirmative duty to act on behalf of the injured party, that the agents knew that inaction could lead to harm, that there was some form of direct contact between the injured party and the agents and that the injured party justifiably relied on the agents' affirmative undertaking ... . Barnes v State of New York, 2017 NY Slip Op 08564, Third Dept 12-7-17

TAX LAW (CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/SALES TAX (CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/ADMISSION CHARGES (SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/CABARETS (SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))/SCRIPS (IN-HOUSE CURRENCY, SALES TAX, CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT))

 

TAX LAW.

CLUB FEATURING SEMI-NUDE DANCERS WAS SUBJECT TO SALES TAX FOR SALE OF IN-HOUSE CURRENCY USED FOR ACCESS TO PRIVATE-ROOM DANCES (THIRD DEPT).

The Third Department, in a comprehensive decision too detailed to fairly summarize here, determined a club which featured semi-nude dancers was subject to sales tax for the sale of in-house currency (scrips) for access to private-room dances:

We find no basis to disturb the Tribunal's determination that the club's receipts from the sale of scrip are taxable as admission charges to a place of amusement. As the Tribunal recognizes, the definition of admission charge in Tax Law § 1101 (d) (2), as well as the relevant regulation ... , establish that, for the purposes of Tax Law § 1105 (f) (1), an admission charge includes any additional cost for entertainment or amusement that must be paid to gain access to the place of amusement — here, the private room ... . * * *

... [P]etitioners assert that, even if the sale of scrip is a taxable admission charge under Tax Law § 1105 (f) (1), they are exempt from the amusement tax because the purchase of scrip to pay for private dances qualifies as a charge for admission to a dramatic or musical arts performance. * * *

... [W]ith respect to the venue requirement, it was incumbent on petitioners to establish that the private rooms constituted "a theatre, opera house, concert hall or other hall or place of assembly" (Tax Law § 1101 [d] [5]). In our view, the Tribunal properly reasoned that, based on the evidence proffered by petitioners, the private room lacked the common characteristics of the settings described in Tax Law § 1105 (f) (1)  ...

The Tribunal's determination that "petitioners have failed to credibly depict the private dance experience in sufficient detail to establish that experience as dramatic or choreographic" is rational and supported by substantial evidence. Matter of HDV Manhattan, LLC v Tax Appeals Trib. of The State of New York, 2017 NY Slip Op 08559, Third Dept 12-7-17

 

UNEMPLOYMENT INSURANCE (TEACHERS, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/EDUCATION-SCHOOL LAW (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/LABOR LAW (UNEMPLOYMENT INSURANCE, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/TEACHERS (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/E

 

UNEMPLOYMENT INSURANCE, EDUCATION-SCHOOL LAW, LABOR LAW.

SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT).

The Third Department determined a substitute teacher had not been given reasonable assurance of employment following the summer break and should not have been denied unemployment benefits on that ground:

This Court has well-established precedent interpreting the identical phrase in Labor Law § 590 (10), "reasonable assurance," regarding two successive academic years or terms to require "a representation by the employer" as to future employment . This representation often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities ... .

Here, it is uncontested that the employer never sent any letter to claimant or provided him with any other form of notice that made a representation regarding claimant's employment after the recess. Matter of Papapietro (Commissioner of Labor), 2017 NY Slip Op 08596, Third Dept 12-7-17

 

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