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PLAINTIFF ALLEGED SHE WAS SEXUALLY ASSAULTED BY DEFENDANT’S EMPLOYEE; PLAINTIFF’S NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE WAS UNTIMELY BECAUSE THE THEORY WAS NOT ASSERTED IN THE ANSWERS; THE MOTION TO DIMSISS FOR FAILURE TO STATE A CAUSE OF ACTION WAS SUPPORTED ONLY BY INADMISSIBLE HEARSAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined: (1) defendant security company’s (Kent’s) motion to dismiss the negligent hiring, training, supervision and retention cause of action pursuant to CPLR 3211 (a)(1) was untimely because the defendant did not assert a defense based on documentary evidence in its answers; and (2) the defendant’s motion to dismiss for failure to state a claim failed because the affidavit submitted by defendant’s director of operations was not sworn to have been made on his personal knowledge and did not lay a proper foundation for the admissibility of the documents referred to in the affidavit as business records. Plaintiff, Erin, alleged a security guard employed by defendant (Kent) sexually assaulted her at a hotel where Kent provided security services:

… [T]he affidavit of Kent’s director of operations was not sworn to have been made on his own personal knowledge, and therefore was of no probative value as to the issues of fact that he addressed … . Moreover, although “an affidavit from an individual, even if the person has no personal knowledge of the facts, may properly serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, like documentary evidence” … , the affidavit must nevertheless “constitute a proper foundation for the admission of the records”… . Because Kent’s director of operations did not establish that the documents annexed to his affidavit fell within the business records exception to the hearsay rule (CPLR 4518[a]), those documents were inadmissible … .

Contrary to defendant’s argument, plaintiffs do have a well-pled negligent hiring claim cognizable at law. Plaintiffs’ allegations are sufficient to put Kent on notice of their claim that Kent negligently hired, trained, supervised, and retained the guard who, plaintiffs allege, sexually assaulted Erin, and that Kent knew or should have known of the guard’s propensity to commit sexual assault. Moreover, plaintiffs can amplify these allegations in their bill of particulars … . Doe v Intercontinental Hotels Group, PLC, 2021 NY Slip Op 02063, First Dept 4-1-21

 

PLAINTIFF WAS STRUCK BY AN AIR CONDITIONER WHEN TWO OF THE FOUR RODS ATTACHING THE AIR CONDITIONER TO THE CEILING DETACHED AND ONE END OF THE UNIT FELL; QUESTION OF FACT WHETHER THE AIR CONDITIONER WAS A FALLING OBJECT WHICH SHOULD HAVE BEEN SECURED WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether an air conditioner installed by plaintiff’s employer was a falling object which should have been secured in this Labor Law 240 (1) action. the air condition was attached to the concrete ceiling by four rods. Two of the rods came out of the ceiling causing one end of the unit to drop, striking plaintiff:

Plaintiff testified that he was standing on the fourth rung of an A-frame ladder, which he had set up on a solid and clean part of the floor and had been using without incident, directly under an air-conditioning unit, while attempting to follow his foreman’s instructions by connecting a “canvas” device to air-conditioning duct work, when the air-conditioning unit fell onto his head, causing him to fall off the ladder onto the floor. The air-conditioning unit had recently been installed by plaintiff’s employer as part of its work on the project and was not part of the pre-existing building structure as it appeared before the project began. The air-conditioning unit was mounted a few inches below the approximately 12-foot ceiling by four rods. Plaintiff testified that two of those rods detached from the concrete ceiling, causing one end of the unit to drop, while the other end of the unit remained attached to the ceiling by two bent rods.

There is an issue of fact as to whether the air-conditioning unit constituted a falling object that was required to be secured for the purposes of the undertaking … . Erby v 36 LLC, 2021 NY Slip Op 02065, First Dept 4-1-21

 

THE DEFAULT LETTER DID NOT DECLARE THE MORTGAGE DEBT IMMEDIATELY DUE AND PAYABLE; THEREFORE THE LETTER DID NOT ACCELERATE THE DEBT AND THE FORECLOSURE ACTION WAS NOT TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the default letter did not accelerate the debt and, therefore, the foreclosure action was not time-barred:

The appealed case directly on point with the dispositive issue here is Vargas v Deutsche Bank [2021 NY Slip Op. 01090], in which the Court of Appeals set a clear standard for determining whether a default letter constitutes a “clear and unequivocal acceleration of a debt.” Applying the long-standing rule … “that a noteholder must effect an ‘unequivocal overt act’ to accomplish such a substantial change in the parties’ contractual relationship,” the Court, in Vargas, held that to constitute a “clear and unequivocal” acceleration of a debt, a default letter must demand from a noteholder an immediate repayment of the entire outstanding loan, and must not also refer to acceleration only as a future event, indicating the debt was not accelerated at the time the letter was written.

… The default letter notified plaintiff that the subject mortgage loan was in default as of September 1, 2010. The letter gave plaintiff 30 days to cure the default by payment of the amount due and owing, which was just over $9,000. It also stated: “Unless we receive full payment of all past-due amounts, we will accelerate the maturity of the loan, declare the obligation due and payable without further demand, and begin foreclosure proceedings.” Thus, as in Vargas, the default letter did not effectuate an unequivocal acceleration of the debt because it did not seek an immediate repayment of the entire balance outstanding on the loan, but rather “referred to acceleration only as a future event, indicating the debt was not accelerated at the time the letter was written.” Kirschenbaum v Wells Fargo Bank, N.A., 2021 NY Slip Op 02073, First Dept 4-1-21

Similar issue and result in Ditech Fin., LLC v Rector 70 LLC, 2021 NY Slip Op 02062, First Dept 4-1-21

 

A CONDITIONAL JUDICIAL SURRENDER OF A CHILD FOR ADOPTION MUST BE REVOKED WHERE THE DESIGNATED ADOPTIVE PARENT DECLINES TO ADOPT AND THE BIRTH PARENT PROMPTLY APPLIES FOR REVOCATION OF THE JUDICIAL SURRENDER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Family Court, determined the conditional judicial surrender of a child for adoption must be revoked where the designated adopting parent declines to adopt the child and the birth parent promptly applies for revocation. The child, now 16 years old, had been in foster care for nine years. Although the First Department revoked the judicial surrender, the court remanded the matter for a quick hearing on the petition to terminate mother’s parental rights:

This appeal requires us to resolve an issue not previously addressed by this Court. When the person designated in a conditional judicial surrender as the adopting parent declines to adopt the child must the surrender be revoked upon the birth parent’s application? The Family Court was unwilling to vacate the surrender given the undisputed toll on the child’s well-being as a result of spending virtually her entire life in foster care. Instead, the court held a best interests hearing and determined that the mother’s parental rights remain terminated, and converted her conditional judicial surrender to an unconditional one, which permitted the child to remain free for adoption. This issue pits the basic principle that a parent has a “fundamental liberty interest . . . in the care, custody and management” of his or her child … against this state’s statutory framework governing conditional judicial surrenders … . … We conclude that the order of the Family Court should be reversed because the designated person to adopt is a fundamental condition precedent to a surrender such that the person’s declination mandates its revocation upon the birth parent’s prompt application. * * *

Order, Family Court, … reversed, on the law, … the petition denied and dismissed, and the mother’s application granted and the matter remanded for an expeditious continued hearing on the agency’s petition to terminate the mother’s parental rights.” Matter of L.S. (Diana A.), 2021 NY Slip Op 02085, First Dept 4-1-21

 

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NYU DID NOT ACT ARBITRARILY AND CAPRICIOUSLY WHEN IT SUSPENDED THREE STUDENTS FOR ATTENDING OFF-CAMPUS ROOFTOP PARTIES IN AUGUST 2020 WHERE THE ATTENDEES DID NOT WEAR MASKS AND DID NOT PRACTICE SOCIAL DISTANCING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the school (New York University NYU) properly suspended three students for attending off-campus, rooftop parties in August 2020 where the attendees did not wear masks or practice social distancing. The First Department found that the general student conduct policies prohibiting behavior which endangers health and safety, the COVID-19 Executive Orders in effect at the time, and emails sent out by the school provided sufficient pre-conduct notice of the prohibited conduct:

… [W]e find that NYU’s determination to suspend petitioners was not arbitrary and capricious and was made in the exercise of honest discretion. Petitioners had notice that the gatherings they attended in August 2020 could result in disciplinary action by NYU. Matter of Storino v New York Univ., 2021 NY Slip Op 02087, First Dept 4-1-21

 

A WARNING LETTER ISSUED TO THE NYC MAYOR BY THE NYC CONFLICTS OF INTEREST BOARD MUST BE RELEASED PURSUANT TO A FOIL REQUEST BY THE NEW YORK TIMES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined that a warning letter issued to the NYC mayor by the Conflicts of Interest Board (Board) must be released pursuant to a Freedom of Information Law (FOIL) request:

At issue in this appeal is whether a “private” warning letter issued to the Mayor of the City of New York by the Conflicts of Interest Board (Board) is subject to disclosure pursuant to the Freedom of Information Law (FOIL). The City of New York office of the Mayor (Mayor’s Office) declined to disclose the letter to the New York Times (NYT) on the ground that the letter was exempt pursuant to New York City Charter § 2603(k), which states that “the records, reports, memoranda and files of the board shall be confidential and shall not be subject to public scrutiny.” The Mayor’s Office argues that since the letter was designated as “private” by the Board, and therefore confidential, it falls within the ambit of § 2603(k). We disagree. As the plain text of section 2603(k) indicates, it is meant to protect the confidentiality of documents in possession of the Board. Once the letter was issued to another entity, the Mayor could not rely on section 2603(k), because the NYT sought disclosure from the Mayor and not from the Board … . The Mayor’s Office’s privacy arguments are also inconsistent with the public interest in disclosure of warning letters, contrary to its own past practice of disclosing the Board’s correspondence, and otherwise have no merit. Accordingly, the letter must be disclosed. * * *

DOI [NYC Department of Investigations] found that the Mayor’s Office solicited contributions for CONY [Campaign for One New York] from executives of real estate development firms that likely had or potentially had business pending before the City. Although there was no finding of any quid pro quo, on several occasions, a firm achieved a favorable outcome from a City agency after it had made a donation to CONY … . These findings were transmitted to the Board, whose Chairman declined “for confidentiality reasons,” to tell a reporter whether the Board had issued a private warning letter, the only action available … . …

The NYT reporter to whom the Board chairman had spoken then filed a FOIL request with the Mayor’s Office for “a copy of a letter” sent by the Board to the Mayor’s Office regarding his fundraising for [CONY].” The request was denied on the ground that “the class of records you have requested would be exempt from disclosure pursuant to New York City Charter § 2603(k).” Matter of New York Times Co. v City of New York Off. of the Mayor, 2021 NY Slip Op 01948, First Dept 3-30-21

 

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THE DRIVER BEING VISIBLY NERVOUS, COUPLED WITH THE VEHICLE HAVING OUT-OF-STATE PLATES AND BEING IN A HIGH CRIME AREA, DID NOT PROVIDE A FOUNDED SUSPICION OF CRIMINALITY; THEREFORE THE POLICE OFFICER WAS NOT JUSTIFIED IN ASKING WHETHER THERE WERE ANY WEAPONS IN THE CAR, A LEVEL TWO INQUIRY (FIRST DEPT).

The First Department, reversing defendant’s conviction of attempted criminal possession of a weapon and dismissing the indictment, determined the police officer did not have a founded suspicion of criminality when he asked whether any weapons were in the vehicle:

Defendant was a passenger in a car, bearing a Massachusetts license plate, that was stopped for driving through a red light in a “high crime” neighborhood. The driver of the car complied with the demands of one of the officers for his driver’s license and that he get out of the car, but was “visibly nervous,” breathing heavily, and stammering in his responses to the officer’s questions. Moments later, one of the other officers asked whether there were any weapons in the car. This ultimately led to the recovery of a pistol from defendant.

These circumstances did not give rise to the founded suspicion of criminality that was required to authorize this level two inquiry … . Contrary to the People’s contention, neither occurrence of the stop for a traffic violation in a “high crime” area, nor the unproven perception of one of the officers that in general out-of-state license plates are more highly correlated with criminality than New York license plates, elevated the suspicion to the level required to authorize a common-law inquiry. People v Jonathas, 2021 NY Slip Op 01954, First Dept 3-30-21

 

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THE INFANCY TOLL OF THE STATUTE OF LIMITATIONS IN CPLR 208 APPLIES TO A WRONGFUL DEATH ACTION WHERE THE SOLE DISTUBUTEES ARE INFANTS; THE TOLL, HOWEVER, DOES NOT APPLY TO A RELATED ASSAULT AND BATTERY ACTION WHICH IS PERSONAL TO THE DECEDENT (FRIST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined the infancy toll of the statute of limitations in CPLR 208 applies where the unmarried father of two children dies intestate. The statute of limitations for the ensuing wrongful death action is tolled until the appointment of a guardian of the children’s property. Father was involved in an altercation with a defendant, suffered fatal injuries and died later that day, September 6, 2012. Plaintiffs, the mothers of the two children, were each appointed guardians of the property of their children in 2015. That is when the statute began running on the wrongful death action, rendering the 2016 complaint timely. A wrongful death action directly compensates the distributees, here the children. The assault and battery action, by contrast, is personal to the decedent. Therefore the infancy toll does not apply to the assault and battery cause of action. The First Department explicitly overruled a decision relied upon by the defendants, Ortiz v Hertz Corp., 212 AD2d 374 (1st Dept 1995). (The opinion is comprehensive and can not be fairly summarized here.):

Today we clarify that Ortiz is not good law, because it was based on an incorrect application and interpretation of Hernandez. Therefore, pursuant to the precedent established in Hernandez [78 NY2d 687] … we hold that when the sole distributees of a decedent’s estate are infants, the toll of CPLR 208 applies to a wrongful death claim “until the earliest moment there is a personal representative or potential personal representative who can bring the action whether by appointment of a guardian [of the property of the infant distributee] or majority of [a] distributee, whichever occurs first” … . Machado v Gulf Oil, L.P., 2021 NY Slip Op 01849, First Dept 3-25-21

 

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ALTHOUGH THE COMPLAINT WAS DEFECTIVE, AFFIDAVITS AND OTHER EVIDENCE DEMONSTRATE A POTENTIALLY MERITORIOUS CLAIM; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that a defective complaint will survive a motion to dismiss if affidavits or other evidence demonstrate a potentially meritorious claim:

The amended complaint is defective because it merely alleges that the Bluestone defendants participated in fraudulent transfers, without alleging that they were a transferee of the assets or benefited in any way from the transfers … . However, a defective complaint will not be dismissed where affidavits and other evidence amplify inartfully pleaded but potentially meritorious claims … . Plaintiffs rely on evidence submitted by the Goldman defendants in opposition to the Bluestone defendants’ motion to dismiss which suggests that the Bluestone defendants may have participated in and benefitted from the alleged fraudulent transfers. This evidence indicates that plaintiffs have potentially meritorious fraudulent conveyance claims against the Bluestone defendants. Ninth Space LLC v Goldman, 2021 NY Slip Op 01853, First Dept 3-25-21

 

PLAINTIFF, WHO WAS STRUCK BY A FALLING REBAR, WAS NOT REQUIRED TO DEMONSTRATE THE EXACT CIRCUMSTANCES WHICH LED TO THE REBAR FALLING; IT IS ENOUGH THAT THE REBAR SHOULD HAVE BEEN SECURED SUCH THAT IT WOULD NOT FALL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action in this falling object case should have been granted. Plaintiff was struck by a falling rebar:

Plaintiff, a journeyman ironworker at the Hudson Yards project, was injured when a piece of rebar fell from 30 feet above, striking him. In moving for summary judgment on his Labor Law § 240(1) claim, plaintiff was not required to show the exact circumstances of how the rebar came to strike him, as his testimony, that a coworker was working with rebar 30 feet above him on the same column immediately before the accident, was sufficient evidence that the rebar, whether it was dropped or fell in some other manner, was material requiring securing … . In that plaintiff made a prima facie showing of entitlement to summary judgment on his testimony alone, the admissibility of his coworker’s unsigned deposition transcript is a moot point. Defendants failed to adduce any evidence raising a question of fact to warrant denial of plaintiff’s motion. Pados v City of New York, 2021 NY Slip Op 01855, First Dept 3-25-21

 

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