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THE MOTIONS TO DISMISS THE QUI TAM ACTION ALLEGING THE VIOLATION OF THE NEW YORK FALSE CLAIMS ACT BY SETTING INTEREST RATES ON BONDS PROPERLY DENIED (FIRST DEPT). ​

The First Department affirmed Supreme Court’s denial of the motions to dismiss this qui tam action alleging defendants violated the New York False Claims Act (NYFCA) in setting interest rates for certain variable rate demand obligations (VRDO) (bonds):

False claims are actionable if the State provides any portion of the funds used to pay the false claims … .

The complaint sufficiently alleges that a portion of the funds the conduit borrower received came from the state. That the state’s money passed to defendant M&T Bank Corporation through private VRDO borrower entities does not make the government any less its source. By issuing conduit bonds, the state “made the funds available,” thereby “providing” money within the meaning of the New York False Claims Act … . State of New York ex rel. Edelweiss Fund, LLC v JP Morgan Chase & Co., 2020 NY Slip Op 08019, First Dept 12-29-20

 

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THE PROOF WAS NOT SUFFICIENT TO SUPPORT PIERCING THE CORPORATE VEIL AND SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON THAT ISSUE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the proof was not sufficient to support piercing the corporate veil and summary judgment should have been granted on that issue:

“Generally, a plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury” … .

“Since, by definition, a corporation acts through its officers and directors, to hold a shareholder/officer … personally liable, a plaintiff must do more than merely allege that the individual engaged in improper acts or acted in ‘bad faith’ while representing the corporation.” … Instead, “[t]he party seeking to pierce the corporate veil must establish that the owners [of the corporation], through their domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against that party such that a court in equity will intervene” … .

Here, … the complaint … does not sufficiently allege injury to plaintiff. …

[Plaintiff]  “failed to produce evidence that the individual defendants took steps to render the corporate defendant insolvent in order to avoid plaintiffs’ claim for damages or otherwise defraud plaintiffs” … . Sutton 58 Assocs. LLC v Pilevsky, 2020 NY Slip Op 08020, First Dept 12-29-20

 

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THERE WAS A QUESTION OF FACT WHETHER THE ONE-YEAR STATUTE OF LIMITATIONS IN THE CONTRACT WITH DEFENDANT SUBCONTRACTOR WAS REASONABLE BECAUSE THE RUNNING OF THE STATUTE COULD BE TRIGGERED BY A PARTY OVER WHICH DEFENDANT HAD NO CONTROL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, reversing Supreme Court, determined the counterclaims by defendant subcontractor, Nastasi, in this breach of a construction contract action, should not have been dismissed. The central issue was whether the one-year contractual statute of limitations was enforceable. Because the statute could be triggered by the failure of the owner to pay the plaintiff general contractor, Turner, a circumstance over which the defendant subcontractor, Nastasi, had no control, there was a question of fact whether the one-year limitations period was reasonable:

The relevant question when deciding whether a limitations period is enforceable is whether and when the damages were objectively ascertainable … . A contractual limitations period is unenforceable without a concrete determination of damages accrual … .

Here, the provisions setting a one-year limitation period for claims arising out of the contracts between Turner and Nastasi are reasonable on their face. However, the contracts also provide that payments by the owner are conditions precedent to any sums owed by Turner to Nastasi. As observed in D&S Restoration, it was neither fair nor reasonable to impose such a condition precedent, which was not within Nastasi’s control, but had the capability of nullifying its claim (D&S Restoration, 160 AD3d at 926).

… [T]he intent of the owner should not govern the interplay of the two provisions. Such a holding will unreasonably permit a party to choose to stay silent on the issue of owner payment unless it suited them, and unilaterally set the accrual date for the claim. Turner Constr. Co. v Nastasi & Assoc., Inc., 2020 NY Slip Op 08024, First Dept 12-29-20

 

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HEARSAY INSUFFICIENT TO DEFEAT PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) AND 241(6) ACTION; THE INDEMNIFICATION AND CONTRIBUTION CLAIM WAS PROPERLY DISMISSED BECAUSE PLAINTIFF DID NOT SUFFER GRAVE INJURY WITHIN THE MEANING OF WORKERS’ COMPENSATION LAW 11 (FIRST DEPT).

The First Department determined hearsay was not sufficient to defeat plaintiff’s summary judgment in this Labor Law 240(1) and 241(6) case. In addition the indemnification and contribution claims were properly dismissed because plaintiff did not suffer a “grave injury” within the meaning of Workers’ Compensation Law 11:

Plaintiff commenced this action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6) seeking to recover for personal injuries he sustained when, while dismantling a scaffold in an elevator shaft of a building under renovation, he fell from the scaffold to the bottom of the shaft. … Plaintiff testified that his employer had instructed him to dismantle the scaffold and the sole support for Empire’s contention that dismantling the scaffold was outside the scope of his duties was inadmissible hearsay testimony. …

Pursuant to their contract, Empire agreed to indemnify Pen & Brush for damages, “arising from any act, omission, negligence, potential claims and losses” of, inter alia, Empire or its subcontractors “during the performance of the Contract.” Its indemnification obligation was triggered here where plaintiff’s injuries arose from the act of Empire’s subcontractor, Lough Allen, in dismantling the scaffold and a finding of negligence is not required … .

Supreme Court properly determined plaintiff had not sustained a grave injury and dismissed the common-law indemnification and contribution claims against Lough Allen … . As relevant here, “grave injury” within the meaning of Workers’ Compensation Law § 11 includes “an acquired injury to the brain caused by external physical force resulting in permanent total disability.” Permanent total disability in the context of Workers’ Compensation Law § 11 means unemployable in any capacity … . Clarke v Empire Gen. Contr. & Painting Corp., 2020 NY Slip Op 07698, First Dept 12-22-20

 

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QUESTION OF FACT WHETHER THE DEFENDANT’S DOUBLE-PARKED CAR WAS A PROXIMATE CAUSE OF THE ACCIDENT; PLAINTIFF’S DECEDENT, A BICYCLIST, WAS STRUCK BY A TRUCK WHEN HE ATTEMPTED TO GO AROUND DEFENDANT’S DOUBLE-PARKED CAR (FIRST DEPT). ​

The First Department determined there were questions of fact about defendant driver’s (Sung’s) negligence and whether the negligence proximately cause plaintiff bicyclist’s injuries and death. Defendant was stopped in the right lane and when plaintiff attempted to go around defendant’s car he was struck by a truck (driven by Cruz-Marte). The First Department noted that hearsay was properly considered in opposition to the summary judgment motion:

Issues of fact exist with respect to whether Wenhua Sung negligently obstructed traffic with his vehicle based on his own testimony, in which he admitted that he was issued a ticket for obstructing a lane of traffic … , as well as that of Cruz-Marte, who testified that a vehicle was “double-parked,” although he was not sure what that vehicle looked like.

This evidence was sufficient to raise issues of fact regarding Sung’s negligence, even absent proof of Sung’s purported contemporaneous admissions to police that he was double-parked. Those admissions may also, however, be properly considered. Even if they are hearsay, they were offered in opposition to a motion for summary judgment and were not the only evidence submitted … .

Issues of fact also exist with respect to whether the Sung defendants’ negligence proximately caused the accident, as a jury could reasonably find that a bicyclist swerving and being hit by a passing vehicle was a reasonably foreseeable consequence of double-parking or obstructing a lane of traffic … . Dong v Cruz-Marte, 2020 NY Slip Op 07699, First Dept 12-22-20

 

DESPITE THE HORRIFIC NATURE OF THE CRIME, DEFENDANT’S SENTENCE WAS REDUCED BECAUSE OF HIS MENTAL ILLNESS AND INTELLECTUAL DISABILITY (FIRST DEPT).

The First Department, despite the horrific nature of the crime in this attempted murder and robbery case, over a dissent, reduced defendant’s sentence from 14 to 10 years because of his mental illness and intellectually disability:

This Court takes very seriously the severity of the injuries inflicted on the two victims in this case, and our reduction of defendant’s prison sentence in no way diminishes our horror at the pain and suffering they endured at the hands of defendant and his codefendants. However, based on the record before us, we find that defendant presents an extraordinary circumstance meriting the use of our interest of justice powers to reduce his prison sentence.

First, the record unequivocally shows that defendant has suffered intellectual and mental deficiencies since his childhood, which our Court has held renders a defendant’s conduct less blameworthy … .  Second, defendant’s cognitive disabilities rendered him overly susceptible to influence and manipulation … . Here, prior to the incident defendant had no felony or misdemeanor convictions and only one youthful offender adjudication stemming from a school fight. For the first 19 years of his life, defendant exhibited no inclination towards committing crime, let alone violent crime. This strongly suggests that defendant’s association with codefendant Torres, which began just one to two years prior to the incident, played an outsize influence on defendant and his role in the attacks. Third, defendant was 19 at the time of the incident, which, in combination with his cognitive deficiencies, rendered him even more susceptible to negative influences … . We have long held that a defendant’s young age may render the individual less culpable … . Finally, in research cited by defendant, people with serious psychiatric disorders are more likely to be violently victimized and housed in segregation while incarcerated. … As defendant himself stated in his CPL article 730 examination, he attempted suicide over 35 times while at Rikers Island. We find, therefore, that an extended term of incarceration would have an extremely harsh impact on defendant. People v Watt, 2020 NY Slip Op 07721, First Dept 12-22-20

 

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A PHOTOGRAPH OF DEFENDANT WITH A HANDGUN TAKEN SIX WEEKS BEFORE THE SHOOTING WAS PROPERLY ADMITTED IN EVIDENCE AS TENDING TO SHOW HIS IDENTITY AS THE SHOOTER (FIRST DEPT).

The First Department noted that a photograph of defendant with a small handgun taken six weeks before the charged shooting was properly admitted in evidence:

A photograph of defendant holding a small handgun, taken approximately six weeks before the charged shooting, and recovered from defendant’s phone pursuant to the warrant, was properly admitted. It could be inferred from video footage introduced at trial that a small handgun was used in the shooting. As in People v Alexander (169 AD3d 571 [1st Dept 2019], lv denied 34 NY3d 927 [2019]), the photograph was “relevant to show that defendant had access to such a weapon, thus tending to establish his identity as the perpetrator, and there was no requirement of proof that the [firearm] in the photograph was the actual weapon used in the crime” … . People v Bush, 2020 NY Slip Op 07722, First Dept 12-22-20

 

ALTHOUGH THE PARENTS HAD BEEN FOUND TO HAVE ABUSED THE CHILDREN, THEY HAVE DEMONSTRATED THEY ARE LOVING AND CARING PARENTS; IN LIGHT OF THE CHILDREN’S EMOTIONAL PROBLEMS ASSOCIATED WITH FOSTER CARE, THE MOTION FOR A TRIAL DISCHARGE TO THE PARENTS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Family Court, determined the motion for a trial discharge of the children to the parents, who had been found to have abused the children, should have been granted:

Family Court’s denial of respondents’ motions pursuant to Family Ct Act § 1061 for a trial discharge of the children Ashlynn and Yeovanny to their care, a position vigorously supported by the foster care agency and the attorney for the children, does not have a sound and substantial basis in the record … . At the time of the motions, these children had recently been placed in their fourth foster home, and the agency was already investigating a fifth placement. Meanwhile, respondents had complied with all services, including full mental health evaluations ordered by the court at disposition, regularly attended unsupervised visitation, and had received uniformly positive reports from those who observed them interact with the children that they were loving and caring parents whose parenting skills were continually improving.

Under these circumstances, although respondents continued to maintain that Ian and Yeovanny’s injuries were accidental, “their acceptance of ultimate responsibility for [the children’s] injuries [was] demonstrated by their conduct” … . In view of the parents’ demonstrated ability to care for the children, ACS [Administration for Children’s Services] failed to show that it would be in Ashlynn and Yeovanny’s best interest for continued foster placement … especially when weighed against the emotional harm on children when they are removed from the home … . Such emotional harm was amply documented here and disturbingly downplayed by both petitioner and the court. The record shows that Ashlynn suffered from severe anxiety, nightmares, and other mental health issues that her therapist and agency caseworker attributed to being separated from respondents and shuttled through a succession of foster care placements. At the hearing on the motions, the agency caseworker submitted evidence that Ashlynn had to be taken to a hospital emergency room for night terrors shortly after she began living in her fourth foster home. Based on the foregoing, respondents showed “good cause” under Family Ct Act § 1061 for a trial discharge. Matter of Ashlynn R. (Maria R.-Yeovany R.), 2020 NY Slip Op 07726, First Dept 12-22-20

 

QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF’S INJURY WAS DUE TO DEFENDANTS’ FAILURE TO PROVIDE HIM WITH THE PROPER PROTECTIVE DEVICES PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION; THE DISSENT DISAGREED; A STACK OF CONCRETE BOARDS FELL OFF A TRUCK ONTO PLAINTIFF WHEN THE SKIDS UNDER THE BOARDS BROKE (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff was not entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was injured when a stack of cement boards fell off a truck onto him after the skids under the concrete boards broke:

Plaintiff failed to demonstrate conclusively that the accident was proximately caused by [defendants’] failure to provide him with proper protective devices for the performance of his work. The load of cement boards atop the pallet jack did not fall because of an inadequacy or deficiency in the pallet jack but, rather, because the wooden skids underneath the load of cement boards broke, causing the load to fall from the pallet jack. Coupled with the dispute as to whether plaintiff was permitted to use the street level hoist for the delivery of cement boards, this evidence renders it impossible to determine as a matter of law that [defendants] failed to supply plaintiff with adequate safety devices for the performance of his work and that this failure was a proximate cause of plaintiff’s accident … . Valle v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 07685, First Dept 12-17-20

 

PROPERTY OWNERS WERE AWARE THE SIDEWALK IN FRONT OF THE RESTAURANT HAD BEEN HOSED DOWN BY RESTAURANT EMPLOYEES ON A COLD DAY; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS ICY-SIDEWALK SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this icy-sidewalk slip and fall case. Defendants’ employees hosed down the sidewalk in front of the restaurant on a cold day. The argument that plaintiff saw the ice and should have taken another route (comparative negligence) did not preclude summary judgment in plaintiff’s favor:

To obtain partial summary judgment, a plaintiff does not have to demonstrate the absence of his own comparative fault … . Moreover, plaintiff is not required to show that “defendants’ negligence was the sole proximate cause of the accident to be entitled to summary judgment” … . The evidence plaintiff submitted in support of his motion shows that defendants-tenants … created the dangerous condition when their employees hosed the sidewalk on a cold winter day … . Defendants-owners … had a non delegable duty to maintain the sidewalk and had notice that the restaurant employees had created a dangerous condition, because [the] property manager and … superintendent had observed the restaurants’ employees hosing the sidewalk. Benny v Concord Partners 46th St. LLC, 2020 NY Slip Op 07665, First Dept 12-17-20

 

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