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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE CITY CREATED THE ROAD CONDITION WHICH CAUSED HIS SLIP AND FALL; THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined plaintiff’s slip and fall action should not have been dismissed. Although the city demonstrated it did not have written notice of the condition, plaintiff raised a question of fact whether the city created the dangerous condition when it attempted road repair:

… [P]laintiff Nicholas Martin testified consistently — both at a hearing held pursuant to General Municipal Law § 50-H and a deposition — that on January 17, 2017, he slipped and fell on Seward Avenue, between Pugster Avenue and Olmtead Avenue. At the time, plaintiff lived on the same block where his accident occurred. He specified that he fell on the roadway in front of 2007 Seward Avenue. When shown photographs where his accident occurred, he stated that he fell on a square blacktop that contained loose gravel and was raised about one and one-half inches. He had noticed the condition about a month before his accident, when pavement work had been done. Although he did not see who did the road work, his girlfriend told him that the City had performed the work. Martin v City of New York, 2020 NY Slip Op 07503, First Dept 12-15-20

 

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THE SEXUAL INTERCOURSE WAS DEEMED NONCONSENSUAL SOLELY BECAUSE THE VICTIM WAS 14; THE DEFENDANT WAS 27; DEFENDANT WAS NOT ENTITLED TO A DOWNWARD DEPARTURE TO RISK LEVEL ONE; THERE WAS A SUBSTANTIVE DISSENT (FIRST DEPT).

The First Department, over a dissent, determined defendant was not entitled to a downward risk level departure from level two to level one. The defendant was 27 when he had sexual intercourse with the fourteen-year-old victim. The majority argued the age difference precluded a departure:

The record shows that this 27 year-old defendant engaged in nonconsensual sexual intercourse with the victim, who was 14 years old, the only relevant crime considered by the SORA court regarding his risk level designation. * * *

While courts have recognized that sexual conduct that was nonconsensual solely by virtue of age may result in an over-assessment in risk level designation, those cases did not involve a defendant who was nearly twice as old as the victim, as in this case … . People v Romulus, 2020 NY Slip Op 07512, First Dept 12-15-20

 

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PLAINTIFF WAS INJURED WHEN A WHEEL ON THE CONTAINER HE WAS PUSHING GOT STUCK IN A GAP IN THE FLOOR AFTER THE PLYWOOD COVERING THE GAP BROKE; PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD THE RELEVANT INDUSTRIAL CODE PROVISION SHOULD HAVE BEEN GRANTED; THE LABOR LAW 241(6), LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 241(6), Labor Law 200 and Negligence causes of action should not have been dismissed. Plaintiff was pushing a container of cinderblocks when plywood covering a gap in the floor broke and a wheel got stuck, causing plaintiff to be propelled head over heels and land on his back. The Second Department further held plaintiff should have been allowed to amend the complaint by adding the relevant Industrial Code provision, despite the 3 1/2 delay in bringing the motion to amend. Defendant was not prejudiced by the amendment:

As Industrial Code (12 NYCRR) § 23-1.7(e)(1) is applicable to these facts and defendant failed to show that it would be prejudiced by an amendment of the bill of particulars to assert a violation of this provision as a predicate to the Labor Law § 241(6) claim, plaintiff’s motion to amend should be granted (see CPLR 3025[b] …). In view of the absence of prejudice to defendant, plaintiff was not required to explain his 3½-year delay in bringing this motion … . …

… [A]n inadequately protected gap in the floor of a passageway at a construction site that causes a container, dumpster, or the like to become stuck or otherwise lose its balance and trip, slip, or fall violates Industrial Code (12 NYCRR) § 23-1.7(e)(1) and can serve as a predicate for a Labor Law § 241(6) claim. …

Defendant failed to establish prima facie that it neither created nor had notice of the dangerous condition of the hallway floor … . Trinidad v Turner Constr. Co., 2020 NY Slip Op 07519, First Dept 12-15-20

 

THE HOMEOWNERS EXERCISED NO SUPERVISORY CONTROL OVER THE INJURY-CAUSING WORK IN THIS LABOR LAW 200 AND NEGLIGENCE CASE; THE CASE SHOULD HAVE BEEN ANALYZED AS A “MEANS AND METHODS OF WORK” ACTION, NOT A “CREATE OR HAVE NOTICE OF A DANGEROUS CONDITION” ACTION; THE HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 200 and negligence causes of action against the homeowners should have been dismissed because the homeowners did not exercise any supervisory control over plaintiff’s work. The hole into which plaintiff fell was dug as part of the construction project. Supreme Court should not have analyzed the case using a “create or have notice of a dangerous condition” theory:

Plaintiff was injured when he fell into a hole dug by employees of codefendant Apex Construction/Masonry Corp. (Apex) in the backyard of Homeowner Defendants’ home during renovation of the premises. The hole was created for the purpose of building the foundation for a deck. Homeowner Defendants hired nonparty IA Construction Management Inc. as the general contractor, which subcontracted out part of the work to Apex; plaintiff was an employee of IA Construction.

Here, plaintiff’s accident arose from the means and methods of Apex’s work, not a defective premises condition. Thus, the dispositive issue is whether the Homeowner Defendants had authority to exercise supervisory control over the injury-producing work, not whether they created or had notice of the hazardous condition … . The record establishes, as a matter of law, that they had no such authority. It is undisputed that Homeowner Defendants lived offsite during the renovation project and had no involvement with the work, and Apex’s owner testified that the homeowners did not direct or control Apex’s work … . Tsongas v Apex Constr./Masonry Corp., 2020 NY Slip Op 07520, First Dept 12-15-20

 

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PLAINTIFF RAISED QUESTIONS OF FACT ABOUT HIS SEXUAL HARASSMENT AND RETALIATION CAUSES OF ACTION AGAINST HIS EMPLOYER (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had raised questions of fact on his sexual harassment and retaliation causes of action against his employer:

[Re: sexual harassment] Plaintiff testified that his supervisor, defendant Hall, made repeated sexual advances towards him, including reaching out to touch his face and holding his hand in an elevator while they were alone. She also initiated conversations that made him uncomfortable, telling him she had a “crush” on him, telling him she was single and twice inviting him to her home to repair “a hole” in her apartment. In one conversation, plaintiff claimed Hall said she had a tattoo, adding that “You have to undress me to see it.” Plaintiff further testified that after he rebuffed Hall’s sexual advances, she repeatedly brought him to the Human Resources manager’s office to complain about his work product and that she solicited complaints about him from other coworkers. Plaintiff claims that he complained to HR about Hall’s behavior in December. In January he was told that either he could resign or he would be fired. * * *

[Re: retaliation] Defendants submitted evidence of complaints about plaintiff’s brash demeanor, insensitive comments to coworkers, and poor work ethic, which demonstrate his difficulties following orders and getting along with his peers. By doing so, defendants satisfied their prima facie burden. In opposition, plaintiff relies on Hall’s offensive conduct, including her telling him, in sum and substance, that if they could not be together then plaintiff could not work around Hall, and defendants’ failure to adequately investigate his claims prior to his termination. Plaintiff’s assertions raise disputed issues of fact about whether there was a mixed motive to terminate his employment … . Franco v Hyatt Corp., 2020 NY Slip Op 07522, First Dept 12-15-20

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE FROM LEVEL TWO TO LEVEL ONE IN THIS CHILD PORNOGRAPHY CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant was entitled to a downward departure reducing his risk level from two to one. Defendant was convicted of possession of child pornography. The Court of Appeals has warned that over assessment of the risk should be avoided in child pornography cases:

… A preponderance of the evidence established that scoring under factors three and seven overassessed the risk posed by defendant, and that he should receive a downward departure (see Gillotti, 23 NY3d at 863-64). As the transcript of the federal plea proceeding makes clear, the federal prosecutor characterized defendant’s case as being on the very low end of the child pornography possession spectrum and did not contest a nonincarceratory disposition notwithstanding that the federal guidelines recommended a sentence of 33 to 41 months. The federal district court provided a long explanation on the record of why defendant was deserving of a nonincarceratory disposition, including his lifetime of hard work, his dedication to family, the many character letters provided, and the limited time period in which defendant was actually viewing child pornography. The Probation Department also recommended a nonincarceratory disposition in its presentencing report. An independent psychological evaluation of defendant found no cognitive impairment or compulsion that would suggest that defendant was likely to reoffend. In sum, this is the kind of case that Gillotti envisioned warranting a downward departure in order to avoid overassessing risk by rote application of factors three and seven. People v Gonzalez, 2020 NY Slip Op 07468, First Dept 12-10-20

 

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DEFENDANT WAS REPEATEDLY WARNED HE COULD BE SENTENCED TO 45 YEARS AFTER TRIAL WHEN, IN FACT, HIS SENTENCE WOULD BE CAPPED AT 20 YEARS; DEFENDANT WAS NOT AWARE OF THIS GROUND FOR AN ATTACK ON HIS SENTENCE AND THEREFORE DID NOT NEED TO PRESERVE THE ISSUE FOR APPEAL BY MOVING TO WITHDRAW THE PLEA; PLEA VACATED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, determined defendant’s guilty plea should be vacated because he was under the impression he was avoiding a 45 year sentence when, in fact, he could have been sentenced to a maximum of 20 years. Although defendant did not move to withdraw his plea which is usually required to preserve the issue for appeal, here the defendant had no knowledge of the ground for a motion to withdraw:

… [T]he court repeatedly told defendant that he faced a possible sentence of 45 years, but not that defendant’s sentence would ultimately be reduced to 20 years. …

The Court of Appeals … has carved out an exception to the preservation doctrine, in certain instances. “because of the ‘actual or practical unavailability of either a motion to withdraw the plea’ or a ‘motion to vacate the judgment of conviction,'” reasoning that ” ‘a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge’ ” … . …

Here, the court’s misinformation had great significance. The court repeatedly warned defendant that he could face 45 years in prison if he proceeded to trial on all three of his open burglary cases, and neither the prosecutor nor defense counsel corrected the record. Moreover, defendant, who had already had a failed allocution, did not plead guilty until just before jury selection was to begin, and after the court had repeatedly warned him that he could face as much as 45 years in jail if he proceeded to trial and was convicted. People of the State of New York v Joseph, 2020 NY Slip Op 07472, First Dept 12-10-20

 

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PLAINTIFF, WHO WAS BORN TWO YEARS BEFORE HIS MOTHER AND FATHER WERE MARRIED, WAS A DISTRIBUTEE OF HIS FATHER’S ESTATE; IT HAS YET TO BE DETERMINED WHETHER DEFENDANT YOUSEF FRAUDULENTLY REPRESENTED HE WAS THE SOLE HEIR WHEN HE TRANSFERRED REAL PROPERTY TO DEFENDANT BASMANOV (FIRST DEPT).

The First Department determined plaintiff demonstrated he was a distributee of his father’s estate. Plaintiff was born two years before his parents married and both his father’s and mother’s names were on plaintiff’s birth certificate. The court noted that it has yet to be established whether defendant Yousef fraudulently represented himself as the sole heir of the estate when he transferred real property to  defendant Basmanov:

Pursuant to Domestic Relations Law § 24, if a mother and father enter into a civil or religious marriage after the birth of their child, the child is legitimated for all purposes of New York law, even if the marriage is void or voidable (§ 24[1]). Therefore, such child automatically becomes a distributee of both birth parents, without any need to satisfy one of the paternity tests set forth in Section 4-1.2(a)(2) of the EPTL … .

Plaintiff was born in 1973, nearly two years before his parents subsequently married. At some point, the decedent-father’s name was placed on the plaintiff’s birth certificate, which, pursuant to Public Health Law § 4135(2) in effect at the time, required “the consent in writing of both the mother and putative father, duly verified, and filed with the record of the birth.” Pursuant to Public Health Law § 4103(2), “a certification of birth is prima facie evidence of the facts therein.” …

Defendant Basmanov’s argument that plaintiff failed to establish fraud necessary to warrant voiding the deeds by which defendant Yosef purported to transfer the decedent’s real property to himself, and then to her, is unavailing. Absent proof of fraud, a deed that purports to transfer more than the party owns is valid to the extent of transferring that party’s interest … ; however, it has yet to be established whether Yosef committed a fraudulent transfer by representing himself as the sole heir of the decedent’s estate in order to effectuate the transfer. Tiwary v Tiwary, 2020 NY Slip Op 07479, First Dept 12-10-20

 

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THE QUI TAM COMPLAINT ALLEGING INSURERS FAILED TO ACCURATELY REPORT UNCLAIMED LIFE INSURANCE PROCEEDS, TO WHICH THE STATE IS ENTITLED, IN VIOLATION OF THE NEW YORK FALSE CLAIMS ACT SHOULD NOT HAVE BEEN DISMISSED AND THE MOTION TO AMEND THE COMPLAINT TO SPECIFY THE FRAUD ALLEGATIONS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this qui tam action should have been allowed to amend the complaint to specify the allegations of fraud against the defendant insurance companies. Unclaimed life insurance proceeds are supposed to escheat to the state. The lawsuit alleged the insurance companies had submitted false statements to the state to conceal the existence of life insurance proceeds to which the state is entitled, a violation of the New York False Claims Act (NYFCA). The First Department, in allowing the complaint to be amended to specify the fraud allegations, held that the 10-year statute of limitations applied to the filing of the alleged false reports:

… [P]laintiff adequately alleged that defendants knowingly filed false reports with the State which failed to identify escheatable life insurance proceeds. The complaint alleges that defendants’ recordkeeping was so haphazard — such as listing incorrect names, dates of birth, and Social Security numbers, or omitting one or more of those pieces of information altogether — that it amounted to reckless disregard for the truth or falsity of the reports that they submitted to the State (see State Finance Law § 188[3][a][iii]). In other circumstances, according to the complaint, defendants had actual knowledge that a policyholder was deceased, as evidenced by returned mail, customer call service logs, or demutualization payments separately escheated to the State, yet defendants nevertheless failed to disclose or escheat the deceased policyholder’s life insurance proceeds to the State (see State Finance Law § 188[3][a][i]). These allegations, if true, demonstrate that defendants “deliberately turn[ed] a blind eye to reporting errors and then attest[ed] that, to [their] knowledge, they d[id] not exist” … . Total Asset Recovery Servs. LLC v Metlife, Inc., 2020 NY Slip Op 07480, First Dept 12-10-20

 

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PLAINTIFF’S REQUEST FOR A 30-DAY ADJOURNMENT TO SEEK THE APPOINTMENT OF THE PUBLIC ADMINISTRATOR TO REPRESENT A DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED; THE MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO SUBSTITUTE A REPRESENTATIVE SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s request for a 30-day adjournment to petition or move to have the public administrator appointed for a deceased defendant’s (Conrad’s) estate should have been granted. Supreme Court had granted the motion to dismiss the complaint for failure to substitute a representative of the deceased defendant pursuant to CPLR 1021:

A motion to substitute a party “may be made by the successors or representatives of a party or by any party” and is to be made within a reasonable time after the death of the party (CPLR 1021). “[I]f the event requiring substitution is the death of a party and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent’s estate to show cause why the action or appeal should not be dismissed.” (id).

CPLR 1015(a) provides that “[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.” … . Moreover, “[i]t is well settled that the death of a party divests the court of jurisdiction to render a judgment until a proper substitution has been made, so that any step taken without it may be deemed void, including an appellate decision” … . …

In light of the relatively short passage of time between Conrad’s death and the time defendants’ motion was made, the allegation in plaintiff’s complaint that the reverse mortgage upon which this case is premised was obtained fraudulently and is null and void, and the fact that the defendant banks had not even moved for substitution in the related foreclosure action, it was an abuse of discretion for the motion court not to allow plaintiff, at a minimum, the additional 30 days requested to seek to have the public administrator appointed so that the case could move forward and be decided on the merits. Dugger v Conrad, 2020 NY Slip Op 07313, First Dept 12-8-20

 

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