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TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS-PASSENGER INJURY CASE SHOULD HAVE BEEN GRANTED; THE BUS DRIVER REACTED APPROPRIATELY TO A CAR SUDDENLY PULLING OUT IN FRONT OF THE BUS TO MAKE A U-TURN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant transit authority’s motion for summary judgment in this bus-passenger injury case should have been granted. The driver of a double-parked car pulled out in front of the bus to make a u-turn and the driver properly slammed on the brakes:

… [D]efendants established their prima facie entitlement to judgment as a matter of law by showing that their bus driver was presented with an emergency situation that was not of his own making when a vehicle that was double-parked on the right side of the roadway suddenly made a U-turn in front of him, and that he took reasonable and prudent action to avoid a collision … . They also met their initial burden of showing that their bus driver’s actions before the accident did not cause or contribute to the emergency, because the bus driver testified at his deposition that he was traveling no more than 15 miles per hour, warned the double-parked car before he attempted to pass by sounding his horn, and had his foot hovering over the brakes when the sedan suddenly made a U-turn in front of his bus when it was approximately five feet away. What is more, the driver had no duty to anticipate that another driver would make a sudden, illegal maneuver … .

… [T]he record shows that the driver was obliged to take immediate action when the car suddenly cut in front of the bus to make a U-turn, and stepping on the brakes to avoid a collision was a reasonable response to a situation not of defendants’ own making … . Santana-Lizardo v New York City Tr. Auth., 2020 NY Slip Op 05164, First Dept 9-29-20

 

RESPONDENT CANDIDATE FOR THE NYS ASSEMBLY DID NOT DEMONSTRATE HE MAINTAINED A RESIDENCE IN NEW YORK FOR FIVE YEARS; PETITIONERS’ APPLICATION TO INVALIDATE RESPONDENT’S CANDIDACY SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined respondent, a candidate for the NYS Assembly, did not establish he maintained a residence in New York for five years. Therefore the petitioners’ application to invalidate respondent’s candidacy should have been granted:

Petitioners brought this proceeding pursuant to Election Law § 16-102 to declare invalid the designating petitions naming respondent. Petitioners alleged that, because respondent lived continuously in Illinois from 2009 until 2016, he failed to satisfy the New York residency requirements of article III (§ 7) of the State Constitution. Section 7 provides: “No person shall serve as a member of the legislature unless he or she . . . has been a resident of the state of New York for five years” … . …

Petitioner presented evidence that, in April 2009, respondent left Germany and briefly relocated to Albany, New York, the home of his father and aunt. He visited there for approximately four months until August 2009, at which time he moved to Chicago, Illinois. Respondent took up residence … [in] Chicago, Illinois, from which he: obtained an Illinois driver’s license; registered to vote in the State of Illinois; enrolled in a graduate school program; obtained employment; paid Illinois state and Federal income taxes using the Chicago residence address; and obtained a cell phone with a Chicago area code.

We note that respondent’s having voted in Illinois during the five year period preceding the upcoming election is inconsistent with his claim to have maintained New York as his residence throughout that five year period … . While we have held that being registered to vote in another state, standing alone, is not necessarily dispositive … , in this case, respondent’s time in Illinois … does not support his argument that he “always intended to return” to New York as required by Election Law § 1-104 (22). Matter of Patch v Bobilin, 2020 NY Slip Op 05172, First Dept 9-29-20

 

QUESTION OF FACT WHETHER A PERMANENTLY AFFIXED LADDER VIBRATED CAUSING PLAINTIFF TO FALL; PLAINTIFF WAS ENGAGED IN REPAIR NOT ROUTINE MAINTENANCE; NO SHOWING PLAINTIFF WAS AWARE HE SHOULD WEAR A HARNESS AND FAILURE TO DO SO WOULD CONSTITUTE COMPARATIVE NEGLIGENCE WHICH IS NOT A BAR TO RECOVERY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment on the Labor Law 240 (1) cause of action should not have been granted. Plaintiff alleged a permanently affixed ladder in an elevator shaft vibrated causing him to fall to the floor of the shaft:

… [W]hile an unsecured ladder that moves or shifts constitutes a prima facie violation of Labor Law § 240(1) … , the ladder from which plaintiff fell was secured to the structure, and, other than allegedly vibrating, it did not move, shift or sway. Under the circumstances, an issue of fact exists whether the secured, permanently affixed ladder that allegedly vibrated provided proper protection for plaintiff.

The record demonstrates, contrary to defendants’ contention, that at the time of his accident plaintiff was performing not routine maintenance but repair work, which falls within the protective ambit of Labor Law § 240(1) … . The work in which plaintiff was engaged occurred over the course of weeks, if not longer, and its purpose was to correct the unguarded condition of traveling cables that caused the cables to strike other objects within the elevator shafts … . …

Defendants failed to establish that plaintiff was the sole proximate cause of his accident, as they submitted no evidence that plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded “specific instructions” to do so . Further, to the extent the ladder failed to provide proper protection, plaintiff’s failure to use a harness amounts at most to comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Kehoe v 61 Broadway Owner LLC, 2020 NY Slip Op 04900, First Dept 9-3-20

 

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LOCAL RESIDENTS OPPOSING THE USE OF A HOTEL AS A HOMELESS SHELTER RAISED A QUESTION OF FACT ABOUT WHETHER THE CONFIGURATION OF THE BUILDING WOULD ALLOW ADEQUATE ACCESS BY FIREFIGHTERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a concurring opinion by Justice Oing, determined that the old Park Savoy Hotel was properly classified as a nontransient apartment hotel for use as a shelter for 150 employed or job-seeking men. However local residents, who brought an Article 78 proceeding objecting to the shelter, raised a question of fact about whether the configuration of the building would allow adequate access by firefighters:

We are asked to decide whether respondents properly permitted the opening of an employment shelter for homeless men in midtown Manhattan. We find that respondents rationally determined that the subject building is a Class A multiple dwelling in the “R-2” occupancy group which represents a continuation of a preexisting use group classification and is grandfathered from compliance with the current New York City Building Code (Administrative Code of City of N.Y. [Building Code] § 310.1). However, we conclude that petitioners have rebutted the presumption that the building as currently configured will not endanger the general safety and welfare of the public. Accordingly, we remand this matter to Supreme Court for further proceedings. Matter of West 58th St. Coalition, Inc. v City of New York, 2020 NY Slip Op 04521, First Dept 8-13-20

 

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QUESTION WHETHER A CONTRACT WHICH IS SILENT ABOUT ITS DURATION WAS PROPERLY TERMINATED REQUIRED CONSIDERATION OF THE INTENT OF THE PARTIES AND COULD NOT BE RESOLVED BASED UPON THE PLEADINGS ALONE; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Goldman Sachs’) motion to dismiss the complaint in this breach of contract action should not have been granted. The issue is whether a contract with is silent about its duration was properly terminated by Goldman. The issue requires consideration of the intent of the parties and could not be resolved based upon the pleadings:

… Supreme Court failed to examine the surrounding circumstances as well as the intent of the parties in discerning the original intent of the parties …. It improperly determined, as a matter of law, that a “reasonable time” justifying termination of the contract had elapsed and plaintiffs had not made any persuasive arguments to the contrary. In doing so, it relied upon its conclusion that Goldman was no longer receiving a meaningful benefit from the agreement, thus rejecting out of hand plaintiff’s allegations in the amended complaint to the contrary.

As this is a motion to dismiss pursuant to CPLR 3211(a)(7), Supreme Court should have afforded the pleadings a liberal construction (see CPLR 3026), taken the allegations of the complaint as true, and afforded plaintiff[s] the benefit of every possible favorable inference. A motion court must only determine whether the facts as alleged fit within any cognizable legal theory … . Whether a plaintiff can ultimately establish its allegations should not be considered in determining a motion to dismiss … . “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” … . Charles Schwab Corp. v Goldman Sachs Group, Inc., 2020 NY Slip Op 04520, First Dept 8-13-20

 

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THE FAILURE TO MENTION THE JUSTIFICATION DEFENSE ON THE VERDICT SHEET WAS NOT PRESERVED FOR APPEAL BY AN OBJECTION AND THE INTEREST OF JUSTICE APPELLATE JURISDICTION WILL NOT BE INVOKED WHERE THERE WAS AMPLE OPPORTUNITY TO OBJECT (FIRST DEPT).

The First Department determined defendant did not preserve the issue concerning the adequacy of the verdict sheet which did not mention the justification defense. Defendant was acquitted of the top counts (attempted murder and assault first) and convicted of assault second. The jury was instructed not to consider the lesser counts if the justification defense applied. But the verdict sheet was silent on the justification defense. The First Department refused to exercise its interest of justice jurisdiction because there was ample opportunity to interpose an objection to the jury instructions and verdict sheet:

… [D]efendant contends that his conviction on the lesser count of second-degree assault must be vacated since the verdict sheet made no mention of justification. Verdict sheets in criminal cases, however, may not include substantive instructions absent authorization by CPL 310.20(2) … . Here, defense counsel made no objections when the verdict sheet was reviewed and discussed by the court with the parties.

In prior cases, we reversed convictions in the interest of justice where defendants interposed no objections to jury instructions that failed to comply with Velez [131 AD3d 129], even though the claim was unpreserved … .

In People v Davis (176 AD3d 634 [2019], lv denied 34 NY3d 1157 [2020]), we changed course. The jury in that case similarly found defendant not guilty of the top count, but guilty of the lesser count. Although defendant interposed no objections to the verdict sheet or the jury instructions that were given, defendant appealed on the basis that both the initial and supplemental charges and the verdict sheet did not comply with Velez. We “decline[d] to exercise our interest of justice jurisdiction to review these unpreserved claims” … .

Davis is applicable here. The defendant, although afforded multiple opportunities during the two-and-a-half to three-day charge conference, during trial and prior to deliberations, interposed no objections, and thus, failed to preserve his claims. People v Macon, 2020 NY Slip Op 04519, First Dept 8-13-20

 

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THE RECORD WAS NOT SUFFICIENT FOR CONSIDERATION OF THE INEFFECTIVE ASSISTANCE ARGUMENT RE WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA; THE PRECISE NATURE OF COUNSEL’S ADVICE WAS NOT IN THE RECORD; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined the record was insufficient to preserve the ineffective assistance of counsel argument. The defendant argued that he was insufficiently informed about the deportation-risk associated with his guilty plea. The majority held that the record did not reflect the precise advice given by counsel and therefore the appropriate mechanism for review is a CPL 440.10 motion. The dissenters argued the record was sufficient to send the matter back for a motion to vacate the plea:

We do not agree with defendant’s attempt to exempt himself from the necessity of making a CPL 440.10 motion based on his counsel’s statements at the plea hearing concerning the off-the-record advice concerning immigration that had been rendered. To reiterate, counsel’s statements to the court, on their face, are general in nature and do not purport to describe the contents of the immigration advice that defendant actually received. The statement that defendant had been advised of “all possible consequences” was consistent both with accurate advice that the plea would subject him to mandatory deportation and with inaccurate advice that failed to warn him of that consequence. We cannot, on this record, tell whether the advice actually given was accurate or inaccurate. Certainly, it cannot be said that counsel’s statement establishes “irrefutably” … that the advice given was inaccurate, as is required to render a CPL 440.10 motion unnecessary. People v Gomez, 2020 NY Slip Op 04518, First Dept 8-13-20

 

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REVOCATION OF PETITIONER’S DRIVER’S LICENSE, BASED UPON A 1995 DEFAULT CONVICTION OF WHICH PETITIONER WAS APPARENTLY UNAWARE, WAS ARBITRARY AND CAPRICIOUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined the revocation of defendant’s driver’s license based upon a 24-year-old default conviction, which involved an error made by the Department of Motor Vehicles in 1994 (misspelling petitioner’s name), was arbitrary and capricious:

Petitioner was issued four summonses in October of 1994 for driving violations including driving without insurance. When entering the violations into the DMV database, a DMV employee entered petitioner’s surname as “Sanders,” rather than “Sonders,” which DMV acknowledges was a “possible data-entry error.” Petitioner claims to the best of his knowledge and memory never to have been issued the summonses in question. A default judgment was entered against petitioner as a result of his failure to contest the tickets. The conviction for driving without insurance carried a mandatory penalty of a one-year license revocation (see Vehicle and Traffic Law § 318[3][a]-[b]). On or about August 6, 2019, petitioner renewed his New York State driver’s license in person at the DMV. At that time, he obtained a copy of his driving record abstract, which indicated that his license status was “valid.”

Thereafter, petitioner received suspension notices, dated August 7, 2019, stating that his license had been suspended on February 3, 1995; and a revocation order dated August 7, 2019 stating that owing to the February 3, 1995 conviction his license would be revoked for one year in accordance with section 318 of the Vehicle and Traffic Law. Petitioner claims that this is the first notice he received of the summonses.

Petitioner paid the outstanding fines and in September 2019 commenced an article 78 proceeding challenging the license revocation. Supreme Court denied the petition and dismissed the proceeding. This appeal followed. …

“A license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process.”

No such due process was afforded to petitioner, who never received notice of the conviction and was led to believe for over 20 years that his license was in order.  Matter of Sonders v New York State Dept. of Motor Vehs. Traffic Violations Bur., 2020 NY Slip Op 04443, First Dept 8-6-20

 

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THE DETAILED STATUTORY SCHEME OF THE REVISED LIMITED PARTNERSHIP ACT (RLPA) PRECLUDED ENFORCEMENT OF THE UNSIGNED PURPORTED AMENDMENT TO THE PARTNERSHIP AGREEMENT (FIRST DEPT). ​

he First Department determined the 1999 partnership agreement controlled and the purported 2004 amendment to the agreement, which was not executed, could not be enforced. The decision is too detailed to fairly summarize here. Suffice to say that the detailed statutory scheme of the Revised Limited Partnership Act (RLPA) precluded ignoring the Statute of Frauds with respect to the unexecuted amendment:

By design, the RLPA sets forth a clear separation between general and limited partners. This separation is more defined than the division between managers and members in limited liability corporations. With few exceptions, the RLPA provides that a general partner has the liabilities of a partner in a non-limited partnership. In exchange for a more passive position, the limited partners are generally sheltered from personal liability to third parties who transact business with the limited partnership (see generally, Bruce A. Rich, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 38, Revised Limited Partnership Act, at 317, 334-336). The RLPA’s default requirements of partner consent to substantive changes to a limited partnership agreement helps protect the passive limited partners from actions taken by general partners that might adversely affect the limited partners’ interests. That default protection would be undermined if we were to engraft on to the RLPA the equitable exceptions applicable to the Statute of Frauds. Accordingly, we decline to do so. A&F Hamilton Hgts. Cluster, Inc. v Urban Green Mgt., Inc., 2020 NY Slip Op 04440, First Dept 8-6-20

 

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ALTHOUGH THE DAMAGES WERE DEEMED EXCESSIVE, PLAINTIFFS’ MULTI-MILLION DOLLAR VERDICT IN THE ASBESTOS MESOTHELIOMA ACTION WAS SUPPORTED BY THE EXPERT EVIDENCE OF CAUSATION (FIRST DEPT).

The First Department, although finding some of the damage amounts excessive, determined, over a dissent, the plaintiffs’ multi-million-dollar verdict in this asbestos exposure case was supported by the evidence. The case hinged on expert evidence that the extent of the exposure was sufficient to cause the resulting illness. The dissent argued the expert evidence did not meet the criteria imposed by the Court of Appeals:

In this asbestos case, Marlena Robaey [(]plaintiff), who died after the trial of this action, testified that, working with her husband and co-plaintiff, she had been regularly exposed to visible dust from scraping and grinding engine gaskets over a period of years, from cleaning the family garage after each gasket change, and from taking her and her husband’s dusty clothes into their laundry room to clean. [Defendant] Federal-Mogul’s corporate representatives, as well as the various experts called by defendants at trial, testified that the gaskets contained anywhere from 50% to 85% asbestos, and plaintiffs’ experts testified that dust from these products, if visible, necessarily exceeded current permissible levels and contained sufficient levels of asbestos to cause plaintiff’s peritoneal mesothelioma. * * *

… [T]he experts did not merely testify as to only an increased risk. Dr. Schwartz testified that the visible dust from the gaskets at issue, which were conceded by defendants’ expert to contain between 50% and 85% asbestos, 80% being “standard,” necessarily contained several thousand times the “safe” amount of asbestos, and thus was causative of plaintiff’s disease … .

From the dissent:

It should be borne in mind that the decedent’s relevant alleged exposure to asbestos from Fel-Pro products was restricted to helping her husband remove gaskets from his cars “once or twice . . . in a month” over a period of 12 year. It should also be remembered that only about half of the gaskets involved were [defendant’s] products, that not all of the [defendant’s] gaskets contained asbestos, and that any asbestos that the gaskets did contain was of the less hazardous chrysotile variety.  Matter of New York City Asbestos Litig. v Air & Liquid Sys. Corp., 2020 NY Slip Op 04437, First Dept 8-5-20

 

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