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QUESTIONS OF FACT WHETHER INDUSTRIAL CODE PROVISIONS RE: DEBRIS IN PASSAGEWAYS AND KEEPING EQUIPMENT IN GOOD REPAIR IN THIS LABOR LAW 241(6) ACTION PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment on the Labor Law 241(6) causes of action should not have been granted. There were questions of fact whether the Industrial Code provisions re: debris in passageways and keeping equipment in good repair were violated. Plaintiff was injured when a wheeled dumpster allegedly tipped over:

Plaintiff’s claim premised upon § 23-1.7(e)(2), which concerns debris in passageways, is viable because the area where the accident occurred was a passageway for the purposes of that provision … . The provision applies not just when loose debris causes a direct trip and fall, but also in circumstances similar to those involved here … .

With regard to § 23-1.28(b), which pertains to hand-propelled vehicles, and § 23-1.5(c), which prohibits use of machinery or equipment that is not in good repair and safe working condition, defendants failed to make a prima facie showing that the wheeled dumpster was not defective … . Sancino v Metropolitan Transp. Auth., 2020 NY Slip Op 03615, First Dept 6-25-20

 

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PETITIONER DID NOT HAVE THE STATUTORILY REQUIRED CLOSE RELATIONSHIP WITH THE RESPONDENT IN THIS FAMILY OFFENSE PROCEEDING; FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION (FIRST DEPT).

The First Department, reversing Family Court, determined Family Court did not have subject matter jurisdiction over this family offense proceeding because the petitioner and the respondent were not members of the same family or household and had not been in an intimate relationship:

The court lacks subject matter jurisdiction over this family offense proceeding brought by the foster mother of respondent’s biological children. Petitioner failed to establish that she and respondent, who are not members of the same family or household, are or have been in an intimate relationship (see Family Court Act § 812[1][e] …). Petitioner testified that she did not even know respondent’s first name. It appears from the record that petitioner’s contact with respondent has been limited to scheduling visitation with the children at the agency and, perhaps, interacting with respondent when she went to petitioner’s home to pick up the children for visits. Matter of Veronica C. v Ariann D., 2020 NY Slip Op 03612, First Dept 6-25-20

 

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PLAINTIFF’S DISABILITY DISCRIMINATION CAUSES OF ACTION UNDER THE STATE AND CITY HUMAN RIGHTS LAW PROPERLY SURVIVED SUMMARY JUDGMENT; THE DIFFERENT REQUIREMENTS OF THE STATE VERSUS CITY HUMAN RIGHTS LAW IN THIS CONTEXT EXPLAINED IN SOME DEPTH (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined plaintiff’s disability discrimination claims under the NYS and NYC Human Rights Law (HRL) properly survived summary judgment. Issues of fact were raised about whether defendant sufficiently engaged in dialogue about accommodating plaintiff’s needs prior to terminating her employment. The decision explains the different proof requirement for disability discrimination and accommodation under the NYSHML and the NYCHML, noting that the NYCHML imposes a heavier burden on the employer than the NYSHRL:

Under both the State and City HRLs, “the first step in providing a reasonable accommodation is to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested. The interactive process continues until, if possible, an accommodation reasonable to the employee and employer is reached” … . * * *

Unlike the State HRL where the employer must “engage[] in interactions with the employee revealing at least some deliberation upon the viability of” an accommodation … , the City HRL clearly requires a more rigorous process … . Indeed, to emphasize the seriousness by which employers must engage in the interactive process, the City Council amended the City HRL in 2018 … . The Committee Report … states: “This bill would clarify the reasonable accommodation requirement by expressly requiring, as a part of the reasonable accommodation process, that covered entities engage in a cooperative dialog with individuals who they know or should know may require accommodation.” * * *

Here, defendant cannot prevail in its summary judgment motion seeking to dismiss plaintiff’s State HRL disability claim because there are issues of fact as to whether defendant engaged plaintiff in a good faith interactive process to ascertain the viability of an appropriate accommodation. * * *

Given that the City HRL is even broader than the State HRL … , defendant has likewise failed to show that it engaged in an interactive process with plaintiff. Hosking v Memorial Sloan-Kettering Cancer Ctr., 2020 NY Slip Op 03484, First Dept 6-18-20

 

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BANK WHICH ISSUED AN “OFFICIAL CHECK” DRAWN ON A DIFFERENT BANK, AFTER THE CUSTOMER’S FUNDS WERE WIRED TO THAT OTHER BANK (PURSUANT TO AN AGREED ARRANGEMENT), WAS NOT LIABLE UNDER THE UNIFORM COMMERCIAL CODE OR UNDER A MONEY HAD AND RECEIVED THEORY FOR THE SUBSEQUENT MISAPPROPRIATION OF THE CHECK (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Friedman, determined the defendant Signature Bank was not liable under the Uniform Commercial Code or under a money had and received theory for the misappropriation of an “official check” for $292,000:

According to the affidavit of Patrick Manzi, Signature’s senior vice president and director of bank operations, “[a]t the time in question, Signature did not issue its own official checks.” … [U]nder an agreement between Signature and Integrated Payment Systems Inc. (IPS), Signature customers were provided by IPS with computer software and check forms that gave them the capability, upon Signature’s approval, to print out a Signature “Official Check” at their own offices. Although such a check bore Signature’s logo and the signatures of Signature officers, and designated Signature as the “Drawer,” the check also indicated in the lower left corner that it was “Issued by Integrated Payment Systems Inc., Englewood, Colorado” through “JPMorgan Chase Bank, N.A., Denver, Colorado.” In addition, the check bore Chase’s ABA routing number.

In sum, when a Signature customer requested the issuance of an official check, Signature would debit the customer’s account in the requested amount, wire the same amount to the IPS account at Chase, and notify the customer that it had permission to print out the check. In essence, official checks of this kind were drawn by Signature, not on its own account, but on the IPS account at Chase.

Using the above-described procedure, R & L [the Signature customer] procured the issuance of a Signature “Official Check” in the amount of $292,000, payable to … settlement agent, Steven J. Baum P.C.. The check identified R & L as the “Remitter.”… According to a principal of R & L, R & L “forwarded the $292,000 bank check to Kim Saunders, the title closer, who undertook on behalf of the title company . . . to forward this check to Steven J. Baum, P.C. to pay off the seller’s [sic] mortgage.”

It is undisputed that Steven J. Baum P.C., the payee of the check, never received it. The check was, through some unknown chain of events, misappropriated, improperly endorsed, and deposited into the joint account that the sellers of the underlying real property (defendants Richards and Massias) maintained at defendant TD Bank, N.A. The check was subsequently presented for payment to Chase, the drawee bank, which paid it … . OneWest Bank, FSB v Deutsche Bank Natl. Trust Co., 2020 NY Slip Op 03483, First Dept 6-18-20

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FIRST DEPT).

The First Department, reversing Family Court, determined the court should have made findings which would allow the child to petition for Special Immigrant Juvenile Status (SIJS):

The evidence shows that the subject child was unmarried and under the age of 21 at the time of the special findings hearing and order (see generally 8 USC § 1101[a][27][J]; 8 CFR 204.11[c] … ). The Family Court’s appointment of a guardian rendered the child dependent on a juvenile court … .

The evidence also established that reunification with the child’s parents was not viable due to neglect or abandonment. The child testified that, with no prior warning, his father left him in the United States with his uncle (petitioner), and that his parents later told him that they could not support him and did not want him back. The child further stated, and petitioner corroborated, that he had only occasional contact with his parents, and received no gifts or support from them, since coming here. This was sufficient to “evince[] an intent to forego . . . parental rights and obligations” or a failure to exercise a minimum degree of care to supply the child with adequate food, clothing, shelter, education, or supervision … .

In determining whether reunification was viable, the Family Court should not have refused to consider evidence of circumstances which occurred after the child’s 18th, but before his 21st, birthday … .

The evidence also demonstrated that it is not in the best interests of the child to return to Thailand, where his parents reside, or to be sent to live in Bangladesh, where he has citizenship but has never resided. The child presented evidence that his parents would not accept him if he returned to Thailand, that his Thai visa was on the verge of expiring and he had no way to renew it, and that he had no other place to live or way to support himself in Thailand or Bangladesh … . He also presented evidence that he was doing well in petitioner’s care … . Matter of Khan v Shahida Z., 2020 NY Slip Op 03480, First Dept 6-18-20

 

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DEFENDANT’S MOTION TO COMPEL THE PRODUCTION OF TAX RETURNS AFTER THE PARTIES’ FAILURE TO RESPOND TO THE DEMAND FOR PRODUCTION SHOULD HAVE BEEN DENIED; THE FAILURE TO RESPOND TO A PALPABLY IMPROPER DEMAND FOR PRODUCTION, I.E. A DEMAND FOR TAX RETURNS, DOES NOT WAIVE THE ABILITY TO OBJECT TO THE DEMAND ON APPEAL; DEFENDANT MAY RENEW THE MOTION TO COMPEL PRODUCTION OF THE TAX RETURNS IF THE REQUIRED SHOWINGS ARE MADE (FIRST DEPT).

The First Department noted that the failure to respond to defendant-Mazal’s demands for production waived any objections to the demands. Mazal’s motion to compel discovery therefore was properly granted. However objections to demands which are palpably improper are not waived by a failure to respond and Mazal’s demand for tax returns may be in the palpably-improper category. Mazal’s motion to compel the production of tax returns should therefore have been denied. But the First Department denied that portion of the motion to compel without prejudice and granted leave to renew if Mazal can make the required showing of need:

The motion court providently deemed the appealing parties’ objections waived under CPLR 3122 as a result of their failure to respond timely to Mazal’s demands for production … . We modify, however, with respect to Mazal’s demands for the appealing parties’ tax returns, as objections to “palpably improper” demands are not waived … .

A demand for the production of tax returns is disfavored and requires “a strong showing of necessity,” and the inability to obtain the information from other sources … . Here, the failure “to identify the particular information the tax returns . . . will contain and its relevance to the claims made” … should have been sufficient to deny Mazal’s motion to compel. Indeed, the tax returns were not necessary to determine whether plaintiffs acquired an interest in the properties in 1994 or retained it thereafter — the reason the motion court gave for granting the motion. However, Mazal argues that the tax returns could be relevant to its affirmative defenses of laches, estoppel, waiver, ratification, and consent, and the motion court did not pass on this issue. As a result, although Mazal did not sufficiently show the inability to obtain the information sought from other sources or, indeed, what specific information the appealing parties’ tax returns will show, we grant leave to renew upon a proper showing … . Demurjian v Demurjian, 2020 NY Slip Op 03479, First Dept 6-18-20

 

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SELF-EXECUTING CONDITIONAL DISCOVERY ORDER BECAME ABSOLUTE UPON NON-COMPLIANCE; A MOTION TO VACATE, NOT AN APPEAL, IS THE PROPER PROCEDURE TO CONTEST THE ORDER ON THE GROUND OF EXCUSABLE DEFAULT; DEFENDANTS TOOK NO ACTION TO AVOID THE DEFAULT (FIRST DEPT).

The First Department noted that defendants’ failure to comply with a self-executing, conditional order striking the answer became absolute. The proper way to contest such an order is to move to vacate, not appeal:

When defendants failed to comply with the self-executing, conditional order striking their answer if they did not produce a witness for deposition by a date certain, the order became absolute ( … CPLR 3126[3]). Defendants’ proper recourse was to move to vacate the conditional order on the ground of excusable default (… CPLR 5015[a]). They did not seek that relief. In any event, the excuses for failing to comply with the court’s order that defendants asserted in opposition to plaintiff’s motion were not reasonable, and defendants failed to seek an adjournment from the court or take any other action to avoid their knowing default. Humble Monkey, LLC v Rice Sec., LLC, 2020 NY Slip Op 03470, First Dept 6-18-20

 

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THE ORDER WAS NOT ENTERED ON CONSENT AND THEREFORE WAS APPEALABLE; GRANDPARENTS’ PETITIONS FOR VISITATION SHOULD NOT HAVE BEEN GRANTED ABSENT A FULL TRIAL (FIRST DEPT).

The First Department, after noting the order was not entered on consent and was therefore appealable, determined the grandparents should not have been awarded visitation absent a full trial:

In the absence of consent, Family Court should not have awarded the paternal grandparents visitation without conducting a full trial. The decision was based only on the grandmother’s partial testimony. The separately petitioning grandfather did not testify. The mother was not present due to a medical procedure she was undergoing in North Carolina. Even if the court was justified in drawing a negative inference from her failure to give testimony … , the court failed to afford the attorney for the child (AFC) an opportunity to ascertain the seven-year-old child’s position … . Although the Family Court appropriately appointed an AFC, he did not let her do her job. The child’s position in this case was particularly important because of the mother’s representations that the child did not want to see the grandparents so soon following her father’s death and would be traumatized by such visitation. In addition, each of the grandparents brought separate petitions and each was separately represented in this matter. Although there is some indication that the grandparents are separated, because of the truncated record, there is insufficient information to support the court’s having jointly awarded jointly awarded them visitation with the child. Without a full hearing, the record is insufficient to determine whether visitation with the paternal grandparents is in the child’s best interests … . If after a full hearing upon remand the Family Court determines that grandparental visitation is in the child’s best interest, it should also clarify the award of visitation rights vis-a-vis each grandparent, given that they filed separate petitions and were not jointly represented by counsel, and thus in fact may be separated. Matter of Donna F.T., 2020 NY Slip Op 03469, First Dept 6-18-20

 

DEFENDANT WAS ADJUDICATED A YOUTHFUL OFFENDER AND SENTENCED TO 60 DAYS IN JAIL AND FIVE YEARS PROBATION FOR STEALING A BREAKFAST SANDWICH FROM A RESTAURANT; EXTENSIVE DISSENT ARGUED THE SENTENCE WAS HARSH AND EXCESSIVE (FIRST DEPT).

The First Department upheld the defendant’s sentence as a youthful offender to 60 days in jail and five years probation. Defendant stole a breakfast sandwich from a restaurant after throwing a banana at an employee, jumping over the counter, saying he had gun, and leaving the restaurant with the sandwich. This decision is significant because of the extensive dissent arguing the sentence was too harsh. People v Guilermo P., 2020 NY Slip Op 03464, First Dept 6-18-20

 

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JURY SHOULD HAVE BEEN CHARGED ON THE RES IPSA LOQUITUR DOCTRINE AND INSTRUCTED THAT THE VIOLATION OF THE NYC ADMINISTRATIVE CODE IS SOME EVIDENCE OF NEGLIGENCE IN THIS FALLING OBJECT CASE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing Supreme Court and ordering a new trial, determined the jury should have been instructed on the res ipsa loquitur doctrine and the violation of the NYC Administrative Code was some evidence of negligence. Plaintiff was allegedly injured when a towel dispenser/trash receptacle (TD/TR) fell out of the wall:

… [W]e find that the trial court improvidently exercised its discretion in declining to charge the jury on res ipsa loquitur. A res ipsa charge “merely permits the jury to infer negligence from the circumstances of the occurrence” … . The doctrine does not require “sole physical access to the instrumentality causing the injury” … . The trial court should also have charged that a violation of Administrative Code of the City of New York § 28-301.1, which requires property owners to maintain their buildings in a safe condition, constitutes “some evidence of negligence” … . To the extent that the TD/TR unit allegedly fell out of the wall eight months after installation by defendant John Spaccarelli, the court erred by failing to allow plaintiff to fully question the credentials of Mr. Spaccarelli and his qualifications as an expert … . Galue v Independence 270 Madison LLC, 2020 NY Slip Op 03463, First Dept 6-18-20

 

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