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AFTER JURISDICTIONAL DISCOVERY, PLAINTIFF DID NOT DEMONSTRATE NEW YORK HAD JURISDICTION OVER THREE OF FOUR NEW JERSEY DEFENDANTS IN THIS MEDICAL MALPRACTICE CASE; WITH RESPECT TO ONE NEW JERSEY DEFENDANT, THE JURISDICTION ISSUE MUST BE DECIDED BY THE JURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that New Jersey defendant Princeton Radiology Associates (PRO) and the associated defendant doctors (Tsai and Chon) had demonstrated New York did not have jurisdiction over them in this medical malpractice action. With regard to another related New Jersey defendant, Princeton Procure Management, LLC (PPM), the First Department held its lack-of-jurisdiction affirmative defense should not have been dismissed and a jury must decide the issue:

After defendants PPM, PRO, Tsai and Chon moved to dismiss for lack of personal jurisdiction, the motion court found that plaintiff had made a “substantial start” in demonstrating a basis for personal jurisdiction over those defendants. PPM appealed and this Court affirmed, noting the evidence that PPM had identified a principal place of business in New York, and that it “marketed its Somerset, New Jersey, location to target New York residents, touting its proximity to New York in advertising,” and “entered into an agreement with a consortium of New York City hospitals for the referral of cancer patients for treatment at its facility” … . …

Plaintiff did not meet her ultimate burden of establishing that Drs. Tsai and Chon, New Jersey doctors who treated her in New Jersey, projected themselves, on their own initiative, into New York to engage in a sustained and substantial transaction of business related to her claims, such that specific long-arm jurisdiction existed over them under CPLR 302(a)(1) … . …

… [Re: PPM] we conclude that the evidence submitted by plaintiff … does not warrant dismissal of PPM’s affirmative defense of lack of jurisdiction. As to general jurisdiction under CPLR 301, plaintiff presented documents in which PPM listed a New York place of business, but PPM submitted an affidavit of its president, who identified PPM’s principal place of business as in New Jersey and denied having a New York principal office. …

Plaintiff also failed to establish that specific long-arm jurisdiction exists over PPM under CPLR 302(a)(1). The evidence presented by plaintiff, including various contracts and the radio interviews and billing documents discussed above, provides a “sufficient start” in demonstrating a basis for asserting personal jurisdiction … , but does not warrant dismissal of PPM’s affirmative defense … . Robins v Procure Treatment Ctrs., Inc., 2020 NY Slip Op 00047, First Dept 1-2-20

 

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LATE FEES IMPOSED BY THE LANDLORD MAY CONSTITUTE USURIOUS INTEREST; APPEAL HEARD DESPITE PRO SE DEFENDANT-TENANT’S FAILURE TO PERFECT THE APPEAL; THE APPEAL RAISED A PURELY LEGAL ISSUE WHICH IS DETERMINATIVE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant tenant raised a question whether the late fees assessed by the landlord constituted usurious interest. The 1st Department heard the appeal despite the pro se defendant’s failure to perfect the appeal from the correct judgment, noting that the issue is purely legal:

… [T]he court should have considered defendant’s argument that the late fees, which along with returned check fees, constitute additional rent under the lease, amount to unenforceable usurious interest rates (see Sandra’s Jewel Box v 401 Hotel, 273 AD2d 1, 3 [1st Dept 2000] [“the late charge provision of the lease . . . while not technically interest, is unreasonable and confiscatory in nature and therefore unenforceable”] … ). Although defendant raised this argument for the first time in reply, we consider it because the issue is determinative and is purely legal … .

Plaintiff defined additional rent as “primarily late fees,” and it appears that the late fee lease provision permitting a 5% charge on amounts due actually resulted in what would amount to a 60% interest rate or higher, depending on plaintiff’s accounting practices. Moreover, even with plaintiff’s voluntary reduction of the late fee to 2%, additional rent comprises nearly half the sum demanded for the relevant 27-month period. Accordingly, we remand the matter to the motion court for a determination whether the late fees were “unreasonable and grossly disproportionate to the amount of actual unpaid rent” … . JW 70th St. LLC v Simon, 2020 NY Slip Op 00042, First Dept 1-2-20

 

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THERE IS A QUESTION OF FACT WHETHER A DRUG, WHICH CAN DISSOLVE BLOOD CLOTS IN MINUTES, SHOULD HAVE BEEN ADMINISTERED TO PLAINTIFF WHO WAS SUFFERING FROM A PULMONARY EMBOLISM UPON ADMISSION; SUPREME COURT REVERSED; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissent, determined that the defendants’ motion for summary judgment in this medical malpractice case should not have been granted. The opinion is fact-specific and too detailed to fairly summarize here. The majority concluded there was a question of fact whether the administration of a drug, which defendants averred was contraindicated, would have saved decedent’s life. Decedent  was suffering from a pulmonary embolism upon admission. The staff waited hours for blood tests and an angiogram to confirm the diagnosis. A drug which can dissolve blood clots in minutes was not administered. Barry v Lee, 2019 NY Slip Op 09397, First Dept 12-26-19

 

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GENERAL OBLIGATIONS LAW 5-321 VOIDS A LEASE PROVISION ABSOLVING THE LANDLORD OF LIABILITY FOR DAMAGE TO A TENANT’S PROPERTY CAUSED BY THE LANDLORD’S NEGLIGENCE, BUT DOES NOT VOID A LEASE PROVISION ABSOLVING THE LANDLORD OF LIABILITY FOR THE TENANT’S LOST PROFITS CAUSED BY THE LANDLORD’S NEGLIGENCE (FIRST DEPT).

The First Department noted that the exculpatory clauses in the lease which relieved the landlord from liability for the tenant’s lost profits caused by the landlord’s negligence is not void pursuant to General Obligations Law (GOL) 5-321. GOL 5-321 refers only to property damage, not lost profits:

The claim for lost profits, however, was properly dismissed. General Obligations Law § 5-321 provides:

“Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.”

The exculpatory clauses in the lease relieving defendants of liability for lost profits resulting from their own negligence are not void under General Obligations Law § 5-321 because lost profits are distinct from property damage … . …

Moreover, paragraph 23 of the lease amendment specifically provides that “[n]otwithstanding anything to the contrary . . . Tenant waives, to the full extent permitted by law, any claim for consequential or punitive damages in connection [with damage to Tenant’s property]”  … . In view of this unequivocal exculpatory clause stating that no other provision in the lease shall entitle the tenant to consequential damages, the claim for lost profits is barred … . Chaitman v Moezinia, 2019 NY Slip Op 09396, First Dept 12-26-19

 

PLAINTIFF’S LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFF FELL ATTEMPTING TO USE AN INVERTED BUCKET TO STEP UP TO AN ELEVATED PLATFORM (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) and 241(6) causes of action should not have been dismissed. Plaintiff fell attempting to use an inverted bucket to access an elevated platform:

The protection of Labor Law § 240(1) encompasses plaintiff[‘s] … fall while trying to access an elevated work platform by stepping up onto an inverted bucket, an inadequate safety device that failed to provide proper protection … . Moreover, defendants failed to cite any evidence rebutting the affidavit by plaintiff’s foreman stating that stairs or other access points to the work platform were either restricted or blocked by materials. Because no safety devices were available to plaintiff to access the platform, as a matter of fact and law, plaintiff’s attempt to use the inverted bucket cannot be the sole proximate cause of his accident … .

Because no stairways, ramps, or runaways were available to plaintiff to access the platform, he was entitled to summary judgment on his Labor Law § 241(6) claim predicated upon Industrial Code (12 NYCRR) § 23-1.7(f) … . Ferguson v Durst Pyramid, LLC, 2019 NY Slip Op 09388, First Dept 12-26-19

 

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DEFENDANTS PRESENTED NO EVIDENCE OF SNOW REMOVAL EFFORTS OR LACK OF CONSTRUCTIVE NOTICE IN THIS ICE-ON-SIDEWALK SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment in the ice-on-sidewalk slip and fall case should not have been granted:

[Defendants] failed to sustain their initial burden of demonstrating that they neither created nor had actual or constructive knowledge of the icy condition of the sidewalk … . Neither presented evidence concerning snow removal immediately prior to plaintiff’s accident and/or their lack of notice of the condition … . Burton v Khedouri Ezair Corp., 2019 NY Slip Op 09379, First Dept 12-26-19

 

QUESTION OF FACT WHETHER SNAKING A WIRE ABOVE CEILING TILES IS ‘CONSTRUCTION’ WITHIN THE MEANING OF LABOR LAW 241(6); SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was injured while snaking a wire about ceiling tiles. Supreme Court held the work was not “construction” within the meaning of the statute and the First Department disagreed:

Labor Law § 241(6) requires owners, contractors and their agents to provide a safe workplace for workers performing “construction, excavation or demolition work.” “In determining what constitutes construction’ for purposes of the statute we look to the Industrial Code which, as relevant here, defines construction to include alteration of a structure” … .

We find that an issue of fact is raised as to whether plaintiff was altering the structure when he was pulling cable above the drop ceiling … . In his deposition plaintiff stated that, in order to access the cable, plaintiff pushed a ceiling tile “over to the next tile.” He described his work at the time of the accident as “going up into the ceiling . . . to figure out where we were going with the cable.” Plaintiff had been provided with a saw to cut holes in the wall and ceiling when necessary. … [A]s “running cables” is considered to be a “significant physical change” to fall within the purview of alteration and not “routine” maintenance, there remains a question of fact as to whether plaintiff’s work constituted an alteration within the meaning of Labor Law § 241(6). Emery v Steinway, Inc., 2019 NY Slip Op 09368, First Dept 12-26-19

 

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INSURANCE REGULATION WHICH PROHIBITS TITLE INSURERS FROM PROVIDING VALUABLE INDUCEMENTS TO ATTRACT TITLE INSURANCE BUSINESS IS NOT UNCONSTITUTIONALLY VAGUE, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined Insurance Regulation 208 (11 NYCRR part 228), which prohibits title insurers from providing valuable inducements to attract title insurance business, is not unconstitutionally vague:

Petitioners contend that section 228.2(c) is unconstitutionally vague in setting forth a non-exhaustive list of activities that are “permissible, provided[,]” among other things, that they are “reasonable and customary, and not lavish or excessive” … . The court should have rejected this vagueness challenge, since section 228.2(c) “is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden,” and “the enactment provides officials with clear standards for enforcement so as to avoid resolution on an ad hoc and subjective basis” … . … [T}he words “lavish” and “excessive,” standing in clear contrast with the word “reasonable,” provide adequate notice of the type of behavior that is proscribed. The word “customary” also sets forth a standard that can be understood by an ordinary person … . …

The provisions of section 228.2(c) generally permitting advertising, charitable contributions, and political contributions are consistent with the right to free speech under the First Amendment to the United States Constitution and article I, § 8 of the New York Constitution. … The content-neutral provisions at issue in this case are narrowly tailored to the substantial government interest of clarifying a statute intended to “prevent consumers from being required to subsidize unscrupulous exchanges of valuable things for real estate professionals” … , and that interest is “unrelated to the suppression of free expression” …  .  Matter of New York State Land Tit. Assn., Inc. v New York State Dept. of Fin. Servs., 2019 NY Slip Op 09366, First Dept 12-26-19

 

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CROSS-EXAMINATION OF A POLICE OFFICER ABOUT A CIVIL LAWSUIT SHOULD HAVE BEEN ALLOWED; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the hearing and trial courts should have allowed cross-examination of a police officer about a lawsuit naming the officer:

Both the hearing and trial courts erred in denying defendant’s request to cross-examine a police officer regarding allegations of misconduct in a civil lawsuit in which it was claimed, among other things, that this particular officer arrested the plaintiff without suspicion of criminality and lodged false charges against him … . The civil complaint contained specific allegations of falsification by this officer that bore on his credibility at both the hearing and trial. At each proceeding, this officer was the only witness for the People. People v Burgess, 2019 NY Slip Op 09364, First Dept 12-26-19

 

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A PORTION OF THE NYC CHARTER WHICH ALLOWS UNLIMITED SEARCHES OF PAWNBROKERS, THEIR PERSONNEL, PREMISES, MERCHANDISE AND PAPERS IS UNCONSTITUTIONAL; THE UNDERLYING REGULATORY SCHEMES ADDRESSING REPORTING REQUIREMENTS AND INSPECTIONS ARE NOT UNCONSTITUTIONAL (FIRST DEPT).

The First Department determined that the portion of the NY City Charter which gave the police commissioner the power to examine pawnbrokers, their personnel, premises, merchandise and papers was facially unconstitutional because there was no limit on the scope of the searches and allowed for immediate arrest. However the reporting requirements imposed on pawnbrokers are constitutional:

… [W]e hold that NY City Charter § 436 is facially unconstitutional to the extent that it provides that the commissioner “shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles of merchandise in their possession” … . That portion of NY City Charter § 436 is facially unconstitutional because it is unlimited in scope, and provides “no meaningful limitation on the discretion of the inspecting officers” … . NY City Charter § 436 contains no limits on the time, place, and scope of searches of persons or property. It contains no record keeping requirements and it authorizes an immediate arrest for a failure to comply. * * *

… [W]ith respect to the reporting requirements contained in the statutory and regulatory scheme, we … conclude that there is little or no expectation of privacy in the reported information, whether in traditional paper or electronic form, and that the requirements at issue, which are imposed on a closely regulated industry, sufficiently describe and limit the information to be provided, and are reasonably related to the regulatory authority of the agency to which the information is provided … .

With respect to the inspection programs … [:] The regulatory scheme here was not created solely to uncover evidence of criminality. Rather it serves to enforce the reporting requirements that provide consumer protection. Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2019 NY Slip Op 09354, First Dept 12-26-19

 

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