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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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AN INQUIRY INTO DEFENDANT’S MENTAL HEALTH WAS REQUIRED BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF; THE RESULTS OF CPL ARTICLE 730 EXAMS, OF WHICH THE PRESIDING JUDGE WAS NOT MADE AWARE AT THE TIME OF THE REQUEST TO PROCEED PRO SE, INDICATING DEFENDANT MAY BE DELUSIONAL, CONSTITUTED ‘RED FLAGS’ WARRANTING THE INQUIRY (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, over a dissent, determined defendant’s request to represent himself should not have been granted without further inquiry into defendant’s mental health. The First Department found that the results of defendant’s CPL Article 730 competency exams, finding that defendant may have been delusional, constituted “red flags” that warranted further inquiry before allowing defendant to represent himself:

Not every indication of a defendant’s mental infirmity mandates inquiry. Expressions of paranoia or distrust of an attorney, common for many defendants, are not red flags … . Nor is a defendant’s belief that he or she was framed by police … . On the other hand, notwithstanding a CPL Article 730 exam finding defendant fit, court observations that a defendant was irrational and had a tendency to “fly off the handle” warranted a searching inquiry into defendant’s mental capacity … . So too, inquiry was warranted where defendant was observed by the court to be unruly, volatile and physically menacing … . In many cases, whether or not the behavior would trigger an inquiry may be a question of degree. * * *

Defendant appeared for trial before a justice who was presiding over the case for the first time. Defense counsel informed the court that defendant wished to proceed pro se. Neither defense counsel nor the prosecution made the court aware of defendant’s CPL Article 730 exams or the potential for him to be experiencing delusional thoughts. Although the trial court conducted an extensive colloquy with defendant regarding the waiver of the right to counsel, at no point did the court inquire into defendant’s mental health. We find that, notwithstanding other aspects of the record supporting defendant’s capacity, the information in the CPL Article 730 reports indicating a potential for delusional thought was a red flag that required a particularized assessment of defendant’s mental capacity before resolving his request to proceed pro se … . People v Zi, 2019 NY Slip Op 09353, First Dept 12-26-19

 

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ALTHOUGH THE ALLEGED RETALIATORY ACTIONS BY THE EMPLOYER TOOK PLACE YEARS AFTER PLAINTIFF STOPPED WORKING FOR THE EMPLOYER, THE COMPLAINT STATED VALID CAUSES OF ACTION FOR RETALIATORY EMPLOYMENT DISCRIMINATION AND PROMISSORY ESTOPPEL, SUPREME COURT REVERSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, reinstated the retaliation (employment discrimination) and promissory estoppel causes of action against Artforum International Magazine. Plaintiff, an art curator, alleged sexual harassment by an Artforum publisher. After meeting with the two other publishers about the alleged harassment, the publishers allegedly promised to ensure the harassment would never happen again. Instead, plaintiff alleged, the publishers retaliated against her. The central issue on appeal is whether the actions by Artforum, which took place after plaintiff had left the magazine’s employment, could still be subject to the employment-discrimination prohibitions of the New York City Human Rights Law (NYC Administrative Code 8-107). The First Department held that the close-knit nature of the fine art business, and the effect the alleged retaliation by Artforum can have on plaintiff’s career in the art world, warranted finding plaintiff had stated valid causes of action:

… [T]here is jurisprudential grounding for expanding the boundaries of the employment context that is central to discrimination and retaliation claims in section 8-107(7) to the extent necessary to provide redress when there exists some nexus between the retaliatory harm alleged and a relationship characterized in some manner as one of employment, past or present. …

Similar reasoning can be justified in reading some expansiveness into the undefined and similarly ambiguous term “employment” for remedying retaliation under Administrative Code section 8-107(7). However, some safeguards are necessary to avoid the unintended consequence of allowing a lawsuit against a party who happens to be a plaintiff’s former employer on a retaliation theory when there is no reasonable connection between the harm alleged and that economic relationship. The plaintiff, if not a current employee, should be shown to occupy a subordinate position in an ongoing economic relationship that is threatened by the “employer’s” retaliation, and the nature of the retaliation itself should have a demonstrable nexus to the harm being alleged. Schmitt v Artforum Intl. Mag., Inc., 2019 NY Slip Op 09352, First Dept 12-26-19

 

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THE BUILDING OWNER AND MANAGER WERE ADDITIONAL INSUREDS UNDER A POLICY ISSUED TO THE CONTRACTOR HIRED TO RENOVATE CONCRETE WALKWAYS; THE OWNER AND MANAGER ARE ENTITLED TO COVERAGE FOR A SLIP AND FALL ALLEGED TO HAVE BEEN CAUSED BY PAINTING THE WALKWAYS ALL THE SAME COLOR AND THEREBY DISGUISING A CHANGE IN ELEVATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined plaintiffs are additional insureds under an insurance policy issued by defendant to nonparty Upgrade, the contractor hired to restore concrete catwalks. Plaintiffs, Windsor Apartments and Argo Real Estate, are entitled to coverage for a slip and fall in plaintiffs’ building allegedly caused by painting the floor all the same color, thereby disguising a change in elevation:

Defendant State National issued a commercial general liability (CGL) policy to Upgrade during the relevant time period. The policy contained a “Blanket Additional Insured” Endorsement that limited coverage to operations performed by or on behalf of Upgrade:

“It is agreed that this Policy shall include as additional Insureds any person or organization to whom the Named Insured [Upgrade] has agreed by written contract to provide coverage, but only with respect to operations performed by or on behalf of the Named Insured and only with respect to occurrences subsequent to the making of such written contract.”

The State National policy also stated that its coverage was primary, with exceptions not applicable here, for damages arising out of the premises or operations for which an entity is added as an additional insured.

The policy issued by plaintiff Fireman’s Fund Insurance Company (Fireman’s) to Windsor and Argo provided that coverage was excess when its insureds, Windsor and Argo, have other primary insurance available to them covering liability for damages arising out of the premises or operations for which they have been added as an additional insured. * * *

… [S]ince the injury to the plaintiff in the underlying action here “arose out of” Upgrade’s operation of painting the walkways, plaintiffs are additional insureds under the State National policy and the policy is primary in connection with the underlying action. Fireman’s Fund Ins. Co. v State Natl. Ins. Co., 2019 NY Slip Op 09399, First Dept 12-26-19

 

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PLAINTIFF’S ALLEGATIONS OF RAPE AND SEXUAL ASSAULT BY DEFENDANT ARE SUFFICIENT TO ALLEGE A CAUSE OF ACTION UNDER NEW YORK CITY’S VICTIMS OF GENDER-MOTIVATED VIOLENCE PROTECTION LAW; THERE IS NO NEED TO ALLEGE SIMILAR ASSAULTS AGAINST OTHER WOMEN TO DEMONSTRATE ANIMUS ON THE BASIS OF GENDER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over a concurring opinion, determined that plaintiff’s complaint, alleging rape and sexual assault, stated a valid cause of action under New York City’s Victims of Gender-Motivated Violence Protection Law (VGM). The central question on appeal was the meaning of the term “animus.” Supreme Court held that allegations defendant had sexually assaulted other women were properly included in the complaint to demonstrate animus. The First Department held plaintiff’s allegations of rape and assault, without allegations involving other women, were sufficient:

… [P]laintiff’s claims in the amended complaint that she was raped and sexually assaulted are sufficient to allege animus on the basis of gender. She need not allege any further evidence of gender-based animus. Defendant has conceded that the allegations herein are sufficient to show that the acts alleged were “committed because of gender or on the basis of gender.” That the alleged rape and sexual assault was “due, at least in part, to an animus based on the victim’s gender” is sufficiently pleaded by the nature of the crimes alleged.

Rape and sexual assault are, by definition, actions taken against the victim without the victim’s consent … . Without consent, sexual acts such as those alleged in the complaint are a violation of the victim’s bodily autonomy and an expression of the perpetrator’s contempt for that autonomy. Coerced sexual activity is dehumanizing and fear-inducing. Malice or ill will based on gender is apparent from the alleged commission of the act itself. Animus inheres where consent is absent. Breest v Haggis, 2019 NY Slip Op 09398, First Dept 12-26-19

 

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FAILURE TO INFORM THE DEFENSE ABOUT A SECOND EYEWITNESS TO THE SHOOTING WAS A REVERSIBLE BRADY VIOLATION, THE MOTION TO VACATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, reversing Supreme Court, over a dissent, granted defendant’s motion to vacate his conviction and ordered a new trial, based upon the People’s failure to notify the defense of a second eyewitness to the shooting (a Brady violation). The opinion is too detailed factually and too comprehensive legally to fully summarize here:

Several months after the trial concluded, the assistant district attorney who tried the case received an inter-office email attaching a report from a detective who had interviewed an eyewitness to the shooting. The ADA and another prosecutor had themselves interviewed the witness before the trial, having learned that a man who had been arrested for a drug sale near the Polo Grounds told a detective that he had seen the Philips shooting. The prosecutors spoke to the eyewitness in the detective’s presence, and no one took notes. Both prosecutors recalled only that the witness said he saw a man in brown clothes go down the 110 step-staircase, shoot Phillips, and go back up the steps. The ADA concluded that the statement was “cumulative” and did not disclose it to the defense. However, after receiving the email, he notified defendant’s trial counsel about the witness, and attached the report, which he stated he had not known had ever been created. * * *

Defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that it was obtained in violation of his state and federal constitutional rights, including his rights under Brady. Defendant noted that the prosecution failed to disclose that it had interviewed a second eyewitness two years before trial and failed to disclose the report. Defendant’s trial lawyer submitted an affirmation in which he explained how timely disclosure of the information would have affected his preparation of the defense, including a misidentification defense. His investigator also submitted an affidavit in which he stated that timely disclosure would have been valuable because the statement contained “several strong leads.” For example, he would have spoken to the eyewitness before his memory faded or he became uncooperative, and he would have located the other two people who were sitting with the eyewitness. In addition, the rumor that Phillips robbed Social Security recipients was another lead that would have caused the investigator to seek out people not otherwise on the defense “radar” for potential leads about Phillips or those who wanted to kill him. People v McGhee, 2019 NY Slip Op 09116, First Dept 12-19-19

 

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