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DEFENDANT REQUESTED AN ATTORNEY IN NEVADA AND DID NOT WAIVE HIS RIGHT TO COUNSEL BEFORE HE WAS QUESTIONED IN NEW YORK, HIS STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant had requested an attorney in Nevada and, upon being returned to New York, was questioned without waiving his right to counsel in the presence of counsel. Therefore the statements should have been suppressed:

Defendant’s motion to suppress his incriminating written and videotaped statements should have been granted. Several days before defendant made the contested statements, he was taken into custody by the Las Vegas Police Department. While in custody, defendant requested to speak with the detective from the Regional Fugitive Task Force who had located defendant in Las Vegas and was about to bring him back to New York. The detective met defendant in a conference room and asked him if he wanted to talk. Defendant responded, “I would like to tell you what happened, but I think I want to talk to an attorney.” The detective, who responded by saying “okay,” and did not ask defendant any questions about the homicide, testified that he understood that defendant “wanted an attorney.”

Upon returning to New York, defendant met with the investigating detective and made incriminating written and video statements. Defendant moved to suppress his statements, which was denied, and the statements were admitted at trial.

“When a defendant in custody unequivocally requests the assistance of counsel, any purported waiver of that right obtained in the absence of counsel is ineffective … . People v Roman, 2019 NY Slip Op 06719, First Dept 9-24-19

 

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COURT OF APPEALS 2009 RULING THAT LANDLORDS RECEIVING J-51 TAX BENEFITS CANNOT DEREGULATE NEW YORK CITY APARTMENTS APPLIES RETROACTIVELY IN THIS CLASS ACTION FOR RENT OVERCHARGES BROUGHT BY TENANTS; THE CLASS, HOWEVER, SHOULD NOT HAVE BEEN EXPANDED AFTER THE ACTION WAS COMMENCED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Richter too comprehensive to fairly summarize here, modifying Supreme Court, determined that the class action by tenants in defendant’s large housing complex properly sought repayment of rent overcharges. The complaint alleged the landlord, under New York City rent control and stabilization law, and pursuant to a 2009 Court of Appeals case (Roberts v Tishman, 13 NY3d 270), could not deregulate apartments while receiving so-called “J-51” tax benefits. The landlord argued unsuccessfully that the Roberts decision did not apply retroactively. The First Department remanded the case for recalculation of the overcharges and further held that Supreme Court should not have expanded the class. With regard to the expansion of the class, the court wrote:

CPLR 902 provides that a class action “may be altered or amended before the decision on the merits.” However, that provision also states that “[an] action may be maintained as a class action only if the court finds that the prerequisites under [CPLR] 901 have been satisfied.” Those requirements are generally referred to as “numerosity, commonality, typicality, adequacy of representation and superiority” (City of New York v Maul, 14 NY3d 499, 508 [2010]). CPLR 902 further requires the court to consider a range of factors before certifying a class.

Here, the motion court improvidently exercised its discretion in expanding the class. The court’s order failed to analyze whether class action status was warranted based on the criteria set forth in CPLR 901 and CPLR 902. Conducting that analysis ourselves, we find that the redefined class represents such a fundamental change in the theory of plaintiffs’ case that expansion of the class would be improper. When the class was originally certified, plaintiffs maintained, and the court agreed, that its members were tenants who received deregulated leases while the complex was receiving J-51 benefits. The expanded class, however, would include tenants who never lived in the complex during defendant’s receipt of J-51 benefits, and who received regulated leases for their tenancies. Thus, the legal issues for this group of tenants are separate and distinct from those of the original class. Dugan v London Terrace Gardens, L.P., 2019 NY Slip Op 06578, First Dept 9-17-19

 

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A PRIVILEGE UNDER WISCONSIN INSURANCE LAW APPLIED IN THIS NEW YORK ACTION CONCERNING INSURANCE CLAIMS STEMMING FROM THE ISSUANCE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES (FIRST DEPT).

The First Department determined a privilege under Wisconsin Law protected certain emails and documents generated in a Wisconsin action by the Wisconsin Commissioner of Insurance concerning the payment of insurance claims stemming from the issuance of residential mortgage-backed securities, The decision doesn’t explain the underlying facts:

The Commissioner appointed a Special Deputy Commissioner (SDC) to oversee all activities … from Ambac’s [plaintiffs’] New York offices, and, at the SDC’s direction, plaintiffs commenced this action in New York, asserting claims of fraudulent inducement and breach of contract in connection with the policies Ambac issued on the securitizations sponsored by defendant. When defendant demanded the production of certain emails and other documents maintained by the SDC, plaintiffs responded by claiming the statutory privilege held by the Wisconsin Office of the Commissioner of Insurance (OCI) under Wisconsin law (see Wis Stat § 601.465). Defendant argued that New York law should be applied because, in adjudicating privilege issues, New York courts must apply the law of the place where the evidence will be introduced at trial or where the discovery proceeding is located. Supreme Court, after engaging in an interest-balancing analysis, determined that the Wisconsin statutory privilege was applicable, and denied defendant’s motion to compel. We affirm.

New York courts “routinely apply the law of the place where the evidence in question will be introduced at trial or the location of the discovery proceeding when deciding privilege issues” … . However, there are circumstances in which an interest-balancing analysis is properly undertaken to decide whether another state’s law should govern the evidentiary privilege … .  This is a case that presents such circumstances … . Ambac Assur. Corp. v Nomura Credit & Capital, Inc., 2019 NY Slip Op 06574, First Dept 9-17-19

 

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PLAINTIFF STATED CAUSES OF ACTION STEMMING FROM UNDERPAYMENT OF WAGES FOR MANUAL LABOR PURSUANT TO THE LABOR LAW; PLAINTIFF WAS PAID BI-WEEKLY; THE LABOR LAW REQUIRES PAYMENT WEEKLY (FIRST DEPT)

The First Department determined plaintiff stated causes of action under the Labor Law stemming from her employer’s paying her bi-weekly, rather than weekly, for manual labor, in violation of Labor Law 191. Plaintiff sought liquidated damages, interest and attorney’s fees pursuant to Labor Law 198 (1-a).  The bi-weekly payments were deemed “underpayment” and the Labor Law provided plaintiff with a private right of action:

… [T]he term underpayment encompasses the instances where an employer violates the frequency requirements of section 191(1)(a) but pays all wages due before the commencement of an action. “In the absence of any controlling statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts’ in determining the meaning of a word or phrase” … . The word underpayment is the noun for the verb underpay; underpay is defined as “to pay less than what is normal or required” … . The moment that an employer fails to pay wages in compliance with section 191(1)(a), the employer pays less than what is required. …

In interpreting the liquidated damages provisions of the Fair Labor Standards Act of 1938 (FLSA), the Supreme Court has held that, regardless of whether an employee has been paid wages owed before the commencement of the action, the statute provides a liquidated damages remedy for the “failure to pay the statutory minimum on time,” … Labor Law § 198(1-a), although not identical to the FLSA liquidated damages provision (29 USC § 216[b]), has “no meaningful differences, and both are designed to deter wage-and-hour violations in a manner calculated to compensate the party harmed” … . …

Labor Law § 198(1-a) expressly provides a private right of action for a violation of Labor Law § 191. Defendant’s position that no private right of action exists is dependent on its erroneous assertion that the late payment of wages is not an underpayment of wages.

Furthermore, even if Labor Law § 198 does not expressly authorize a private action for violation of the requirements of Labor Law § 191, a remedy may be implied since plaintiff is one of the class for whose particular benefit the statute was enacted, the recognition of a private right of action would promote the legislative purpose of the statute and the creation of such a right would be consistent with the legislative scheme … . Vega v CM & Assoc. Constr. Mgt., LLC, 2019 NY Slip Op 06459, First Dept 9-10-19

 

PLAINTIFF FELL FROM AN UNGUARDED ELEVATED PLATFORM; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted, and defendants’ motion for summary judgment on the Labor Law 200 cause of action should not have been granted in this “fall from an elevated platform” case:

Plaintiff electrician was injured when he fell from an elevated concrete platform on his work site that did not have safety rails or stairs, and over which he was repeatedly required to traverse to access an electrical panel to do his work. This accident falls within the ambit of Labor Law § 240(1), because plaintiff’s injuries were the direct consequence of a failure to provide adequate protection, such as a guardrail or stairs, to prevent the risk posed by the physically significant elevation differential … .

Since plaintiffs’ Labor Law § 200 claim is premised upon [defendant’s] alleged notice and failure to remedy the dangerous condition of materials stored haphazardly on the platform where plaintiff fell, it should have been sustained … . Coombes v Shawmut Design & Constr., 2019 NY Slip Op 06455. 9-10-19​

 

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THE DEPOSIT OF FULL PAYMENT OF JUDGMENTS IN A COURT MONITORED ESCROW ACCOUNT DID NOT STOP THE ACCRUAL OF POST-JUDGMENT INTEREST (FIRST DEPT).

The First Department determined the deposit of full payment of judgments placed in a court monitored escrow account were subject to the accrual of post-judgment interest:

Defendants’ deposit of full payment on the judgments entered against it to a court monitored escrow account (the Monitorship Account) was not unconditional, such that it did not stop the accrual of post-judgment interest … . Although the Monitorship Order expressly directed the Monitor to collect the judgment amounts and expressly provides for the collection of “pre- and post-judgment interest,” such funds could not be further transferred until further order of the court. Moreover, the Monitorship Order reflects that the parties were not waiving “any rights, defenses or claims not set forth in the agreed order” by stipulating to the appointment of such Monitor. Accordingly, defendants’ payment to the Monitorship Account was conditioned on defendants preserving both their defenses to plaintiff’s claims, and defendants’ direct claims to those funds.

Contrary to defendants’ arguments, the payment to the Monitorship Account was not a “deposit to the court,” as it was not “pursuant to an order of the court, made upon motion” (CPLR 5021[a][3]). Rather under the circumstances, the Monitorship Account functioned simply as an escrow account while the defendants continued to oppose plaintiff’s claims and pursue their own. Triadou SPV S.A. v CF 135 Flat LLC, 2019 NY Slip Op 06453, First Dept 9-10-19

 

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ALTHOUGH THE EASEMENT WAS NOT RECORDED IN PLAINTIFF’S DIRECT CHAIN OF TITLE, IT WAS INDEXED UNDER A BLOCK AND LOT NUMBER SYSTEM, THEREFORE PLAINTIFF HAD CONSTRUCTIVE NOTICE OF THE EASEMENT AND WAS NOT A BONA FIDE PURCHASER (FIRST DEPT). ​

The First Department, in a detailed opinion by Justice Friedman, determined a reasonable title search would have turned up an easement on the subject property. Therefore, plaintiff was not a bona fide purchaser of the empty lot (57 Crosby). The interesting opinion is too detailed to fairly summarize here. The following excerpt provides the flavor of the reasoning:

The question presented … is whether plaintiff, when it purchased 57 Crosby in 2011, had constructive notice of the 1981 easement, notwithstanding that the indexing of the easement had not been changed by the City Register when 57 Crosby was subdivided from Lot 30 in 1984 and reassigned its previous designation of Lot 9.

… [T]he answer to the foregoing question does not turn on whether the 1981 easement would have been found in a search in 2011 of the direct chain of title to 57 Crosby. Almost 40 years ago, the Court of Appeals held that “the rule limiting constructive notice to recorded conveyances that are within the purchaser’s direct chain of title” does not apply “to instances in which the purchaser had access to a block and lot’ or tract indexing system,” such as the one in use in New York City … . … “[I]n counties using a block and lot’ indexing system, a purchaser is charged with record notice of all matters indexed under the block and lot numbers corresponding to the purchaser’s property, regardless of whether such information also appears in his or her direct chain of title” … . Thus, although … the 1981 easement was not recorded within plaintiff’s direct chain of title, that circumstance has no bearing on the outcome of this appeal … . Akasa Holdings, LLC v 214 Lafayette House, LLC, 2019 NY Slip Op 06447, First Dept 9-3-19

 

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THE INSURED DID NOT SHOW UP FOR THE SCHEDULED INDEPENDENT MEDICAL EXAMS IN THIS NO-FAULT POLICY CASE, ARBITRATOR’S AWARD IRRATIONALLY IGNORED THE CONTROLLING LAW (FIRST DEPT).

The First Department, reversing the arbitrator, granted the insurer’s petition to vacate the arbitration award in this no-fault policy case:

The master arbitrator’s award was arbitrary because it irrationally ignored the controlling law that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams … . Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 2019 NY Slip Op 06445, First Dept 9-3-19

 

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PLAINTIFF DID NOT DEMONSTRATE DEFENDANTS’ JANITORIAL SCHEDULE WAS MANIFESTLY UNREASONABLE IN THIS SLIP AND FALL CASE, WHICH PRECLUDES DEFENDANTS’ LIABILITY; PLAINTIFF’S TESTIMONY DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGED WET CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted in this slip and fall case. Defendants’ presented evidence of the janitorial schedule for a particular day which was deemed sufficient to preclude liability because plaintiff did not demonstrate the schedule was manifestly unreasonable.  And plaintiff’s testimony the defendants did not have actual or constructive notice of the alleged wet condition on the stairs:

Defendants’ superintendent offered testimony as to the janitorial schedule to be followed on a particular day. An established reasonable cleaning routine precludes the imposition of liability … . Where, as here, the incident occurs outside of the scheduled cleaning routine, plaintiff’s failure to raise a factual issue that such routine was manifestly unreasonable so as to require altering it warrants dismissal of the complaint … .

Furthermore, plaintiff testified that there was no wet condition on the stairs when he left the building, that upon his return a short while later he observed an alleged wet condition on the stairs, that he did not notify anyone of such condition, and that as a result of this condition he slipped and fell on the stairs as he was leaving the building a second time. Plaintiff’s testimony demonstrates that defendants did not have actual notice of the purported wet condition, or constructive notice given that the condition did not exist for a sufficient length of time prior to the accident to permit defendants’ employees to discover and remedy it … . Thomas v Sere Hous. Dev. Fund Corp., 2019 NY Slip Op 06443, First Dept 9-3-19

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THERE ARE QUESTIONS OF FACT WHETHER DEFENDANTS WERE NOTIFIED THAT THE ELEVATOR DOORS CLOSED TOO FAST AND WHETHER REPAIRS TO THE DOOR COULD BE RELATED TO THE CLOSING VELOCITY; PLAINTIFF ALLEGED HIS THUMB WAS CAUGHT IN THE CLOSING DOOR; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to the defendant’s in this elevator accident case. Plaintiff alleged the elevator door closed too fast and his thumb was caught in the closing door. Plaintiff alleged he had complained to the building superintendent, a building maintenance employee and the management company about the door closing too fast. Both parties submitted affidavits from experts:

The superintendent-in-training on the date of the accident testified that he did not receive any complaints regarding problems with the elevator door. The field mechanic for [the elevator service company] testified that he did not complete any repair work with respect to the door opening and closing too quickly. He did, however, replace the elevator shoe which is a necessary component for the elevator door to be able to close … .

Plaintiff … testified that prior to his accident he had complained to the then superintendent, another building maintenance employee, and the management company numerous times regarding the velocity with which the elevator door closed. Plaintiff testified further that during one of his conversations with the management company regarding the elevator door, he was told that management would send a service company out to address the issue. Additionally, plaintiff testified that approximately two months before his accident, he witnessed a friend get hit in the shoulder by the fast closing elevator door, and that plaintiff and his mother reported this incident to the then superintendent and the management company.

The parties also presented conflicting expert affidavits regarding the potential causes of the alleged elevator door malfunction, including the purpose of the elevator shoe, and the relevance of the velocity with which the door closed as it pertained to the cause of plaintiff’s injury, which only further precludes a grant of summary judgment … . Mable v 384 E. Assoc., LLC, 2019 NY Slip Op 06442, First Dept 9-3-19

 

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