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PLAINTIFF’S INJURIES WERE NOT CAUSED BY A DEFECT IN THE SCAFFOLD OR A FAILURE TO PROVIDE AN ADEQUATE SAFETY DEVICE, LABOR LAW 200, 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over an extensive two-justice dissent, determined that plaintiff’s Labor Law 200, 240 (1) and 241 (6) causes of action were properly dismissed. Plaintiff was injured attempting to enter a building through a window from a scaffold, a prohibited method of entry. There was evidence plaintiff dislocated his shoulder trying to pull himself up to the window, and there was (possibly conflicting) evidence plaintiff fell backwards onto the scaffold. The majority concluded that in either scenario the injury was not caused by a defect in the scaffold or a failure to provide an adequate safety device, and therefore was not compensable:

Plaintiff’s claim was correctly dismissed because defendants demonstrated as a matter of law that plaintiff’s injury was not proximately caused by a violation of section 240(1). Plaintiff’s own actions were the sole proximate cause of his injuries. Plaintiff conceded that scaffold stairs were available to him to descend several floors and reenter the building. Further, as already noted, he admitted during his deposition that he knew he was not supposed to climb through the [*5]window and that it would have been safer to use the scaffold stairs. On appeal, he essentially argues, inter alia, that reentry via the scaffold stairs would have taken more time and would have been an inconvenience. Plaintiff also admitted to unhooking his safety line in order to climb through the window cut-out. Under the circumstances, adequate safety devices were available for plaintiff’s use at the job site, and his own actions in unhooking his safety line and climbing through the window were the sole proximate cause of his injuries … .

Because plaintiff’s actions were the sole proximate cause of his injuries, the claims for common-law negligence and violation of Labor Law § 200 were also properly dismissed … .

Plaintiff also failed to raise an issue of fact as to a violation of the Industrial Code, as required to support the claim under Labor Law § 241(6) … . Industrial Code (12 NYCRR) § 23-1.7(d), which requires that an employer “not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition,” clearly does not include a crossbar, such as the one from which plaintiff allegedly slipped, because it is limited to “working surfaces.” While a scaffold platform on which workers stand and work would seemingly come within the provision, structural crossbars which simply hold the scaffold together are not working surfaces required for standing or walking … . Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 2019 NY Slip Op 06142, First Dept 8-13-19

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE STAIRWELL WAS LAST INSPECTED OR CLEANED IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this slip and fall case. Plaintiff alleged a discarded metrocard was the cause of her slip and fall on a train station stairwell. The defendant did not demonstrate when the stairwell was last inspected or cleaned:

Defendant failed to establish its prima facie entitlement to judgment as a matter of law, in this action where plaintiff … alleges that he was injured when, while descending stairs in a subway station, he slipped and fell on a discarded Metrocard. Although the cleaner on duty in the station testified he was given a Cleaners Manual and a written cleaning schedule, evidencing that defendant had a “rational means for dealing with the problem” of strewn MetroCards on the stairwell of train stations, the cleaner conceded that he could not recall whether he had deviated from his usual work schedule on the date of plaintiff’s accident and he did not have an independent recollection of when the staircase was last cleaned or inspected prior to the accident … .

Because defendant did not establish its prima facie entitlement to summary judgment, the burden never shifted to plaintiff to establish how long the condition existed … . Carela v New York City Tr. Auth., 2019 NY Slip Op 06140, First Dept 8-13-19

 

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THERE WERE NO GROUNDS TO DISTURB THE FACTUAL FINDINGS MADE BY THE JUDGE IN THIS BENCH TRIAL OF A FORECLOSURE ACTION, TWO DISSENTERS ARGUED THE FINDINGS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the evidence at the bench trial in this foreclosure proceeding supported the judge’s conclusion that plaintiff bank was not the cause of defendant’s inability to obtain financing to payoff the mortgage pursuant to a settlement agreement. The dissenters argued the trial judge’s findings were against the weight of the evidence, primarily because the judge found defendant’s testimony to be “honest and accurate.” The key issue in the appeal was whether there were sufficient grounds to disturb the  judge’s factual findings:

… [W]e perceive no basis on which to disturb the trial court’s determination. As articulated by the Court of Appeals, the standard of review on an appeal from a decision based on findings of fact, resting in large measure on determinations of the credibility of witnesses, made by the court after a bench trial, is as follows:

“[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992] …).

Supreme Court’s rejection of defendant’s claim — a claim based on testimony not only lacking support in the contemporaneous documentary evidence, but inconsistent with that evidence — more than passes muster under this highly deferential standard. Security Pac. Natl. Bank v Evans, 2019 NY Slip Op 06138, First Dept 8-13-19

 

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SUPREME COURT SHOULD NOT HAVE DENIED PLAINTIFF’S REQUEST FOR A PRELIMINARY INJUNCTION WITHOUT A HEARING AND THE TEMPORARY RESTRAINING ORDER SHOULD NOT HAVE BEEN VACATED WITHOUT A HEARING, DEFENDANTS WERE SEEKING TO TERMINATE PLAINTIFF’S DIALYSIS TREATMENT BASED UPON SHARPLY CONFLICTING EVIDENCE OF PLAINTIFF’S BEHAVIOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined the the temporary restraining order (TRO) preventing defendant dialysis provider from stopping plaintiff’s treatment should not have been vacated and plaintiff’s request for a preliminary injunction should have been denied without a hearing. The dialysis provider, Avantus, wanted to discontinue treatment because of plaintiff’s behavior. However the evidence of plaintiff’s behavior was sharply conflicting:

… [T]he motion court had found that Avantus had not produced evidence showing that it had complied with any of the federal procedural requirements for terminating a patient’s care. Defendants had not presented any new evidence that it had done so before the court issued the order presently on appeal. Indeed, the court did not address the merits of defendants’ decision to terminate plaintiff’s care at all. Accordingly, the motion court should not have denied plaintiff’s request for a preliminary injunction without holding a hearing.

The motion court also improperly vacated the TRO without a hearing. Plaintiff’s showing that he would be irreparably injured in the absence of a TRO never changed. The court was presented with no evidence inconsistent with its finding in issuing the TRO that “there is no dispute that dialysis is a life-saving measure which plaintiff sorely needs, and at this stage of the litigation, the defendants have not established that the reasons for plaintiff’s discharge from the facility outweigh the risks that discharge would carry with regard to plaintiff’s health.”

In addition, although the court concluded that plaintiff had failed to comply with the conditions set forth in the TRO, the parties presented sharply divergent facts on that issue, which could not be resolved without a hearing. Wilder v Fresenius Med. Care Holdings, Inc., 2019 NY Slip Op 06054, First Dept 8-7-19

 

ACTION BROUGHT BY EUROPEAN PLAINTIFFS CONCERNING THE OWNERSHIP OF A PAINTING ILLEGALLY CONFISCATED BY THE NAZIS AND SOLD IN NEW YORK BY CHRISTIE’S PROPERLY DISMISSED ON FORUM NON CONVENIENS GROUNDS (FIRST DEPT). ​

The First Department determined a lawsuit to determine ownership of a Degas painting illegally confiscated by Nazis and years later sold at a Christie’s auction in New York was properly dismissed on forum non conveniens.  The plaintiffs’ rights arose in Germany and France and Swiss and French estate law apply:

The motion court properly dismissed this action on forum non conveniens grounds without first determining whether it had personal jurisdiction over all the defendants. Sinochem Intl. Co. Ltd. v Malaysia Intl. Shipping Corp.(549 US 422 [2007]) is persuasive authority on this point. In that case, a unanimous United States Supreme Court held that a trial court “has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has authority to adjudicate the cause (subject matter jurisidiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case” (id. at 425). To be sure, as the Sinochem Court noted, if a court can readily determine that it lacks personal jurisdiction over a defendant, the proper course is to dismiss on that ground. However, where personal jurisdiction is difficult to determine, and forum non conveniens considerations clearly militate in favor of dismissal, a court may dismiss on the latter ground (id. at 436). …

Plaintiffs’ rights as heirs to the painting arose in Germany and France, although the painting was allegedly wrongfully sold in New York. The burden on the New York court in applying Swiss and French estate law to determine the underlying issue of the lawful heirs to [the owner’s] estate is significant. As the motion court noted, the parties “not only dispute the applicable foreign law, but discuss the substance of the law . . . in a manner that is, at best, opaque.” “The applicability of foreign law is an important consideration in determining a forum non conveniens motion . . . and weighs in favor of dismissal” … . …

The potential hardships to the defendants of litigating in New York are clear. * * *

Switzerland appears to be an available alternative forum. France and Germany also may be possible alternatives.  Kainer v UBS AG, 2019 NY Slip Op 06053, First Dept 8-7-19

 

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DISPUTE INVOLVING MALAYSIAN BANKS, INCLUDING GOLDMAN SACHS SINGAPORE, PROPERLY DISMISSED ON FORUM NON CONVENIENS GROUNDS (FIRST DEPT).

The First Department determined a dispute involving Goldman Sachs Singapore (GSS) was properly dismiss on forum non conveniens grounds:

The action was properly dismissed on forum non conveniens grounds, given the unduly burdensome inquiry involved in determining personal jurisdiction in these circumstances and the balance of the forum non conveniens considerations … . The decision whether the court had jurisdiction over GSS because GSS was a mere department of New-York-based Goldman Sachs Group, Inc. (GSG) would involve an “arduous inquiry”… into whether GSG controlled GSS’s finances, interfered with the selection and assignment of executive personnel, and failed to observe corporate formalities, and whether defendant Tim Leissner had sufficient contacts with New York.

Plaintiff’s causes of action for fraud and breach of fiduciary duty lack a substantial nexus with New York … . Furthermore, plaintiff is a Cayman Islands partnership, not a New York resident … . Finally, Malaysia has a greater interest than New York in whether one Malaysian bank (nonparty Hong Leong Bank) corruptly took over another Malaysian bank (EON) … . Primus Pac. Partners 1, LP v Goldman Sachs Group, Inc., 2019 NY Slip Op 06052, First Dept 8-6-19

 

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COMMISSIONER OF LABOR AND INDUSTRIAL BOARD OF APPEALS COULD NOT PURSUE STATE WAGE CLAIMS ON BEHALF OF CLAIMANTS WHO ARE SUBJECT TO A CLASS ACTION SETTLEMENT IN FEDERAL DISTRICT COURT IN WHICH THE STATE WAGE CLAIMS WERE RELEASED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined that the Commissioner of Labor and the Industrial Board of Appeals (IBA) were bound by the federal district court’s release in a class action alleging failure to pay minimum wages, failure to pay overtime wages and unlawful deductions. The IBA had awarded two members of the class state wage claims together with interest and penalties:

Procedurally, IBA erred in entertaining this issue. In the final approval order, the District Court clearly and unmistakably retained exclusive and continuing subject matter jurisdiction of the Stewart class action “for the purposes of supervising the implementation, effectuation, enforcement, construction, administration and interpretation of the Settlement Agreement and this Judgment.” Undoubtedly, the District Court “has the power to enforce an ongoing order against relitigation so as to protect the integrity of a complex class settlement over which it retained jurisdiction” … . … * * *

Because we have determined that claimants have released their dual wage claims, the focus now necessarily concerns the concept of privity, and whether it exists between claimants and respondents [Commissioner of Labor, et al]. We find that the holding in Applied Card Sys., Inc. (11 NY3d at 124) is dispositive of this issue.

The Applied Card Court addressed whether the state Attorney General was precluded under the doctrine of res judicata from pursuing on the class members’ behalf their restitution claims released in an underlying class action settlement. The Court held that because the Attorney General was pursuing claims identical to the ones that had been released that fact alone established privity … . The facts herein are virtually indistinguishable from Applied Card. Here, respondents, on behalf of claimants, seek to pursue their released dual wage claims. As such, privity has been established between claimants and respondents. Matter of Silvar v Commissioner of Labor of the State of N.Y., 2019 NY Slip Op 05841, First Dept 7-30-19

 

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HANDGUN FOUND IN A COAT IN A CLOSET BY A PAROLE OFFICER WITH A PAROLE ABSCONDER WARRANT SHOULD NOT HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing the suppression court in an appeal by the People, determined the handgun found during a search of defendant’s bedroom pursuant to a parole warrant should not have been suppressed. The parole officer testified she was searching a closet to see if defendant was hiding there when she felt a handgun in the pocket of a jacket she had seen defendant wearing:

In Huntley, the Court of Appeals “relied on the dual nature of a parole officer’s duties and a parolee’s reduced expectation of privacy to hold that a parolee’s constitutional right to be secure against unreasonable searches and seizures is not violated when a parole officer conducts a warrantless search that is rationally and reasonably related to the performance of the parole officer’s duties” (… see Huntley, 43 NY2d at 179, 181 …). “It would not be enough necessarily that there was some rational connection; the particular conduct must also have been substantially related to the performance of duty in the particular circumstances” … .

Applying this standard, we find that Parole Officer Williams, whose testimony the hearing court credited, acted lawfully in retrieving the firearm from defendant’s jacket pocket. While executing a valid parole warrant, and in the course of searching for defendant pursuant to that warrant, Williams inadvertently felt an object, that both she and her supervisor believed to be a gun, in the jacket pocket. Because parolees are not permitted to possess firearms, Williams’s discovery meant that defendant was in further violation of the conditions of his supervised release. Thus, the minimally invasive step of retrieving the gun from the pocket was “rationally and reasonably related to the performance of [her] duty as [defendant’s] parole officer” … . People v Jennings, 2019 NY Slip Op 05838, First Dept 7-30-19

 

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THE NYC DEPARTMENT OF SOCIAL SERVICES DOES NOT HAVE THE AUTHORITY TO RECOVER MEDICAID OVERPAYMENTS FROM PERSONAL CARE SERVICE PROVIDERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn. over a two-justice dissent, determined that The City of New York Human Resources Administration Department of Social Services (HRA) does not have the authority to audit and recover overpayments of funds provided pursuant to the Health Care Reform Act (HCRA) from personal care service providers such as petitioner People Care Incorporated d/b/a Assisted Care:

The determinative issue on this appeal is not whether the HCRA funds were denominated as “Medicaid rates of payment” or “Medicaid rate adjustments” in the statute and the MOU [memorandum of understanding]. Rather, the issue presented here is whether, under the terms of the 2001 contract, Public Health Law § 2807-v(1)(bb)(i) and the MOU superseded the provisions of that contract as to the auditing and recoupment of HCRA funds. * * *

… [N]either Public Health Law § 2807-v(1)(bb), as the governing statute, nor the MOU between DOH [NYS Department of Health] and HRA, entered into pursuant to that statute, contains any language delegating DOH’s auditing and recoupment authority to HRA or any other agency. Matter of People Care Inc. v City of New York Human Resources Admin., 2019 NY Slip Op 05756, First Dep 7-23-19

 

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ALTHOUGH THERE IS NO CAUSE OF ACTION FOR CIVIL CONSPIRACY IN NEW YORK, THE ELEMENTS OF CONSPIRACY, INCLUDING OVERT ACTS, WERE PROPERLY PLED AS PART OF THE FRAUD CAUSE OF ACTION (FIRST DEPT). ​

The First Department, modifying Supreme Court, determined that, although there is no cause of action for civil conspiracy in New York, the conspiracy alleged here was validly pled as part of the fraud cause of action. The unjust enrichment cause of action should have been dismissed because there was no close relationship between the plaintiff and defendant. The complaint did not support the punitive damages claim because it did not allege defendants’ actions were aimed at the public or showed moral turpitude. The permanent injunction cause of action was validly pled because the injury cannot be fully compensated by money damages. The action stemmed from a failed partnership to develop a cure for rare genetic blood disorders:

The complaint states a cause of action for fraud by alleging that Sloan-Kettering knowingly misrepresented or omitted a material fact for the purpose of inducing plaintiff to rely upon it, that plaintiff justifiably relied on the misrepresentation or omission, and that plaintiff sustained injury … . …

… “[C]ivil conspiracy is not recognized as an independent tort in this State” … . Rather, the “allegations in the complaint herein charging conspiracy are deemed part of the remaining causes of action to which they are relevant” … . Here, the conspiracy charge remains as part of the fraud cause of action. …

… “[L]iability for fraud may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute the fraud” … . Allegations of conspiracy “serve to enable a plaintiff to connect a defendant with the acts of his co-conspirators where without it he could not be implicated” … .

… [P]laintiff sufficiently alleges overt acts …. …

… [T]he liability of a defendant as a conspirator for co-conspirators’ wrongful acts “does not necessarily depend upon his active participation in the particular overt acts” … . Moreover, once a conspiracy is established, all defendants are liable for each other’s acts in furtherance of the conspiracy … . Errant Gene Therapeutics, LLC v Sloan-Kettering Inst. for Cancer Research, 2019 NY Slip Op 05754, First Dept 7-23-19

 

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