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PETITIONER, WHO CONSENTED TO PROVIDING A DNA SAMPLE AFTER ARREST, MAY SEEK DISCRETIONARY EXPUNGEMENT OF THE DNA PROFILE AND UNDERLYING DOCUMENTS UPON BEING ADJUDICATED A YOUTHFUL OFFENDER, RESPONDENT JUDGE DIRECTED TO DECIDE WHETHER EXPUNGEMENT IS APPROPRIATE UNDER THE FACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, granted a writ of mandamus directing the respondent-judge to consider whether the expungement of DNA evidence derived from a sample provided with petitioner’s consent after arrest is appropriate. The petitioner was subsequently adjudicated a youthful offender (YO) and sought expungement on that ground. The DNA evidence is maintained by the New York City Office of Chief Medical Examiner (OCME). The First Department concluded that the OCME is subject to the State Executive Law and a court has the discretionary authority to expunge the YO’s DNA profile from the SDIS (index system used for mutual exchange, use and storage of DNA records), along with the underlying DNA records:

[Re: the propriety of the Article 78 proceeding:] In the absence of an available remedy at law (see CPL 450.20), the important issues raised on this appeal will escape this Court’s review unless this petition proceeds … . Moreover, this Court has original jurisdiction over the issues raised because they concern a sitting justice (CPLR 506[b][1]; 7804[b] …). …

There is abundant support for the conclusion that OCME’s responsibilities in testing, analyzing and retaining DNA data is subject to the State Executive Law. Respondent’s arguments that the statutory reference to a “state” DNA identification index in Article 49-B necessarily excludes a local DNA laboratory like that the one operated by OCME, is unavailing. …

… [W]e hold that the same discretion afforded to a court under the Executive Law to expunge DNA profiles and related records when a conviction is vacated may also be exercised where, as here, a YO disposition replaces a criminal conviction. The motion court, in finding that, as a matter of law, it had no discretion, failed to fulfill its statutory mandate to consider whether in the exercise of discretion, expungement of petitioner’s DNA records was warranted in this case. …

Petitioner did not, either expressly or by implication, waive the privilege of nondisclosure and confidentiality by providing his DNA before the court made its determination that he was eligible for YO status. Clearly the Executive Law permits an adult who has voluntarily given his or her DNA in connection with a criminal investigation the right to seek discretionary expungement where a conviction had been reversed or vacated. A youthful offender does not have and should not be afforded fewer pre-YO adjudication protections than an adult in the equivalent circumstances. Matter of Samy F. v Fabrizio, 2019 NY Slip Op 04120, First Dep 5-28-19

 

PLAINTIFF FELL FROM A SCAFFOLD WHICH HAD NO RAILINGS, PLAINTIFF DID NOT NEED TO DEMONSTRATE THE SCAFFOLD WAS DEFECTIVE, PLAINTIFF PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) scaffold-fall case was properly granted. The scaffold had not railings and plaintiff fell when the scaffold tipped because one of its wheels went through the floor. The court noted that plaintiff was not required to show that the scaffold was defective:

It is undisputed that the scaffold he was supplied with and directed to use lacked railings, and that he fell off when the scaffold tipped as one wheel broke through the floor on which it was standing. Plaintiff was not provided with any other safety devices. This evidence establishes prima facie a violation of Labor Law § 240(1) … . Plaintiff was not required to show that the scaffold was defective … . Martinez-Gonzalez v 56 W. 75th St., LLC, 2019 NY Slip Op 04111, First Dept 5-28-19

 

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DEFENDANT RESTAURANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE GREASY OR SLIPPERY CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined defendant restaurant’s summary judgment motion in this slip and fall case was properly granted. The restaurant demonstrated the floor had been inspected ten minutes before plaintiff fell and the floor had been cleaned the night before:

Defendants established prima facie that they neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Among other things, defendants’ manager received no complaints concerning the floor and saw nothing on the floor when he inspected in the morning or later, around ten minutes before plaintiff fell … . The evidence that neither plaintiff nor defendants’ employees saw the slippery substance on the floor until after plaintiff fell demonstrates that it was not sufficiently visible and apparent to charge defendants with constructive notice … .

Furthermore, testimony by defendant’s manager that the porter cleaned the restaurant floor every night with a solution of water and vinegar is sufficient to establish a lack of constructive notice … .

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s speculation that her fall could have been caused by the porter’s use of a vinegar and water mixture to clean the floors is insufficient to sustain a cause of action … . The wet or greasy substance on the floor of a busy restaurant was a transient condition that could have appeared at any point after the porter finished cleaning the floors in the morning … . Valenta v Spring St. Natural, 2019 NY Slip Op 04118, First Dept 5-28-19

 

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NEITHER THE VICTIM WITNESS PROTECTION ACT NOR THE MANDATORY VICTIM RESTITUTION ACT PROVIDES A PRIVATE RIGHT OF ACTION FOR A JUDGMENT BASED SOLELY UPON RESTITUTION ORDERED IN A CRIMINAL CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined that neither the Victim Witness Protection Act (VWPA) nor the Mandatory Victim Restitution Act (MVRA) provided for a private right of action for a judgment based solely upon restitution ordered in a criminal case:

… [T]he VWPA makes civil remedies available to collect restitution but does not make restitution a civil judgment that can simply be enforced in a private suit … . Rather, a victim may pursue a civil action for damages in connection with the injuries that resulted in a restitution order, and the restitution order may provide assistance in proving liability, but the petitioner may not rely entirely on the restitution order and the amount ordered in the criminal action. Thus, the petitioner can separately plead and prove liability and damages under either a statutory or a common-law cause of action if the restitution order fails to satisfy the victim … . …

Some cases may support the conclusion that under the MVRA, a victim who has obtained a lien on property based on a restitution order may enforce that lien in a special court proceeding … . However, these cases provide no support for the conclusion that a victim may enforce the abstract judgment itself without obtaining a lien, especially given that this would contradict the language of 18 USC § 3664(m), explicitly requiring a lien. Petitioner has obtained an abstract of judgment, but never recorded it as a lien on defendant’s property or brought an action to enforce it. … [T]he MVRA does not provide a cause of action for a private victim to enforce an abstract judgment on a restitution order, which is exactly what petitioner is seeking to do. Therefore, petitioner has no standing under the MVRA. Matter of Mikhlov v Festinger, 2019 NY Slip Op 04046, First Dept 5-23-19

 

NUISANCE COUNTERCLAIM BASED UPON PLAINTIFF’S PLAYING PIANO IN HER CONDOMINIUM SHOULD HAVE BEEN DISMISSED, NO SHOWING THE SOUND LEVEL WAS UNREASONABLE (FIRST DEPT).

he First Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment dismissing defendant’s (Harlan’s) nuisance counterclaim should have been granted. The nuisance counterclaim was based upon plaintiff’s playing piano in her condominium:

Plaintiff made a prima facie showing that her piano playing and piano lessons were reasonable by averring that these activities usually occurred during business hours on weekdays, they usually totaled less than 4½ hours a day, and her sound technician concluded that the noise emanating from her piano was within acceptable boundaries … . Harlan failed to raise a triable issue of fact in opposition because she did not submit any evidence showing that the level of sound that entered her apartment from plaintiff’s piano was unreasonable. Harlan’s reliance on the recordings by plaintiff’s sound technician is unavailing; the expert did not take any volume measurements in Harlan’s apartment and the recording taken in the condominium stairwell did not exceed that of a normal conversation. Leon v Harlan, 2019 NY Slip Op 04045, First Dept 5-23-19

 

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COMPLAINT STATED CAUSES OF ACTION FOR BREACH OF REAL ESTATE BROKERAGE CONTRACT, QUANTUM MERUIT, UNJUST ENRICHMENT AND PROMISSORY ESTOPPEL, STATUTE OF FRAUDS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiffs’ complaint stated causes of action for breach of contract, quantum meruit, unjust enrichment and promissory estoppel. The contract between plaintiff, a real estate broker, and defendant, a real estate developer, gave plaintiff the exclusive right to broker sales of luxury apartments in return for a reduced commission rate. The complaint alleged defendant accepted plaintiff’s services for two years but refused to pay after defendant received the benefits of the bargain:

Plaintiffs’ failure to identify in the complaint the specific national real estate sales and marketing agency with which plaintiffs were going to partner, along with the terms of such partnership, is not fatal to plaintiffs’ breach of contract claim. The alleged contract would imply a covenant of good faith and fair dealing pursuant to which plaintiffs would propose reasonable entities and defendants would reasonably accept or reject those proposals … . … As to the start and end date of the agreement, it can be inferred from the allegations in the complaint … . With regard to the identity of the promisor, the complaint indicates that all negotiations and interactions were with defendant Kuzinez. …

The complaint should not have been dismissed pursuant to the statute of frauds. As an initial matter, defendants did not move to dismiss based on the statute of frauds and plaintiffs were not afforded the opportunity to address the issue … . Moreover, the statute of frauds is inapplicable here as General Obligations Law § 5-701(a)(10) specifically exempts contracts to pay compensation to licensed real estate brokers, which is the type of contract alleged by plaintiffs.

The declaratory judgment cause of action, which seeks a declaration that plaintiffs have the right to serve as exclusive broker for all residential sales for the subject development, should be reinstated based on our finding that the complaint sufficiently alleges a claim for breach of contract.

Additionally, the quantum meruit, unjust enrichment, and promissory estoppel claims state causes of action. As to quantum meruit, the complaint alleges that plaintiffs provided services to defendants at a reduced cost or no cost, based on the promiseof the oral agreement …. As to promissory estoppel, the complaint alleges that defendants promised plaintiffs that they would serve as exclusive broker and that, in reasonable reliance on that promise, plaintiffs agreed, among other things, to substantially reduced commissions … . Elhanani v Kuzinez, 2019 NY Slip Op 04042, First Dept 5-23-19

 

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DEFENDANT RESTAURANT CAN BE LIABLE FOR THE NEGLIGENCE OF THE VALET PARKING SERVICE WITH WHICH IT CONTRACTED IF THE RESTAURANT HAD THE ABILITY AND OPPORTUNITY TO CONTROL THE CONDUCT OF THE CONTRACTOR, IF ESPINAL EXCEPTIONS APPLY, AND UNDER AN AGENCY THEORY, THE RESTAURANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (FIRST DEPT).

The First Department determined the restaurant’s (Dolphin’s) motion for summary judgment in this action alleging negligence on the part of a valet parking service (APV) with which the restaurant had contracted was properly denied:

A restaurant providing valet parking services can be held liable for the negligence of the service whose attendants are alleged to have caused an accident to a third party. This is the case even where the service is an independent contractor with which the restaurant has contracted … .

This duty arises [under Espinal] when there is an ability and opportunity to control the conduct of the restaurant’s contractors and an awareness of the need to do so. Thus, Dolphin cannot assert that it signed a contract with the valet parking service and then “covered its eyes with a blindfold”; rather, Dolphin was required to select a company “with, at the minimum, both appropriate insurance and competent drivers”. Defendant restaurant w … as able to decline to enter into any contract for valet services it felt insufficient, and therefore in the best position to protect against the risk of harm.

Dolphin similarly failed to demonstrate that it did not create an unreasonable risk of harm to others or that APV entirely displaced its duty to maintain the valet parking area safely … . Indeed, the evidence showed, inter alia, that the restaurant and the valet service communicated on a daily basis to determine proper staffing. The restaurant, further, obtained parking spots for the valet service to utilize on its behalf. The restaurant informed the valet service in advance of functions so that staffing could be arranged. The parties’ agreement similarly provided that service was provided “as requested” by the restaurant, and that it was the restaurant’s obligation to provide the schedule for each week.

Dolphin may also be liable under the doctrine of ostensible agency or apparent authority and thus estopped from denying liability for an entity it held out as its agent … . Evans v Norecaj, 2019 NY Slip Op 04029, First Dept 5-23-19

 

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PETITIONER’S MOTION TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE CITY HAD TIMELY NOTICE OF THE FACTS UNDERLYING PETITIONER’S INJURIES, THE FACTS SUPPORTING THE CITY’S NEGLIGENCE COULD HAVE BEEN DISCOVERED DURING THE INVESTIGATION WITH A MODICUM OF EFFORT, CITY DID NOT DEMONSTRATE PREJUDICE RELATING TO THE DELAY, PETITIONER’S FAILURE TO OFFER A REASONABLE EXCUSE FOR THE DELAY WAS NOT FATAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined that petitioner’s motion to serve a late notice of claim should have been granted. Petitioner, a medical technician, alleged she was struck by an inmate in the custody of the Department of Correction (DOC) while the inmate was being treated at Bellevue Hospital. The petitioner reported and discussed the incident with a DOC captain (Obigumeda) on the day it happened and sought to file the notice of claim seven months late:

Supreme Court presumably agreed with respondent’s argument that it lacked notice because petitioner never specified that she had told Obigumeda the manner in which DOC was negligent (namely, by failing to ensure that a correction officer was present when she spoke with the inmate). We disagree.

To the extent that petitioner did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, “municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort” … . Here, negligence is the only theory of liability that could be implied by petitioner’s conversations with Obigumeda and, in any event, he could have determined who was in the room during the course of his investigation with “a modicum of effort.” To hold otherwise would turn the statute into a sword, contrary to its remedial purpose … . …

… [R]espondent never provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time. Instead, respondent made “[g]eneric arguments and inferences” which cannot establish substantial prejudice “in the absence of facts in the record to support such a finding” … .

While petitioner did not demonstrate a reasonable excuse for service of her late notice of claim, the lack of excuse is not fatal here … . Matter of Rodriguez v City of New York, 2019 NY Slip Op 03921, First Dept 5-21-19

 

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THE CITY AND DEFENDANT CORRECTION OFFICER ARE NOT UNITED IN INTEREST BECAUSE THE CITY IS NOT VICARIOUSLY LIABLE FOR ITS EMPLOYEES’ VIOLATION OF 42 USC 1983, THEREFORE THE RELATION-BACK DOCTRINE CAN NOT BE RELIED UPON TO SUBSTITUTE THE CORRECTION OFFICER FOR “JANE DOE” AFTER THE STATUTE OF LIMITATIONS HAS RUN (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the relation-back doctrine could not be relied upon to substitute the name of a correction officer for “Jane Doe” in the complaint in this 42 USC 1983 action. The correction officer and the city are not “united in interest.” The city cannot be held vicariously liable for its employees’ violation of 42 USC 1983:

In this action alleging a claim of deliberate indifference under the Eighth Amendment and 42 USC § 1983, plaintiff did not serve the Jane Doe correction officer defendant before the statute of limitations ran. Although the claims against the intended defendant arise out of the same transaction as the claims alleged in the complaint, plaintiff cannot rely on the relation-back doctrine. The correction officer and defendant City are not “united in interest” because “the City cannot be held vicariously liable for its employees’ violations of 42 USC § 1983” … . Nor can plaintiff’s more than two-year delay in seeking to add the new defendant as a party after learning her identity be characterized as a mistake for relation-back purposes … .

Plaintiff’s reliance on CPLR 1024 is unavailing, as he does not demonstrate diligence in seeking to identify the unknown correction officer prior to the expiration of the statute of limitations … . Burbano v New York City, 2019 NY Slip Op 03937, First Dept 5-21-19

 

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PETITIONER, IN THIS JUDICIARY LAW 509 PROCEEDING, CAN NOT COMPEL THE COMMISSIONER OF JURORS TO REVEAL THE RESPONDENT’S ADDRESS AND DATES OF JURY SERVICE IN ORDER TO IMPEACH RESPONDENT’S TESTIMONY THAT HE RESIDED IN PETITIONER’S BUILDING IN 2008 AND 2009 AND WAS THEREFORE ENTITLED TO LOFT LAW PROTECTION UNDER THE MULTIPLE DWELLING LAW (FIRST DEPT).

The First Department, over a dissent, determined the petitioner in this Judiciary Law 509 (a) proceeding was not entitled to compel the Commissioner of Jurors to disclose respondent’s (Swezey’s) home and mailing address, as well as the dates of Swezey’s jury service. Petitioner was seeking to disprove Swezey’s testimony that he resided in a building owned by petitioner in 2008 and 2009 and was therefore entitled to Loft Law protection under the Multiple Dwelling Law:

Judiciary Law § 509(a) requires that juror “questionnaires and records shall be considered confidential and shall not be disclosed except to the county jury board or as permitted by the appellate division.” The purpose of the statute is to “provide a cloak of confidentiality for the information which the [juror] questionnaires contain” and to shield all information from disclosure in order to protect a juror’s privacy interest and/or safety (Matter of Newsday, Inc. v Sise , 71 NY2d 146, 152 [1987] … ). This blanket rule bars an individual from seeking any juror records unless the individual “present[s] some factual predicate which would make it reasonably likely that the records would provide relevant evidence” (People v Guzman , 60 NY2d 403, 415 [1983] …).

Here, petitioner failed to provide the necessary factual predicate to obtain these confidential records. Petitioner’s sole reason for requesting Swezey’s juror records is to impeach his testimony … . However, disclosure for the purpose of impairing someone’s credibility has been expressly rejected by the Court of Appeals in People v Guzman.  Matter of A. Trenkmann Estate, Inc. v Tingling, 2019 NY Slip Op 03923, First Dept 5-21-19

 

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