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ALTHOUGH PLAINTIFF FELL DURING A STORM, THERE WAS EVIDENCE THE AREA WAS ICY BEFORE THE STORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this slip and fall case was properly denied. Although a storm was in progress when plaintiff fell, there was evidence there was ice in that area before the storm:

Although the meteorological records and the expert meteorological affidavits demonstrate that there was a storm in progress when the accident happened, a warehouse associate employed by [defendant] testified at his deposition that he saw ice on the ground the loading dock about a week before plaintiff’s fall and defendants submitted no evidence as to when the area was last inspected or cleaned before the accident. In these circumstances, there are triable issues of fact as to whether plaintiff’s fall was caused by pre-existing ice on the ground or the storm in progress and whether [defendants] had a reasonable time to remedy any alleged icy condition before the date of plaintiff’s fall … . Perez v Raymours Furniture Co., Inc., 2019 NY Slip Op 05083, First Dept 6-25-19

 

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FAMILY OFFENSE OF HARASSMENT UPHELD, SEXUAL MISCONDUCT, ASSAULT SECOND AND CRIMINAL OBSTRUCTION OF BREATHING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT).

The First Department, in this Family Law family offense proceeding, determined the evidence supported harassment second, but did not support one count of sexual misconduct, assault in the second degree, or criminal obstruction of breathing or blood circulation. Petitioner admitted that she expected payment for sex and did not demonstrate a lack of consent with respect to one of the sexual misconduct counts. Biting petitioner’s ear during sex did not constitute assault second (teeth being the dangerous instrument). And restricting petitioner’s breathing during sex was not a crime because respondent stopped immediately when petitioner expressed discomfort. With respect to harassment, the court wrote:

The record shows, inter alia, that respondent threatened petitioner that he would take the steps necessary to cause her to lose her immigration status and rights to the child if she stopped prostituting herself to him, thereby evincing respondent’s intent to harass and alarm petitioner (Penal Law § 240.26[3]) and his inducing petitioner to engage in a sexual relationship with him by instilling fear in her … . Matter of Irena K. v Francesco S., 2019 NY Slip Op 05066, First Dept 6-25-19

 

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JUDGE WHO DID NOT HEAR THE ORAL ARGUMENT COULD DECIDE THE SUMMARY JUDGMENT MOTION ON A PURELY LEGAL QUESTION (FIRST DEPT).

The First Department determined it was appropriate for a judge to decide a summary judgment motion, despite the fact that another judge heard the oral argument:

The fact that oral argument was held before a different Justice than the Justice who ultimately decided the motion for summary judgment is not a proper basis for vacating the order granting summary judgment. Although Judiciary Law § 21 provides that a Supreme Court Justice “shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge,” reversal is not warranted on this ground, because the Justice who granted the motion decided a purely legal question … . Marti v Rana, 2019 NY Slip Op 05011, First Dept 6-20-19

 

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DEFENDANT RAILROAD’S MOTION FOR SUMMARY JUDGMENT IN THIS FEDERAL EMPLOYERS’ LIABILITY ACT (FELA) ACTION BY A RAILROAD EMPLOYEE WHO WAS ASSAULTED BY A PASSENGER PROPERLY DENIED (FIRST DEPT).

The First Department determined the defendant railroad’s motion for summary judgment in this Federal Employers’ Liability Act (FELA) by a railroad employee assaulted by a passenger was properly denied. The court explained the evidentiary criteria under the FELA:

The Federal Employers’ Liability Act (FELA) (45 USC § 51 et seq.) provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad’s negligence. In an action under FELA, “the plaintiff must prove the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability” … . However, these elements are “substantially relaxed” and “negligence is liberally construed to effectuate the statute’s broadly remedial intended function” … . A claim under FELA “must be determined by the jury if there is any question as to whether employer negligence played a part, however small, in producing plaintiff’s injury” … . “A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee’s injury” … .

To establish the element of foreseeability, a plaintiff must show that the defendant had either actual or constructive notice of the defective condition (id.). However, notice generally presents an issue of fact for the jury … . “As with all issues under FELA, the right of the jury to pass on this issue must be liberally construed, with the jury’s power to draw inferences greater than in a common-law action” … .

Under the foregoing relaxed standard, there is sufficient evidence to raise an issue of fact concerning defendant’s actual or constructive notice of a risk of assault to conductors on the New Haven Line. Plaintiff testified that she was previously assaulted by a passenger, and that there was an ongoing problem of physical intimidation by large groups of adolescents refusing to pay their fares, which caused her to fear for her safety. Plaintiff also testified that she has called the MTA’s rail traffic controllers for police assistance at least 250 times to deal with abusive passengers; another conductor was punched in the face and knocked out on the New Haven Line; a passenger attempted to stab and rob another conductor on the Harlem Line. Stephney v MTA Metro-N. R.R., 2019 NY Slip Op 05004, First Dept 6-20-19

 

QUESTION OF FACT WHETHER THE LESSEE OF THE PROPERTY WAS AN OWNER OR AGENT OF THE OWNER FOR LABOR LAW PURPOSES, PROPERTY MANAGER WAS NOT LIABLE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM PLAINTIFF’S FALL FROM A ROOF (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action, stemming from falling from a roof he was working on, should have been granted with respect to the property owner (Bruckner) and the general contractor (Metro). There was a question of fact whether Western, which leased the property, was an “owner” or “agent” of the owner for Labor Law purposes. However, the property manager, Ashkenazy, had no authority to supervise or control plaintiff’s work and was not liable under Labor Law 240 (1), 241 (6) or 200:

An issue of fact exists as to whether Western, the lessee, was an “owner” or “agent” of the owner, for Labor Law purposes. Record evidence showing that Western was responsible for renovating the premises, including the roof, and had retained Metro as the general contractor for the renovation work, raises an issue of fact as to whether Western had the authority to supervise and control the work site … . The testimony of Western’s director of merchandising that he was not involved with the construction work is insufficient to excuse Western from liability, where he had no knowledge of, and could not testify to, the lease arrangements between Western and Bruckner, as well as the arrangement between Western and Metro … .

Ashkenazy had no involvement with the construction work, and was onsite only to check on its progress, and to ensure it did not interfere with the other tenants. The belief of its “Director of Property Management” that he may have been able to stop work at the job site “[w]ith proper notice I guess as per the lease” is too equivocal to raise an issue of fact. Because there was no evidence that Ashkenazy had authority to supervise or control the work site, the Labor Law § 240(1) claim should be dismissed against it … . Ashkenazy is also entitled to dismissal of the Labor Law § 241(6) claim because, for the same reasons, it is not an “owner” or “agent” under that statute … . Without authority to supervise or control plaintiff’s work, Ashkenazy also may not be held liable under Labor Law § 200 and common law negligence principles in this case involving the means and method of plaintiff’s work … . Reyes v Bruckner Plaza Shopping Ctr. LLC, 2019 NY Slip Op 05003, First Dept 6-20-19

 

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QUESTION OF FACT WHETHER THE DISCONTINUANCE OF A PRIOR FORECLOSURE ACTION DE-ACCELERATED THE MORTGAGE RENDERING THE INSTANT ACTION TIMELY (FIRST DEPT).

The First Department determined there was a question of fact whether the discontinuance of a prior foreclosure action de-accelerated the mortgage. If the mortgage was not de-accelerated the instant action would be time-barred:

Acceleration only takes place when the holder of the note and mortgage takes “affirmative action . . . evidencing the holder’s election” to do so … . This may be accomplished in the form of a notice to the borrower … . Affirmative action can also occur when the first foreclosure action is commenced … . The prior foreclosure action sought the accelerated mortgage amount.

There is an issue of fact in this particular case regarding whether plaintiff’s discontinuance of the prior foreclosure action de-accelerated the mortgage … . We note that neither the motion seeking discontinuance or the order entered granting that relief provided that the mortgage was de-accelerated or that plaintiff would now be accepting installment payments from the defendant … . U.S. Bank N.A. v Charles, 2019 NY Slip Op 04997, First Dept 6-20-19

 

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13-YEAR-OLD WHO, AS A FIRST OFFENSE, PARTICIPATED IN AN ASSAULT (USING A MINI OR SOUVENIR BASEBALL BAT) OF A COUPLE BY HER FATHER AND HER FATHER’S GIRLFRIEND PROPERLY ADJUDICATED A JUVENILE DELINQUENT AND SENTENCED TO A 12-MONTH PERIOD OF PROBATION WITH MENTAL HEALTH SERVICES AND SCHOOL MONITORING, STRONG TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, over an extensive two-justice dissent, determined the juvenile delinquent adjudication, the 12-month probation period, mental health services and school monitoring were appropriate. The dissenters argued an adjournment in contemplation of dismissal (ACD) was the appropriate disposition for this first offense. Appellant was 13 when her father, her father’s girlfriend and an unidentified man assaulted a couple. The father was panhandling in the subway and the couple had allegedly refuse to give the father money. Appellant apparently participated in the assault by striking the woman with a mini or souvenir baseball bat:

Although this was appellant’s first arrest, she was a participant in an unprovoked violent attack on two strangers. There is no dispute that appellant’s father instigated the attack. In the ensuing melee, appellant repeatedly struck the female complainant with a mini or souvenir baseball bat, while the father’s girlfriend continuously punched the complainant. Appellant continued the attack by joining her father and his girlfriend in chasing the two complainants, who were able to seek refuge in a restaurant where they called 911. After the police arrived, the complainants were transported by ambulance to the hospital to be treated for their injuries. The female complainant suffered from anxiety after the attack and continuing to the time of trial, and intended to relocate to another borough as a result of the attack. The dissent parses the incident focusing on the injuries inflicted by appellant, but as part of a group assault she is responsible for the consequences of the attack.

In addition to the seriousness of the offense, the available information supported the conclusions that appellant would benefit from engagement in mental health services and monitoring with regard to her school attendance and her academic performance and that she was in need of a longer period of supervision than the six-month period that an adjournment in contemplation of dismissal would have provided … . We find no abuse of discretion in the decision of the court, which heard the evidence and observed appellant throughout the proceedings. We note that appellant may seek relief from the juvenile delinquent adjudication when she reaches the age of 17 … . Matter of A.V., 2019 NY Slip Op 04996, First Dept 6-20-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM DEFENDANT THE AGGRAVATED FELONY TO WHICH DEFENDANT PLED GUILTY SUBJECTED HIM TO MANDATORY DEPORTATION, APPEAL HELD IN ABEYANCE TO ALLOW DEFENDANT TO MOVE TO VACATE HIS PLEA (FIRST DEPT).

The First Department determined defendant received ineffective of assistance of counsel. Counsel did not inform defendant he would be subject to mandatory deportation based upon his plea to an aggravated felony:

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea … and we hold the appeal in abeyance for that purpose. While defendant requests that his conviction be replaced by a conviction under a different subdivision of Penal Law § 220.16 that may entail less onerous immigration consequences, we find that to be an inappropriate remedy, and we instead order a hearing. People v Disla, 2019 NY Slip Op 04995, First Dept 6-20-19

 

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DEFENDANT CONSTRUCTIVELY POSSESSED STOLEN PROPERTY FOUND IN THE BOILER ROOM OF A GARAGE WHERE DEFENDANT AND TWO OTHERS WERE HIDING FROM THE POLICE AFTER A MUGGING; VICTIM WAS PROPERLY ALLOWED TO IDENTIFY THE DEFENDANT IN COURT, DESPITE THE SUPPRESSION OF THE SHOWUP IDENTIFICATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, determined defendant was properly convicted of constructive possession of property taken during a mugging, even though defendant, although present, did not participate in the mugging and was acquitted of robbery. The First Department further held that the victim was properly allowed to identify the defendant at trial, despite the suppression of the showup identification. The defendant was convicted on the theory that he constructively possessed the stolen property which (apparently) was found in the locked boiler room of a garage where he and the other two men involved were found hiding by the police:

… [T]he People established, by clear and convincing evidence, that the victim had a basis for her in-court identification of defendant independent of a previously suppressed showup procedure. A number of factors support the independent source finding ,,, , even when viewed in the light of modern scientific knowledge regarding identifications. The victim had an unobstructed view of defendant and the other two perpetrators, under good lighting, at close range, and had sufficient time to observe them while she was being attacked. …

Defendant’s presence, his hiding in an oily sump pit inside with the two robbers, and his attempt to physically resist detention compel the conclusion that defendant manifested a consciousness of guilt. Police testimony thus clearly established that defendant had been a participant in the criminal venture and that he exercised dominion and control over the room where the perpetrators were essentially trapped in close proximity to the stolen property, and thereby exercised dominion and control over, and thus joint constructive possession of, the property itself. People v Santiago, 2019 NY Slip Op 04897, First Dept 6-18-19

 

BUILDING OWNERS EXPENDED SUFFICIENT FUNDS FOR THE IMPROVEMENT OF AN APARTMENT TO JUSTIFY AN EXEMPTION FROM RENT STABILIZATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, over a two-justice dissenting opinion, determined that the building owners demonstrated the expenditure of sufficient funds for improvements to an apartment to justify an exemption from rent stabilization. The opinions are too extensive to fairly summarize here. What follows is the majority’s summary of the holding:

On this appeal, we are asked to determine whether the record sufficiently demonstrates that defendants Windemere Chateau, Inc. (Chateau), the original owner of a residential building located at 666 West End Avenue in Manhattan, and Windermere Owners, LLC (Owners), the successor owner of the building, expended an amount in qualified individual apartment improvements (IAIs) to apartment 4K in that building sufficient to render that apartment exempt from rent stabilization. Should we answer that question in the negative and conclude that defendants imposed a rent overcharge on the apartment’s tenant, plaintiff Laura DiLorenzo, we are then asked to determine whether there was evidence supporting a finding of willfulness on defendants’ part in doing so, warranting an award of treble damages to plaintiff. Upon our de novo review of the record, we conclude that defendants have substantiated their claims that they have made sufficient expenditures for IAIs performed in the apartment to warrant an exemption from rent stabilization and did not impose a rent overcharge. Thus, we do not reach the issue of whether defendants willfully imposed a rent overcharge. DiLorenzo v Windermere Owners LLC, 2019 NY Slip Op 04779, First Dept 6-13-19

 

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