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THE COMPLAINT ALLEGED THE ICY CONDITION EXISTED BEFORE 10 INCHES OF SNOW FELL, DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE NOTICE OF THE ICE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged the icy condition existed before the snow fell and defendants didn’t demonstrate a lack of notice of the icy condition:

Although it is undisputed that about 10 inches of snow fell about two hours before the … accident, Supreme Court should have denied [defendants’] summary judgment because their submissions failed to address the complaint’s allegations that the ice was on the sidewalk before that storm and that they received notice that it was there. Specifically, they failed to present evidence from someone with knowledge as to whether either entity received a complaint about the location before the storm commenced and the area’s condition before the new precipitation fell. Wolf v St. Vincent’s Catholic Med. Ctrs. of N.Y., 2019 NY Slip Op 03293, First Dept 4-30-19

 

QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR AND WHETHER DEFENDANT HAD SUPERVISORY AUTHORITY OVER SAFETY CONDITIONS IN THIS LABOR LAW 240 (1) LADDER-FALL CASE (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) ladder-fall action was properly denied as against the alleged genera contractor, Edler. There was a question of fact whether Edler was a general contractor and whether Edler had the authority to supervise safety conditions:

To be found a “general contractor” for purposes of establishing liability pursuant to Labor Law § 240(1), plaintiffs must show that Edler had the ability to control the activity bringing about the injury and the authority to correct unsafe conditions … . Here, plaintiffs failed to establish, as a matter of law, that Edler had the ability to control [plaintiff’s employer’s] work at the premises or stop the work. The record reflects that although Edler was hired to “supervise” the project, Edler did not hire, retain or pay any of the contractors working at the premises … . Moreover, the homeowner testified that he “assume[d]” that Edler had safety responsibilities and that it was his understanding that Edler had the authority to stop work on the job site if an unsafe condition arose. However, Edler’s principal denies that he had the authority to stop the work at the premises, and the agreement between Edler and the homeowner does not specifically confer upon Edler the authority to stop the work if an unsafe condition was observed … . Rather, it provides that part of Edler’s “site supervision” responsibilities included supervising “day to day operations” of the site and trade. An issue of fact remains as to whether this includes supervision of the safety conditions. Uzeyiroglu v Edler Estate Care Inc., 2019 NY Slip Op 03285, First Dept 4-30-19

 

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REPORT OF FIRE MARSHAL, WHO HAD NO INDEPENDENT RECOLLECTION OF HIS INVESTIGATION INTO THE CAUSE OF THE FIRE, WAS ADMISSIBLE PURSUANT TO THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE, COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff could not defeat a summary judgment motion by raising a new theory of liability in the opposing papers:

The report established that the fire marshal conducted an investigation at the subject premises and concluded that the fire in defendants’ building was caused by combustible clothing left in a dryer for too long, rather than any defect in the premises or dryer … . Although the fire marshal did not have an independent recollection of his investigation, his report was admissible under the business record exception to the hearsay rule, and was sufficient to satisfy defendants’ prima facie burden, since it noted that he independently inspected the premises and concluded that the accident was not due to defendants’ negligence … .

In opposition, plaintiff failed to raise a triable issue of fact. Her expert failed to address the theories of liability raised in the complaint and bill of particulars and failed to rebut defendants’ showing. Instead, plaintiff’s expert raised a new theory, namely that plaintiff’s injuries from smoke inhalation were caused by the absence of a self-closing door in the laundry room where the fire occurred, which caused smoke to permeate into plaintiff’s apartment. A plaintiff cannot defeat a summary judgment motion by asserting a new theory of liability for the first time in opposition papers … . Mirdita v Musovic Realty Corp., 2019 NY Slip Op 03284, First Dept 4-30-19

 

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PURSUANT TO MILITARY LAW, PETITIONER SHOULD HAVE BEEN DEEMED TO HAVE SUCCESSFULLY COMPLETED HER NYC POLICE-OFFICER PROBATIONARY PERIOD BY VIRTUE OF HER DEPLOYMENT ON MILITARY DUTY DURING THE PROBATIONARY PERIOD (FIRST DEPT).

The First Department, reversing Supreme Court, determined that Military Law controlled and petitioner, a probationary NYC police officer, must be deemed to have satisfactorily completed her probation by virtue of her military deployment while on probationary status:

Under New York City personnel rules, “[s]ubject to the provisions of the [M]ilitary [L]aw,” the computation of a probationary period is based on time the employee is “on the job in a pay status” (55 RCNY 5.2.2[b]). The personnel rules further provide that, notwithstanding rule 5.2.2, the probationary period will be extended while a probationer “does not perform the duties of the position” (55 RCNY 5.2.8[b]) for instance, while on limited duty status … . These rules are expressly subject to Military Law § 243(9), which provides, in pertinent part, that if a probationary employee is deployed on military duty before the expiration of his or her probationary period, “the time [she] is absent on military duty shall be credited as satisfactory service during such probationary period.”

Military Law § 243(9) is unambiguous in providing that respondents are required to credit the period that probationary officers spend in military service as “satisfactory service” towards completion of the probationary period. The statute does not distinguish between probationers on restricted or modified duty and those on full duty status at the time of deployment, or give respondents discretion to distinguish between types of probationers … . Matter of Aroca v Bratton, 2019 NY Slip Op 03277, First Dept 4-30-19

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LAW OFFICE FAILURE WAS A REASONABLE EXCUSE FOR FAILING TO ANSWER, DEFENDANT’S MOTION TO EXTEND THE TIME TO APPEAR SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined low office failure was a legitimate excuse for failing to serve an answer. Defendant had made a pre-answer motion to dismiss, thereby demonstrating defendant did not intend to abandon the action:

Defendants satisfied the requirements of CPLR 3012(d), which authorizes an extension of time to appear or plead “upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” Here, the delay in filing an answer was occasioned by law office failure, which can constitute a reasonable excuse … . Defendants’ counsel explained that its failure to file its answer was due to an error in its office’s case management system, which, upon the entry of a pre-answer motion to dismiss, marked the complaint answered. Notably, service of the pre-answer motion to dismiss revealed that defendants did not intend to abandon the action. Plaintiff does not argue that it has been prejudiced as a result of defendants’ three month delay in submitting its answer … , and our determination comports with New York’s strong public policy in favor of litigating matters on the merits … . Hertz Vehicles, LLC v Mollo, 2019 NY Slip Op 03270, First Dept 4-30-19

 

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THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF HAD STANDING TO BRING THE FORECLOSURE ACTION REFERRED TO UNIDENTIFIED AND UNPRODUCED RECORDS AND THEREFORE LACKED ANY PROBATIVE VALUE (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff failed to demonstrate standing to bring the foreclosure proceedings:

Plaintiff cannot establish that the note was assigned to it by a written assignment prior to commencement of foreclosure proceedings. Therefore, it must “adequately prove[] that it did, indeed, have possession of the note prior to commencement of this action” … , and where an affiant’s knowledge is based on unidentified and unproduced records, “the affidavit lacks any probative value” and cannot be the basis for an award of summary judgment … . Since plaintiff has failed to establish that it had physical possession of the note prior to commencement of this action, we reverse the motion court’s award of summary judgment to plaintiff. Residential Credit Solutions, Inc. v Gould, 2019 NY Slip Op 03266, First Dept 4-30-19​

 

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POLICE BODY-WORN-CAMERA FOOTAGE DOES NOT CONSTITUTE A PERSONNEL RECORD AND IS NOT THEREFORE PROTECTED FROM RELEASE TO THE PUBLIC BY CIVIL RIGHTS LAW 50-a (FIRST DEPT).

The First Department determined police officers’ body-worn-camera footage did not constitute a personnel record within the meaning of Civil Rights Law 50-a. Therefore the Patrolmen’s Benevolent Assn. of the City of N.Y.’s petition for a preliminary injunction prohibiting release of the footage was properly denied:

We find that given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of § 50-a … . The purpose of body-worn-camera footage is for use in the service of other key objectives of the program, such as transparency, accountability, and public trust-building.

Although the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes. New York Civil Liberties Union v New York City Police Department (__NY3d__, 2018 NY Slip Op 8423 [2018]), which involved disciplinary matters, does not constrain this analysis. The footage, here, rather, is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability. Matter of Patrolmen’s Benevolent Assn. of the City of N.Y. v De Blasio, 2019 NY Slip Op 03265, First Dept, 4-30-19

 

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MOTION TO AMEND THE COMPLAINTS IN THESE RESIDENTIAL MORTGAGE BACKED SECURITIES ACTIONS SHOULD HAVE BEEN GRANTED, COMPETING INTERPRETATIONS OF A CONTRACT SHOULD NOT BE DETERMINED AT THE MOTION-TO-DISMISS STAGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Richter, over a partial dissent, determined plaintiff’s (the Trustee’s) motion to amend its complaints in these residential mortgage backed securities actions should have been granted. The amendment sought to allege defendant breached the underlying contract by failing to notify the trustee of loan breaches. The majority found that the contract provision requiring notice was ambiguous. The dissent argued the contract was not ambiguous and did not require notification:

It is well settled that “[a] request for leave to amend a complaint should be freely given, and denied only if there is prejudice or surprise resulting directly from the delay, or if the proposed amendment is palpably improper or insufficient as a matter of law” … . “A party opposing leave to amend must overcome a heavy presumption of validity in favor of [permitting amendment]” … .

Judged by these standards, the motion court should have granted the Trustee’s motions for leave to file the amended complaints with respect to the express breach of contract claims based on DBSP’s (defendant’s) failure to notify the Trustee of the loan breaches … . It cannot be said, at this early stage of the proceedings, that these claims are “palpably improper or insufficient as a matter of law” … . Nor has DBSP asserted, let alone shown, that it would suffer any prejudice or surprise directly resulting from the delay. * * *

… [B]because the disputed provision is reasonably susceptible to more than one interpretation, “it cannot be construed as a matter of law, and dismissal . . . is not appropriate” … . LDIR, LLC v DB Structured Prods., Inc., 2019 NY Slip Op 03154, First Dept 4-25-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE MISCALCULATED AND FILED A SPEEDY TRIAL MOTION TEN DAYS BEFORE THE SPEEDY TRIAL CLOCK RAN OUT, DEFENDANT’S MOTION TO VACATE THE CONVICTION WAS PROPERLY GRANTED AND THE INDICTMENT DISMISSED (FIRST DEPT).

The First Department determined defense counsel was ineffective when he filed a speedy trial motion 10 days before the speedy trial clock would have run out. The indictment was dismissed in this CPL 440.10 proceeding:

Counsel filed a speedy trial motion, alleging well over the required threshold of 183 days of chargeable time. However, because of counsel’s miscalculations, these allegations included substantial periods that were not in fact chargeable. As a result, the court deciding the speedy trial motion found that only 174 days were chargeable. However, if counsel had waited only 10 more days to file the motion, the circumstances of the case establish that this additional period would unquestionably have been charged to the People, as counsel was aware. Thus, the threshold would have been exceeded, and the court would have been required to grant the speedy trial motion. Instead, the filing of the premature motion stopped the clock and rendered the People’s additional unreadiness excludable.

The CPL 440.10 hearing record establishes that counsel had no strategic reason for filing the speedy trial motion in the form and at the time he did, and that his handling of the motion was objectively unreasonable. Furthermore, the prejudice prong of a single-error ineffectiveness claim was satisfied, because “[i]t is well settled that a failure of counsel to assert a meritorious speedy trial claim is, by itself, a sufficiently egregious error to render a defendant’s representation ineffective” … . People v Stewart, 2019 NY Slip Op 03142, First Dept 4-25-19

 

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COMPLAINT STATED A CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD BUT THE HEIGHTENED PLEADING REQUIREMENTS FOR ACTUAL FRAUD WERE NOT MET (FIRST DEPT).

The First Department, in an action alleging members of defendant liability company fraudulently transferred funds from the LLC to the defendant members to render the LLC insolvent. The First Department determined the constructive fraud cause of action was sufficiently pled but  the allegations did not support an actual fraud cause of action:

… [T]he complaint implicitly alleges that a necessary element of fair consideration, i.e., good faith, was lacking when the transfers were made. …

However, the complaint fails to state a cause of action for actual fraud under Debtor and Creditor Law §§ 276 and 276-a. … [U]nlike the allegations supporting the constructive fraud claim, the allegations supporting the actual fraud claim are subject to the heightened pleading standard of CPLR 3016(b), and the allegations about fair consideration do not meet that standard, because they were made upon information and belief, and the source of the information was not disclosed … .

Nor does the complaint allege any other badges of fraud. Brennan v 3250 Rawlins Ave. Partners, LLC, 2019 NY Slip Op 03002, First Dept 4-23-19

 

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