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QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff-decedent’s motion for summary judgment on his Labor Law 240 (1) cause of action should not have been granted. Decedent’s statement to his wife in the emergency room, to the effect he should not have used the ladder as he did, was admissible as a declaration against interest. There was evidence from a co-worker that the ladder may not have been the cause of decedent’s injuries, i.e., there was evidence decedent was suffering chest pains 10 feet away from the ladder, which was upright. The court noted that factual assertions included in a memorandum of law in opposition to plaintiff-decedent’s motion were properly considered and preserved issues for appeal:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim by presenting decedent’s statement that he was working on a ladder when it started to move, and when he tried to stabilize the ladder, it tipped and struck him in the chest … . Plaintiff was not “required to present further evidence that the ladder was defective” … .

However, defendants raised triable issues of fact as to whether decedent’s injuries were caused by an accident involving a ladder. Two accident reports set forth his alleged statement that he was working on the ladder when he started feeling chest pains and his legs became “unsteady” or “wobbly.” Moreover, decedent’s coworker, who was working in the same apartment unit separated from decedent by a concrete wall but went over to decedent’s area, not in response to any commotion but for routine purposes, saw that the ladder was in the upright position about 10 feet away from decedent when he expressed that he was suffering from chest pains … . Although decedent was disoriented and unable to answer basic questions at some points, he eventually became alert while in the hospital, yet his medical records do not refer to any ladder accident.

Contrary to plaintiff’s assertion, defendants preserved their arguments about triable issues of fact by asserting them in their memorandum of law in opposition to plaintiff’s partial summary judgment motion. Caminiti v Extell W. 57th St. LLC, 2018 NY Slip Op 07667, First Dept 11-13-18

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/EVIDENCE (DECLARATION AGAINST INTEREST, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/DECLARATION AGAINST INTEREST  (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/SUMMARY JUDGMENT (EVIDENCE, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/APPEALS (PRESERVATION, (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))

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ARBITRATION AWARD SHOULD NOT HAVE BEEN VACATED, LIMITED COURT-REVIEW POWERS EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the arbitrator’s award should have been confirmed. The dispute concerned a broker’s fee provision in a lease. The arbitrator reasoned that the lease provision did not control because at the time the tenants bought the property the lease had expired and tenancy was month to month. The First Department explained the extremely limited court-review powers re: arbitration awards:

CPLR 7511 provides just four grounds for vacating an arbitration award, including that the arbitrator “exceeded his power” (CPLR 7511[b][1][iii]), which “occurs only where the arbitrator’s award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power”… . Mere errors of fact or law are insufficient to vacate an arbitral award … . “[C]ourts are obligated to give deference to the decision of the arbitrator, … even if the arbitrator misapplied the substantive law in the area of the contract” … .

Here, the arbitrator’s conclusion that a sales commission was not due under the precise terms of the Agreement because the lease was not extended is neither wholly irrational nor contrary to any strong public policy … . Matter of NRT N.Y. LLC v Spell, 2018 NY Slip Op 07664, First Dept 11-13-18

ARBITRATION (ARBITRATION AWARD SHOULD NOT HAVE BEEN VACATED, LIMITED COURT-REVIEW POWERS EXPLAINED (FIRST DEPT))/CIVIL PROCEDURE (ARBITRATION AWARD SHOULD NOT HAVE BEEN VACATED, LIMITED COURT-REVIEW POWERS EXPLAINED (FIRST DEPT))/CONTRACT LAW (ARBITRATION AWARD SHOULD NOT HAVE BEEN VACATED, LIMITED COURT-REVIEW POWERS EXPLAINED (FIRST DEPT))

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PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT).

The First Department determined that a provision in a lease which required the petitioner tenant to pay the respondent landlord’s attorney’s fees even where the landlord was in default was unenforceable as unconscionable. Petitioner tenant had sued the landlord for failure to transfer shares in an apartment in accordance with petitioner’s husband’s wishes:

In 2012, petitioner’s husband, who owned the shares to another apartment in the building, agreed to transfer his shares to petitioner. Petitioner paid a transfer fee to respondent so that it would transfer the shares to her. She later sued respondent for default of the lease agreement and for statutory violations because respondent had not transferred the shares to her husband’s apartment to her. Respondent answered petitioner’s complaint and asserted a counterclaim for attorneys’ fees under paragraph 6(7)(c). * * *

… [W]we find that an attorneys’ fees provision which provides that the tenant must pay attorneys’ fees if it commences an action against the landlord based upon the default of the landlord is unconscionable and unenforceable as a penalty. Paragraph 6(7)(c) of the proprietary lease permits the landlord to recover attorneys’ fees when the tenant brings an action against the landlord even when the landlord is in default. To enforce such a provision would produce an unjust result because it would dissuade aggrieved parties from pursuing litigation and preclude tenant-shareholders from making meaningful decisions about how to vindicate their rights in legitimate instances of landlord default. Matter of Krodel v Amalgamated Dwellings Inc., 2018 NY Slip Op 07531, First Dept 11-8-18

LANDLORD-TENANT (CONTRACT LAW, PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT))/CONTRACT LAW (LANDLORD-TENANT, LEASE, CONTRACT LAW, PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT))/LEASE (CONTRACT LAW, UNCONSIONABILITY, PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT))/UNCONSIONABILITY (LANDLORD-TENANT, CONTRACT LAW, LEASE, PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (FIRST DEPT). ​

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted, noting that plaintiff’s argument in the reply papers should have been considered because it was a response to defendants’ opposition motion:

Plaintiff was injured when a metal shim plate affixed to a steel column, that was being installed as part of a temporary truss system, suddenly detached and hit him in the head. Plaintiff established that the accident was proximately caused by the undisputed failure of safety devices that were supposed to afford proper protection against the elevation-related risks that plaintiff faced during the installation of the column being hoisted into place … . The tack welds used to secure the metal shim plate to the column were “safety devices” for the purposes of Labor Law § 240(1) because they were intended to be a temporary measure to keep the shim plate attached to the column during installation … . The welds were to be removed once the column was in place, at which time the plates would be permanently bolted into place. The evidence established that the accident occurred when the welds failed, inasmuch as the shim plate, which weighed between 200 and 400 pounds, was welded on only one side of the metal column … . Thus, the shim plate “fell because of the inadequacy of a safety device. . .[that was] put in place as to give proper protection for” plaintiff, entitling him to partial summary judgment … .

The motion court should have considered plaintiff’s reply argument that the one-sided tack welds were insufficient to safely secure the shim plate to the column because it was made in response to defendants’ opposition to the motion … . Keerdoja v Legacy Yards Tenant, LLC, 2018 NY Slip Op 07537, First Dept 11-8-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))/CIVIL PROCEDURE (REPLY PAPERS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))/REPLY (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))

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EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined (1) defendant should have been allowed to present expert evidence of the cross-race effect on the ability of a witness to identify a defendant, and (2) the request to instruct the jury on the cross-race effect should have been granted. The First Department further held that the new (2017) cross-racial identification rule should be applied cases like this one, where the rule was announced while the direct appeal was pending:

The court should have permitted defendant to introduce expert testimony to the effect that witnesses are less likely to accurately identify persons of other racial groups than persons of their own race … . The case turned on the accuracy of the victim’s cross-racial identification of defendant, and there was no corroborating evidence connecting defendant to the crime. Furthermore, the circumstances surrounding the identification did not render it so reliable as to justify precluding expert testimony. The expert testimony produced during the Frye hearing sufficiently established that the cross-race effect has been generally accepted in the relevant scientific community. The People do not dispute that this phenomenon applies to identifications of certain racial groups. Moreover it can be deduced from the expert testimony that the cross-race effect applies to all racial groups.

The court should also have granted defendant’s explicit request for a jury instruction on cross-racial identification. Initially, we reject the People’s argument that defendant failed to preserve this issue.

People v Boone (30 NY3d 521, 535-536 [2017]), which requires that a jury charge on the cross-race effect be given on request, should be applied retroactively to cases pending on direct appeal. Boone plainly announces a new rule, and that rule is plainly based on state rather than federal law. Accordingly, its application to cases pending on appeal is not automatic, but depends on a balancing of the three factors set forth in the Mitchell-Pepper test … .

As to the first factor (the purpose of the rule), “standards that go to the heart of a reliable determination of guilt or innocence will be applied retroactively, but decisions which are only collateral to or relatively far removed from the fact-finding process at trial apply prospectively only” … . Here, cross-racial identification instructions go to the fact-finding process, and are essential to a reliable determination of guilt or innocence… . Thus, the first factor favors retroactive application.

As to the second factor (extent of reliance on the old rule), the People cite a number of cases showing that courts have relied on the pre-Boone rule in declining to give a charge on cross-racial identification, in the exercise of discretion. This favors prospective application of the rule, but we do not find that it outweighs the other factors.

As to the third factor (effect on the administration of justice of retroactive application), retroactive application of Boone would not significantly affect the administration of justice. A limited number of cases turn on the accuracy of single-witness, cross-racial identifications, and the particular evidence could render a failure to give a cross-racial identification charge harmless. Moreover, the rule in Boone is expressly limited to cases where the charge has been requested … , and the fact that Boone had not yet been decided at the time of a particular trial would not provide an exemption from the requirement of a timely request … . Thus, contrary to the People’s contention, it is unlikely that retroactive application of Boone would result in wholesale reversals and burden trial courts with unnecessary retrials … . People v Crovador, 2018 NY Slip Op 07273, First Dept 10-30-18

CRIMINAL LAW (EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, IDENTIFICATION, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/EXPERT EVIDENCE (CRIMINAL LAW, IDENTIFICATION, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/IDENTIFICATION (CRIMINAL LAW, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/APPEALS (CRIMINAL LAW, RETROACTIVE APPLICATION OF NEW RULING, (EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/RETROACTIVE APPLICATION (CRIMINAL LAW, APPEALS, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the for cause challenge to a juror should have been granted:

The court improvidently exercised its discretion in denying defendant’s challenge for cause to a prospective juror who repeatedly expressed a predisposition to credit police testimony, and a belief that innocent defendants would testify on their own behalf, since the totality of his responses established that he would be unable to put aside his inclinations and be fair and impartial … . At no point did the panelist give an unequivocal assurance that he would put aside his beliefs and concerns and render an impartial verdict … . People v Brith, 2018 NY Slip Op 07250, First Dept 10-30-18

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))/JURORS (CRIMINAL LAW, (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))/FOR CAUSE CHALLENGE (CRIMINAL LAW, (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))

DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment on the Dram Shop Act cause of action was properly granted, but the negligence cause of action in this third-party assault case should not have been granted. There was uncontested evidence the assailant did not appear to be drunk when served. But there was a question of fact whether the defendant restaurant took adequate measures to protect plaintiff from a second attack by the assailant:

Defendant was entitled to summary judgment dismissing plaintiff’s cause of action under the Dram Shop Act (General Obligations Law § 11-101; see also Alcohol Beverage Control Law § 65). A witness testified that plaintiff’s assailant did not appear visibly intoxicated at the time he was served two drinks by defendant. This evidence was sufficient to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that point in time until he attacked plaintiff … . …

While the first assault was sudden and unforseeable, and therefore not actionable, defendant failed to demonstrate as a matter of law that it took reasonable actions to protect plaintiff from the assailant on the second assault and that it was not foreseeable. It is true that the husband of defendant’s owner averred that he was escorting the assailant, who appeared to have calmed down “somewhat,” from the premises, when he suddenly lunged two or three feet to where plaintiff was standing, and struck him. However, another witness testified that immediately prior to assailant’s attack on plaintiff, he did not see anyone accompanying or escorting the assailant while the assailant exited defendant’s establishment. Ricaurte v Inwood Beer Garden & Bistro Inc., 2018 NY Slip Op 07242, First Dept 10-30-18

NEGLIGENCE (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/DRAM SHOP ACT (THIRD PARTY ASSAULT, (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/ASSAULT, THIRD PARTY  (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT).

The First Department determined an unsigned form purporting to make respondent (Cunney) the beneficiary of decedent’s IRA was insufficient and did not constitute substantial compliance:

The Surrogate correctly determined that, despite the decedent’s clear intent to designate respondent Cunney as the beneficiary of her IRAs, Cunney is not entitled to the proceeds of the IRAs in the absence of a signed change of beneficiary form (see EPTL 13-3.2[e][1] [“A designation of a beneficiary or payee to receive payment upon death of the person making the designation . . . must be made in writing and signed by the person making the designation”] …).

Citing the doctrine of substantial compliance, Cunney argues that Morgan Stanley’s Client Data Form for New Personal Accounts filled out in the decedent’s handwriting is sufficient to satisfy the requirement of a signed writing, as that document did not require a signature. However, she cites no authority for excusing the signed writing requirement in the context of a retirement account. Indeed, as the Surrogate noted, even in the insurance context, where strict compliance is not always required … , this Court has rejected the contention that an insured’s specific testamentary disposition of an insurance policy in a will constitutes substantial compliance with the policy’s requirements for effecting a change in the beneficiary of the policy … . Matter of Durcan, 2018 NY Slip Op 07241, First Dept 10-30-18

TRUSTS AND ESTATES (UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT))/ESTATES POWERS AND TRUSTS LAW (EPTL) 13-3.2 (UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT))/IRA (TRUSTS AND ESTATES, UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT))/BENEFICIARIES (IRA, UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT))

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THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, over a dissenting opinion, determined that the arbitrator-panel (JAMS) did not have the power to reconsider its initial finding (called a partial final award or PFA) that the $10 million settlement paid by Allied was not a “loss” within the meaning of the insurance policy issued to Allied by AISLIC. The parties had agreed to first decide whether the settlement constituted a “loss” and then determine the applicable costs stemming from the insured’s defense of the claim against it.  The First Department held that the arbitrator-panel did not have the authority to reconsider the initial PFA and reverse itself (finding that the settlement did actually constitute a “loss”) in the course of considering the defense and indemnification issues:

Here, when the panel reconsidered the PFA, it exceeded its authority based on the common law doctrine of functus officio. The doctrine of functus officio provides that absent an agreement to the contrary, after an arbitrator renders a final award, the arbitrator may not entertain an application to change the award, “except … to correct a deficiency of form or a miscalculation of figures or to eliminate matter not submitted”(…CPLR 7509; CPLR 7511[c]). “In order to be final,’ an arbitration award must be intended by the arbitrators to be their complete determination of all claims submitted to them” … . “Generally, in order for a claim to be completely determined, the arbitrators must have decided not only the issue of liability of a party on the claim, but also the issue of damages” … .

However, “the submission by the parties determines the scope of the arbitrators’ authority” … . Thus, “if the parties agree that the [arbitration] panel is to make a final decision as to part of the dispute, the arbitrators have the authority and responsibility to do so . . . [and] once [the] arbitrators have finally decided the submitted issues, they are, in common-law parlance, functus officio,’ meaning that their authority over those questions is ended” … . American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 2018 NY Slip Op 07194, First Dept 10-25-18

ARBITRATION (THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/INSURANCE LAW (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/CIVIL PROCEDURE (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/FUNCTUS OFFICIO (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))

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COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT).

The First Department noted that Supreme Court did not have the authority to, sua sponte, vacate its prior decision and order and reinstate a 2014 judgment. The motion papers did not request any relief that could be the basis of the court’s action:

“[A] trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment” … . Although “a court may grant relief[] pursuant to a general prayer contained in the notice of motion . . . ” … , no such clause was contained in plaintiff’s notice of motion. In the absence of any cross motion from the defendants, or any other kind of request for vacatur of the court’s prior order decision and prior order and reinstatement of the prior judgment, the court erred in doing so on its own initiative. Howell v City of New York, 2018 NY Slip Op 07178, First Dept 10-25-18

CIVIL PROCEDURE (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))/SUA SPONTE (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))/JUDGES (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))

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