You are here: / First Department

Tag Archive for: First Department

, ,

LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT).

The First Department, over a dissent, determined the defendants-landlords had properly calculated a rent overcharge by going back four years from a date deemed to be when the tenants would have filed a rent overcharge complaint (none had been filed because the relevant law was unclear at the time):

Defendants chose May 1, 2010 as the date on which plaintiffs would be deemed to have filed a claim for overcharges, in the absence of any such claim having been filed, and then used these 2526.1(a) standards to fix the base date for determining the overcharge as May 1, 2006, the date four years before they undertook their review. Defendants then reduced plaintiffs' rent and forwarded payment to them for the overcharges so reflected. In June 2010 defendants filed registrations for the years 2006, 2007, 2008 and 2009 in accordance with these recalculations. Raden v W 7879, LLC, 2018 NY Slip Op 05799, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CIVIL PROCEDURE (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CPLR 213-a (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))

, ,

WHERE THERE IS NO FRAUD ON THE LANDLORD’S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT).

The First Department, reversing the NYC Department of Housing and Community Renewal (DHCR), over an extensive two-justice dissent, determined the DHCR erred when it looked back more than for years from the date of the rent overcharge complaint to determine the base rent for calculating the amount of the overcharge. There was no dispute that the landlord was receiving J-51 tax benefits and was therefore subject to the Rent Stabilization Law (RSL), which had a four-year statute of limitations:

The primary question presented in this appeal is how to determine the proper rent on the base date. * * *

… [I]n the absence of evidence of fraud, this Court has declined to look back more than four years before the filing of the overcharge complaint to set the base date rent … .

In the case at bar, DHCR was not arbitrary and capricious in finding that landlord did not engage in a fraudulent scheme to evade the Rent Stabilization Law. As a consequence, DHCR was prohibited from looking at the unit's rental history before November 2, 2005 [four years before the overcharge complaint]. …

[The legislature] not only set a four-year limitations period, but it also explicitly barred any “examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint” (RSL § 26-516[a][2]). The Court of Appeals has found that the purpose of the four-year limitations period is “to alleviate the burden on honest landlords to retain rent records indefinitely” … . The Court of Appeals has made what we have called a “limited exception” to the four-year limitations period in cases where landlords act fraudulently … . To expand this exception to landlords who have not engaged in fraud would create a much broader exception that would appear to negate the temporal limits contained in the Rent Stabilization Law and the CPLR. Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 05797, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT OVERCHARGE  (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CPLR 213-a (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))

,

CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S CHILD SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Family Court, determined (1) the adopted child’s attorney had standing to object to the child support rulings, and (2) the child had the right to receive the adoption subsidy until 21. Mother had consented to the child being cared for by a guardian and thereafter mother voluntarily discontinued the adoptive subsidy. Family Court had found the court could not force mother to receive the subsidy. The First Department determined the subsidy is the child’s resource and mother is to receive the subsidy on the child’s behalf:

Although the mother argues that Family Court Act § 439(e) restricts the filing of objections to a “party or parties,” we find that her reading is too narrow. That section does not prohibit children’s attorneys, where appointed, from filing or rebutting objections to a Support Magistrate’s order for three reasons. First, the statute is focused on the time frame for filing and not on the identity of the filers. It appears that the words “party” and “parties” are used in the general sense of persons or entities who have been served with a copy of the support order, rather than the strict sense of petitioner and respondent.

Second, children’s attorneys are expected to participate fully in proceedings in which they are appointed. We base this conclusion on the broad language of section 249 authorizing appointment of attorneys for children in any type of proceeding, the legislative finding that children’s attorneys can be “indispensable to a practical realization of due process of law”… , and the obligation of attorneys for children to zealously advocate for their clients and generally adhere to the ethical requirements applicable to all attorneys … . It would make little sense for Family Court to be permitted to appoint attorneys for children in child support cases to assist it in carrying out the purposes of the Family Court Act and then not permit those attorneys to file or respond to objections. Indeed, published opinions in other cases acknowledge that they have been permitted to do so … . * * *

Family Court erred in determining that a deviation based on the subsidy would be improper because it would “force” the mother to take steps to undo the subsidy’s suspension. Awarding child support in the amount of the subsidy is not unlike awarding support based on a parent’s historic earning potential, which similarly requires the parent to do what the court has determined he or she is capable of doing based on past performance.

Family Court further erred in failing to properly consider the 10 factors set forth in FCA § 413(1)(f) to determine whether the mother’s basic child support obligation is unjust or inappropriate. In particular, Family Court should have considered the first three statutory factors — the financial resources of the child, the physical and emotional health of the child and his special needs and aptitudes, and the standard of living the child would have enjoyed had he continued to reside with his mother — and the 10th factor: “[a]ny other factors the court determines are relevant in each case.” Considering these factors, we find that awarding child support in at least the amount of the subsidy for so long as the mother is eligible to receive it on the child’s behalf is an appropriate deviation from the basic child support obligation … . Matter of Barbara T. v Acquinetta M., 2018 NY Slip Op 05736, First Dept 8-9-18

FAMILY LAW (ATTORNEYS, CHILD SUPPORT, ADOPTIVE SUBSIDY, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ATTORNEYS (FAMILY LAW, CHILD SUPPORT, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/CHILD SUPPORT (FAMILY LAW, ADOPTIVE SUBSIDY,CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ADOPTIVE SUBSIDY (FAMILY LAW, CHILD SUPPORT, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ADOPTIVE SUBSIDY (CHILD SUPPORT, FAMILY LAW, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))

, , ,

OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE NYC RENT STABILIZATION LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that the NYC Department of Housing and Community Renewal (DHCR) had the authority to sua sponte vacate a nonfinal order under the Rent Stabilization Code and DHCR correctly found that petitioner 333 East 49th Partnership, LP (the owner) was responsible for refunding the overcharge collected by the prime tenant, on the grounds that the prime tenant created an illusory tenancy. The opinion is complex and comprehensive and cannot be fairly summarized here:

Section 2529.9 of the Rent Stabilization Code * * * authorizes DHCR to reopen, sua sponte, a proceeding at any time upon a finding of irregularity of vital matters, fraud or illegality, upon notice to the parties … . * * *

The rent stabilization laws [RSL] are designed “to prevent exactions of unjust, unreasonable and oppressive rents and rental agreements and to forestall profiteering, speculation and other disruptive practices … . The Rent Stabilization Code expressly provides that the legal regulated rents and other requirements “shall not be evaded, either directly or indirectly, in connection with the renting or leasing or the transfer of a lease for housing accommodations” … .

An illusory tenancy exists when the prime tenant rents an apartment for the sole purpose of re-leasing it, at a profit, or otherwise subverts the protections of the RSL … .

DHCR’s finding that the owner may be held accountable for the overcharge is not irrational or arbitrary and capricious. DHCR is not restricted, as the owner argues, to only take into account whether the owner overcharged the subtenant and actually collected rent in excess of the lawful stabilized rent. Rather, DHCR may consider that the owner “derived substantial benefits from the scheme and was aware of the nature of [the prime tenant’s] activities” … . * * *

Rent Stabilization Code 2526.1(a)(1) imposes treble damages upon owners who “have collected any rent . . . in excess of the legal regulated rent” … . However, as noted above, RSL 26-511(c)(12)(e) merely states that “where a tenant violates the provisions of subparagraph (a)” with regard to overcharging a subtenant, “the subtenant shall be entitled to damages of three times the overcharge” … . DHCR’s interpretation of these statutes to impose treble damages upon the owner, under these circumstances, is rational and thus, entitled to deference … .  Matter of 333 E. 49th Partnership, LP v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 05735, First Dept 8-9-18

LANDLORD-TENANT (RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/MUNICIPAL LAW (NYC, RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/RENT STABILIZATION LAW (NYC, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))/ILLUSORY TENANT (RENT STABILIZATION LAW, OWNER PROPERLY FOUND RESPONSIBLE FOR REFUNDING OVERCHARGES COLLECTED BY THE PRIME TENANT WHICH HAD CREATED AN ILLUSORY TENANCY TO CIRCUMVENT THE RENT STABILIZATION LAW (FIRST DEPT))

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF FELL OFF THE BACK OF A FLATBED TRUCK AS STEEL BEAMS WERE BEING HOISTED FROM THE TRUCK (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment on his Labor Law 240 (1) and 241 (6) causes of action should have been granted. Plaintiff fell off a flatbed truck as steel beams were being hoisted from the truck:

Plaintiff established that the accident was proximately caused by defendants’ failure to provide safety devices necessary to ensure protection from the gravity-related risks posed by the work he was engaged in, in violation of Labor Law § 240(1) … . Here, plaintiff fell off a flatbed truck after a load of steel beams, without tag lines, was hoisted above him by a crane, and began to swing towards him … . The risk of the hoisted load of beams with no tag lines triggered the protections set forth in Labor Law § 240(1) … . Based on the same evidence, plaintiff also established his Labor Law § 241(6) claim insofar as the swinging beams lacked tag lines, a violation of 12 NYCRR 23-8.2(c)(3), which requires tag lines or certain other restraints to be used to avoid hazards posed by swinging loads hoisted by mobile cranes. Flores v Metropolitan Transp. Auth., 2018 NY Slip Op 05734, First Dept 8-9-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF FELL OFF THE BACK OF A FLATBED TRUCK AS STEEL BEAMS WERE BEING HOISTED FROM THE TRUCK (FIRST DEPT))/FLATBED TRUCK (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF FELL OFF THE BACK OF A FLATBED TRUCK AS STEEL BEAMS WERE BEING HOISTED FROM THE TRUCK (FIRST DEPT))

, ,

PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over an extensive two-justice dissenting opinion, determined plaintiff had stated a cause of action for gender discrimination under the NYC Human Rights Law, which was deemed broader in scope than the state Human Rights Law. Plaintiff alleged she was treated less well than other employees after she rejected a sexual advance by her supervisor (Cirullo). The supervisor allegedly squeezed plaintiff’s thigh when he sat next to her:

In 2005, the City Council passed the Local Civil Rights Restoration Act of 2005 ,,, , finding that the provisions of the City Human Rights Law had been “construed too narrowly to ensure protection of the civil rights of all persons covered by the law.” The Restoration Act revised the City Human Rights Law … to state: “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed.” * * *

… [T]o establish a gender discrimination claim under the City Human Rights Law, a plaintiff need only demonstrate “by a preponderance of the evidence that she has been treated less well than other employees because of her gender” … . … [F]ederal and state law, limiting actionable sexual harassment to “severe or pervasive” conduct, [is] not appropriate for the broader and more remedial City Human Rights Law … . ,,, [W]e recognize[] an affirmative defense whereby defendants can avoid liability if the conduct amounted to nothing more than what a reasonable victim of discrimination would consider “petty slights and trivial inconveniences” … . * * *

The jury must decide whether Cirullo made a sexual overture, and whether Cirullo created a hostile work environment because Suri rebuffed that overture … . Sexual advances are not always made explicitly. The absence of evidence of a supervisor’s direct pressure for sexual favors as a condition of employment does not negate indirect pressure or doom the claim … . Suri v Grey Global Group, Inc., 2018 NY Slip Op 05627, First Dept 8-2-18

EMPLOYMENT LAW (GENDER DISCRIMINATION, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, GENDER DISCRIMINATION, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/MUNICIPAL LAW (GENDER DISCRIMINATION, EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/GENDER DISCRIMINATION (NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/SEXUAL ADVANCES (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))

, , , ,

CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT).

The First Department determined the city was immune from suit stemming from alleged interference with the right of sepulcher during Hurricane Sandy, which flooded the Bellevue Hospital morgue. The court further determined there was no special relationship between plaintiff and the city:

Contrary to plaintiffs’ argument, the right of sepulcher does not, by definition, trump governmental immunity … acted in its governmental capacity at all relevant times… . The specific act from which plaintiffs’ claims arise is the City’s treatment of the decedent’s body in the context of Hurricane Sandy, i.e., as the hurricane approached, once it had struck, and in its aftermath. Plaintiffs seek to ignore or minimize the significance of that context. However, their claims directly implicate the City’s emergency preparations and the decisions it made during and immediately after the unprecedented hurricane, which caused, among other things, unprecedented flooding in the Bellevue Hospital morgue — all quintessential governmental functions. Moreover, these preparations and decisions were discretionary, not ministerial … . Thus, the record demonstrates the elements of governmental function immunity from liability as a matter of law … .

Plaintiffs failed to establish the special relationship with the City required for holding the City liable for their injury … . In support of their contention that the City violated a statutory duty enacted for their benefit, they rely on statutes that do not contemplate private rights of action and, in any event, are not relevant to this case, which does not involve autopsy, dissection or unclaimed remains (see Public Health Law § 4215) or individuals fighting for control over the disposition of those remains … . Nor did plaintiffs establish that, in its treatment of the decedent’s body in the wake of Hurricane Sandy,the City voluntarily assumed a duty that generated their justifiable reliance … . Lee v City of New York, 2018 NY Slip Op 05626, First Dept 8-2-18

SEPULCHER (CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/MUNICIPAL LAW (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/NEGLIGENCE (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/NEGLIGENCE (SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))/IMMUNITY (MUNICIPAL LAW, SEPULCHER, CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT))

,

THE LOW AND MODERATE INCOME APARTMENT BUILDING WAS SUBJECT TO FEDERAL HUD REGULATION UNTIL THE HUD MORTGAGE WAS PAID OFF IN 2011, AFTER THAT THE BUILDING WAS SUBJECT TO THE NYC RENT STABILIZATION LAW (FIRST DEPT).

The First Department, in this suit against the landlord by the tenant’s association, determined the apartment building for low and moderate income tenants was subject to federal Housing and Urban Development (HUD) regulation until the HUD mortgage was paid off in April, 2011. Once the mortgage was paid off, the building became subject to the Rent Stabilization Law (RSL):

While we find that the RSL was preempted as to the subject building through April 11, 2011, defendant owner is not entitled to a declaration that the RSL is preempted for the duration of the Use Agreement. Owner fails to demonstrate how HUD had the authority to extend preemption of the RSL beyond April 11, 2011, to 2016 and again to 2026. Accordingly, we limit the declaration in defendant owner’s favor to April 11, 2011, and declare in plaintiffs’ favor that the building was subject to the Rent Stabilization Law as of April 12, 2011.

As long as the building was a project financed by a HUD mortgage, it was subject to the HUD Handbook, based on that loan and the terms of the related Regulatory Agreement. However, once the loan was paid off and the Regulatory Agreement terminated, the building ceased to be such a project. Plaintiffs failed to identify any continuing basis for applying the HUD Handbook to a building that had since been regulated pursuant to the terms of the Use Agreement requiring the preservation of low-income housing.  435 Cent. Park W. Tenant Assn. v Park Front Apts., LLC, 2018 NY Slip Op 05625, First Dept 8-2-18

LANDLORD-TENANT (MUNICIPAL LAW, THE LOW AND MODERATE INCOME APARTMENT BUILDING WAS SUBJECT TO FEDERAL HUD REGULATION UNTIL THE HUD MORTGAGE WAS PAID OFF IN 2011, AFTER THAT THE BUILDING WAS SUBJECT TO THE NYC RENT STABILIZATION LAW (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, THE LOW AND MODERATE INCOME APARTMENT BUILDING WAS SUBJECT TO FEDERAL HUD REGULATION UNTIL THE HUD MORTGAGE WAS PAID OFF IN 2011, AFTER THAT THE BUILDING WAS SUBJECT TO THE NYC RENT STABILIZATION LAW (FIRST DEPT))

, ,

CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT).

The First Department, over a concurring memorandum, defined the procedure for determining whether opposing counsel can be deposed. Counsel had requested a protective order prohibiting the deposition. The matter was remanded for a ruling based upon the criteria described as follows:

… [D]efendants’ counsel has made a prima facie showing that the material sought is irrelevant and/or that the process is not calculated to lead to legitimate discovery, whether because the information sought is privileged or because the true purpose of the subpoena is solely to disqualify him.  …

… [W]e remand this matter to the motion court for further proceedings to determine whether plaintiffs have shown that the information they seek in deposing defendants’ counsel is material and necessary… , that they have a good faith basis for seeking it … , and that the information is not available from another source. Should the motion court allow the deposition to proceed, it should be without prejudice to counsel’s objection to specific questions to the extent that the answers would reveal information that is privileged or otherwise protected from discovery (CPLR 3101). Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 2018 NY Slip Op 05624, First Dept 8-2-18

CIVIL PROCEDURE (CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/PRIVILEGE (ATTORNEY-CLIENT, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/ATTORNEYS (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/DISCOVERY (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/PROTECTIVE ORDER (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))

, , ,

NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT).

The First Department determined plaintiff shareholder in a cooperative could not bring a “breach of fiduciary duty” cause of action against individual members of the cooperative board. Plaintiff alleged her cooperative apartment was damaged by water from a greenhouse above the apartment. The first department found that that was no corporate tort for which individual members of the board could be liable:

It is well-settled that a breach of fiduciary duty claim does not lie against individual cooperative board members where there is no allegation of “individual wrongdoing by the members . . . separate and apart from their collective actions taken on behalf of the” cooperative … .  Here, the complaint does not allege that any of the individual board members committed an independent wrong that was distinct from the actions taken as a board collectively. Thus, the breach of fiduciary duty claim is not viable. …

Contrary to plaintiff’s contention, this result is entirely consistent with Fletcher v Dakota, Inc. (99 AD3d 43 [1st Dept 2012]). In Fletcher, we concluded that “although participation in a breach of contract will typically not give rise to individual director liability, the participation of an individual director in a corporation’s tort is sufficient to give rise to individual liability” (id. at 47). Thus, we declined to dismiss claims against a cooperative board director who was alleged to have participated in the cooperative’s violation of the State and City Human Rights Laws.

Here, in contrast, there is no viable corporate tort alleging breach of fiduciary duty, because a corporation owes no fiduciary duty to its shareholders … . Thus, in the absence of a corporate tort in which the individual board members could have participated, the breach of fiduciary duty claim as against them was properly dismissed. Indeed, Fletcher made this very point by dismissing the breach of fiduciary duty cause of action against an individual board director, while at the same time sustaining Human Rights Law claims against him. Hersh v One Fifth Ave. Apt. Corp., 2018 NY Slip Op 05522, First Dept 7-26-18

FIDUCIARY DUTY, BREACH OF (COOPERATIVES, NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/COOPERATIVES (NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/CORPORATION LAW (COOPERATIVES,  NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/NEGLIGENCE (COOPERATIVES, CORPORATE TORT,  NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy