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ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion, determined that petitioner (Ciafone), an attorney, who used several buildings owned by his corporate entities for exterior signs promoting his law practice, engaged in unauthorized outdoor advertising and was properly penalized. Ciafone argued that the corporate entitles formed by him which owned the buildings were not “others” within the meaning of the NYC Administrative Code provision which defined an outdoor advertising company as an entity which makes advertising space available to “others:”

Administrative Code § 28-502.1 states that an OAC [outdoor advertising company] is “[a] person, corporation, partnership or other business entity that as a part of the regular conduct of its business engages in or, by way of advertising, promotions or other methods, holds itself out as engaging in the outdoor advertising business.” An Outdoor Advertising Business is “[t]he business of selling, leasing, marketing, managing, or otherwise either directly or indirectly making space on signs situated on buildings and premises within the city of New York available to others for advertising purposes, whether such advertising directs attention to a business, profession, commodity, service or entertainment conducted, sold, or offered on the same or a different zoning lot . . . .” … .

… [P]etitioners, which are corporations, made space on signs available to Ciafone’s law practice (a professional corporation), a separate and distinct entity. Of course, it is fundamental that individuals, corporations, and partnerships are each recognized as separate legal entities, and in this statutory context constitute “others” regardless of the common principal ownership or connection between the entities. Indeed, “[a]s a general rule, the law treats corporations as having an existence separate and distinct from that of their shareholders”… . …

ECB [New York City Environmental Control Board] rationally rejected petitioners’ argument that they had not made the signs available to “others.” The record shows that the building owners are not Ciafone or Ciafone P.C, but separate corporate entities, and that the advertising signs promoted legal services by Ciafone, not any services of the corporate entities that own the buildings. Contrary to petitioners’ argument, there is no basis for overturning ECB’s determination that, in these circumstances, the advertising space was made available “to others.” Nor is ECB’s interpretation of the statutory language arbitrary or irrational. Matter of Franklin St. Realty Corp. v NYC Envtl. Control Bd., 2018 NY Slip Op 05407, First Dept 7-19-18

ADMINISTRATIVE LAW (MUNICIPAL LAW, ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT))/MUNICIPAL LAW (NYC, ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT))/CORPORATION LAW  (MUNICIPAL LAW, ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT))/ADVERTISING (SIGNS, MUNICIPAL LAW, ALTHOUGH PETITIONER-ATTORNEY FORMED THE CORPORATIONS WHICH OWNED THE BUILDINGS ON WHICH HE POSTED SIGNS ADVERTISING HIS LAW PRACTICE, THE ADVERTISING VIOLATED THE NYC ADMINISTRATIVE CODE (FIRST DEPT))

IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT).

The First Department, in a complex paternity case spanning eight years, over a comprehensive dissent, determined the order precluding the child, G, from establishing estoppel and finding that petitioner had standing to seek custody and visitation was properly granted. The facts cannot be fairly summarized here:

,,, [T]here is no basis to apply the [estoppel] doctrine here, where petitioner has consistently and diligently asserted his paternity; attempted to visit the hospital in time for G.’s birth; attempted to support G. financially; commenced proceedings and consistently appeared in court by telephone or in person, as he was able. By contrast, JAC [mother’s partner who acknowledged paternity] failed to appear in court in person after September 21, 2011, and failed to appear by his counsel or any other means in any proceeding after June 18, 2012. Moreover, any delay in bringing the paternity proceedings to a conclusion is not attributable to petitioner, but to respondent and JAC, who failed to appear in court on numerous occasions, and to the AFC [attorney for the child], who waited three years before challenging the 2012 estoppel order.

Moreover, contrary to our dissenting colleague’s view, this is not a case where a man may be estopped from claiming to be a child’s biological father on the basis of his acquiescence to the establishment of a strong parent-child bond between the child and another man … . Here, petitioner’s efforts to establish his paternity were far from acquiescent. Petitioner sought, and was granted, leave to postpone commencement of his prison sentence for one month in order to allow him to be present at G.’s birth. When he arrived in New York on October 9, 2008 for that purpose, he called respondent’s mother, who told him that his daughter had been born but did not disclose the hospital in which the birth had taken place. He was then contacted by JAC, who made clear to him that petitioner should have nothing to do with G. Undaunted by these incidents, upon entering prison, he attempted to send money orders to respondent which he intended for G.’s support, but the money orders were returned to him. While still in prison, he commenced the instant paternity proceeding, consistently appearing before the court by telephone and, upon his release from prison in July 2011, in person. And, approximately one month after the June 2012 estoppel ruling was issued, petitioner commenced the custody/visitation proceeding, repeatedly appearing in person and ultimately hiring private counsel in that proceeding, as well. Matter of Michael S. v Sultana R., 2018 NY Slip Op 05404, First Dept 7-19-18

FAMILY LAW (IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))/PATERNITY (IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))/ESTOPPEL (FAMILY LAW, PATERNITY, IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))

COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over a concurring opinion, determined plaintiff (Garden) had stated a cause of action for adverse possession of a lot in lower Manhattan used since 1985 as the site of a community garden by an unincorporated association (which was later incorporated in 2012):

In order to establish a claim of adverse possession, a plaintiff must prove that the possession was: (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous throughout the 10-year statutory period… . In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was “usually cultivated or improved” or that the land “has been protected by a substantial enclosure” (see former RPAPL 522…). The only elements in dispute here are the “claim of right” and “continuous” elements.

Defendants argue that plaintiff failed to plead sufficient facts evidencing continuous possession by its predecessor members for the statutory period, through an unbroken chain of privity, by tacking periods between anonymous possessors who are not alleged to have intended to transfer title to the incorporating members. This argument is based on the fact that plaintiff was incorporated in 2012 and defendants’ contention that there is no allegation that plaintiff had the necessary privity with Garden members prior to incorporation. This argument fails, particularly at the pleading stage of this litigation.

It is well settled that an unincorporated association may adversely possess property and later incorporate and take title to it because “[a]lthough the unincorporated society could not acquire title by adverse possession, its officers could for its benefit, and when the corporation is duly organized the prior possession may be tacked to its own to establish its title under the statute of limitations” … . Children’s Magical Garden, Inc. v Norfolk St. Dev., LLC, 2018 NY Slip Op 05223, First Dept 7-12-18

REAL PROPERTY LAW (ADVERSE POSSESSION, COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT))/ADVERSE POSSESSION ( COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT))/ASSOCIATIONS (ADVERSE POSSESSION, COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT))/UNINCORPORATED ASSOCIATIONS (ADVERSE POSSESSION, COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT))

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QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the general contractor’s (Harbour’s) motion for summary judgment in this slip and fall case was properly denied. Plaintiff alleged that Harbour removed a tank and exposed a dangerous opening in a metal plate. Plaintiff alleged, while working at the site, he stepped backwards into the opening and fell, hitting his head on the concrete floor. The First Department held there was a question of fact whether Harbour launched an instrument of harm by not taking remedial measures to make the area safe after removing the tank. The fact that the opening was obvious and plaintiff knew about it did not warrant summary judgment in favor of the defendants:

Although both defendants argue that the exposed opening in the metal plate was open, obvious, readily observable and known to plaintiff, a property owner has a nondelegable duty to maintain its premises in a reasonably safe condition, taking into account the forseeability of injury to others … . Moreover, although a defect or hazard may be discernable, this does not end the analysis, or compel a determination in favor of the property owner … . Plaintiff’s awareness of a dangerous condition does not negate a duty to warn of the hazard, but only goes to the issue of comparative negligence … . Given the exposed opening’s proximity to equipment that required service, the circumstances of plaintiff’s accident present an issue of fact of not only whether the condition was open and obvious, but also whether it was inherently dangerous… . Some hazards, although discernable, may be hazardous because of their nature and location … . Defendants did not establish that the exposed opening – given its location in the floor near other mechanical equipment in the pump room – was not only open and obvious, but that there was no duty to warn, and that the condition was not inherently dangerous … .

A contractual obligation, standing alone, will not give rise to tort liability in favor of a noncontracting third party (Espinal 98 NY2d at 138]). One exception to this broad rule is where the contracting party, in failing to exercise reasonable care in the performance of his duties, “launche[s] a force or instrument of harm” (Espinal at 140). We depart from the dissent in finding that Harbour failed to make a prima facie showing that it did not owe plaintiff a duty of care and that it did not negligently cause, create or exacerbate a dangerous condition. Farrugia v 1440 Broadway Assoc., 2018 NY Slip Op 05222, First Dept 7-12-18

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/CONTRACT LAW (TORT LIABILITY, SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/ESPINAL (TORT LIABILITY, SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT))

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UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT)

The First Department, upon remittitur from the Court of Appeals, determined defendant’s conviction for identity theft was not against the weight of the evidence. The defendant had tried to purchase items from a store using a credit card and driver’s license with a fictitious name. The First Department had reversed the conviction finding that, because the name was fictitious, defendant had not assumed the identity of another. The Court of Appeal held that using a fictitious name was prohibited by the identity theft statute:

On appeal, we modified to the extent of vacating the conviction for identity theft, and otherwise affirmed … . We reasoned that in order to establish the crime, a defendant had to both use the victim’s personal identifying information and assume the victim’s identity. We reasoned that while defendant had used the victim’s personal identifying information, he had not assumed her identity, but rather, that of a fictitious person.

The Court of Appeals reversed, reasoning that defendant had assumed the identity of the victim within the meaning of the statute. The Court rejected defendant’s argument that “the requirement that a defendant assumes the identity of another is not a separate element of the crime,” explaining that the statutory language “simply summarizes and introduces the three categories of conduct through which an identity may be assumed” … . People v Roberts, 2018 NY Slip Op 05220, First Dept 7-12-18

CRIMINAL LAW (UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, IDENTITY THEFT, UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT))/APPEALS (CRIMINAL LAW, IDENTITY THEFT, UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT))/IDENTITY THEFT  (CRIMINAL LAW, IDENTITY THEFT, UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT))

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MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED BY COUNSEL OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction should not have been summarily granted and remanded the matter for a hearing. The defendant alleged defense counsel was ineffective for failure to correctly inform him of the deportation consequences of his guilty plea. The First Department offered a detailed explanation of the three criteria for granting a motion to vacate in this context on ineffective assistance of counsel grounds.

CPL 440.30 authorizes the summary granting of a motion to vacate a judgment of conviction where the moving papers allege a ground constituting a legal basis for the motion (CPL 440.30[3][a]); where that ground, if factually based, is supported by sworn allegations of fact essential to support the motion (CPL 440.30[3][b]); and where the sworn allegations of essential fact are either conceded by the People to be true or are conclusively substantiated by unquestionable documentary proof (CPL 440.30[3][c]). If all three of these statutory criteria are not met, the court may not grant a CPL 440.10 motion without first conducting a hearing (CPL 440.30[5]). …

… [T]he People did not concede the essential factual allegations on the issue of prejudice. Indeed, they expressly noted that defendant’s allegations of longstanding ties to the United States and lack of any connection to Haiti were entirely unsubstantiated. Neither did defendant proffer documentary proof conclusively substantiating his sworn factual allegations in support of his claim that “but for [his plea] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … . …Thus, defendant’s CPL 440.10 motion failed to satisfy the third criterion of CPL 440.30(3), and for that reason, the motion court abused its discretion in granting defendant’s CPL 440.10 motion without first conducting a hearing and making findings of fact … . People v Gaston, 2018 NY Slip Op 05122, First Dept 7-10-18

CRIMINAL LAW (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/IMMIGRATION LAW (CRIMINAL LAW, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))

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ALTHOUGH INDIVIDUAL DEFENDANTS, OFFICERS OR EMPLOYEES OF DEFENDANT CORPORATION, DID NOT SIGN THE AGREEMENT IN THEIR INDIVIDUAL CAPACITIES, THEY ARE ENTITLED TO ENFORCE THE ARBITRATION PROVISION OF THE AGREEMENT (FIRST DEPT).

The First Department determined the individual defendants, officers or employees of the corporate defendant, are entitled to enforce the arbitration provision of the contract, even though they were not signatories:

The individual defendants, who were officers or employees of [defendant corporation] and did not sign the [agreement] in their individual capacities, are nevertheless entitled to enforce the arbitration provision, because any breach of the [agreement] would have to be the result of an action or inaction attributable to them. A rule allowing corporate officers and employees to enforce arbitration agreements entered into by the corporate principal “is necessary not only to prevent circumvention of arbitration agreements but also to effectuate the intent of the signatory parties to protect individuals acting on behalf of the principal in furtherance of the agreement” … . Further, even a nonsignatory may be estopped from avoiding arbitration where he knowingly accepted the benefits of an agreement with an arbitration clause … . Huntsman Intl. LLC v Albemarle Corp., 2018 NY Slip Op 04962, First Dept 7-3-18

​CONTRACT LAW (ARBITRATION, CORPORATION LAW, ALTHOUGH INDIVIDUAL DEFENDANTS, OFFICERS OR EMPLOYEES OF DEFENDANT CORPORATION, DID NOT SIGN THE AGREEMENT IN THEIR INDIVIDUAL CAPACITIES, THEY ARE ENTITLED TO ENFORCE THE ARBITRATION PROVISION OF THE AGREEMENT (FIRST DEPT))/ARBITRATION (CORPORATION LAW, CONTRACT LAW, ALTHOUGH INDIVIDUAL DEFENDANTS, OFFICERS OR EMPLOYEES OF DEFENDANT CORPORATION, DID NOT SIGN THE AGREEMENT IN THEIR INDIVIDUAL CAPACITIES, THEY ARE ENTITLED TO ENFORCE THE ARBITRATION PROVISION OF THE AGREEMENT (FIRST DEPT))/CORPORATION LAW (CONTRACT LAW, ARBITRATION, ALTHOUGH INDIVIDUAL DEFENDANTS, OFFICERS OR EMPLOYEES OF DEFENDANT CORPORATION, DID NOT SIGN THE AGREEMENT IN THEIR INDIVIDUAL CAPACITIES, THEY ARE ENTITLED TO ENFORCE THE ARBITRATION PROVISION OF THE AGREEMENT (FIRST DEPT))

ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT).

The First Department noted that personal jurisdiction pursuant to CPLR 3O2 (a)(3)(ii) stems from tortious acts which occur in New York, not financial effects felt in New York, and due process requires that an out-of-state defendant have minimum contacts with New York. Neither requirement was met here:

A plaintiff relying on CPLR 302(a)(3)(ii) must show that (1) the defendant committed a tortious act outside New York; (2) the cause of action arose from that act; (3) the tortious act caused an injury to a person or property in New York; (4) the defendant expected or should reasonably have expected the act to have consequences in New York; and (5) the defendant derived substantial revenue from interstate or international commerce … . In New York, “the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred” … .

Here, the “original critical events” giving rise to plaintiff’s injury were the 2012 and 2015 Transfers. As those transfers occurred outside of New York and did not involve New York assets, the situs of injury was not in New York… . That plaintiff felt economic injury in New York, alone, is an insufficient basis to confer jurisdiction. …

Furthermore, even if the elements of CPLR 302(a)(3)(ii) have been met, asserting personal jurisdiction would not comport with due process … . To comport with due process, “[t]here must also be proof that the out-of-state defendant has the requisite minimum contacts’ with the forum state and that the prospect of defending a suit here comports with traditional notions of fair play and substantial justice,'” … . The “minimum contacts” requirement is satisfied where “a defendant’s conduct and connection with the forum State’ are such that it should reasonably anticipate being haled into court there'” … . Under the “effects test” theory of personal jurisdiction, where the conduct that forms the basis for the plaintiff’s claims takes place entirely out of forum, and the only relevant jurisdictional contacts with the forum are the harmful effects suffered by the plaintiff, a court must inquire whether the defendant “expressly aimed” its conduct at the forum … . Here, defendants did not expressly aim their tortious conduct at New York, and the foreseeability that the alleged fraudulent conveyances would injure plaintiff in New York is insufficient … . Deutsche Bank AG v Vik, 2018 NY Slip Op 04958, First Dept 7-3-18

​CIVIL PROCEDURE (PERSONAL JURISDICTION, ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT))/CPLR 302  (PERSONAL JURISDICTION, ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT))/PERSONAL JURISDICTION (CIVIL PROCEDURE, CPLR 302, ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT))/TORTIOUS ACTS (PERSONAL JURISDICTION, ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT))/MINIMUM CONTACTS  (PERSONAL JURISDICTION, ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT))/DUE PROCESS (PERSONAL JURISDICTION, ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT))/OUT OF STATE DEFENDANT (PERSONAL JURISDICTION, ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT))

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THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff city was not authorized to sue defendant for money damages for defendant’s alleged injury to tress during sidewalk repair. Although a regulation allowed the suit, the controlling statute did not. The regulation was declared invalid:

The motion court erred in ruling that the City has the capacity to sue for the negligent destruction of its property. A municipality does not have a common-law right to bring suit; its right to sue, if any, “must be derived from the relevant enabling legislation or some other concrete statutory predicate” … . Rules of City of New York Department of Parks and Recreation (DPR) (56 RCNY) § 5-01(c) permits DPR to “seek damages” against persons who “cut, remove, or destroy” its trees without a permit … . However, the relevant enabling legislation, which authorizes DPR to promulgate rules regarding the cutting, removal, and destruction of its trees, does not authorize a municipal right of action to recover money damages for injury to the trees (see New York City Charter § 533[a][9]; Administrative Code of the City of New York § 18-107[e]). 56 RCNY 5-01(c) is therefore “out of harmony” with the statute, and we hold that it is invalid … . City of New York v Tri-Rail Constr., Inc., 2018 NY Slip Op 04954, First Dept 7-3-18

MUNICIPAL LAW (ADMINISTRATIVE LAW, THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT))/ADMINISTRATIVE LAW (MUNICIPAL LAW, THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT))/TREES (MUNICIPAL LAW, ADMINISTRATIVE LAW,  THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT))

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SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT).

The First Department determined the seizure of credit cards from under the hood of defendant’s car was not the result of an illegal search. The police had validly impounded the car and were following a procedure which required that the car be disabled to thwart theft:

Police entry into the car and under its hood was reasonable because it was done in compliance with the Police Department Patrol Guide’s safeguarding procedure, requiring police to disable all vehicles being safeguarded, in order to prevent theft. The limited entry into the car was done to protect the owner’s property, and was not an attempt to search for incriminating evidence, as shown by the fact that, upon discovering the credit cards in the hood, the police did not search any other part of the vehicle … . The officers’ failure to perform this safeguarding procedure within the 48-hour period allowed by the Patrol Guide, after which a vehicle is to be moved from the precinct to the Property Clerk’s storage facility, was a minor deviation from procedure, and did not undermine the reasonableness of the limited search, where the remainder of the procedure was followed and, as noted, there was no indication that the police were using the procedure as a pretext to search for incriminating evidence … . People v Keita, 2018 NY Slip Op 04847, First Dept 6-28-18

​CRIMINAL LAW (SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/SEARCH AND SEIZURE (SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/SUPPRESSION (CRIMINAL LAW, SEARCH AND SEIZURE, SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT)

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