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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))

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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))

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VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT).

The First Department determined (1) the ventilator on which plaintiff was crouching when it detached and he fell was not a safety device within the meaning of Labor Law 240 (1), (2) plaintiff’s testimony that he couldn’t reach the ventilator, which he was attempting to remove, from the A-frame ladder he was provided entitled him to summary judgment on the Labor Law 240 (1) cause of action, and (3) the landlord was entitled to summary judgment on the cross-claim for indemnification by the tenant, noting that the indemnification clause in the lease did not require that the tenant be negligent and that a Labor Law 240 (1) violation is not a finding that the tenant was negligent:

Contrary to plaintiff’s contention, the ventilator he was standing on and disassembling when he fell was not a safety device; it was the object of the demolition project on which he was employed, and was not intended to protect him from elevation-related risks … . …

Despite Eight Oranges’ [tenant’s] argument to the contrary, this indemnification provision does not require a finding of negligence on the part of the tenant before it is triggered. Nor does it violate General Obligations Law § 5-321, “since a finding of liability under Labor Law § 240 is not the equivalent of a finding of negligence and does not give rise to an inference of negligence” … . It is clear from the contractual language at issue that the landlord … intended to be indemnified by the tenant, Eight Oranges, for any “damage or injury occurring or arising to any person” on the property, that is caused by the tenant. Hong-Bao Ren v Gioia St. Marks, LLC, 2018 NY Slip Op 05520, First Dept 7-26-18

LABOR LAW-CONSTRUCTION LAW (VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/CONTRACT LAW (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/CONTRACT LAW  (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))

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CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the class action complaint by tenants alleging the failure to provide rent-stabilized leases should not have been dismissed at the pre-answer stage:

“Pursuant to CPLR 902, a motion to determine whether a class action may be maintained is to be made within 60 days after the time to serve the responsive pleading has expired” … . Because the time to make such a motion had not occurred, it was premature, in this case, for the court to engage in a detailed analysis of whether the requirements for class certification were met … .

It does not appear conclusively from the complaint that, as a matter of law, there is no basis for class action relief… . For example, plaintiffs allege that some defendants receive J-51 tax benefits and are therefore required to provide tenants with rent-stabilized leases but failed to do so. This claim was also made in Borden (see 24 NY3d at 390), and the Court of Appeals found that the plaintiffs satisfied the class action requirements of numerosity, predominance of common issues of law or fact, typicality of the named plaintiffs’ claims, adequate representation, and superiority of class action versus other methods (see id. at 399-400).

Although the instant action involves 11 buildings and 8 owners, all the buildings are allegedly managed by Big City Realty Management, and all the owners are allegedly part of one holding company, Big City Acquisitions. Moreover, Downing — another putative class action about J-51 (see 107 AD3d at 88) — involved “a residential complex owned by defendants” (id.). Maddicks v Big City Props., LLC, 2018 NY Slip Op 05523, First Dept 7-26-18

CIVIL PROCEDURE (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/CPLR 902 (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/LANDLORD-TENANT (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))

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CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF BROKER WAS ENTITLED TO A COMMISSION, SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, reversing Supreme Court, determined that a contract concerning plaintiff-broker’s entitlement to a commission was ambiguous requiring a trial. The facts are too complex to fairly summarize here:

Crucially, an agreement can be deemed unambiguous “if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion'” … .

However, a contract is ambiguous when “read as a whole, [it] fails to disclose its purpose and the parties’ intent” … , or when specific language is “susceptible of two reasonable interpretations”… . Moreover, the agreement must be read as a whole “to ensure that excessive emphasis is not placed upon particular words or phrases” … .

Stated differently, the existence of ambiguity is determined by examining ” the entire contract and consider[ing] the relation of the parties and the circumstances under which it was executed,'” with the wording viewed ” in the light of the obligation as a whole and the intention of the parties as manifested thereby'” … . And, importantly, “[i]n construing a contract, one of a court’s goals is to avoid an interpretation that would leave contractual clauses meaningless” … .

We find that the agreement here is ambiguous with regard to which parties are bound to its terms. Georgia Malone & Co., Inc. v E&M Assoc., 2018 NY Slip Op 05525, First Dept 7-26-18

CONTRACT LAW (REAL ESTATE, CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF BROKER WAS ENTITLED TO A COMMISSION, SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/REAL ESTATE (BROKER’S COMMISSION, CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF BROKER WAS ENTITLED TO A COMMISSION, SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/BROKERS (REAL ESTATE, CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF BROKER WAS ENTITLED TO A COMMISSION, SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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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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