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FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDANT FOREIGN RRG DID NOT NEED TO COMPLY WITH NEW YORK’S STATUTORY TIMELY DISCLAIMER REQUIREMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, in a matter of first impression, determined that federal law, the Liability Risk Retention Act (LRRA), preempted New York’s Insurance Law section 3420(d)(2). Therefore defendant foreign risk retention group (RRG) [Preferred Contractors Insurance Company Risk Retention Group LLC (PCIC)], did not need to comply with the timely notice of disclaimer requirement of Insurance Law 3420(d)(2). Plaintiff general contractor, Nadkos, sued PCIC because PCIC claimed it had no duty to defend Nadkos in a construction-accident personal injury case brought by a subcontractor and PCIC had not provided the timely notice of disclaimer required by New York’s Insurance Law. The legal argument is complex and no attempt to fairly summarize it is made here:

Application of Insurance Law § 3420(d)(2) to PCIC or to any other RRG would directly or indirectly regulate these groups in violation of 15 USC § 3902(a)(1). Section 3420(d)(2) alters the rights and obligations of the carrier and insured under the policy by creating additional rights for the injured party, that is not contemplated by the LRRA and not required by all other states. …

This heightened standard requirement in New York impairs an RRG’s ability to operate on a nationwide basis “without being compelled to tailor their policies to the specific requirements of every state in which they do business”… . As Congress has chosen to limit the power of nondomiciliary states to regulate RRGs, the LRRA clearly preempts Insurance Law § 3420(d)(2). Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 2018 NY Slip Op 03242, First Dept 5-3-18

​INSURANCE LAW (FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDANT FOREIGN RRG DID NOT NEED TO COMPLY WITH NEW YORK’S STATUTORY TIMELY DISCLAIMER REQUIREMENT (FIRST DEPT))/DISCLAIMER (INSURANCE LAW, FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDANT FOREIGN RRG DID NOT NEED TO COMPLY WITH NEW YORK’S STATUTORY TIMELY DISCLAIMER REQUIREMENT (FIRST DEPT))/PREEMPTION (INSURANCE LAW, FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDANT FOREIGN RRG DID NOT NEED TO COMPLY WITH NEW YORK’S STATUTORY TIMELY DISCLAIMER REQUIREMENT (FIRST DEPT))/RISK RETENTION GROUP (RRG)  (INSURANCE LAW, FEDERAL RISK RETENTION GROUP (RRG) LAW PREEMPTS NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER OF COVERAGE PROVISION, THEREFORE DEFENDAN

FAILURE TO ATTEND INDEPENDENT MEDICAL EXAMINATIONS SET UP BY NO-FAULT CARRIER IS AN ABSOLUTE DEFENSE TO COVERAGE (FIRST DEPT).

The First Department, reversing Supreme Court, determined no-fault claimants’ failure to attend independent medical examinations (IME’s) was a absolute defense to coverage:

When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage” … . Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.

Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply … . Furthermore, plaintiff was not required “to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” … . Hereford Ins. Co. v Lida’s Med. Supply, Inc., 2018 NY Slip Op 03226, First Dept 5-3-18

​INSURANCE LAW (FAILURE TO ATTEND INDEPENDENT MEDICAL EXAMINATIONS SET UP BY NO-FAULT CARRIER IS AN ABSOLUTE DEFENSE TO COVERAGE (FIRST DEPT))/NO-FAULT INSURANCE (FAILURE TO ATTEND INDEPENDENT MEDICAL EXAMINATIONS SET UP BY NO-FAULT CARRIER IS AN ABSOLUTE DEFENSE TO COVERAGE (FIRST DEPT))/INDEPENDENT MEDICAL EXAMINATIONS (IME)  (FAILURE TO ATTEND INDEPENDENT MEDICAL EXAMINATIONS SET UP BY NO-FAULT CARRIER IS AN ABSOLUTE DEFENSE TO COVERAGE (FIRST DEPT))/IME (FAILURE TO ATTEND INDEPENDENT MEDICAL EXAMINATIONS SET UP BY NO-FAULT CARRIER IS AN ABSOLUTE DEFENSE TO COVERAGE (FIRST DEPT))

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COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT).

The First Department noted that the court, in awarding summary judgment to plaintiff, properly relied upon unsigned copies of the transcript of the deposition testimony of defendant’s witness because the defendant failed to return signed copies within 60 days and did not challenge the accuracy of the transcript (CPLR 3116(a)). Shackman v 400 E. 85th St. Realty Corp., 2018 NY Slip Op 03223, First Dept 5-3-18

​CIVIL PROCEDURE (DEPOSITION TRANSCRIPTS, COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))/EVIDENCE (DEPOSITION TRANSCRIPTS, COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))/DEPOSITIONS (UNSIGNED TRANSCRIPTS, EVIDENCE, COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))/UNSIGNED DEPOSITIONS ( COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))/CPLR 3116(a) (DEPOSITION TRANSCRIPTS, COURT PROPERLY RELIED ON UNSIGNED COPIES OF A DEPOSITION TRANSCRIPT BECAUSE DEFENDANT DID NOT RETURN SIGNED COPIES WITHIN 60 DAYS AND DID NOT CHALLENGE THE ACCURACY OF THE TRANSCRIPT (FIRST DEPT))

JOHN DOE NAMED IN TIMELY COMPLAINT DID NOT REFER TO THE LLC NAMED IN THE COMPLAINT FILED AFTER THE STATUTE OF LIMITATIONS HAD RUN, MOTION TO DISMISS PROPERLY GRANTED (FIRST DEPT).

The First Department determined that the “John Doe” defendant named in a timely filed complaint did not refer to the limited liability company named in the complaint filed after the statute of limitations had run:

The motion court properly dismissed the complaint on the ground that it was served after the statutory limitations period had expired. Plaintiff’s claims arose on January 14, 2008. The original complaint in this action, which was filed on January 6, 2014 (just days before the six-year statute of limitations expired), did not name Stack’s LLC as a defendant, nor did it name defendant Stack’s LLC (Delaware). The amended complaint, which for the first time named Stack’s LLC (Delaware) as a defendant, was not filed until January 24, 2014 — more than a week after the statute had run. Plaintiff cannot properly rely on CPLR 1024 as a shield from the statute of limitations. Even assuming that the appellation “John Doe” referred to a corporation rather than a natural person, the complaint’s description of the John Doe defendant was not described in such a way as to fairly apprise Stack’s LLC (Delaware) that it was an intended defendant … . Thus, the inadequate description rendered the action jurisdictionally defective … . Markov v Stack’s LLC (Delaware), 2018 NY Slip Op 03238, First Dept 5-3-18

​CIVIL PROCEDURE (JOHN DOE NAMED IN TIMELY COMPLAINT DID NOT REFER TO THE LLC NAMED IN THE COMPLAINT FILED AFTER THE STATUTE OF LIMITATIONS HAD RUN, MOTION TO DISMISS PROPERLY GRANTED (FIRST DEPT))/CPLR 1024 (JOHN DOE NAMED IN TIMELY COMPLAINT DID NOT REFER TO THE LLC NAMED IN THE COMPLAINT FILED AFTER THE STATUTE OF LIMITATIONS HAD RUN, MOTION TO DISMISS PROPERLY GRANTED (FIRST DEPT))/JOHN DOE (COMPLAINTS, (JOHN DOE NAMED IN TIMELY COMPLAINT DID NOT REFER TO THE LLC NAMED IN THE COMPLAINT FILED AFTER THE STATUTE OF LIMITATIONS HAD RUN, MOTION TO DISMISS PROPERLY GRANTED (FIRST DEPT))/COMPLAINTS  (JOHN DOE NAMED IN TIMELY COMPLAINT DID NOT REFER TO THE LLC NAMED IN THE COMPLAINT FILED AFTER THE STATUTE OF LIMITATIONS HAD RUN, MOTION TO DISMISS PROPERLY GRANTED (FIRST DEPT))

DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED BASED UPON CONVENIENCE OF MATERIAL WITNESSES (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion to change venue should have been granted;

The motion court exercised its discretion in an improvident manner in light of defendants’ demonstration that the convenience of material nonparty witnesses would be better served by the change … . Defendants submitted the affidavits of four first responders and plaintiff’s coworker, all of whom averred that they would testify as witnesses but would be inconvenienced by traveling to New York County. The accident occurred in Sullivan County, and other than one defendant’s registered principal place of business, and one of plaintiff’s physicians maintaining an office in the county, this matter has no contact with New York County (… . Plaintiff’s argument that the affidavits submitted by defendants were not sufficiently detailed is unpersuasive, and plaintiff offers nothing to rebut defendants’ assertions that his coworker, the first responders, and the sheriff who investigated the accident were material witnesses, as they averred in their affidavits … . Furthermore, plaintiff’s assertion that he has alleged violations of the Labor Law, and thus liability may be resolved prior to trial, is not relevant … . Taylor v Montreign Operating Co., LLC, 2018 NY Slip Op 03222, First Dept 5-3-18

​CIVIL PROCEDURE (DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED BASED UPON CONVENIENCE OF MATERIAL WITNESSES (FIRST DEPT))/VENUE (DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED BASED UPON CONVENIENCE OF MATERIAL WITNESSES (FIRST DEPT))/WITNESSES, CONVENIENCE OF (VENUE, DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/VENUE  (DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED BASED UPON CONVENIENCE OF MATERIAL WITNESSES (FIRST DEPT))

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PLAINTIFF’S LEGAL MALPRACTICE ACTION PROPERLY SURVIVED A MOTION TO DISMISS, PLAINTIFF DEMONSTRATED THAT, ‘BUT FOR’ THE ATTORNEYS’ WITHDRAWAL OF AN APPEAL, PLAINTIFF WOULD HAVE PREVAILED AND MAY NOT HAVE BEEN TERMINATED FROM HIS EMPLOYMENT (FIRST DEPT).

The First Department determined the plaintiff’s legal malpractice action properly survived the motion to dismiss. Plaintiff sufficiently alleged that “but for” the attorneys’ withdrawing an appeal plaintiff would have been entitled to a pretermination hearing in his effort to keep his job as a police officer. Plaintiff was terminated after the appeal was withdrawn:

The allegations in the complaint establish that but for defendants’ conduct in withdrawing the appeal from Justice Ecker’s ruling, and in sending a different lawyer than the one promised to represent him at the reinstatement hearing, he would not have incurred damages … . Plaintiff showed that he would have prevailed on the appeal had it not been withdrawn, because Justice Ecker erred in concluding that plaintiff’s conviction of assault in the third degree, based on criminal negligence … constituted a violation of his oath of office, i.e., arose from “knowing or intentional conduct indicative of a lack of moral integrity,” and warranted termination without a hearing pursuant to Public Officers Law § 30(1)(e) … . …

Had plaintiff prevailed on appeal, he would have obtained a pretermination hearing, which, … in contrast to the reinstatement hearing he received, would have allowed him to argue for disciplinary measures other than termination. Plaintiff thus sufficiently alleged that defendants caused him actual ascertainable damages of lost salary and other benefits … . Roth v Ostrer, 2018 NY Slip Op 03218, First Dept 5-3-18

​ATTORNEYS (MALPRACTICE, PLAINTIFF’S LEGAL MALPRACTICE ACTION PROPERLY SURVIVED A MOTION TO DISMISS, PLAINTIFF DEMONSTRATED THAT ‘BUT FOR’ THE ATTORNEYS’ WITHDRAWAL OF A APPEAL, PLAINTIFF WOULD HAVE PREVAILED AND MAY NOT HAVE BEEN TERMINATED FROM HIS EMPLOYMENT (FIRST DEPT))/NEGLIGENCE (ATTORNEYS,  PLAINTIFF’S LEGAL MALPRACTICE ACTION PROPERLY SURVIVED A MOTION TO DISMISS, PLAINTIFF DEMONSTRATED THAT ‘BUT FOR’ THE ATTORNEYS’ WITHDRAWAL OF A APPEAL, PLAINTIFF WOULD HAVE PREVAILED AND MAY NOT HAVE BEEN TERMINATED FROM HIS EMPLOYMENT (FIRST DEPT))/LEGAL MALPRACTICE (LAINTIFF’S LEGAL MALPRACTICE ACTION PROPERLY SURVIVED A MOTION TO DISMISS, PLAINTIFF DEMONSTRATED THAT ‘BUT FOR’ THE ATTORNEYS’ WITHDRAWAL OF A APPEAL, PLAINTIFF WOULD HAVE PREVAILED AND MAY NOT HAVE BEEN TERMINATED FROM HIS EMPLOYMENT (FIRST DEPT))

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ALTHOUGH THE APPELLATE COURT TOOK JUDICIAL NOTICE OF A REGULATION ALLOWING CITY SANITATION TRUCKS TO DOUBLE PARK RAISED FOR THE FIRST TIME ON APPEAL, THERE WERE DISPUTED FACTS ABOUT WHETHER THE DOUBLE PARKED SANITATION TRUCK COULD HAVE BEEN PULLED TO THE CURB, THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant city was not entitled to summary judgment based upon the van in which the plaintiff was a passenger striking the rear of a sanitation truck that was double parked. On appeal the city cited a regulation which allows sanitation trucks to double park. The existence of the regulation was raised for the first time on appeal. Although the regulation could have been considered on appeal if it raised a pure question of law, disputed facts about the possibility that the truck could have moved over to the curb foreclosed an appellate ruling:

While, as a matter of common sense, a City sanitation truck may under certain circumstances need to double park in order to perform its job of removing refuse, the City did not point to any regulation exempting sanitation trucks from City traffic rules, and therefore did not establish prima facie their lack of liability. On appeal, the City defendants bring to the Court’s attention a City traffic regulation, applicable at the time of the accident, that excepts City refuse trucks from double parking rules under certain conditions, and we take judicial notice of that regulation … . The regulation provides that the “operator of a refuse collection vehicle working on behalf of the City” is allowed to “temporarily stand on the roadway side of a vehicle parked at the curb, provided that no curb space is available within fifteen feet, while loading refuse . . .” … .

It is well-settled that “[w]here a party . . . raises [for the first time on appeal] a new legal argument which appeared upon the face of the record and which could not have been avoided . . . [s]o long as the issue is determinative and the record on appeal is sufficient to permit our review, [this Court may consider the argument]”… . Here, however, the City’s argument that the regulation allowed their operator to double park is not a pure question of law, but depends on disputed facts in the record concerning whether there was a parking space available within fifteen feet of the pick up location. While the two sanitation employees assigned to the truck testified that there was no curb space available to park when they arrived, one of them acknowledged that a post-accident photograph, which is in the record, appears to show an open space between the double-parked truck and the curb. The testimony of one of the employees that it would have been unsafe to attempt to parallel park the truck under the existing traffic conditions also presents an issue of fact to be resolved by a fact-finder. We therefore decline to consider the City defendants’ newly-raised argument for the first time on appeal … . Nadella v City of New York, 2018 NY Slip Op 03103, First Dept 5-1-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, ALTHOUGH THE APPELLATE COURT TOOK JUDICIAL NOTICE OF A REGULATION ALLOWING CITY SANITATION TRUCKS TO DOUBLE PARK RAISED FOR THE FIRST TIME ON APPEAL, THERE WERE DISPUTED FACTS ABOUT WHETHER THE DOUBLE PARKED SANITATION TRUCK COULD HAVE BEEN PULLED TO THE CURB, THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/APPEALS (NEGLIGENCE, ALTHOUGH THE APPELLATE COURT TOOK JUDICIAL NOTICE OF A REGULATION ALLOWING CITY SANITATION TRUCKS TO DOUBLE PARK RAISED FOR THE FIRST TIME ON APPEAL, THERE WERE DISPUTED FACTS ABOUT WHETHER THE DOUBLE PARKED SANITATION TRUCK COULD HAVE BEEN PULLED TO THE CURB, THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH THE APPELLATE COURT TOOK JUDICIAL NOTICE OF A REGULATION ALLOWING CITY SANITATION TRUCKS TO DOUBLE PARK RAISED FOR THE FIRST TIME ON APPEAL, THERE WERE DISPUTED FACTS ABOUT WHETHER THE DOUBLE PARKED SANITATION TRUCK COULD HAVE BEEN PULLED TO THE CURB, THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT)).REAR END COLLISIONS (ACCIDENTS, ALTHOUGH THE APPELLATE COURT TOOK JUDICIAL NOTICE OF A REGULATION ALLOWING CITY SANITATION TRUCKS TO DOUBLE PARK RAISED FOR THE FIRST TIME ON APPEAL, THERE WERE DISPUTED FACTS ABOUT WHETHER THE DOUBLE PARKED SANITATION TRUCK COULD HAVE BEEN PULLED TO THE CURB, THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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INTRA- OR INTER- AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY), PREVAILING PARTIES ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that the intra- or inter-agency exemption from the Freedom of Information Law (FOIL) could not be stretched to include communications between Mayor de Blasio’s office and an outside consultant retained by a private organization (Campaign for One New York or CONY), as opposed to a consultant hired by a government agency. Because the reporters seeking the information had substantially prevailed in seeking disclosure, they were entitled to attorney’s fees:

It is well settled that for communications between a governmental agency and an outside consultant to fall under the agency exemption, the outside consultant must be retained by the governmental agency … .

Respondents seek to broaden the agency exemption to shield communications between a governmental agency and an outside consultant retained by a private organization and not the agency. This attempt expands the agency exemption and closes the door on government transparency. Requiring an agency to retain an outside consultant to protect its communications comports with the fundamental principle that FOIL exemptions should be “narrowly interpreted so that the public is granted maximum access” to public records … . Matter of Rauh v de Blasio, 2018 NY Slip Op 03115, First Dept 5-1-18

​FREEDOM OF INFORMATION LAW (FOIL) (INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))/INTER- INTRA- AGENCY EXEMPTION (FREEDOM OF INFORMATION LAW (FOIL) (INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))/ATTORNEY’S (FREEDOM OF INFORMATION LAW (FOIL), PREVAILING PARTIES ENTITLED TO ATTORNEY’S FEES (FIRST DEPT)/CONSULTANTS (FREEDOM OF INFORMATION LAW (FOIL), INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))

RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT).

The First Department, over a two-judge concurrence, determined the record of defendant’s acquittal should not have been unsealed for use by the sentencing court. The record should be resealed but the error did not require resentencing:

… [W]hile we agree with defendant that the unsealing was improper, we reject [defendant’s] request for resentencing. In People v Patterson (78 NY2d 711 [1991]), the Court of Appeals held that suppression was not required where the police obtained identification evidence in violation of CPL 160.50, and the witness then identified the defendant in court. The Court ruled that “there is nothing in the history of CPL 160.50 or related statutes indicating a legislative intent to confer a constitutionally derived substantial right’, such that the violation of that statute, without more, would justify invocation of the exclusionary rule with respect to subsequent independent and unrelated criminal proceedings” … . We conclude that defendant is entitled to no greater relief based on the statutory violation that resulted in the court’s consideration of the improperly unsealed information at sentencing than he would have been entitled to had the information been admitted at trial. … . People v Anonymous, 2018 NY Slip Op 03097, First Dept 5-1-18

​CRIMINAL LAW (SEALING OF ACQUITTAL RECORD, RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT))/SEALING (CRIMINAL LAW, ACQUITTAL, SEALING OF ACQUITTAL RECORD, RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT))/ACQUITTAL (SEALING OF ACQUITTAL RECORD, RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT))

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PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on its trespass action against defendant condominium owners based on defendants’ use of a basement storage area which, according to the Declaration and Offering Plan, was owned by plaintiff. Any attempt to transfer ownership of the basement area to defendants’ condominium was ineffectual because there was never a meeting and vote by unit members:

The Declaration and Offering Plan are unambiguous and clearly state that the disputed basement space was a Limited Common Element of the front unit owned by plaintiff. The deeds to both parties’ units were silent on this issue, but provided that each buyer agreed that their ownership was subject to the Declaration. Paragraph Fifth of the Declaration provided that the use of the basement space was deemed conveyed with the conveyance of the front unit, even if the interest was not expressly described in the conveyance. In order to amend the Declaration, pursuant to paragraph Tenth(b), the board was required to execute an instrument upon the affirmative vote of 80% of the unit owners held at a duly called meeting. Moreover, paragraph Tenth(b)(I) provided that an amendment which altered the right to portions of the common elements required the consent of 100% of the affected unit owners.

Here, there was never a duly held meeting of the unit owners at which 80% voted to amend the Declaration to permit transfer of the right to use the basement space from the front unit to the rear unit. Thus, plaintiff retained the right to use the basement space. Parol evidence of the parties’ contrary intent is irrelevant in the face of the unambiguous governing documents … . Plaintiff’s acknowledgment in the contract of sale that it was not purchasing the right to use the basement storage space is not controlling because the deed contained a provision that the sale was subject to the provisions of the Declaration, which stated that the storage space was for the use of the front unit. P360 Spaces LLC v Orlando, 2018 NY Slip Op 02749, First Dept 4-27-18

​CONDOMINIUMS (PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))/CONTRACT LAW (CONDOMINIUMS, PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))/TRESPASS (CONDOMINIUMS,  PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))

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