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COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined the complaint stated causes of action against the city and a city police officer (DeBellis) in connection with, inter alia, warrantless home visits by the officer purportedly concerning the well-being of plaintiff’s child and allegedly false complaints by the officer to the Administration for Children’s Services (ACS):

… [A]lthough not expressly pleaded, the factual allegations in the complaint fit within a cause of action against DeBellis for intentional infliction of emotional distress based on her alleged malicious or reckless false reporting to ACS and malicious campaign of harassment. …

…[W]e cannot say, as a matter of law, that DeBellis’s actions did not rise to the requisite level of outrageous conduct. The facts alleged by plaintiff describe both (1) a deliberate and malicious campaign of harassment and intimidation and (2) an abuse of power. …

Plaintiff has also stated a claim against defendants under 42 USC § 1983 for deprivation of plaintiff’s constitutional rights, specifically, her right under the Fourth Amendment to be free from warrantless and unlawful entries into the home … . …

Despite … allegations of repeated notice to DeBellis’s superiors of her actions, there is no indication … any action was taken to restrain her. Accordingly … plaintiff has stated a claim for holding the City liable under § 1983 on account of its gross negligence or deliberate indifference to DeBellis’s unconstitutional actions … . …

…[Plaintiff] states a claim against the City for negligent supervision and retention of DeBellis … . Under this theory, an employer may be liable for the acts of an employee outside the scope of his or her employment … . Contrary to the City’s argument, the facts permit an inference that DeBellis was acting outside of the scope of her employment, and, as plaintiff argues, “had some personal axe to grind.” Scollar v City of New York, 2018 NY Slip Op 02032, First Dept 3-22-18

MUNICIPAL LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/CIVIL RIGHTS LAW (42 USC 1983)  (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENCE (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL TORTS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/EMPLOYMENT LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENT SUPERVISION AND RETENTION COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))

TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT).

The First Department determined the trial court properly refused to discharge a juror and declare a mistrial after the juror conducted online research about false confessions and shared the information with other jurors:

After a jury note revealed that one juror had conducted online research on false confessions and shared it with the rest of the jury, the court providently exercised its discretion in denying defendant’s request to discharge the offending juror and concomitantly declare a mistrial. Defendant did not preserve his contention that the court should have conducted one or more individual inquiries … , and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The court took adequate curative measures by thoroughly admonishing the jury to disregard the information obtained by a juror, not to conduct any outside research, and to decide the case solely based on the evidence presented at trial … . The jury presumably followed these instructions … . The court also granted defense counsel’s request for individual polling of the jurors as to whether they had reached the verdict based only on the evidence and the law as instructed by the court, and not based on any outside influence, to which all jurors answered in the affirmative. Under the circumstances, the juror’s misconduct in researching and telling the other jurors about false confessions did not prejudice defendant. People v Jimenez, 2018 NY Slip Op 02018, First Dept 3-22-18

CRIMINAL LAW (JURORS, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/JURORS (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/MISTRIAL (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/DISCHARGE (JURORS) (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/ONLINE RESEARCH (JURORS, CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))

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NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT).

The First Department determined New York courts had jurisdiction over a New Jersey radiologist (Daulto) in this failure-to-diagnose-cancer medical malpractice action:

Plaintiff alleges that defendant Dauito, a radiologist, negligently read her sonogram, leading to a delay in the diagnosis and treatment of her breast cancer. Dr. Dauito avers that, at all relevant times, he was a New Jersey resident and worked only at an office in New Jersey. However, he acknowledges that he was licensed to practice medicine in New York and that he contracted with defendant Madison Avenue Radiology, P.C., a New York corporation, to provide radiology services to some of its New York patients. Plaintiff’s sonogram was performed in New York, Dr. Dauito relayed his diagnostic findings to Madison Avenue Radiology in New York, and Madison Avenue Radiology issued a report based on his findings that was allegedly relied upon by plaintiff and her doctors. Under these circumstances, New York courts may exercise jurisdiction over Dr. Dauito pursuant to CPLR 302(a)(1), notwithstanding his lack of physical presence in New York, because he transacted business with Madison Avenue Radiology and provided radiology services to patients in New York, including plaintiff, projecting himself into the State by electronically or telephonically transmitting his diagnostic findings … .

New York courts may also exercise jurisdiction over Dr. Dauito pursuant to CPLR 302(a)(3), because, as alleged, Dr. Dauito’s negligent misdiagnosis resulted in a delay in plaintiff’s treatment, thereby causing injury to plaintiff in New York, and Dr. Dauito should reasonably expect his out-of-state negligent misdiagnosis in plaintiff’s case to have consequences in New York … . Allen v Institute for Family Health, 2018 NY Slip Op 01998, First Dept 3-22-18

CIVIL PROCEDURE (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/LONG ARM JURISDICTION (NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT)))/CPLR 302(a) (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/MEDICAL MALPRACTICE (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))

SUMMARY JUDGMENT PROPERLY GRANTED ON THE LABOR LAW 240 (1) CAUSE OF ACTION BASED UPON A FALL FROM AN UNSECURED LADDER, IT DID NOT MATTER WHETHER PLAINTIFF LOST HIS BALANCE BEFORE OF AFTER THE LADDER WOBBLED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action was properly granted. The complaint alleged the unsecured ladder wobbled while plaintiff was attempting to install steel wall panels. The court offered a particularly clear explanation of liability stemming from the use of unsecured ladders:

…[P]laintiff … was injured when he fell from an unsecured ladder while installing steel wall panels in the lobby of a building … . “It is well settled that failure to properly secure a ladder to insure that it remains steady and erect while being used, constitutes a violation of Labor Law § 240(1)” … . It is irrelevant whether plaintiff initially lost his balance before or after the ladder wobbled because it is uncontested that the precipitating cause of both was that the suction cup that he had affixed to the panel and gripped to pull the panel into place came loose … . Under either scenario, the ladder failed to remain steady under plaintiff’s weight as he performed his work. Furthermore, even if plaintiff gripped the suction cup incorrectly, causing it to come loose, any such misuse of the suction cup was not the sole proximate cause of the accident where the unsecured ladder moved … . Plywacz v 85 Broad St. LLC, 2018 NY Slip Op 01883, First Dept 3-20-18

LABOR LAW -CONSTRUCTION LAW (SUMMARY JUDGMENT PROPERLY GRANTED ON THE LABOR LAW 240 (1) CAUSE OF ACTION BASED UPON A FALL FROM AN UNSECURED LADDER, IT DID NOT MATTER WHETHER PLAINTIFF LOST HIS BALANCE BEFORE OF AFTER THE LADDER WOBBLED (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW SUMMARY JUDGMENT PROPERLY GRANTED ON THE LABOR LAW 240 (1) CAUSE OF ACTION BASED UPON A FALL FROM AN UNSECURED LADDER, IT DID NOT MATTER WHETHER PLAINTIFF LOST HIS BALANCE BEFORE OF AFTER THE LADDER WOBBLED (FIRST DEPT))

UNDER CAYMAN ISLANDS LAW, THE SHAREHOLDER’S DERIVATIVE CAUSES OF ACTION WERE PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, in a case sent back by the Court of Appeals, affirmed Supreme Court’s dismissal of the shareholder’s derivative causes of action. The derivative action was initially dismissed for failure to comply with a Cayman Islands rule. The Court of Appeals held that the rule was procedural and did not apply in New York courts. The First Department determined the derivative causes of action must be dismissed because plaintiff does not have standing pursuant to Foss v Harbottle, 67 Eng Rep 189 (1843), as interpreted under Cayman Islands law:

Under Cayman Islands law interpreting Foss, “derivative claims are owned and controlled by the company, not its shareholders” … . Thus, “a shareholder is not permitted to bring a derivative action on behalf of that company” … .

Cayman Islands law recognizes only four narrow exceptions to the Foss rule: “(1) if the conduct infringed on the shareholder’s personal rights; (2) if the conduct would require a special majority to ratify; (3) if the conduct qualifies as a fraud on the minority; or (4) if the conduct consists of ultra vires acts … . Here, the only exception at issue is the “fraud on the minority” exception. In order to invoke that exception, plaintiff must plead and prove that the alleged wrongdoers controlled a majority of the stock with voting rights and that those wrongdoers committed fraud … . Control may be sufficiently pleaded by showing that the wrongdoers own a majority of the corporation’s voting shares or have acquired de facto control of those voting shares … .

We agree with the motion court that the complaint is devoid of any allegations establishing either form of control. Davis v Scottish Re Group Ltd., 2018 NY Slip Op 01889, First Dept 3-20-18

CORPORATION LAW (SHAREHOLDER’S DERIVATIVE ACTION, UNDER CAYMAN ISLANDS LAW, THE SHAREHOLDER’S DERIVATIVE CAUSES OF ACTION WERE PROPERLY DISMISSED (FIRST DEPT))/SHAREHOLDER’S DERIVATIVE ACTION (UNDER CAYMAN ISLANDS LAW, THE SHAREHOLDER’S DERIVATIVE CAUSES OF ACTION WERE PROPERLY DISMISSED (FIRST DEPT))/CAYMAN ISLANDS (CORPORATION LAW,  UNDER CAYMAN ISLANDS LAW, THE SHAREHOLDER’S DERIVATIVE CAUSES OF ACTION WERE PROPERLY DISMISSED (FIRST DEPT))

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ALTHOUGH THE COMPLAINT BY SHAREHOLDERS AGAINST DIRECTORS DID NOT SUFFICIENTLY ALLEGE THE BREACH OF A FIDUCIARY DUTY, IT DID ALLEGE A BREACH OF THE SUFFICIENT INFORMATION DUTY (FIRST DEPT).

The First Department, modifying Supreme Court, determined that, although it did not sufficiently allege the breach of a fiduciary duty, the complaint by shareholders alleged the breach of the “sufficient information duty” owed to shareholders by the directors:

The complaint … fails to allege “a special factual relationship between the directors and the shareholders … bring[ing] the directors of the company into direct and close contact with the shareholders in a manner capable of generating fiduciary obligations” with regard to either the dividend policy that is the subject of the third cause of action or the merger transaction that is the subject of the fourth cause of action … .

However, to the extent the director defendants gave shareholders an information statement providing information and recommendations about the merger transaction, they owed the shareholders a “sufficient information duty” … . This is not a duty of loyalty, which would require the directors to subordinate their interests to the shareholders’ interests, but “if [the directors] are going to invite the shareholders to a meeting, common fairness requires that they explain what the purpose of the meeting is” in a “clear and comprehensible” manner … .

The complaint alleges that the information statement failed to disclose that two directors on the special committee negotiating merger terms had ties to the investor defendants, who proposed the merger, that it failed to disclose any details about the search for alternate proposals, which was illusory, that it failed to provide a meaningful valuation of ordinary shares using industry standards for the insurance business, and that it failed to disclose the impact on the stock value of a parallel bond transaction. Moreover, the complaint alleges that, while the information statement warned that the investor defendants could wipe out the ordinary shareholders by redeeming their convertible cumulative preferred participating shares, it misrepresented the likelihood of that occurrence. Davis v Scottish Re Group Ltd., 2018 NY Slip Op 01867, First Dept 3-20-18

CORPORATION LAW (ALTHOUGH THE COMPLAINT BY SHAREHOLDERS AGAINST DIRECTORS DID NOT SUFFICIENTLY ALLEGE THE BREACH OF A FIDUCIARY DUTY, IT DID ALLEGE A BREACH OF THE SUFFICIENT INFORMATION DUTY (FIRST DEPT))/SHAREHOLDERS (CORPORATION LAW, ALTHOUGH THE COMPLAINT BY SHAREHOLDERS AGAINST DIRECTORS DID NOT SUFFICIENTLY ALLEGE THE BREACH OF A FIDUCIARY DUTY, IT DID ALLEGE A BREACH OF THE SUFFICIENT INFORMATION DUTY (FIRST DEPT))/DIRECTORS (CORPORATION LAW, ALTHOUGH THE COMPLAINT BY SHAREHOLDERS AGAINST DIRECTORS DID NOT SUFFICIENTLY ALLEGE THE BREACH OF A FIDUCIARY DUTY, IT DID ALLEGE A BREACH OF THE SUFFICIENT INFORMATION DUTY (FIRST DEPT))/SUFFICIENT INFORMATION DUTY (CORPORATION LAW, ALTHOUGH THE COMPLAINT BY SHAREHOLDERS AGAINST DIRECTORS DID NOT SUFFICIENTLY ALLEGE THE BREACH OF A FIDUCIARY DUTY, IT DID ALLEGE A BREACH OF THE SUFFICIENT INFORMATION DUTY (FIRST DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) action was properly granted. Plaintiff alleged he fell from a scaffold which did not have railings. Defendant’s attempts (for the first time on appeal) to introduce plaintiff’s alleged hearsay statement that he fell when climbing up to the scaffold were rejected:

It is undisputed that the subject scaffold did not have railings, toe boards, or cross-bracing, and there was no place for plaintiff to tie off his safety harness. As such, plaintiff established a violation of the statute. Moreover, plaintiff testified that the accident occurred when he was on the scaffold, tripped on a block, and fell backward, off the scaffold to the ground, and his worker’s compensation claim also provides that he slipped and fell while on the scaffold. This is sufficient to establish that the violation was a proximate cause of the injury … . …

[Re: plaintiff’s alleged statement:] The business record exception is inapplicable, since defendants have not submitted the incident report for the … accident. The present sense impression exception is also inapplicable, since the out-of-court statement from plaintiff to the foreman that he fell while climbing up the scaffold is not corroborated by independent evidence … . The excited utterance exception does not apply, since defendants have not provided sufficient evidence of plaintiff’s mental state or established that he made the hearsay statement to the foreman under the stress of excitement … . Furthermore, plaintiff’s statement to the foreman does not fall within the declaration against interest exception because plaintiff was available to, and did, testify as a witness; there is no evidence that plaintiff knew the statement was adverse to his interests when it was made; and the supporting circumstances do not attest to its trustworthiness or reliability … . Gomes v Pearson Capital Partners LLC, 2018 NY Slip Op 01560, First Dept 3-8-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))/EVIDENCE (HEARSAY, LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))/HEARSAY (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))

CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department determined Supreme Court should not have determined defendant (Rose Associates) was not a statutory agent of the owner in this Labor Law 240 (1) and 24 1 (6) action, explaining the correct criteria. In addition Supreme Court should not have denied plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action, which was based upon the allegation the ladder plaintiff was on moved:

The motion court erred in determining that Rose Associates is not an agent of defendant owner Continental Towers Condominium. Labor Law §§ 240(1) and 241(6) impose absolute liability on owners, contractors, and their agents for a statutory violation resulting in injury, regardless of whether they directed or controlled the work … . Thus…  the test of whether a defendant is a statutory agent subject to liability under those sections is not whether it actually supervised the work, but whether it had the authority to do so … . …

… [T]he court should have granted plaintiff’s cross motion, as the evidence establishes that plaintiff slipped or fell from an unsecured ladder upon which he was working because it moved … . The testimony of plaintiff’s coworker that plaintiff stated he slipped was “not inconsistent with plaintiff’s version that he slipped after the ladder moved” … . Moreover, defendants’ expert affidavits asserting that no force acted upon the ladder that could have caused it to move were speculative. Merino v Continental Towers Condominium, 2018 NY Slip Op 01549, First Dept 3-8-18

LABOR LAW-CONSTRUCTION LAW (CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))/STATUTORY AGENT (LABOR LAW-CONSTRUCTION LAW, CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))

DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT).

The First Department, reversing Surrogate’s Court, determined decedent was a domiciliary of New York, despite the probate of the will in Florida:

Even if the Florida court had decided that decedent was a domiciliary of that state, “the decree of the State of original probate is not conclusive on the question of domicile or residence” … . Accordingly, this Court may make an independent inquiry into domicile … .

[Petitioner] failed to meet her burden of showing, by clear and convincing evidence, that decedent had changed her domicile from New York to Florida … . The documentation submitted by petitioner in support of her motion to renew, showed that decedent voted in New York, her driver’s license was from New York, and her passport application used her New York address… . She filed New York State tax returns … , and her will and death certificate said she was from New York … . Moreover, when decedent left New York for Florida in July 2009, she said she intended to return, but never did because of medical complications … .

Since decedent was a New York domiciliary, ancillary probate in this state is inappropriate, even though her will has already been probated in Florida … . Therefore, the grant of ancillary letters to [petitioner] is revoked, and nonancillary letters are granted to the Public Administrator. Matter of Assimakopoulos, 2018 NY Slip Op 01440, First Dept 3-6-18

TRUSTS AND ESTATES (DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))/DOMICILE (TRUSTS AND ESTATES, ANCILLARY PROCEEDINGS, DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))/ANCILLARY PROCEEDINGS (TRUSTS AND ESTATES, DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))

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DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this staircase slip and fall case should not have been granted. Defendant demonstrated it did not have notice of the wet condition of the stairs. Plaintiff’s opposing affidavit contradicted her deposition testimony. Although the deposition was unsigned, defendant demonstrated the certified transcript was provided to plaintiff’s attorneys but it was never returned. Therefore the deposition served as plaintiff’s admission:

Defendant met its prima facie burden on the motion of establishing that it neither created the alleged wet condition nor had prior actual or constructive notice of it. By plaintiff’s own admission, the wet condition, which she never saw but assumes was there, could only have been created moments earlier, having not been present when she walked up the steps … .

Based upon plaintiff’s testimony that she was using both hands to carry her daughter down the steps when she fell, without any indication that she reached for a handrail, defendant established that the lack of a handrail did not proximately cause or contribute to the accident … .

Plaintiff’s affidavit in opposition, wherein she claimed that she tried to reach for a handrail when she fell, raised only feigned issues of fact, as it directly contradicted, and appears to have been tailored to avoid the consequence of, her earlier testimony … .

Pursuant to CPLR 3116(a), plaintiff’s unsigned deposition transcript may be used as though fully signed, as defendant submitted proof that the certified transcript was provided to her attorneys for execution and not returned. Moreover, an unsigned but certified transcript may be used as an admission… , especially where, as here, there is no dispute as to the accuracy of the transcript … . Luna v CEC Entertainment, Inc., 2018 NY Slip Op 01429, First Dept 3-6-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CIVIL PROCEDURE (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CPLR 3116 (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/DEPOSITION (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/EVIDENCE (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/ADMISSION  (UNSIGNED DEPOSITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/STAIRS  (SLIP AND FALL, DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE WET CONDITION OF THE STAIRS IN THIS SLIP AND FALL CASE, UNSIGNED DEPOSITION CONSTITUTED PLAINTIFF’S ADMISSION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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