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ABUTTING LANDOWNER DEMONSTRATED IT DID NOT CREATE THE SIGN POST STUMP OVER WHICH PLAINTIFF TRIPPED ON THE PUBLIC SIDEWALK AND DID NOT HAVE NOTICE OF THE CONDITION OF THE SIDEWALK, NO COMPLAINTS OR VIOLATIONS, LANDOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determine defendant, owner of a building abutting the sidewalk where plaintiff fell, was entitled to summary judgment. Plaintiff alleged she tripped on a metal protrusion or sign post stump on the public sidewalk:

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… [W]e find that defendant established that its employees did not create the alleged defect by submitting the deposition testimony of its part-owner that defendant performed no work to the subject section of the sidewalk before the accident … . The part-owner’s testimony also established that defendant lacked actual or constructive notice of the alleged condition, because he testified that prior to plaintiff’s accident, he was unaware of any complaints or accidents on the sidewalk, and had received no violations concerning the sidewalk … . Schulman v City of New York, 2018 NY Slip Op 00266, First Dept 1-16-18

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, ABUTTING LANDOWNER DEMONSTRATED IT DID NOT CREATE THE SIGN POST STUMP OVER WHICH PLAINTIFF TRIPPED ON THE PUBLIC SIDEWALK AND DID NOT HAVE NOTICE OF THE CONDITION OF THE SIDEWALK, NO COMPLAINTS OR VIOLATIONS, LANDOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (SIDEWALKS, ABUTTING LANDOWNER DEMONSTRATED IT DID NOT CREATE THE SIGN POST STUMP OVER WHICH PLAINTIFF TRIPPED ON THE PUBLIC SIDEWALK AND DID NOT HAVE NOTICE OF THE CONDITION OF THE SIDEWALK, NO COMPLAINTS OR VIOLATIONS, LANDOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, ABUTTING LANDOWNER DEMONSTRATED IT DID NOT CREATE THE SIGN POST STUMP OVER WHICH PLAINTIFF TRIPPED ON THE PUBLIC SIDEWALK AND DID NOT HAVE NOTICE OF THE CONDITION OF THE SIDEWALK, NO COMPLAINTS OR VIOLATIONS, LANDOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, DEFENDANTS GENERAL CONTRACTOR AND LESSEE SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT, CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment on his Labor Law 240 (1) cause of action, the general contractor’s (PWI’s) and lessee’s (St. John’s) motions for summary judgment should have been denied, and the out-of-possession landlord’s (Rolex’s) motion for summary judgment should have been granted. Plaintiff was injured moving a 600 pound I-beam down some stairs and alleged there was debris on the steps, there was no handrail, and the lighting was dim:

 

The Labor Law § 200 and common-law negligence claims were incorrectly dismissed as against PWI and St. John. To the extent plaintiff’s claim is based on allegations that his fall was due to the defective condition of the premises (including the presence of debris on the staircase, inadequate lighting, and the lack of a handrail), defendants can be held liable for plaintiff’s injuries only if they created or had notice of the dangerous conditions on the premises … . … [P]laintiff raised an issue of fact through his testimony that there was debris in the form of chopped concrete, pieces of wire, and trim studs on the steps, that there was no handrail, and that the lighting was dim. …

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The record demonstrates that Rolex, an out-of-possession landlord with a right of re-entry to maintain and repair, was not involved with the project and was not on site and thus that it had no actual notice of the dangerous conditions … . The record demonstrates further that Rolex cannot be held liable under a theory of constructive notice because the dangerous conditions did not constitute significant structural or design defects that violated specific safety statutes … .

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Finally, defendants were not entitled to summary judgment dismissing the claim under Labor Law § 240(1), and plaintiff was entitled to summary judgment as to liability on that claim. The record establishes a failure to provide plaintiff and his coworker with devices offering adequate protection against the gravity-related risks of moving an extremely heavy object down a staircase, leading to the workers’ loss of control over the object’s descent and plaintiff’s injuries … . Dirschneider v Rolex Realty Co. LLC, 2018 NY Slip Op 00253,  First Dept 1-16-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, DEFENDANTS GENERAL CONTRACTOR AND LESSEE SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT, CRITERIA EXPLAINED (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) AND 200 ACTION, CRITERIA EXPLAINED (FIRST DEPT))

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PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Mazzarelli, determined that the state’s use of claimant’s image in a public service ad informing HIV positive people of their rights constituted defamation per se, but not standard defamation. The First Department further determined the Civil Rights Law (privacy violation) causes of action did not apply to the state, which did not use the image for commercial purposes. Claimant alleged she suffered “mental anguish” as a result of the publication of her image and argued HIV constitutes a “loathsome disease” because of the way the condition is perceived by portions of the public:

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… [P]laintiff must prove damage to (his, her) reputation or standing in the community, or damages such as personal humiliation, mental anguish and suffering” (PJI 3:29B). The use of the word “or” clearly indicates that the state of the law in New York is such that mental anguish is an alternative to reputational injury in establishing damages in a defamation case. * * *

… [B]ecause claimant alleges that she was the victim of defamation per se, we must decide whether she is indeed entitled to recover under that theory. A defamation plaintiff must plead special damages unless the defamation falls into any one of four per se categories: (1) statements charging the plaintiff with a serious crime; (2) statements that tend to injure the plaintiff in her trade, business or profession; (3) statements that impute to the plaintiff a “loathsome disease”; and (4) statements that impute unchastity to a woman… . Claimant purports to qualify under the “loathsome disease” category. …  Claimant, … while taking issue with the archaic term “loathsome,” argues that it is legally operative and historically applicable in the case of medical conditions such as HIV that are communicable and can still, in claimant’s opinion, result in societal ostracism. Nolan v State of New York, 2018 NY Slip Op 00269, First Dept 1-16-18

DEFAMATION (PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/HIV (DEFAMATION, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/IMAGES (DEFAMATION, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/CIVIL RIGHTS LAW (PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))/PRIVACY RIGHTS (CIVIL RIGHTS LAW, PHOTOGRAPHS, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))/PHOTOGRAPHS (CIVIL RIGHTS LAW, PHOTOGRAPHS, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))

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STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS, PURELY LEGAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED IF THE RECORD IS SUFFICIENT (FIRST DEPT).

The First Department, over an extensive two-justice dissent, determined the city’s answer in this malicious prosecution/false arrest action was properly struck because of the city’s failure to comply with multiple discovery orders. The First Department also noted that a purely legal issue raised for the first time on appeal can be addressed provided the record is sufficient. (The issue raised for the first time on appeal was Supreme Court’s erroneous grant of a default judgment with respect to one of the defendants before the defendant’s time to answer the complaint had expired.) Essentially the initial discovery order was issued in May 2011 and the response was not filed until the return date of the plaintiff’s motion to strike in July 2014. The dissenting justices argued that some sanction short of striking the answer was warranted:

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Pursuant to CPLR 3126, “[i]f any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just.” This Court has long held that “the drastic remedy of striking a party’s pleading pursuant to CPLR 3126 for failure to comply with a discovery order . . . is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith” …  “Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses” … . Although actions should be resolved on the merits whenever possible, the efficient disposition of cases “is not promoted by permitting a party . . . to impose an undue burden on judicial resources to the detriment of . . . other litigants. Nor is the efficient disposition of the business before the courts advanced by undermining the authority of the trial court to supervise the parties who appear before it” … . “[I]t generally is within the discretion of the motion court to determine the appropriate penalty to be imposed against an offending party” and “[i]t would not be appropriate . . . for this Court to substitute its discretion for that of the Justice sitting in the IAS Court”… . Watson v City of New York, 2018 NY Slip Op 00245, First Dept 1-16-18

CIVIL PROCEDURE (DISCOVERY, STRIKE ANSWER, APPEALS, STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS, PURELY LEGAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED IF THE RECORD IS SUFFICIENT (FIRST DEPT))/DISCOVERY (STRIKE ANSWER, STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))/ANSWER, MOTION TO STRIKE  STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))/APPEALS (PURELY LEGAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED IF THE RECORD IS SUFFICIENT (FIRST DEPT))/CPLR3126 (STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))

MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion in limine was actually a motion for summary judgment and was therefore untimely and should not have been granted. Plaintiff was injured when he slipped on debris at a construction site and sued under Labor Law 241 (6) and negligence. Summary judgment motions had been adjudicated. Four years later before starting a bench trial the defendants purported to make a motion in limine and the court dismissed the action with prejudice:

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The trial court found that the motion court’s [prior] order held that [defendant]”(1) did not have sufficient notice of; and (2) did not cause or create the debris condition that resulted in plaintiff[‘s] … accident” and dismissed the complaint because “plaintiffs place the alleged violation of the Industrial Code squarely only on and with defendant … .”

The trial court erred in granting defendants’ motion in limine because, as defendants’ acknowledge in their brief, it was one for summary judgment. As such, it was untimely as it was brought more than 120 days from the filing of the note of issue (CPLR 3212[a]). Further, an issue of material fact cannot form the basis for granting a motion in limine because it is an “inappropriate device to obtain [summary] relief” … . Casalini v Alexander Wolf & Son, 2018 NY Slip Op 00246, First Dept 1-16-18

CIVIL PROCEDURE (MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/MOTION IN LIMINE (CIVIL PROCEDURE, MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/CPLR 3212 (MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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LIMITED LIABILITY PROVISION PRECLUDED RECOVERY FOR BREACH OF CONTRACT FOR ANY AMOUNT OVER THE LIMITATION, ALTHOUGH THE LIMITATION OF LIABILITY WAS AN AFFIRMATIVE DEFENSE, IT WAS PROPERLY CONSIDERED ON A MOTION TO DISMISS (FIRST DEPT).

The First Department determined the limitation of liability provision precluded recovery for breach of contract for any amount over the limitation. The contract was an exclusive licensing agreement (ELA) for a securities trading system (ATS). The First Department noted that it was proper to consider the limitation of liability, an affirmative defense, on a motion to dismiss:

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It was not error for Supreme Court to rule on the enforceabilty of the liability limitation provision, although it is an affirmative defense, on a motion to dismiss. In the ordinary course of deciding motions, courts consider whether documentary evidence establishes an asserted defense, in this case a defense concerning the limitation of liability provisions in the parties’ contracts … .

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New York courts routinely enforce such liability-limitation provisions, especially when negotiated by sophisticated parties. The Court of Appeals has recognized that “[a] limitation on liability provision . . . represents the parties’ Agreement on the allocation of the risk of economic loss in the event that the contemplated transaction is not fully executed, which the courts should honor.* * * [The parties] may later regret their assumption of the risks of non-performance in this manner, but the courts let them lie on the bed they made”… . However, such clauses are unenforceable when, “[i]n contravention of acceptable notions of morality, the misconduct for which it would grant immunity smacks of intentional wrongdoing. This can be explicit, as when it is fraudulent, malicious or prompted by the sinister intention of one acting in bad faith. Or, when, as in gross negligence, it betokens a reckless indifference to the rights of others, it may be implicit” … . Electron Trading, LLC v Morgan Stanley & Co. LLC, 2018 NY Slip Op 00380, First Dept 1-15-18

CONTRACT LAW (LIMITED LIABILITY PROVISION PRECLUDED RECOVERY FOR BREACH OF CONTRACT FOR ANY AMOUNT OVER THE LIMITATION, ALTHOUGH THE LIMITATION OF LIABILITY WAS AN AFFIRMATIVE DEFENSE, IT WAS PROPERLY CONSIDERED ON A MOTION TO DISMISS (FIRST DEPT))/CIVIL PROCEDURE (MOTION TO DISMISS, AFFIRMATIVE DEFENSE, (LIMITED LIABILITY PROVISION PRECLUDED RECOVERY FOR BREACH OF CONTRACT FOR ANY AMOUNT OVER THE LIMITATION, ALTHOUGH THE LIMITATION OF LIABILITY WAS AN AFFIRMATIVE DEFENSE, IT WAS PROPERLY CONSIDERED ON A MOTION TO DISMISS (FIRST DEPT))/AFFIRMATIVE DEFENSE (CIVIL PROCEDURE, MOTION TO DISMISS, LIMITED LIABILITY PROVISION PRECLUDED RECOVERY FOR BREACH OF CONTRACT FOR ANY AMOUNT OVER THE LIMITATION, ALTHOUGH THE LIMITATION OF LIABILITY WAS AN AFFIRMATIVE DEFENSE, IT WAS PROPERLY CONSIDERED ON A MOTION TO DISMISS (FIRST DEPT))

FURTIVE MOVEMENTS JUSTIFIED POLICE OFFICER’S LIMITED SEARCH OF DEFENDANT’S CAR, USE OF BANK CARD READER ON CARDS IN DEFENDANT’S POSSESSION DID NOT REQUIRE A SEARCH WARRANT (FIRST DEPT).

The First Department, affirming defendant’s conviction, held that defendant’s furtive movements inside a car justified the police officer’s fear that defendant may have had a weapon, and the use of a bank card reader to see if the information on the magnetic strips of defendant’s cards matched the information on the front of the cards did not require a search warrant:

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Upon the officers’ approach to his car, defendant’s “furtive motion[] in attempting to stuff something under the passenger seat . . . caused the officer to reasonably fear for his safety and reasonably believe that defendant might possess a weapon” … . The officers were thus justified in directing defendant to show his hands and get out of the car, and in performing a limited search of the area where defendant appeared to have hidden something … . The search revealed contraband, providing probable cause for defendant’s arrest … . …

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Defendant’s final suppression argument is that when the police used a bank card reader to determine whether the account information contained in the magnetic strips of the cards recovered from defendant’s wallet matched the information printed on the front of the cards, this action was similar to a cell phone search, and it thus required a search warrant under Riley v California (573 US , 134 S Ct 2473 [2014]). However, a growing number of cases addressing this technology recognize that this type of police action does not violate any privacy interest protected by the Fourth Amendment … . People v Sankara, 2018 NY Slip Op 00224, First Dept 1-11-18

CRIMINAL LAW (SEARCH AND SEIZURE, FURTIVE MOVEMENTS JUSTIFIED POLICE OFFICER’S LIMITED SEARCH OF DEFENDANT’S CAR, USE OF BANK CARD READER ON CARDS IN DEFENDANT’S POSSESSION DID NOT REQUIRE A SEARCH WARRANT (FIRST DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW,  FURTIVE MOVEMENTS JUSTIFIED POLICE OFFICER’S LIMITED SEARCH OF DEFENDANT’S CAR, USE OF BANK CARD READER ON CARDS IN DEFENDANT’S POSSESSION DID NOT REQUIRE A SEARCH WARRANT (FIRST DEPT))/FURTIVE MOVEMENTS (CRIMINAL LAW, SEARCH AND SEIZURE, FURTIVE MOVEMENTS JUSTIFIED POLICE OFFICER’S LIMITED SEARCH OF DEFENDANT’S CAR, USE OF BANK CARD READER ON CARDS IN DEFENDANT’S POSSESSION DID NOT REQUIRE A SEARCH WARRANT (FIRST DEPT))/BANK CARD READER (CRIMINAL LAW, SEARCH AND SEIZURE, FURTIVE MOVEMENTS JUSTIFIED POLICE OFFICER’S LIMITED SEARCH OF DEFENDANT’S CAR, USE OF BANK CARD READER ON CARDS IN DEFENDANT’S POSSESSION DID NOT REQUIRE A SEARCH WARRANT (FIRST DEPT))

QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT’S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant raised a trial issue of fact about whether there was a surrender of the leased premises (a parking garage with ground-floor subtenants) by operation of law. The tenant had abandoned the lease with ten years remaining:

…[T]the tenant raised a viable issue of fact as to whether the landlord took dominion and control of the building for its own benefit. The tenant submitted evidence that, after it returned the keys to the landlord and vacated the premises, the landlord took possession of the premises, and not only sent bills directly to the subtenants, but also entered into its own contract with Central Parking to operate the parking garage and to pay the landlord each month all the income received from the garage operations. The tenant submitted further evidence that the landlord placed the property for sale at some juncture. When viewed in the light most favorable to the tenant, as nonmoving party, and given the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence … , these facts support an inference that, upon the tenant's abandonment, the landlord intended to take dominion and control of the premises for its own benefit. 176 PM, LLC v Heights Stor. Garage, Inc., 2018 NY Slip Op 00223, First Dept 1-11-18

LANDLORD-TENANT (SURRENDER BY OPERATION OF LAW, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))/SURRENDER BY OPERATION OF LAW (LANDLORD-TENANT, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))/ABANDONMENT OF LEASE (LANDLORD-TENANT, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))

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DEFENDANT’S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT).

The First Department determined that defendant's statement to the Wall Street Journal was within the judicial privilege:

Defendant['s]  … statement to the Wall Street Journal, that plaintiff investment advisor “just took our money,” fell within the statutory privilege against libel claims for the publication of a fair and true report of a judicial proceeding… . The statement, in the context of the article, which was about lawsuits filed against plaintiff, would be understood by an ordinary reader to refer to defendant Muirfield Capital Management LLC's claim that plaintiff improperly withdrew money from an investment fund plaintiff managed, in which Muirfield invested … . Highland Capital Mgt., L.P. v Stern, 2018 NY Slip Op 00230, First Dept 1-10-18

DEFAMATION (JUDICIAL PRIVILEGE. DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/LIBEL (JUDICIAL PRIVILEGE. DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/PRIVILEGE (DEFAMATION, JUDICIAL PRIVILEGE, DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/JUDICIAL PRIVILEGE (DEFAMATION, DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))

ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT).

The First Department determined petitioner's (foster mother's) application for retroactive foster care benefits at the “exceptional” rate for the period before the child was diagnosed as autistic was properly denied:

The OCFS's [Office of Children and Family Services'] determination that the child did not meet the relevant criteria to qualify for “exceptional” rate foster care payments during the first 22 months she was in the foster mother's care is supported by substantial evidence, and is not arbitrary and capricious. It is undisputed that during this time no qualified psychiatrist or psychologist certified that the child had severe behavioral problems that required high levels of individualized supervision in the home (18 NYCRR 427.6[d][3]), and that no physician had certified that she required around-the-clock care or had been diagnosed by a physician with a qualifying illness such as autism … . The child was diagnosed with autism by a physician, her pediatrician, in July of 2014, and respondents correctly found that she was entitled to exceptional rate benefits following the time she was diagnosed … . In the absence of a diagnosis from the time the child was placed with the foster mother until the time of her diagnosis 22 months later, however, respondents correctly denied the foster mother's application for exceptional rate benefit … . Matter of Pascall v Poole, 2018 NY Slip Op 00099, First Dept 1-9-18

FAMILY LAW (FOSTER CARE, ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT))/FOSTER CARE ( ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT))/AUTISM (FAMILY LAW, FOSTER CARE, ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT))/EXCEPTIONAL RATE (FOSTER CARE BENEFITS, AUTISM, ALTHOUGH FOSTER MOTHER ENTITLED TO FOSTER CARE BENEFITS AT THE EXCEPTIONAL RATE AFTER THE CHILD WAS DIAGNOSED AS AUTISTIC, SHE WAS NOT ENTITLED TO THE EXCEPTIONAL RATE RETROACTIVELY FOR THE PERIOD OF FOSTER CARE BEFORE THE DIAGNOSIS (FIRST DEPT))

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