First Department – Page 20 – New York Appellate Digest

Contract Law, Debtor-Creditor, Landlord-Tenant

ALTHOUGH THE GUARANTEES REQUIRED THAT THE TENANT SURRENDER THE PREMISES IN THE CONDITION DESCRIBED BY THE LEASE, THE GUARANTEES DID NOT INCORPORATE THE LEASE OR EXPRESSLY REQUIRE COMPLIANCE WITH THE SURRENDER TERMS OF THE LEASE; THEREFORE THE TENANT’S FAILURE TO COMPLY WITH THE SURRENDER TERMS OF THE LEASE DID NOT TRIGGER THE GUARANTORS’ OBLIGATIONS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the language of the guarantees controlled and the guarantors were relieved of responsibility for the tenant’s rent payments when the tenant surrendered the property in compliance with the terms of the guarantees. Although the guarantees referred to surrendering the premises in the condition required by the lease, the guarantees did not incorporate the lease or expressly require compliance with the surrender terms of the lease. Therefore the tenant’s failure to comply with the surrender terms of the lease did not trigger any obligation on the part of the guarantors:

… [T]he guarantees expressly limit defendants’ liability to the terms contained therein, which, as relevant here, only require that tenant surrender the premises in compliance with the surrender provisions set forth in the guarantees. While the guarantees mandated tenant surrender the premises in the condition required by the terms of the lease, they do not incorporate the terms of the underlying lease by reference … or expressly require that tenant’s surrender of the premises be performed pursuant to the terms of the lease … .

Therefore, while tenant was required to obtain written consent of the surrender from plaintiff under the lease, the motion court improperly determined that tenant’s failure to do so precluded the guarantors’ avoidance of liability for unpaid rent after tenant’s surrender … . ROC-Lafayette Assoc., LLC v Sturm, 2024 NY Slip Op 06016, Frist Dept 12-3-24

Practice Point: The language of a guarantee is strictly construed. Here the guarantees required surrender of the premises in the condition described by the lease but did not incorporate the lease or expressly require compliance with the surrender terms of the lease. Therefore the tenant’s failure to comply with the surrender terms of the lease did not trigger the guarantors’ responsibility for the tenant’s rent payments. The tenant had fully complied with the surrender terms in the guarantees.

December 3, 2024

Municipal Law, Negligence

IN A SIDEWALK SLIP AND FALL CASE, COMMUNICATION WITH THE CITY BY PHONE DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT, EVEN IF THE COMMUNICATION WAS REDUCED TO WRITING; PLAINTIFF DID NOT DEMONSTRATE AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT APPLIED (FIRST DEPT).

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined the “written notice” requirement for municipal liability was not met and plaintiff did not demonstrate an exception to the written notice requirement was applicable:

While walking down a sidewalk on West 26th Street in Manhattan, plaintiff tried to navigate around other pedestrians and tripped and fell on a metal fence surrounding a tree well, known as a tree guard, where there was no longer a tree. Plaintiff seeks to hold the City of New York and New York City Parks Department and Recreation liable for his fall on the theory that defendants created a hazard by leaving the tree guard after they removed the tree. Defendants’ motion for summary judgment should have been granted.

The City sustained its initial burden of demonstrating that it did not receive prior written notice of the condition that caused plaintiff’s accident. A search of Department of Transportation and Department of Parks and Recreation records revealed only two 311 calls for the accident site. The calls resulted in service reports reflecting removal of dead trees and a direction for a City employee to investigate whether replacement of the trees was appropriate. No party disputes that the trees were not replaced before the accident. However, verbal or telephonic communication to a municipal body that is reduced to writing does not satisfy the prior written notice requirement, even if the writing includes a service report, as it does here … … .

As a result, the burden shifted to plaintiff to demonstrate that one of the exceptions to the prior written notice requirement applied … . Plaintiff failed to raise a triable issue of fact concerning whether the City affirmatively created the defective condition through an act of negligence or that a special use resulted in a special benefit to it … . Plaintiff’s theory was that his accident was the result of a combination of inadequate lighting, the height and color of the tree well guard, and the removal of the tree without replacement. However, his expert failed to cite relevant industry-wide standards and practices regarding the construction or design of a tree well border from which the City may have deviated. Moreover, plaintiff did not show that the City’s failure to replace the trees was an affirmative act of negligence, rather than a negligent omission, that created an immediately apparent dangerous condition … . Carney v City of New York, 2024 NY Slip Op 05884, First Dept 11-26-24

Practice Point: Re: municipal liability for a sidewalk slip and fall, phone communications about the defect do not satisfy the written notice requirement even if the communications are reduced to writing.

November 26, 2024

Civil Procedure, Judges

A COMBINED MOTION TO REARGUE AND MOTION TO RENEW IS PROPER; HERE SUPREME COURT CORRECTLY DENIED THE MOTION TO REARGUE BUT SHOULD HAVE CONSIDERED THE MOTION TO RENEW; MATTER REMANDED (FIRST DEPT).

The First Department, remanding the matter to Supreme Court, determined the combined motion to reargue and motion to renew was properly brought. The motion to reargue was properly denied, but the motion could should have considered the motion to renew:

A combined motion for leave to reargue and renew is permitted so long as each branch of the motion is separately identified and supported (CPLR 2221 [f]). Here, the motion court considered plaintiff’s combined motion to be “couched” as one for reargument and improvidently failed to address or analyze plaintiff’s application for renewal.

Plaintiff in this case submitted a medical expert’s affidavit as new or additional facts not included on the motion to vacate, which this Court in the past has deemed to be sufficient to support a motion to renew … . As plaintiff properly submitted a combined motion for reargument and renewal, CPLR 2221 (f) required the court to “decide each part of the motion as if it were separately made.” Pellerano v New York City Health & Hosps. Corp., 2024 NY Slip Op 05899, First Department 11-26-24

Practice Point: It is proper to combine a motion to reargue and a motion to renew. The motions should be considered separately. Here the denial of the motion to reargue was proper but the motion to renew should also have been considered. The matter was remanded.

November 26, 2024

Evidence, Labor Law-Construction Law

PLAINTIFF WAS STRUCK BY A FALLING BEAM WHICH SHOULD HAVE BEEN SECURED; PLAINTIFF WAS NOT OTHERWISE PROTECTED FROM FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was struck by a falling beam which should have been secured. The fact that plaintiff did not know where the beam came from did not preclude summary judgment:

Plaintiff’s proof showed that the support beam was a load that required securing for the purposes of the undertaking … .Further, the elevated platform was not guarded by a safety device such as netting or enclosure that would have prevented the beam from falling on plaintiff … .

While plaintiff and his coworker did not actually witness where the beam came from, plaintiff “is not required to show the exact circumstances under which the object fell,” provided he can demonstrate that the lack of a protective device called for under Labor Law § 240(1) proximately caused his injuries … A plaintiff’s prima facie case is “not dependent on whether he had observed what had hit him, or whether the object in question was dropped or fell in some other manner ” … . Fromel v W2005/Hines W. Fifty-Third Realty, LLC, 2024 NY Slip Op 05828, First Dept 11-21-24

Practice Point: Being struck by an unsecured falling object, and the failure to provide protection from falling objects, may warrant summary judgment on a Labor law 240(1) cause of action.

November 21, 2024

Evidence, Judges, Negligence

ALTHOUGH PLAINTIFF’S EXPERT IN THIS ELEVATOR ACCIDENT CASE WAS NOT A PROFESSIONAL ENGINEER, HE HAD BEEN QUALIFIED AS AN EXPERT IN 120 CASES; THE JUDGE SHOULD NOT HAVE SUMMARILY DISQUALIFIED HIM (FIRST DEPT).

The First Department, reversing Supreme Court, determined the trial judge should not have disqualified plaintiff’s expert in this elevator accident case. Although the expert was not a professional engineer, he had been qualified as an expert in over 120 state and federal cases:

Supreme Court erred in summarily disqualifying the opinion of Patrick A. Carrajat as an expert. Although Carrajat was not a professional engineer, he nonetheless had the requisite knowledge and experience to render an opinion on the cause of the accident, as he averred that he had been qualified as an elevator expert and testified as an expert witness 120 times in state and federal courts throughout the country … . Furthermore, challenges regarding an expert witness’ qualifications affect the weight to be accorded the expert’s views, not their admissibility … .

Plaintiff’s expert’s affidavit creates issues of fact as to both the nature of the incident, and the cause of the incident. While defendants’ experts opined that the elevator could not have malfunctioned as plaintiff described, and that the elevator descended to the lobby at regular speed, Carrajat disputed this and posited ways in which the elevator could have malfunctioned that were consistent with plaintiff’s account of the accident. Given the conflicting expert affidavits, the building defendants have not established their entitlement to summary judgment … . Escolastico v Rigs Mgt. Co., LLC, 2024 NY Slip Op 05769, First Dept 11-19-24

Practice Point: Here in this elevator-accident case plaintiff’s expert was not a professional engineer but had been qualified as an expert in over 120 cases. It was reversible error to summarily disqualify him.

November 19, 2024

Attorneys, Civil Procedure, Judges

PLAINTIFF’S BRINGING MULTIPLE MERITLESS LAWSUITS AGAINST DEFENDANT AND HER ATTORNEYS OVER THE COURSE OF TEN YEARS WARRANTED SANCTIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s bringing several meritless lawsuits against defendant and her attorneys over the course of ten years warranted sanctions:

Supreme Court improvidently exercised its discretion in denying defendant an award of sanctions despite noting that plaintiff’s “conduct was entirely frivolous,” “abusive,” and “fabricated.” The record firmly established that plaintiff engaged in a persistent pattern of extended and largely meritless litigation against defendant … , rendering his conduct frivolous within the meaning of 22 NYCRR 130-1.1(c) and thereby warranting sanctions. Plaintiff’s numerous lawsuits initiated against both defendant and her attorneys—six separate suits between 2010 and 2020, all dismissed at the pleading stage—strongly suggests that those lawsuits, along with the present action, were brought primarily to harass defendant … . Our prior decision holding that sanctions for frivolous conduct were not warranted does not affect our decision to grant the motion for sanctions here, as the result in our prior decision (Ray v Ray, 180 AD3d 472, 474 [1st Dept 2020]) was not based on these particular facts. Ray v Ray, 2024 NY Slip Op 05777, First Dept 11-19-24

Practice Point: Here plaintiff’s multiple meritless lawsuits against defendant and her attorneys warranted sanctions for “frivolous conduct.”

November 19, 2024

Evidence, Negligence

PROOF THAT PLAINTIFF WIFE ASSUMED FULL RESPONSIBILITY FOR HOUSEHOLD CHORES, COOKING, TRANSPORTIING THE CHILDREN, AND CARED FOR THE INJURED PLAINTIFF, WARRANTED A $40,000 AWARD FOR LOSS OF SERVICES; THE JURY HAD AWARDED $0 DAMAGES (FIRST DEPT).

The First Department, remanding for a new trial unless the parties stipulate to a damages award of $40,000 for loss of services, determined the jury’s award of $0 damages constituted a material deviation from reasonable compensation:

Plaintiff wife testified that after the injured plaintiff’s accident, she assumed full responsibility for household chores, cooking, and transportation for plaintiffs’ children, and also had to care for the injured plaintiff. This testimony is sufficient to support an award for past loss of services … . Lind v Tishman Constr. Corp. of N.Y., 2024 NY Slip Op 05540, First Dept 11-12-24

Practice Point: Consult this decision for some insight into the value of “loss of services” in a personal injury case.

November 12, 2024

Constitutional Law, Criminal Law, Judges

DEFENDANT’S 2013 GUILTY PLEA WAS DEEMED DEFECTIVE BECAUSE THE JUDGE FAILED TO ENSURE THE DEFENDANT UNDERSTOOD THE CHARGE; BECAUSE THE 2013 CONVICTION WAS UNCONSTITUTIONALLY OBTAINED, IT CANNOT BE A BASIS, IN 2020, FOR SENTENCING THE DEFENDANT AS A PERSISTENT VIOLENT PREDICATE FELON; SENTENCE VACATED (FIRST DEPT).

The First Department, remanding the matter for resentencing, determined defendant should not have been sentenced as a persistent violent predicate felon based on a 2013 guilty plea because the plea to attempted burglary second was constitutionally invalid. In the plea allocution, defendant indicated he formulated the intent to steal after he entered the dwelling, prompting the need for further questioning by the judge. The intent to steal must be formulated before entry:

During the allocution on defendant’s 2013 plea to attempted burglary in the second degree, he asserted that, although he stole property from the subject dwelling, his intent at the time he unlawfully entered the premises was to tell its occupant to close the door. Because “the intent to commit a crime in the dwelling must be contemporaneous with the entry” under the burglary statute … , defendant’s statement that he formed the requisite intent “only after [he] had entered . . . the [premises] unlawfully” negated an element of the crime to which he pleaded guilty … . This statement triggered the court’s duty to make further inquiry in order to ensure that defendant understood “the nature of the charge and that the plea [was] intelligently entered” … . The court failed to do so. To the extent that the court conducted a further inquiry, its questions did no more than establish that defendant stole property once he was inside the dwelling, without refuting his statement that he had not intended to steal the property at the time of entry, nor did defendant confirm that he wished to waive a defense on that basis … . On this record, “we cannot conclude that defendant’s guilty plea was knowingly, voluntarily and intelligently made” … . Accordingly, since the requirements for enhanced sentencing have not been met, defendant’s sentence as a persistent violent felony offender must be vacated … . People v Stewart, 2024 NY Slip Op 05546, First Dept 11-12-24

Practice Point: Here it appears defense counsel demonstrated the 2013 guilty plea was unconstitutionally obtained because of an error by the sentencing judge during the allocution. Defense counsel then successfully argued the 2013 conviction could not be a basis for the 2020 sentencing of defendant as a persistent violent predicate felon. The current status of the 2013 conviction was not discussed.

November 12, 2024

Civil Procedure, Evidence

THERE WAS NO PROOF THE ORDER TO SHOW CAUSE WAS ACTUALLY DELIVERED TO THE INCARCERATED DEFENDANT; DEFAULT JUDGMENT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the order to show cause was not properly served on the incarcerated defendant, requiring vacation of the default judgment:

“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with” … . “The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void” … .

The order granting plaintiff summary judgment on his claims without opposition submitted by defendant and the related Special Referee order awarding damages are vacated. Defendant affirmed that he did not know of, or have access to, the summary judgment motion hand-delivered and served by plaintiff’s process server on a receptionist at the prison where defendant is incarcerated until after the order granting summary judgment was entered. Plaintiff’s service on the prison employee who assured that the motion would be given to plaintiff did not satisfy the court’s order to show cause approving alternative means of service that were applicable to the service of legal papers on the incarcerated defendant, and which required plaintiff to obtain at least some evidence from the prison that the served documents had, in fact, been delivered to the prisoner. The presumption of effective service arising from a valid affidavit of a process server does not apply here. The court approved an alternative means of service on the defendant incarcerated in a foreign prison, and plaintiff failed to comply. Therefore, defendant’s unrebutted claim that he did not receive the motion is not conclusory and requires vacatur of the default. Bacon v Nygard, 2024 NY Slip Op 05478, First Dept 11-7-24

Practice Point: Here service of an order to show cause upon the incarcerated defendant was not supported by any evidence the order to show cause was actually delivered to the defendant after it was given to a prison employee, Therefore the default judgment was vacated.

November 7, 2024

Labor Law-Construction Law

PLYWOOD DELIBERATELY PLACED AS A TEMPORARY FLOOR DOES NOT CONSTITUTE “DIRT AND DEBRIS” OR “SCATTERED TOOLS AND MATERIALS” OR “SHARP PROTECTIONS” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THEREFORE PLAINTIFF’S STEPPING IN A HOLE IN THE PLYWOOD AND FALLING IS NOT COVERED BY LABOR LAW 241(6) (FIRST DEPT).

The First Department determined Supreme Court properly dismissed the Labor Law 241(6) cause of action because the plywood used for temporary flooring, which had a hole in it which caused plaintiff to fall, was not “dirt and debris” or “scattered tools or materials” or “sharp projections” within the meaning of the Industrial Code:

… Industrial Code (12 NYCRR) § 23-1.7 (e) (2), … provides:

“Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”

On its face, section 23-1.7(e)(2) does not apply to all potential tripping hazards but only to “accumulations of dirt and debris,” “scattered tools and materials,” and “sharp projections.” As plaintiff admitted in his deposition testimony, the perforated plywood board on which he tripped had been deliberately placed on the stripped floor as a protective measure, in response to plaintiff’s own complaints. Thus, as a matter of law, the plywood board, notwithstanding its hole, could not be described as an “accumulation[] of . . . debris” or as part of a “scatter[ing]” of “tools and materials” … . Accordingly, as a matter of law, the plywood board did not fall within the scope of Industrial Code § 23-1.7(e)(2). Cioppa v ESRT 112 W. 34th St., L.P., 2024 NY Slip Op 05482, First Dept 11-7-24

Practice Point: Plywood placed as a temporary floor does not constitute “dirt and debris” within the meaning of the Industrial Code. Therefore stepping in a hole in the plywood and falling is not covered by Labor Law 241(6).