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ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED.

The First Department, over a detailed dissent which lays out the complicated facts, affirming Supreme Court (Reed, J.), determined the action by insurer’s subrogee (Nationwide) against the insured’s subrogee (US Underwriters) in this Labor Law (construction accident) action was barred by collateral estoppel and res judicata. The underlying action had settled for about $1.55 million.

FROM THE DISSENT (THE FACTS):

On or about July 9, 2001, Kerwin Park, an employee of Armadillo Construction Corp., a demolition contractor, sustained personal injuries while working on a construction site. Park commenced the underlying Labor Law action against the general contractor (Artimus) and others. Nationwide, Artimus’s insurer, tendered the defense of the action to Armadillo and Armadillo’s insurer, U.S. Underwriters; Artimus was an additional insured on the U.S. Underwriters policy. By letter dated August 31, 2001, U.S. Underwriters denied coverage to Artimus, copying the broker and Armadillo on the letter, based on late notice of occurrence and various exclusions in the policy. …[T]he underlying action settled for approximately $1.55 million. Nationwide contributed to the settlement on Artimus’s behalf. Artimus also obtained a default judgment on its third-party indemnification claim against Armadillo. … Artimus moved to restore its claims against Armadillo to the active calendar in the declaratory judgment action. In granting the motion, the court (Ramos, J.) cited to Justice Cahn’s earlier decision in the action and observed that no decision had been made concerning Armadillo’s entitlement to coverage. * * * Justice Reed granted U.S. Underwriters’ motion to dismiss the complaint, concluding that Artimus, as Armadillo’s subrogee, was collaterally estopped from bringing the instant action, because it was in privity with Armadillo, and whatever rules of collateral estoppel applied to Armadillo would also apply to Artimus (and its subrogee, Nationwide). The court found that as a consequence, Artimus was bound by Justice Cahn’s order. The court also found that the action was barred by the doctrine of res judicata.

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FROM THE MAJORITY:

… [T]he parties were afforded a full and fair opportunity to litigate the insurance coverage issues in the prior action. Nationwide is therefore collaterally estopped from litigating the same issues already decided against its subrogor, Artimus, who in turn is estopped from litigating the same issues decided against its subrogor, Armadillo, as a subrogee of the insured.

Moreover, the principles of res judicata favor defendants herein. Nationwide and Artimus seek to enforce the judgment that they were awarded against Armadillo in the third-party personal injury action. However … in the prior action the court found that the coverage exclusion with respect to the personal injury action in U.S. Underwriters policy was applicable. By bringing this action as subrogees of Artimus and Armadillo under Insurance Law § 3420, Nationwide and Artimus are essentially seeking to relitigate Artimus’s claims for coverage. “Res judicata is designed to provide finality in the resolution of disputes, recognizing that [c]onsiderations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation” … . Nationwide Mut. Ins. Co. v U.S. Underwriters Ins. Co., 2017 NY Slip Op 04774, 1st Dept 6-13-17

 

 

INSURANCE LAW (ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/CIVIL PROCEDURE (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/LABOR LAW-CONSTRUCTION LAW (INSURANCE LAW, CIVIL PROCEDURE, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/COLLATERAL ESTOPPEL (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/RES JUDICATA (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/PRIVITY (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)

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PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination suit should not have been dismissed:

As ostensibly nondiscriminatory reasons for terminating plaintiff, defendants pointed to plaintiff’s alleged management deficiencies; her alleged insubordination, by, among other things, refusing a directive to extend her vacation; and her alleged concealment of her romantic relationship with a subordinate.

In response, plaintiff raised issues of fact as to pretext … . Among other things, plaintiff points out that her termination on June 30, 2011, represented a drastic shift from the favorable performance review which she received only three weeks earlier. Indeed, plaintiff was on vacation for nearly a week of that three-week time period. Nothing in the record explains why any defects in plaintiff’s management style, identified in her otherwise favorable performance review, suddenly warranted her termination. Defendants’ assertion that plaintiff was insubordinate and hostile is belied by the record, which shows nothing more than innocuous e-mail exchanges between plaintiff and her superior … during the several days prior to the termination. Finally, defendants’ assertion that plaintiff’s concealing of her relationship with her subordinate was a ground for termination is belied by, among other things, emails exchanged only a week earlier, demonstrating that the subordinate would be reporting to another manager, in order to avoid any appearance of impropriety.

Plaintiff has also pointed to evidence of gender bias, in the form of [her superior’s] holding women, including plaintiff, to a different standard than men in the workplace. Nor were these mere “stray remarks.” To the contrary, [her superior] told plaintiff that she lacked “emotional intelligence and empathy toward others,” which were perceived as shortcomings in her ability to manage her subordinates, and which were “amplified because [she was] in a high profile seat and female.” Barone v Emmis Communications Corp., 2017 NY Slip Op 04787, 1st Dept 6-13-17

EMPLOYMENT LAW (HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/GENDER DISCRIMINATION (EMPLOYMENT LAW, HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A-BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN. 

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion by Justice Acosta, determined the trial court properly dismissed the count of the indictment which charged possession of a BB gun. Defendant was charged with possession of the BB gun as well as possession of a 9 mm handgun. It was alleged defendant threw both under a car as the police approached. Defendant produced a declaration (against penal interest) by a non-testifying witness (Ramsanany) who claimed (in the declaration) the handgun was his. In rebuttal the People presented a detective (DeLoren) who testified Ramsanany, when confronted, admitted his declaration about owning the handgun was a lie. The dissent argued the BB gun count should have gone to the jury, as it was an integral part of the defense and would not have caused jury confusion. The trial court ruled that the BB gun count could confuse the jury and lead to a compromise verdict:

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FROM THE DISSENT:

I disagree with the majority’s position that submission of the air pistol count “could only confuse” the jury. Indeed, in allowing testimony about Ramsanany’s declaration that he, and not defendant, possessed the 9 millimeter Taurus pistol, the court necessarily found that it did not confuse the issues or mislead the jury  … .

In any event, under the circumstances, submission of the air pistol charge would not have distracted the jury or merely allowed it to reach a verdict based on mercy or compromise; rather, submission of the charge would have helped the jury arrive at a fair verdict if it had credited the defense, a defense supported by defendant’s and Gil’s testimony and Ramsanany’s declaration, as well as the lack of DNA or fingerprint evidence indicating which pistols were in defendant’s possession. Instead, because the court dismissed the air pistol count, the jury had no basis on which to convict defendant of possession of only the air pistol, and not the 9 millimeter Taurus pistol, even if it credited the defense, leaving the jury to convict defendant of a more serious offense or acquit him altogether. This was particularly troubling, given that Ramsanany did not testify at trial. Any claims by the prosecution that Ramsanany was coerced by defendant into assuming criminal responsibility for the air pistol could only have been explored through Detective DeLoren. It seems to me patently unfair to provide Ramsanany’s declaration and DeLoren’s rebuttal to the jury and then essentially tell the jury to forget about that testimony and focus only on the 9 millimeter Taurus pistol. People v Boyd, 2017 NY Slip Op 04809, 1st Dept 6-13-17

 

CRIMINAL LAW (TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/JURY CONFUSION (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/COMPROMISE VERDICT (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)

REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE.

The First Department, reversing Supreme Court, determined plaintiff’s complaint should have been dismissed. Plaintiff alleged she choked on a fish bone at defendant’s restaurant:

Plaintiff seeks damages for injuries sustained when she choked on a fish bone while eating a fillet of flounder at defendants-appellants’ restaurant. Plaintiff’s negligence claim should have been dismissed pursuant to the “reasonable expectation” doctrine, as the nearly one-inch bone on which plaintiff choked was not a “harmful substance[]” that a consumer “would not ordinarily anticipate” … . Amiano v Greenwich Vil. Fish Co., Inc., 2017 NY Slip Op 04544, 1st Dept 6-8-17

NEGLIGENCE (REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE)/REASONABLE EXPECTATION DOCTRINE (NEGLIGENCE, REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE)

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DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE.

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this rear-end collision case. The top of defendant’s truck struck an overhead bridge and came to a sudden stop on a highway. There was evidence the truck driver was negligent for attempting to pass under the bridge in a lane which he had not used before:

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A rear-end collision with a stopped vehicle, or a vehicle slowing down, establishes a prima facie case of negligence on the part of the operator of the rear-ending vehicle, which may be rebutted if that driver can provide a non-negligent explanation for the accident … . The … defendants argue that plaintiff’s contention that a sudden, unforeseeable stop by a lead vehicle can provide such a non-negligent explanation “is contrary to this Court’s consistent holding that an allegation that the lead vehicle suddenly stopped is insufficient to rebut the presumption of negligence on the part of the rear-ending vehicle.” However, this is simply not accurate … . * * *

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… [T]he evidence suggests that plaintiff could have “reasonably expect[ed] that traffic would continue unimpeded” … , since traffic was flowing smoothly and he had no reason to foresee that [defendant’s] truck would not clear the overpass. Baez-Pena v MM Truck & Body Repair, Inc., 2017 NY Slip Op 04538, 1st Dept 6-8-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)/TRAFFIC ACCIDENTS (REAR-END COLLISION, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)/REAR-END COLLISIONS (DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)

PLAINTIFF STRUCK BY A PLANK WHICH FELL OFF A SCAFFOLD, SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED.

The First Department determined summary judgment on plaintiff’s Labor Law 240 (1) was properly granted. Plaintiff was struck by a plank which fell from a scaffold that was being dismantled:

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Whether or not the scaffold provided workers at the site with adequate protection for working at an elevation, the unsecured plank falling from the scaffold and striking plaintiff as the scaffold was being moved constituted a distinct elevation-related hazard requiring the securing of the plank for the purpose of moving the scaffold … . Gonzalez v City of New York, 2017 NY Slip Op 04555, 1st Dept 6-8-17

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LABOR LAW-CONSTRUCTION LAW (PLAINTIFF STRUCK BY A PLANK WHICH FELL OFF A SCAFFOLD, SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) PROPERLY GRANTED)/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF STRUCK BY A PLANK WHICH FELL OFF A SCAFFOLD, SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) PROPERLY GRANTED)

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CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE.

The First Department, reversing Supreme Court, determined questions of fact precluded summary judgment in this breach of contract action concerning the issuance of warrants to purchase shares in defendant GeoResources. The facts of the dispute are too complex to summarize here. The First Department explained the requirements for reformation of a contract, the doctrines of mutual mistake and novation, and the liabilities of assignees:

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A claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake,'” and to succeed, the party seeking relief “must establish by clear, positive and convincing evidence’ that the agreement does not accurately express the parties’ intentions” … . “Reformation based upon a scrivener’s error requires proof of a prior agreement between [the] parties, which when subsequently reduced to writing fails to accurately reflect the prior agreement”… . The parties’ course of performance under the contract, or their practical interpretation of a contract for any considerable period of time, is the most persuasive evidence of the agreed intention of the parties … .

Given the need for “clear, positive and convincing evidence” of mutual mistake … , we find that issues of fact are present that should have prevented summary judgment … . …

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Based on the plain language of the purchase agreements … , any reformation claim that the original purchasers held was assigned … since it qualifies as one of the “rights and benefits incident to the ownership” of the warrants. …

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The elements of a novation are a previously valid obligation, agreement of the parties to the new obligation, extinguishment of the old contract, and a valid new contract … . “A novation will not discharge obligations created under a prior agreement unless it was so intended, and this question may be determined from the writings and conduct of the parties or, in certain cases, from the documents exclusively” … . The party claiming a novation has the burden of proof of establishing that it was the intent of the parties to effect a novation … .

We find that defendant presented no evidence that it and its counterparties intended to effectuate a novation before issuing [the] warrants … .Warberg Opportunistic Trading Fund L.P. v GeoResources, Inc., 2017 NY Slip Op 04537, 1st Dept 6-8-17

 

CONTRACT LAW (CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/REFORMATION (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/MUTUAL MISTAKE (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/NOVATION (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/ASSIGNEES (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/SECURITES  (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/WARRANTS (SECURITIES, CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)

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CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF.

The First Department, in a full-fledged opinion by Justice Webber, determined two chimpanzees. Tommy and Kiko, were not entitled to orders transferring them from cages to a sanctuary, using the rationale behind habeas corpus. The main reason underlying the decision is the fact that similar requests for relief had been denied by other courts and nothing new was presented in support of the instant requests for relief. The court, however, did run through the arguments in support of the applicability of habeas corpus criteria in this context (not all of which are summarized here):

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“The common law writ of habeas corpus, as codified by CPLR article 70, provides a summary procedure by which a person’ who has been illegally imprisoned or otherwise restrained in his or her liberty can challenge the legality of the detention” … . While the word “person” is not defined in the statute, there is no support for the conclusion that the definition includes nonhumans, i.e., chimpanzees. While petitioner’s cited studies attest to the intelligence and social capabilities of chimpanzees, petitioner does not cite any sources indicating that the United States or New York Constitutions were intended to protect nonhuman animals’ rights to liberty, or that the Legislature intended the term “person” in CPLR article 70 to expand the availability of habeas protection beyond humans. No precedent exists, under New York law, or English common law, for a finding that a chimpanzee could be considered a “person” and entitled to habeas relief. In fact, habeas relief has never been found applicable to any animal… .

The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions. Petitioner does not suggest that any chimpanzee charged with a crime in New York could be deemed fit to proceed, i.e., to have the “capacity to understand the proceedings against him or to assist in his own defense” (CPL 730.10[1]). While in an amicus brief filed by Professor Laurence H. Tribe of Harvard Law School, it is suggested that it is possible to impose legal duties on nonhuman animals, noting the “long history, mainly from the medieval and early modern periods, of animals being tried for offenses such as attacking human beings and eating crops,” none of the cases cited took place in modern times or in New York. Moreover, as noted in an amicus brief submitted by Professor Richard Cupp, nonhumans lack sufficient responsibility to have any legal standing, which, according to Cupp is why even chimpanzees who have caused death or serious injury to human beings have not been prosecuted. Matter of Nonhuman Rights Project, Inc. v Lavery, 2017 NY Slip Op 04574, 1st Dept  6-8-17

 

ANIMAL LAW (CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/CIVIL PROCEDURE (ANIMAL LAW, HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/ANIMAL LAW (HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/HABEAS CORPUS (CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/CHIMPANZEES (HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)

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WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, over a dissent, determined the defendant City’s motion to set aside the verdict in this slip and fall case should not have been set aside. The court held that whether the Big Apple map sufficiently identified the defective curb where plaintiff fell was a jury question and the verdict should stand:

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“Although [t]he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident,’ where there are factual issues as to the precise location of the defect that caused a plaintiff’s fall and whether the defect is designated on the map, the question should be resolved by the jury” … . The trial court improperly set aside the verdict against the City for lack of legally sufficient evidence that the City had prior written notice of the alleged defect in the curb at the corner where plaintiff indicated she fell … . A jury verdict may not be set aside for legal insufficiency unless there is “no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial” … . Here, it cannot be said that it was “utterly irrational for [the] jury to reach the result it has determined upon” … .

At trial, plaintiff testified that she tripped and fell, due to a defect at the corner of Madison Street and Rutgers Street. Plaintiff testified that she stepped off the curb with her left foot into the crosswalk on to Madison Street and that the tip of her right foot got caught on something on the ground, which caused her to fall and fracture her ankle. Plaintiff further testified that the curb where she tripped and fell was “separated from the sidewalk and raised.” Plaintiff also entered into evidence photographs of the street corner where she fell that depicted a broken, cracked and defective curb in front of 197 Madison Street. Another photograph entered into evidence showed that the address of “197 Madison St.” was clearly reflected on the H and M Deli storefront awning, located at the corner of the intersection where plaintiff fell. Counsel for the City further highlighted this point during re-cross-examination of plaintiff regarding the precise location of her fall, when counsel inquired, “In front of that H and M Deli?… The deli that is addressed 197 Madison, right?” To which plaintiff replied, “Yes.” Additionally, the Big Apple Map, which the City stipulated to receiving, denoted an “X” in front of 197-199 Madison Street, and, according to the Big Apple Map Legend, an “X” indicates a “broken, misaligned or uneven curb.”

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… [W]hile it is true that the Big Apple Map did not have an “X” at the precise corner where plaintiff fell, the map did depict an “X” in front of the address of 197 Madison Street, which encompasses multiple storefronts within one building, stretching from the building on the corner towards the middle of the block. Foley v City of New York, 2017 NY Slip Op 04389, 1st Dept 6-6-17

 

NEGLIGENCE (WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (MOTION TO SET ASIDE THE VERDICT, SLIP AND FALL, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE OF DEFECT, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/EVIDENCE (SLIP AND FALL, MUNICIPAL LAW, WRITTEN NOTICE OF DEFECT,WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/VERDICT, MOTION TO SET ASIDE (SLIP AND FALL, MUNICIPAL LAW, WRITTEN NOTICE OF DEFECT,WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, WRITTEN NOTICE, WHETHER THE BIG APPLE MAP PROVIDED NOTICE TO THE CITY OF THE DEFECTIVE CURB WHERE PLAINTIFF FELL WAS AN APPROPRIATE QUESTION FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE)

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THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE.

The First Department, in a full-fledged opinion by Justice Gische, over a two justice dissenting opinion authored by Justice Gesmer, determined the city’s decision whether to enforce animal cruelty and other laws and regulations which may pertain to the public, ritual killing of chickens in an annual religious practice (Kaporos) is discretionary and therefore cannot be enforced by a mandamus proceeding:

We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. … There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to nonadherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment … .

Consequently, the decision whether and how to enforce these laws and regulatory provisions allegedly violated during Kaporos implicates the reasoning and discretion of the City defendants and the law enforcers. None of the laws or regulations plaintiffs rely on preclude the City defendants from deciding whether or not to enforce those laws in the context of Kaporos. Plaintiffs do not have a “clear legal right” to dictate which laws are enforced and how, or against whom. Determining which laws and regulations might be properly enforced against the non-City defendants without infringing upon their free exercise of religion involves the exercise of reasoned judgment on the part of the City defendants. The outcome cannot be dictated by the court through mandamus. Alliance to End Chickens as Kaporos v New York City Police Dept., 2017 NY Slip Op 04408, 1st Dept 6-6-17

 

MUNICIPAL LAW (ANIMAL CRUELTY, RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/ANIMAL LAW (RELIGIOUS RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/RELIGION (RITUAL KILLING OF CHICKENS,  THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/KAPOROS (ANIMAL CRUELTY, RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)

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