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WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED.

The First Department noted that the People’s motion to set aside defendant’s sentence based upon an illegal sentence was properly brought and granted. Where the criteria are met, sentencing a defendant as a predicate felon is mandatory. Defendant should have been so sentenced but was not:

Where a defendant is in fact a predicate offender, sentencing the defendant as a nonpredicate results in an illegal sentence. The provisions of CPL 400.15, governing second violent felony offender adjudications, are mandatory, and neither the People nor a court may ignore or waive a defendant’s predicate status … . The claim that defendant describes as a collateral estoppel argument is without merit. The defective resentencing of defendant as a nonpredicate had no collateral estoppel effect with regard to the People’s timely CPL 440.40 motion, which was a permissible alternative to an appeal. “When the People seek to challenge a sentence as illegal, they may appeal . . ., or, within one year of the judgment, they may make a motion to set aside the sentence” … . The very purpose of a (defendant’s) CPL 440.20 motion or a (People’s) 440.40 motion is to correct a substantively illegal sentence without the necessity of an appeal; obviously, the court deciding such a motion is not bound by a sentencing court’s express or implied finding that the challenged sentence was legal. People v Heisler, 2017 NY Slip Op 04220, 1st Dept 5-30-17

CRIMINAL LAW (SENTENCING, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/SENTENCING (PREDICATE FELON, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/PREDICATE FELON (SENTENCING, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/SENTENCE, MOTION TO SET ASIDE WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)

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IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE.

The First Department, over an extensive dissent, determined detaining defendant while the police, after taking the defendant’s ID, checked to see if defendant’s girlfriend lived in an apartment, was not a seizure. Defendant had been seen (by the police) making quick trips in and out of an apartment complex. To determine if defendant was trespassing, the police went to the apartment where defendant said his girlfriend lived. The occupant of the apartment was shown defendant’s ID and denied knowing him. The police then had probable cause to arrest defendant for criminal trespass:

This Court has repeatedly held that in a trespass situation, a police officer may conduct a brief investigation to ascertain whether a defendant’s explanation was credible, and this does not rise to a level three forcible detention or seizure … .

In determining the lawfulness of police encounters, New York has long followed the four-level test illustrated in People v De Bour (40 NY2d 210, 223 [1976]). To determine a seizure under De Bour, “[t]he test is whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom” …. The dissent cannot point to any New York State case applying the De Bour standard to support the broad proposition that a seizure occurs whenever an officer retains a person’s identification. Although the dissent cites to several federal and out-of-state cases, those cases present different factual scenarios compared to the circumstances here, and are not controlling. People v Hill,  2017 NY Slip Op 04236, 1st Dept 5-30-17

CRIMINAL LAW (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/TRESPASS (CRIMINAL LAW, STREET STOP, (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/STREET STOPS (CRIMINAL LAW, SEIZURE, IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/SEIZURE (CRIMINAL LAW, (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)

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PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS.

The First Department, in a full-fledged opinion by Justice Tom, determined defendant law firm was entitled to sanctions for the frivolous conduct of plaintiff’s counsel.  Plaintiff’s counsel had repeatedly, including on appeal, made the false allegation that defendant law firm had withdrawn two causes of action which would have been successful. The two causes of action had, in fact, been timely brought by defendant law firm, but were subsequently withdrawn by successor counsel:

… [D]espite it having been apparent from the record that successor counsel was the one who withdrew the conversion and breach of contract claims in the federal action and not defendants, and despite being alerted to this fact by the record of this case and Supreme Court on multiple occasions, counsel persists in repeating a materially false claim to this Court.

There can be no good faith basis for the repetition of this materially false claim on appeal, and we find that counsel’s behavior would satisfy any of the criteria necessary to deem conduct frivolous. In fact, the only fair conclusion is that the prosecution of this appeal and knowing pursuit of a materially false and meritless claim was meant to delay or prolong the litigation or to harass respondents.

“Among the factors we are directed to consider is whether the conduct was continued when it became apparent, or should have been apparent, that the conduct was frivolous, or when such was brought to the attention of the parties or to counsel (22 NYCRR 130-1.1 [c]), circumstances that are replete in this record as noted above”… .

We also consider that sanctions serve to deter future frivolous conduct “not only by the particular parties, but also by the Bar at large” … . The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics.

Here, counsel was ethically obligated to withdraw any baseless and false claims, if not upon his own review of the record, certainly by the time Supreme Court advised him of this fact. Instead, counsel continued to repeat a knowingly false claim in what could only be described as a purposeful attempt to mislead this Court, and pursued claims which were completely without merit in law or fact.

The appropriate remedy for maintaining a frivolous appeal is the award of sanctions in the amount of the reasonable expenses and costs including attorneys’ fees incurred in defending the appeal … . Boye v Rubin & Bailin, LLP, 2017 NY Slip Op 04239, 1st Dept 5-30-17

 

ATTORNEYS (ETHICS, SANCTIONS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/SANCTIONS (ATTORNEYS,  FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/ETHICAL VIOLATIONS (ATTORNEYS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/FRIVOLOUS CONDUCT (ATTORNEYS,  FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/APPEALS (FRIVOLOUS, FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)

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DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE.

The First Department determined defendant was entitled to a hearing on her motion to set aside her conviction based upon ineffective assistance of counsel. Defendant alleged she was told by her attorney (erroneously) that a guilty plea would not result in deportation:

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Defendant said in an affidavit that she informed her plea counsel that she was not a U.S. citizen but was a legal permanent resident and was concerned about maintaining her immigration status and not being deported. Counsel advised her that, if she pleaded guilty to attempted second-degree conspiracy, she would receive five years of probation, with no jail time, and assured her that, by taking the plea and receiving probation, she would not have to fear any deportation proceedings. Defendant, age 26 at the time, had been in jail since her arrest, and wanted to be released as soon as possible, so that she could rejoin her two young children.

Accordingly, defendant pleaded guilty, was sentenced as indicated, and successfully completed her probation.

However, in 2012, defendant was referred to U.S. Immigration and Customs Enforcement (ICE), and on June 5, 2012, ICE issued her a Notice to Appear. Defendant said that she learned that conspiracy is considered an “aggravated felony” under the immigration law, which leaves her exposed to deportation proceedings, except under limited and difficult-to-meet exceptions under the Convention Against Torture. …

Defendant said that, if she had known that her guilty plea would subject her to a risk of deportation, she “never would have entered a guilty plea,” but instead “would have contested the matter, tried to negotiate a better plea or taken the case to trial.” She said that she believed that she “would have had a good defense as [she]was not involved in any drug activity, did not know that [her] stepfather was involved in drugs and never saw any drugs … .”

Defendant submitted an affidavit by her plea counsel, who said that she no longer possessed a copy of defendant’s file, and the plea transcript was not available. Nonetheless, counsel said she recalled speaking to defendant a few times, with her secretary acting as interpreter. Counsel recalled that defendant was a legal resident and not a U.S. citizen, but “[did] not recall any advice [she] may have given to [defendant] concerning the plea she eventually entered and the ramifications of that plea upon her status in the United States.”

Counsel explained that her difficulty remembering was due not only to the passage of 15 years, but also to the fact that, at the time of the plea, she was going through “personal difficulties,” including “alcoholism and addiction.” In May 2000, counsel was indicted in Supreme Court, Ulster County, for first-degree promoting prison contraband, seventh-degree criminal possession of a controlled substance, and second-degree harassment.

Under these circumstances, a hearing should be held on whether counsel’s performance rose to the level of ineffective assistance of counsel… . People v Sanchez, 2017 NY Slip Op 04200, 1st Dept 5-26-17

 

CRIMINAL LAW (SET ASIDE THE CONVICTION, MOTION TO, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/SET ASIDE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)

COMPLEX ISSUES ARISE IN RETROACTIVELY DETERMINING THE APPROPRIATE RENTAL AMOUNT FOR A RENT STABILIZED APARTMENT OCCUPIED BY THE SAME TENANTS SINCE 2000.

The First Department, in a full-fledged opinion by Justice Gische, dealt with complex issues relating to the appropriate rental amount for a rent stabilized apartment occupied by the same tenants since 2000:

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There are interlocking complex issues framed by this appeal involving plaintiffs’ claims that the apartment they have continuously rented for the last 16 years (apartment 5M), was improperly removed from rent stabilization. The overarching issue is whether the apartment should be restored to rent stabilization because defendant 72A Realty Associates L.P. (the Owner) deregulated the apartment pursuant to the luxury decontrol laws while it was simultaneously receiving tax incentives under the City’s J-51 program … . There can be little dispute that following Roberts v Tishman Speyer Props., L.P., (13 NY3d 270 [2009]) and its progeny applying Roberts retroactively … the subject apartment must be returned to rent stabilization as of 2000, when the Owner first treated the apartment as exempt. The thornier issues implicated by returning the apartment to rent stabilization concern the setting of the stabilized rent, the base date for, and the statute of limitations applicable to, the setting of such rent, and the possible imposition of treble damages and attorney fees. We agree with Supreme Court that plaintiffs are entitled to a declaration that the apartment was and still is subject to rent stabilization and that they are the rent-stabilized tenants thereof. We also agree with Supreme Court that the issues of the legal rent, as well as the issues of possible overcharge, treble damages and attorneys fees cannot be resolved on a motion for summary judgment. We disagree with Supreme Court only insofar as it held that the increases made to the rent-stabilized rent in 2000, based upon individual apartment improvements (IAIs) before the plaintiffs took occupancy, are subject to challenge on this record. Taylor v 72A Realty Assoc., L.P., 2017 NY Slip Op 04218, 1st Dept 5-25-17

LANDLORD-TENANT (COMPLEX ISSUES ARISE IN RETROACTIVELY DETERMINING THE APPROPRIATE RENTAL AMOUNT FOR A RENT STABILIZED APARTMENT OCCUPIED BY THE SAME TENANTS SINCE 2000)/RENT STABILIZATION (NYC) (COMPLEX ISSUES ARISE IN RETROACTIVELY DETERMINING THE APPROPRIATE RENTAL AMOUNT FOR A RENT STABILIZED APARTMENT OCCUPIED BY THE SAME TENANTS SINCE 2000)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. A portion of plaintiff’s harness touched an exposed electric wire. Defendants, who were vicariously liable, did not raise a question of fact about plaintiff’s comparative negligence:

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It is undisputed that violations of Industrial Code (12 NYCRR) § 23-1.13(b)(3) and (4) proximately caused the injuries sustained by plaintiff when a metal part of his safety harness contacted a live electrical wire, known as a BX cable, which was hanging down from a drop ceiling of a building under renovation. Appellants, as owner and general contractor, may be held liable for violation of those provisions, even though they impose obligations on the employer, since they have a nondelegable duty to provide adequate safety protections … . Appellants fail to point to any evidence that would support a finding that plaintiff was comparatively negligent, since he was acting pursuant to his foreman’s instructions and neither knew nor should have known that the cable was electrified, in the absence of any warnings, caution tape, or other such indications that workers should avoid the area … . Appellants’ assertion that they lacked notice of the presence of the exposed, electrified cable is irrelevant, “[s]ince an owner or general contractor’s vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition” … . Rubino v 330 Madison Co., LLC, 2017 NY Slip Op 04210, 1st Dept 5-25-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(1) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE)

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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED.

The First Department, over a two-justice dissent, determined Supreme Court should not have granted leave to file a late notice of claim. “Petitioner was injured on July 15, 2015, while working as a bricklayer … at a job site located at an intermediate school in the Bronx. Petitioner alleges that while lifting 60 to 70 pound buckets, he tripped and fell due to an uneven floor on a makeshift scaffold. He filed a workers’ compensation claim on July 29, 2015, but did not file a notice of claim until July 15, 2016, a year later. In the intervening year, he underwent a shoulder and a hip surgery:”

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The motion court improvidently exercised its discretion in granting the motion. Petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim … . Petitioner’s alleged failure to realize the severity of his injuries within 90 days after his accident did not constitute a reasonable excuse for his delay in serving a notice of claim, especially since petitioner filed a workers’ compensation claim just weeks after the accident… . Nor did petitioner show that respondents acquired actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter (see General Municipal Law § 50-e[5]). There is no evidence that respondents received petitioner’s workers’ compensation claim form, which, in any event, makes no mention of the allegations against respondents … . Absent any knowledge of even a potential Labor Law claim, respondents certainly had no basis to conduct their own investigations … .

* * * … [T]here is no evidence respondents were aware of an accident even occurring. Petitioner … does no more than refer to numerous construction records that purportedly could be examined, yet provides no names of actual witnesses nor any reference to specific information in those records. Matter of Grajko v City of New York, 2017 NY Slip Op 04203, 1st Dept 5-24-17

 

MUNICIPAL LAW (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NOTICE OF CLAIM (MUNICIPAL LAW, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)

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IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE.

The First Department determined Supreme Court should not have limited discovery in this lead-paint exposure case to documents relating solely to the apartments where infant plaintiff resided or spent time. The condition of other portions of the buildings may be relevant to defendants’ notice of the condition of the paint:

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The motion court should not have limited defendants’ production of records pertaining to lead-based paint exposure to the date of exposure and three years prior only in the subject apartments, namely, the apartment in which the infant plaintiff resided and the apartment, in a different building, where she attended day care. “While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … .

Plaintiffs allege in their complaint that defendants “knew, should have known, and/or had reason to know that there was deteriorated, defective, flaking, chipping and peeling paint in the Subject Premises [apartments] and the Subject Building,” which “could be harmful to children” … . Yet, despite this knowledge, the complaint alleges that defendants were negligent in performing repairs within the plaintiffs’ residence and the apartment where the infant plaintiff attended day care, and permitted the continued “emission, discharge[], spread and dissemination of lead based paint . . . thus causing the exposure of the infant plaintiff” to the hazardous conditions which were a contributing cause of her lead poisoning. Additionally, since plaintiffs had evidence from the New York City Department of Housing Preservation and Development (HPD), which showed numerous lead paint violations in the subject buildings, and since evidence of lead paint hazards in one part of a building may be relevant to the issues of defendants’ notice of the condition, duties and obligations to the plaintiffs … , plaintiffs’ demand for production of records for lead-based paint violations in the other apartments in the buildings was appropriate … . “Knowledge of a dangerous condition in one portion of the structure may have imposed upon the owners an obligation to examine’ other portions of the structure for defects arising from the same cause, and to ascertain what was ascertainable with the exercise of reasonable care” … . The fact that plaintiffs may have been able to access some evidence of lead paint violations in the building from HPD does not preclude plaintiffs from seeking these records directly from defendants in discovery … .  Z.D. v MP Mgt., LLC, 2017 NY Slip Op 04059, 1st Dept 5-23-17

 

NEGLIGENCE (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/TOXIC TORTS  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/CIVIL PROCEDURE (DISCOVERY, IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/DISCOVERY  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/LEAD PAINT  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)

TAKING IN AIRBNB CUSTOMERS IN A RENT-STABILIZED APARTMENT VIOLATED THE RENT STABILIZATION CODE (NYC), LESSOR ENTITLED TO TERMINATE THE ELDERLY 40-YEAR TENANT’S LEASE.

The First Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff was entitled to terminate defendant’s lease of a rent-stabilized cooperative apartment for “subletting” to Airbnb customers. Defendant, an elderly 40-year tenant, took in Airbnb customers on 338 days over an 18-month period, realizing $12,000 more than 10% “profit” allowed for “subletting” under the Rent Stabilization Code:

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Defendant’s listing on the Airbnb website also provided (1) links for making reservations, (2) “check-in” and “check-out” times, (3) the financial penalty for untimely cancellation, and (4) reviews from numerous past guests.

Turning her rent-stabilized apartment into a single-unit tourist hotel in this fashion enabled defendant to earn substantial profits, far in excess of the legally permissible 10% premium. After Airbnb (to which the subtenants paid the rent) deducted its fees, the subletting generated total income of $33,592.00 for defendant. The stabilized rent she paid for the same 338 days (based on the aforementioned per-diem figure of $57.80) was only $19,536.40. Thus, defendant realized a 72% profit from her subletting — about seven times the 10% premium permitted for otherwise lawful sublets of furnished rent-stabilized apartments. Had defendant limited herself to the 10% premium permitted by the RSC, her aggregate revenue would have been $21,490.04 — about $12,000 less than her actual revenue of $33,592.00. Taking into account the lawful 10% premium (and ignoring the fact that the apartment was shared), defendant overcharged her 93 subtenants, in aggregate, by approximately 56% … . Goldstein v Lipetz, 2017 NY Slip Op 04070, 1st Dept  5-23-17

 

LANDLORD-TENANT (TAKING IN AIRBNB CUSTOMERS IN A RENT-STABILIZED APARTMENT VIOLATED THE RENT STABILIZATION CODE (NYC), LESSOR ENTITLED TO TERMINATE THE ELDERLY 40-YEAR TENANT’S LEASE)/RENT STABILIZATION CODE (NYC) (TAKING IN AIRBNB CUSTOMERS IN A RENT-STABILIZED APARTMENT VIOLATED THE RENT STABILIZATION CODE (NYC), LESSOR ENTITLED TO TERMINATE THE ELDERLY 40-YEAR TENANT’S LEASE)/AIRBNB  (TAKING IN AIRBNB CUSTOMERS IN A RENT-STABILIZED APARTMENT VIOLATED THE RENT STABILIZATION CODE (NYC), LESSOR ENTITLED TO TERMINATE THE ELDERLY 40-YEAR TENANT’S LEASE)

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NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK.

The First Department determined New York law applies to discovery from PriceWaterhouseCoopers in New York’s suit against Exxon alleging fraud in connection with the company’s knowledge of the causes and effects of global warming. PriceWaterhouseCoopers argued Texas law applied. Texas has an accountant privilege, New York does not:

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In this proceeding arising from an underlying investigation by the NYAG [attorney general]into alleged fraud by respondent Exxon concerning its published climate change information, the motion court properly found that the New York law on privilege, rather than Texas law, applies, and that New York does not recognize an accountant-client privilege.

We reject Exxon’s argument that an interest-balancing analysis is required to decide which state’s choice of law should govern the evidentiary privilege. Our current case law requires that when we are deciding privilege issues, we apply the law of the place where the evidence will be introduced at trial, or the place where the discovery proceeding is located … . In light of our conclusion that New York law applies, we need not decide how this issue would be decided under Texas law. Matter of People of the State of New York v PriceWaterhouseCoopers, LLP, 2017 NY Slip Op 04071, 1st Dept 5-23-17

 

CIVIL PROCEDURE (NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/PRIVILEGE (ACCOUNTANT PRIVILEGE, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/DISCOVERY (CIVIL PROCEDURE, CHOICE OF LAW, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/PRIVILEGE (ACCOUNTANT PRIVILEGE, CHOICE OF LAW, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/ACCOUNTANT PRIVILEGE (NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/CHOICE OF LAW (ACCOUNTANT PRIVILEGE, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/ENVIRONMENTAL LAW  (EXXON, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/GLOBAL WARMING (EXXON, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)/EXXON (GLOBAL WARMING, NEW YORK LAW APPLIES TO DISCOVERY IN THIS SUIT BY THE ATTORNEY GENERAL AGAINST EXXON ALLEGING FRAUD IN CONNECTION WITH EXXON’S KNOWLEDGE OF THE CAUSES AND EFFECTS OF GLOBAL WARMING, NO ACCOUNTANT PRIVILEGE IN NEW YORK)

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