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DEFENDANT FOUND NOT GUILTY BY REASON OF INSANITY CAN BE SUED FOR WRONGFUL DEATH UNDER THE EPTL, BOTH FOR THE STABBING DEATH OF HIS MOTHER AND THE RELATED SUICIDE OF HIS BROTHER.

The First Department, reversing Supreme Court, determined the fact that defendant was found not guilty by reason of insanity in connection with the stabbing of his mother did not preclude wrongful death claims against him pursuant to EPTL 5-4.1, both for the death of his mother and the related suicide of his brother:

Although defendant was found not guilty by reason of mental disease or defect in connection with the stabbing death of his mother, the complaint stated a viable wrongful death claim against him pursuant to EPTL 5-4.1, since an insane person may be liable in tort for his actions … . A wrongful death claim was also stated on behalf of defendant’s brother, who committed suicide after his mother’s murder. Rosen v Schwartz, 2017 NY Slip Op 02517, 1st Dept 3-30-17

 

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TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS CAUSE OF ACTION PROPERLY SURVIVED A MOTION TO DISMISS, LAW OF THE CASE DOCTRINE APPLIES ONLY TO COURTS OF COORDINATE JURISDICTION.

The First Department determined plaintiff had stated a cause of action for tortious interference with business relations. Plaintiff, a Broadway musical producer, alleged defendant made false statements implicating plaintiff in investor fraud (committed by a nonparty). The court noted that the law of the case doctrine applies only to courts of coordinate jurisdiction, not to the appellate courts:

The tortious interference claim was properly sustained insofar as it was premised on emails sent by defendant to a key investor, but not insofar as it was premised on comments made by defendant’s attorney that were quoted in various news articles.

As to the emails, plaintiff adequately pled that defendant’s conduct was unlawful or for the sole purpose of inflicting intentional harm on plaintiff … – as we observed in a related action premised on these same emails (see Rebecca Broadway L.P. v Hotton, 143 AD3d 71, 77 [1st Dept 2016]). Specifically, plaintiff alleged that, in sending the emails, defendant misappropriated confidential information he was privy to as a result of his position as the musical’s press agent and committed the independent tort of defamation … . Sprecher v Thibodeau, 2017 NY Slip Op 02519, 1st Dept 3-30-17

 

DEFENDANT LANDLORD DEMONSTRATED RENOVATIONS TO THE APARTMENT, WHICH WAS ONCE RENT-CONTROLLED, WERE SUFFICIENT TO WARRANT CHARGING MARKET RENT (FIRST RENT), COMPLAINT DISMISSED BASED ON LANDLORD’S DOCUMENTARY EVIDENCE.

The First Department, over an extensive dissent, determined plaintiff landlord was entitled to dismissal of tenant’s complaint (based on documentary evidence). The complaint alleged the landlord was not entitled to charge market rent (“first rent”) but rather the apartment was subject to rent control. The landlord demonstrated that renovations, including the addition of a second floor, substantially altered the apartment such that first rent could be charged:

The documentary evidence submitted by landlord was designed to refute plaintiff’s claim that the conversion of the apartment into a duplex did not meet the criteria for first rent or high rent vacancy deregulation. A landlord may charge first rent, pursuant to the Rent Stabilization Code, where the landlord “substantially alters the outer dimensions of a vacant housing accommodation, which qualifies for a first rent equal to or exceeding the applicable amount qualifying for deregulation” (9 NYCRR 2520.11[r][12]) which in this case, was $2,000 or more per month” (9 NYCRR 2520.11[r][4]). Stated somewhat differently, first rent is permitted “when the perimeter walls of the apartment have been substantially moved and changed and where the previous apartment, essentially, ceases to exist, thereby rendering its rental history meaningless” … . This Court has described the test for whether alterations qualify for first rent as “reconfiguration plus obliteration of the prior apartment’s particular identity” … . * * *

Landlord satisfied its burden of demonstrating that it made the necessary improvements to qualify for first rent, since it established that it substantially altered the character of the apartment by connecting it to the new penthouse. * * *

We similarly find that the documents submitted by landlord established that it properly claimed a rent increase based on the costs of its project to substantially increase the space in the apartment. Dixon v 105 W. 75th St. LLC, 2017 NY Slip Op 02504, 1st Dept 3-30-17

 

RESULTS OF NYPD DISCIPLINARY TRIALS ARE PERSONNEL RECORDS EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.

The First Department, reversing Supreme Court, determined that the results of NYPD police officer disciplinary trials were personnel records which are exempt from a Freedom of Information Law request:

Public Officers Law § 87(2)(a) provides that an agency “may deny access to records” that “are specifically exempted from disclosure by state . . . statute.” The NYPD disciplinary decisions sought here fall within Civil Rights Law § 50-a, which makes confidential police “personnel records used to evaluate performance toward continued employment or promotion” … .

The fact that NYPD disciplinary trials are open to the public (38 RCNY 15-04[g]) does not remove the resulting decisions from the protective cloak of Civil Rights Law § 50-a … . Whether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations … . Further, the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed, neither of which is disclosed at the public trial. Matter of New York Civ. Liberties Union v New York City Police Dept., 2017 NY Slip Op 02506. 1st Dept 3-30-17

 

RECORDS OF PROCEEDINGS BEFORE THE CIVILIAN COMPLAINT REVIEW BOARD ARE POLICE OFFICER PERSONNEL RECORDS WHICH ARE EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.

The First Department, in a full-fledged opinion by Justice Sweeney, reversing Supreme Court, determined Civilian Complaint Review Board (CCRB) records are police officer “personnel records” and are therefore exempt from disclosure under the Public Officers Law and Civil Rights Law. Petitioner sought a summary of any CCRB proceedings involving Officer Pantaleo, who was videotaped applying a choke hold to Eric Garner. Eric Garner died while being restrained by police officers:

We are called upon to determine whether the documents sought herein are the type of documents that fall within the parameters of “personnel records” and are thus protected from disclosure. Civil Rights Law § 50-a does not define “personnel records,” leaving it to the courts to determine the kind of documents qualify for this exemption. * * *

… [T]here is no question that the summary sought involves one officer and are part and parcel of his personnel file. There is also no question that the records sought are “used to evaluate performance toward continued employment or promotion,” as required by the statute. …

CCRB findings and recommendations are clearly of significance to superiors in evaluating police officers’ performance. As noted, all complaints filed with the CCRB, regardless of the outcome, are filed with and remain in an officer’s CCRB history, which is part of his or her personnel record maintained by the NYPD. We therefore hold that the CCRB met its burden of demonstrating that those documents constitute “personnel records” for purposes of Civil Rights Law § 50-a, and that they fall squarely within a statutory exemption of the statute … . Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd., 2017 NY Slip Op 02523, 1st Dept 3-30-17

 

DEFENDANTS’ DEMAND FOR A CHANGE OF VENUE WAS PROPERLY DISMISSED AS UNTIMELY UNDER THE ELECTRONIC FILING RULES (TO WHICH DEFENDANTS HAD CONSENTED).

The First Department determined defendants demand for a change of venue was untimely under the electronic filing rules, to which defendants had consented:

Supreme Court properly concluded that defendants’ motion was untimely. Having consented to electronic filing, defendants were required to serve their papers electronically (Uniform Rules for Trial Cts [22 NYCRR] § 202.5-b[d][1]), and indeed served their demand for change of venue, together with their answer, by e-filing the documents on July 14, 2015 … . Having served their demand, defendants were required to bring their motion to change venue within 15 days, or by July 29, 2015 (CPLR 511). However, defendants did not bring their motion until July 31, 2015, rendering it untimely. That defendants also elected to serve their demand via United States mail did not extend the deadline for their motion under CPLR 2103(b)(2). Because they consented to participate in Supreme Court’s e-filing system, defendants were bound by the applicable rules governing service. Woodward v Millbrook Ventures LLC, 2017 NY Slip Op 02522, 1st Dept 3-30-17

 

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THREE YEAR STATUTE OF LIMITATIONS FOR A FALSE ARREST CAUSE OF ACTION UNDER 42 USC 1983 BEGAN TO RUN UPON ARRAIGNMENT.

The First Department noted that the three year statute of limitations for a false arrest cause of action under 42 USC 1983 began to run upon arraignment:

The three-year limitations period on a section 1983 claim based on false arrest begins to run “when the alleged false imprisonment ends” — that is, when the arrestee becomes subject to the legal process such as being “bound over by a magistrate or arraigned on charges” … . Here, because plaintiff was arraigned on July 16, 2011, the limitations period on his section 1983 claim based on false arrest ended on July 16, 2014, approximately three months before plaintiff filed this action. Accordingly, the claim is time-barred. Cruz v City of New York, 2017 NY Slip Op 02386, 1st Dept 3-28-17

 

DEFENDANT DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF A HOLE WHICH CAUSED PLAINTIFF TO FALL, SUMMARY JUDGMENT PROPERLY DENIED.

The First Department determined the defendant owner (In LIne) and restaurant manager (Spanburgh) did not demonstrate entitlement to summary judgment in this slip and fall case. Plaintiff, a restaurant patron, was injured when he stepped in a hole in the front lawn of the property while playing a game (apparently sanctioned by the restaurant):

Defendants failed to establish that In Line did not create the hole in its front lawn by submitting Spanburgh’s deposition testimony and affidavit, because Spanburgh did not state that the lawn was inspected after it was last maintained by the outside company In Line had hired to mow the grass. They also failed to satisfy their initial burden to show that In Line lacked actual notice of the hole in its lawn, because they submitted no evidence that its employees and the outside company had received no complaints about the defect prior to the incident and that there were no similar accidents at the subject location … . The fact that Spanburgh testified and averred that he did not receive any complaints about the condition of the lawn does not establish that In Line lacked actual notice, because he did not state that he was working when the accident happened.

Defendants also failed to satisfy their initial burden to show that In Line lacked constructive notice of the hole in its lawn, because Spanburgh’s testimony and averment that he would inspect the entire premises every time the restaurant was open is insufficient to establish when the lawn was last checked before the accident … . Clarkin v In Line Rest. Corp., 2017 NY Slip Op 02004, 1st Dept 3-21-17

 

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF A HOLE WHICH CAUSED PLAINTIFF TO FALL)/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF A HOLE WHICH CAUSED PLAINTIFF TO FALL)/NOTICE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF A HOLE WHICH CAUSED PLAINTIFF TO FALL)

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NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED.

The First Department determined the New York City Housing Authority’s (NYCHA’s) motion for summary judgment in this lead-paint poisoning case was properly denied. The NYCHA argued that the building was constructed in 1974 and lead paint was banned in 1960:

Although NYCHA relies on its own testing that was negative for lead paint, DOH’s [Department of Health’s] lead testing came back positive. NYCHA’s arguments that these were false positives due to the manner in which, and location from where, the samples were taken is insufficient to disregard them as a matter of law. * * *

Nor did NYCHA prove as a matter of law, that it had no actual or constructive notice of the existence of lead paint in the building. Pursuant to the City’s Childhood Lead Poisoning Prevention Act (Local Law 1 of 2004), lead-based paint is presumed to exist in a multiple dwelling unit if the building was built before 1960. Where, as here, the building is built between 1960 and 1978, the presumption will apply only if the owner knows that there is lead-based paint, and a child under the age of six lives in the apartment. Although in a pre-1960 building, paint is presumed to contain lead, the opposite is not true; there is no presumption that paint in a building constructed after 1960 is not lead-based. Given plaintiff’s claim, that NYCHA maintains the premises and assumed the duty to have the apartments painted, the absence of any evidence concerning the history of painting in the subject apartments is insufficient for the court to rule out, as a matter of law, notice. Dakota Jade T. v New York City Hous. Auth., 2017 NY Slip Op 01987, 1st Dept 3-21-17

 

NEGLIGENCE (LEAD PAINT, NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW  (LEAD PAINT, NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED)/LEAD PAINT (NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED)

EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION.

The First Department determined defendants’ summary judgment motion in this slip and fall case was properly denied. Although there was a snow storm in progress at the time of the fall, there was evidence plaintiff slipped on a sheet of ice which, because the temperature was well below freezing, could not have formed during the storm:

Here, as plaintiffs concede, there was a storm in progress at the time of the accident. Thus, the burden shifted to plaintiffs to demonstrate the existence of a triable issue of fact as to whether Sterling created or exacerbated the hazardous condition through its snow removal activities. Plaintiffs have met that burden, as they have both testified that they saw an ice patch at the scene of the accident. * * * This evidence supports plaintiffs’ argument that ice could not have formed after the snowclearing efforts by [defendant’s] employees. Accordingly, an issue of fact was raised as to whether [defendant’s] actions created or exacerbated a hazardous condition by employing a snowblower to remove snow without taking further steps to de-ice the sidewalk … . Baumann v Dawn Liquors, Inc., 2017 NY Slip Op 01986, 1st Dept 3-21-17

NEGLIGENCE (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/SLIP AND FALL (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/STORM IN PROGRESS DOCTRINE (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)/SIDEWALKS (EVEN THOUGH THERE WAS A STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER SNOW REMOVAL EFFORTS CREATED OR EXACERBATED THE DANGEROUS ICY CONDITION)

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