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WATER ON LOCKER ROOM FLOOR WAS NOT NECESSARILY INCIDENTAL TO USE OF THE AREA, DEFENSE MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED.

The First Department, over a two-justice dissent, determined defendant was not entitled to summary judgment in a slip and fall case. Plaintiff alleged he slipped on water in a locker room in the vicinity of a swimming pool and showers. The majority rejected the argument that water in the locker room was necessarily incidental to the use of the locker room (the dissent’s argument):

[D]efendant cannot obtain summary judgment here by relying on the cases cited by the dissent, in which this Court dismissed personal injury claims arising out of slipping on water in gyms based on the reasoning that “water was necessarily incidental to the use of the area” (Noboa-Jaquez v Town Sports Intl., LLC, 138 AD3d 493 [1st Dept 2016]; Dove v Manhattan Plaza Health Club, 113 AD3d 455 [1st Dept 2015], lv denied 24 NY3d 901 [2014]). In Dove, the plaintiff “slipped and fell on water located on the tile floor around the indoor pool of defendants’ health club,” prompting this Court to observe that “the presence of such water was necessarily incidental’ to the use of the pool” … . In Noboa-Jaquez, the plaintiff slipped on the tiled floor in the area of the gym’s showers, and this Court applied the same reasoning as in Dove to hold that “[t]he mere presence of water on a tiled floor adjacent to the gym’s showers cannot impart liability, particularly since water was necessarily incidental to the use of the area” … . Neither of those holdings stands for the broader proposition that any water on a tiled floor anywhere in a locker room must preclude a claim for negligence because water is “necessarily incidental” to the entire locker room’s intended use. From the evidence before us, it does not appear that plaintiff was in the shower area, and he had clearly left the pool area. Grossman v TCR, 2016 NY Slip Op 06114, 1st Dept 9-21-16

NEGLIGENCE (WATER ON LOCKER ROOM FLOOR WAS NOT NECESSARILY INCIDENTAL TO USE OF THE AREA, DEFENSE MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (WATER ON LOCKER ROOM FLOOR WAS NOT NECESSARILY INCIDENTAL TO USE OF THE AREA, DEFENSE MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN TRIP AND FALL CASE PROPERLY GRANTED.

The First Department, over a dissent, determined defendants were entitled to summary judgment in this slip and fall case. Plaintiff alleged he tripped over the upturned corner of a rug:

The doorman on duty testified that he observed the carpet, used when there was inclement weather, in its usual location between the door and the elevator less than an hour before the accident and that he did not notice any part of the carpet that was not lying perfectly flat in the area of the elevators … . He also testified that he did not remember having ever seen a carpet whose corners were not lying flat to the floor at any time during January 2011. Nor did he ever see anyone use tape to keep the corners of the carpet down. Defendants also pointed to plaintiff’s testimony that the first time he saw a portion of the carpet raised was when the doorman helped him after he fell … . Reeves v 1700 First Ave. LLC, 2016 NY Slip Op 06050, 1st Dept 9-15-16

NEGLIGENCE (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN TRIP AND FALL CASE PROPERLY GRANTED)/SLIP AND FALL (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN TRIP AND FALL CASE PROPERLY GRANTED)

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UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED.

The First Department, in a full-fledged opinion by Justice Renwick, over an extensive dissenting opinion by Justice Kahn, determined that, under the unambiguous terms of the policy, the absence of a written contract directly with the additional insured precluded coverage for the additional insured, despite a written agreement with a third party to provide coverage for the additional insured. The lawsuit stemmed from damage to surrounding buildings during construction:

The principal issue in this appeal is the interpretation of the additional insurance endorsement in the policy which provides that an additional insured is “any person or organization with whom you [the insured] have agreed to add as an additional insured by written contract.” Trial courts have arrived at conflicting interpretations of a similarly worded additional insured clause as to whether coverage is extended not only to those “with whom” the insured agreed, but also to those “for whom” the insured agreed to provide coverage … . We hold that the subject additional insured clause covers only those that have a written contracts directly with the named insured. * * *

… [W]e find that the language in the “Additional Insured-By Written Contract” clause of the … policy clearly and unambiguously requires that the named insured execute a contract with the party seeking coverage as an additional insured. Since there is no dispute that [the insured] did not enter into a written contract with the JV (joint venture), [the insured’s] agreement in its contract with DASNY (Dormitory Authority of the City of New York) to procure coverage for the JV is insufficient to afford the JV coverage as an additional insured under the … policy. Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 2016 NY Slip Op 06052, 1st Dept 9-15-16

 

INSURANCE LAW (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)/CONTRACT LAW (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)/ADDITIONAL INSURED (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)

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EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY.

The First Department determined plaintiff stated causes of action for employment discrimination and retaliation under both the state and city (NYC) Human Rights Law. The court noted that claims after 2011 were time-barred under the state law, but claims going back to 2007 were timely under the city law, which allows otherwise time-barred claims which are part of a continuing course of conduct:

… [P]laintiff’s claims under the New York State HRL for failure to promote after May 23, 2011 are timely and should not have been dismissed, as plaintiff alleged sufficient facts to meet his pleading burden for purposes of this motion to dismiss … . Plaintiff’s claims for failure to promote under the City HRL were also improperly dismissed because plaintiff has adequately alleged “a single continuing pattern of unlawful conduct [starting from his first promotion rejection in 2007] extending into the [limitations] period immediately preceding the filing of the complaint” … , which permits consideration under the City HRL of all actions relevant to that claim, including those that would otherwise be time-barred … . Moreover, while, as plaintiff concedes, the continuing violations doctrine only applies to his claims of failure to promote under the City HRL … , even under the State HRL, he “is not precluded from using the prior acts as background evidence in support of a timely claim'” … . St. Jean Jeudy v City of New York, 2016 NY Slip Op 06045, 1st Dept 9-15-16

EMPLOYMENT LAW (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/DISCRIMINATION (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/

MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED.

The First Department, in a full-fledged opinion by Justice Andrias, determined defendant’s motion to vacate his conviction, based primarily upon newly discovered evidence, was properly denied without a hearing. Although two identification witnesses recanted, the recantations were suspect and there were other eyewitnesses. A confession to the crime by another was refuted by documentary evidence. With respect to the criteria for a showing of “actual innocence,” the court explained:

To vacate a judgment based on actual innocence pursuant to CPL 440.10(h), defendant must demonstrate with clear and convincing evidence, which was not presented at trial, his factual innocence, i.e. that he was actually innocent of the crimes for which he was convicted … . To be sufficient, clear and convincing evidence must establish that the claim asserted is “highly probable.” “Mere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty”… .

“A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the court” … . As recently explained by this Court … , which agreed with the [2nd] Department that CPL 440.10(h) embraces a claim of actual innocence, “[T]his specific standard for actual innocence claims should be considered in light of, and alongside, the more general standard applicable on any motion to vacate a conviction brought under CPL 440.10. Thus, statements of fact supporting the motion must be sworn … . Further, hearsay statements in support of such motions are not probative evidence … .” People v Velazquez, 2016 NY Slip Op 05961, 1st Dept 9-8-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED)/VACATE CONVICTION,  MOTION TO (MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED)/ACTUAL INNOCENCE (MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED)

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QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED.

The First Department, over a two-justice dissent, determined there were questions of fact about whether plaintiff’s signing of a quitclaim deed was procedurally and substantively unconscionable. Plaintiff, who believed he no longer owned the land, signed the deed in return for $5000. The property was worth $1,000,000:

No one procedural factor can be relied upon to support or discount a claim of procedural unconscionability. Such claims are most often fact sensitive and dependent upon the particular circumstances surrounding a transaction, which, at the very least, mandate the opportunity for an evidentiary hearing … . Certainly, the factual allegations … raise material issues of fact as to whether plaintiff was afforded a “meaningful choice” in his decision to execute the quitclaim deed and whether the terms of the agreement are “unreasonably favorable” to [defendants]. These issues cannot be resolved by summary judgment.

With respect to the element of substantive unconscionability, we also find that there are material issues of fact. In order to determine if the agreement is substantively unconscionable, there must be an “analysis of the substance of the bargain to determine whether the terms were unreasonably favorable to the party against whom unconscionability is urged” … . …[D]espite the fact that plaintiff believed he no longer owned the property, there is nothing in this record to indicate that he was ever divested of title by either an in rem proceeding or direct sale … . Green v 119 W. 138th St. LLC, 2016 NY Slip Op 05955, 1st Dept 9-8-16

 

REAL PROPERTY (QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED)/CONTRACT LAW (QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED)/QUITCLAIM DEED (QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED)/UNCONSCIONABILITY (QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED)

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PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT.

The First Department, with a two-justice concurring memorandum, determined conflicting testimony raised questions of fact about whether a safety harness was available and whether the scaffold was defective. Plaintiff was not wearing a harness when he attempted to move from the roof to a scaffold and fell. With respect to the scaffold, the court noted that plaintiff’s allegedly inconsistent accounts of the cause of the fall raised a question of fact:

According to plaintiff, as he attempted to swing down from the roof to the scaffold, a wire attaching the scaffold to the building snapped, causing the scaffold to swing away from the wall and resulting in plaintiff’s fall to the ground below. The foreman, however, testified that, in conversation after the accident, plaintiff had admitted to him that he fell because his foot had slipped as he stepped onto the scaffold from the roof, without mentioning any movement of the scaffold. These two versions of how the accident happened, each given by plaintiff, the sole witness to the incident, are inconsistent with each other and give rise to an issue of fact as to whether plaintiff’s fall was caused by a failure of a safety device within the purview of § 240(1). As this Court recently noted, “[W]here a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident” … . Albino v 221-223 W. 82 Owners Corp., 2016 NY Slip Op 05953, 1st Dept 9-8-16

LABOR LAW (PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT)/EVIDENCE (LABOR LAW, PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT)

USE OF PIER 55 FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE.

The First Department, in affirming the decision of the Hudson River Park Trust to enter into a lease of Pier 55 on the Hudson River, noted that there is no case law in New York applying the public trust doctrine to state, as opposed to municipal, parkland, and, even if the doctrine applied, the lease did not violate it:

There is no case law in New York applying the public trust doctrine to state, as opposed to municipal, parkland (see Matter of Niagara Preserv. Coalition, Inc. v New York Power Auth., 121 AD3d 1507, 1511 [4th Dept 2014] … ). We need not decide whether to follow the [4th] Department because even if the doctrine applies here, the project and lease do not violate it. The Hudson River Park Act expressly authorizes the use of the park for revenue-generating events, including performing arts events (see Uncons Laws §§ 1642[c], [e]; 1643[h][ii]; 1647[10][a]), and courts have upheld the charging of fees for park facilities, provided that overall public access is not unduly constrained … . Here, beyond the performances for which Pier 55 is designed, most of the park-like pier, most of the time, will be devoted to even more fundamental “public park uses, including passive and active public open space uses” (Uncons Laws § 1643[h][ii]). Additionally, the lease requires that 51% of the performances be free or low-cost. Matter of City Club of N.Y., Inc. v Hudson Riv. Park Trust, Inc., 2016 NY Slip Op 05954, 1st Dept 9-8-16

ENVIRONMENTAL LAW (USE OF PIER 55 FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/PUBLIC TRUST DOCTRINE (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/HUDSON RIVER PARK TRUST (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/PIER 55 (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/PARKS (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)/PIER 55 (USE OF PIER 55 ON THE HUDSON RIVER FOR REVENUE-GENERATING EVENTS DOES NOT VIOLATE THE PUBLIC TRUST DOCTRINE)

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CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE.

The First Department, in a full-fledged opinion by Justice Tom, determined plaintiffs (parents of students, among others) had sufficiently pled certain causes of action based upon the state’s alleged failure to adequately fund New York City public schools. The complex discussion cannot be summarized here. With respect to a municipality’s (here, the City of Yonkers’) lack of standing standing to sue the state in this context, the court explained:

The City of Yonkers maintains that it has capacity to sue …, asserting that the educational funding cuts have deprived it of a proprietary interest in the Foundation Aid monies calculated to be apportioned to it by formula pursuant to the 2007 Budget and Reform Act. This argument is unpersuasive. Contrary to Yonkers’s contention, the proprietary interest exception does not apply where a municipality has “a mere hope or expectancy” of receiving funds … , but instead “relate[s] to funds or property of a municipal corporation in its possession or to which it had a right to immediate possession” … . The Foundation Aid monies provided for under the 2007 Budget and Reform Act (codified in Education Law § 3602) are the product of a complex formula that turns on the application of numerous variables, including things like a school district’s “daily attendance figures” … . Sums allocated pursuant to the formula therefore vary from year to year. Moreover, any sums provided for by Foundation Aid must themselves be the subject of a separate budgetary appropriation; absent such appropriation, they do not exist (see State Finance Law §§ 4[1]; 40[2][a]). Thus, the Foundation Aid formula does not create any “specific sum of money” that would “create[] a proprietary interest” in any school district … . Aristy-Farer v State of New York, 2016 NY Slip Op 05960, 1st Dept 9-8-16

EDUCATION-SCHOOL LAW (CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE)/MUNICIPAL LAW (CERTAIN CAUSES OF ACTION IN COMPLAINTS ALLEGING THE STATE HAS FAILED TO ADEQUATELY FUND NEW YORK CITY PUBLIC SCHOOLS ADEQUATELY PLED; MUNICIPALITY (CITY OF YONKERS), HOWEVER, DID NOT HAVE STANDING TO SUE)

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CAUSES OF ACTION FOR BOTH CONSTRUCTIVE AND ACTUAL FRAUDULENT CONVEYANCE STATED, ELEMENTS DESCRIBED.

The First Department determined the complaint stated causes of action for both constructive and actual fraudulent conveyance. The facts are too complex to summarize here, but the nature of the transactions is revealed in the following excerpts:

The complaint states a cause of action for constructive fraudulent conveyance against Globe Institute, the Rabinovich defendants and 878 LLC by alleging that the conveyance of Globe Institute’s assets to 878 LLC was made without the exchange of “fair consideration,” since the transaction could be viewed as resulting in part of the value of Globe Institute’s assets being paid to its shareholders indirectly, suggesting bad faith (see Debtor and Creditor Law § 272[a]). Further, while the asset purchase agreement provided for 878 LLC to assume certain liabilities of Globe Institute and to make future conditional payments to Globe Institute’s shareholders, in opposition to the motion, plaintiff presented supplementary evidence that the consideration was not a “fair equivalent” for the valuable assets transferred (see id.). The complaint also adequately alleges that the transaction rendered Globe Institute insolvent (Debtor and Creditor Law § 273) and was accomplished while Globe Institute was engaged in business (Debtor and Creditor Law § 274), and that Globe Institute and the Rabinovich defendants were aware that the transaction would prevent Globe Institute from fulfilling its obligations under its guarantee of rental payments due under Globe Alumni’s lease … .

The cause of action for actual fraudulent conveyance under Debtor and Creditor Law § 276 is also adequately pleaded against Globe Institute, the Rabinovich defendants, and 878 LLC. Although the transaction was conducted at arm’s length, plaintiff has sufficiently alleged ” badges of fraud,'” i.e., “circumstances so commonly associated with fraudulent transfers that their presence gives rise to an inference of intent,'” including (1) the parties’ structuring of the transaction so that the sole consideration promised to Globe Institute, aside from 878 LLC’s assumption of certain of Globe Institute’s liabilities, was a $1.35 million payment directly to its shareholders, the Rabinovich defendants, rather than to Globe Institute itself, (2) the exclusion of Globe Institute’s guarantee of the lease agreement from the list of assumed liabilities, although the parties knew that Globe Institute would be left as a corporate shell as result of the transaction and would therefore be unable to honor any future liabilities, (3) inadequate consideration, and (4) the transaction’s having been outside the usual course of business and hastily closed over the course of only a few days, while other potential buyers required a much longer due diligence period … . 172 Van Duzer Realty Corp. v 878 Educ., LLC, 2016 NY Slip Op 05957, 1st Dept 9-8-16

DEBTOR-CREDITOR LAW (CAUSES OF ACTION FOR BOTH CONSTRUCTIVE AND ACTUAL FRAUDULENT CONVEYANCE STATED, ELEMENTS DESCRIBED)/FRAUD  (CAUSES OF ACTION FOR BOTH CONSTRUCTIVE AND ACTUAL FRAUDULENT CONVEYANCE STATED, ELEMENTS DESCRIBED)/FRAUDULENT CONVEYANCE (CAUSES OF ACTION FOR BOTH CONSTRUCTIVE AND ACTUAL FRAUDULENT CONVEYANCE STATED, ELEMENTS DESCRIBED)

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