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QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED.

The First Department, over an extensive dissent, determined the motion for summary judgment dismissing the negligence cause of action against defendant property manager was properly denied. Defendant contracted with the board of a cooperative to manage the property. Plaintiff alleged defendant’s attempt to fix a minor leak caused water to damage his unit:

Regardless of which party had the burden of proof on the Espinal exception, the evidence submitted on the motion established that defendant attempted to fix the leak or leaks on several occasions and that the problem persisted and culminated in a flood of water “cascading” into plaintiff’s apartment. Plaintiff testified that the leak began on March 8, 2010, and lasted a few days. The leak started again in May 2010, and reoccurred in August 2010 and December 2010, and finally, the “big finale” of water cascading into plaintiff’s unit occurred in August 2011. Defendant attempted to fix the leaks on several occasions. Invoices dated March 10, April 13, September 28, and December 30, 2010 indicate that plumbing work was done in response to plaintiff’s complaints about water leaks. The notations in these invoices do not definitively establish whether or not defendant’s plumbers “launched a force or instrument of harm.” Thus, contrary to the dissent’s contention, the evidence raises an issue of fact as to whether defendant’s attempts to fix the water leak exacerbated the condition that led to the more serious leak that occurred in August 2011. Karydas v Ferrara-Ruurds, 2016 NY Slip Op 05941, 1st Dept 9-1-16

NEGLIGENCE (ESPINAL EXCEPTION, QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED)/CONTRACT LAW (NEGLIGENCE, ESPINAL EXCEPTION, QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED)/TORT LIABILITY ARISING FROM CONTRACT (QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED).ESPINAL EXCEPTION( QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED)

IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE.

The First Department, over an extensive two-justice dissent, determined that, where a question of fact has been raised in an accident case about whether plaintiff was comparatively negligent, summary judgment finding defendant liable cannot be granted. Here, the plaintiff was alleged to have been injured while walking behind a sanitation truck which was backing up:

In this case, we are revisiting a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department. The precedents cited by the dissent have, in fact, acknowledged as much. After a review of the relevant precedents, we believe that the original approach adopted by this Department, as well as that followed in the [2nd] Department, which requires a plaintiff to make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability, is the correct one. …

The issue that arises in the context of a summary judgment motion brought by a plaintiff on the issue of liability is whether, as the dissent posits, the motion should be granted and the issue of contributory negligence considered during the damages portion of the case or where the defendant raises an issue of fact with respect to the plaintiff’s negligence and the plaintiff fails to show the absence of negligence on his or her part, the motion must be denied and that issue considered during the liability phase of the trial. As discussed herein, the latter is the fairer, and therefore the proper way to proceed. Rodriguez v City of New York, 2016 NY Slip Op 05943, 1st Dept 9-1-16

 

NEGLIGENCE (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/COMPARATIVE NEGLIGENCE (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/EVIDENCE (NEGLIGENCE, (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)

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INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE WAS PROHIBITED BY LAW.

The First Department, in a full-fledged opinion by Justice Gische, reversing Supreme Court, determined the insurer (Century) of plaintiff gas company (Keyspan) was not liable for pollution damage for periods of time which preceded the 16 years the policy was in place and during which pollution insurance was prohibited by law:

New York appellate courts … have not expressly ruled on the question presented here, which is: When the reason for the period of no insurance is that the insured could not have obtained insurance even if it had wanted to, is the risk attendant to the unavailability of insurance in the marketplace allocable to the existing, triggered insurance policies or to the insured? * * *

… [T]he order of the Supreme Court … which … denied defendant Century Indemnity Company’s motion for partial summary judgment declaring that Century is not responsible for any part of the costs of cleanup for periods of time when insurance was unavailable before 1953 and after 1986, should be unanimously reversed, on the law, without costs, and the motion granted, and it should be so declared. Keyspan Gas E. Corp. v Munich Reins. Am., Inc., 2016 NY Slip Op 05945, 1st Dept 9-1-16

 

INSURANCE LAW (INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE WAS PROHIBITED BY LAW)/ENVIRONMENTAL LAW (POLLUTION INSURANCE, INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE WAS PROHIBITED BY LAW)/POLLUTION INSURANCE (INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE WAS PROHIBITED BY LAW)

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SOPHISTICATED INVESTOR DID NOT STATE A CAUSE OF ACTION FOR FRAUD.

The First Department, in a full-fledged opinion by Justice Gische, recalling and vacating a prior decision and order dated May 31, 2016, determined plaintiff did not state a cause of action for fraud. Plaintiff, a sophisticated investor, procured a majority interest in DuCool, a manufacturer of heating and cooling equipment. The plaintiff, in a share purchase agreement, acknowledged the speculative nature of the investment. And plaintiff was given full access to DuCool’s records prior to the purchase:

Where a cause of action is based in fraud, “the complaint must allege misrepresentation or concealment of a material fact, falsity, scienter on the part of the wrongdoer, justifiable reliance and resulting injury” … . Furthermore, where the plaintiff is a sophisticated party, “if the facts represented are not matters peculiarly within the [defendant’s] knowledge, and the [plaintiff] has the means available to [it] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, [the plaintiff] must make use of those means, or [it] will not be heard to complain that [it] was induced to enter into the transaction by misrepresentations” … . Circumstances constituting fraud must be set forth in a complaint in detail (CPLR 3016[b]). MP Cool Invs. Ltd. v Forkosh, 2016 NY Slip Op 05944, 1st Dept 9-1-16

FRAUD (SOPHISTICATED INVESTOR DID NOT STATE A CAUSE OF ACTION FOR FRAUD)/SECURITIES (SOPHISTICATED INVESTOR DID NOT STATE A CAUSE OF ACTION FOR FRAUD)/CORPORATION LAW (SOPHISTICATED INVESTOR DID NOT STATE A CAUSE OF ACTION FOR FRAUD)

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MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED.

The First Department, over a dissent, determined the Public Administrator’s late motion (CPLR 1021) for substitution (for the deceased plaintiff) in a medical malpractice action was properly granted. There was a delay of more than one year after letters testamentary were issued before substitution was sought. The delay was essentially caused by law office failure. With respect to a reasonable excuse for the delay, the court wrote:

… [T]he record shows that there was a dispute between two of [the deceased’s] children as to who would administer the estate, and that the Public Administrator’s counsel was on maternity leave for five months. In addition, in this case, inadvertent errors in drafting the agreement to retain counsel accounted for some of the delay. Thus, … there are circumstances present that “adequately explain[] the delay in issue” … . Public Adm’r, as Adm’r of the Estate of Ronald Simpson v Levine, 2016 NY Slip Op 05896, 1st Dept 8-25-16

 

TRUSTS AND ESTATES (MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED)/CIVIL PROCEDURE (TRUSTS AND ESTATES, MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED)

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PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL.

The First Department, reversing Supreme Court’s dismissal of the complaint during trial, determined the plaintiff’s failure to turn over a videotape of the event during which plaintiff allegedly tripped on a cord and fell did not justify dismissing the complaint. On the third day of the trial plaintiff testified she had found a videotape of the event which had been misplaced. The videotape did not show the trip and fall, but allegedly did show the cord which caused the fall:

Under the particular circumstances of this case, the court abused its discretion in dismissing the complaint due to plaintiff’s belated disclosure of a video. Although CPLR 3101(i) requires disclosure of “any films, photographs, video tapes or audio tapes” of a party upon demand … , there was insufficient evidence of willful or contumacious conduct on plaintiff’s part, or prejudice to [defendant], to warrant the dismissal of her complaint in the midst of the jury trial ,,,, even if the dismissal was without prejudice.

There was no court order directing plaintiff to produce the video, and [defendant’s] discovery demands only requested that she produce photographs. Furthermore, plaintiff, who claimed to have misplaced the video, did not seek to introduce the edited video, which did not show her fall, into evidence at trial, and was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of [defendant’s] principals standing in the vicinity. Fox v Grand Slam Banquet Hall, 2016 NY Slip Op 05897, 1st Dept 8-25-16

NEGLIGENCE (PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL)/EVIDENCE (CIVIL, PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL)

ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW.

The First Department affirmed summary judgment to the defendants in this slip and fall case. Plaintiff fell off an elevated platform. However the platform and steps were well-marked and well-lit and plaintiff testified she fell because she was not looking down. The defendants therefore demonstrated the platform did not constitute a dangerous condition as a matter of law:

… [P]laintiff alleges that she was injured when she fell off an elevated display platform in defendants’ store. Defendants submitted evidence demonstrating that the platform and steps leading to the platform were not dangerous conditions as a matter of law through photographic evidence showing that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also showed that the steps were well lit and free of debris … .

Furthermore, plaintiff testified that she turned and stepped without looking down because she was seeking a sales associate and that the steps played no part in her fall … . Pinkham v West Elm, 2016 NY Slip Op 05899, 1st Dept 8-25-16

 

NEGLIGENCE (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)/DANGEROUS CONDITION (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)/SLIP AND FALL (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)

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WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED.

The First Department determined the Port Authority of NY & NJ did not waive sovereign immunity, despite several contract provisions requiring several steps to resolve disputes prior to resorting to suit. Because the notice of claim and the subsequent filing of a complaint were not timely pursuant to Unconsolidated Law 7107, the complaint was properly dismissed. The court noted that, although the waiver of sovereignty argument was not raised below, the appellate court could consider the argument (which was rejected). With respect to the powers of the appellate court in this context, the court explained:

… [W]here a party does not allege new facts, but merely raises a legal argument that appeared upon the face of the record, we are free to consider the argument “[s]o long as the issue is determinative and the record on appeal is sufficient to permit our review” … . The waiver argument presents this very circumstance, and therefore, we consider [the] waiver argument on this appeal. W&W Steel, LLC v Port Auth. of N.Y. & N.J., 2016 NY Slip Op 05900, 1st Dept 8-25-16

(MUNICIPAL LAW (WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)APPEALS (WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)/IMMUNITY (MUNICIPAL LAW, WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)

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TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined defendant was deprived of his right to counsel when, after his attorney had been relieved, the judge pressured defendant into providing a DNA sample. The People’s request for a DNA sample came long after the discovery deadline had passed. The defendant ultimately pled guilty to manslaughter and burglary. The First Department vacated the guilty pleas and dismissed the indictment:

The court rejected defendant’s repeated pleas for a lawyer, pressured him into submitting to the DNA test, and incorrectly advised him that he had no argument against the prosecutor’s untimely discovery. The denial of defendant’s repeated entreaties to consult with a lawyer during this critical stage of the proceedings violated his Sixth Amendment rights. The deprivation of his Sixth Amendment rights is of constitutional dimension and is not subject to a harmless error analysis … . The appropriate remedy under the circumstances is to vacate both pleas, and to dismiss the indictment … . People v Smith, 2016 NY Slip Op 05902, 1st Dept 8-25-16

CRIMINAL LAW (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)/RIGHT TO COUNSEL (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)/DNA SAMPLE (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)

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PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION.

The First Department, in a full-fledged opinion by Justice Friedman, determined a publicity agent for a broadway show breached the covenant of good faith and fair dealing implicit in the agent’s contract with the show’s producer. The agent, Thibodeau, sent emails to an investor which were intended to sink the project, and the investor pulled out. The defamation and tortious interference causes of action will go to trial. But the breach of contract cause of action was demonstrated as a matter of law. The plaintiff is a limited partnership formed to put on the show, RBLP:

The record establishes that Thibodeau, without RBLP’s authorization, and using confidential information he had obtained as a result of his employment as RBLP’s press representative, sent an email directly to Runsdorf, a key potential investor who had desired to remain anonymous, causing Runsdorf to withdraw his financial commitment, all of which resulted in the cancellation of rehearsals and the play’s failure to open. Even assuming that his conduct did not violate the express terms of his agreement to act as the play’s press representative, Thibodeau breached the implied duty of good faith and fair dealing by essentially defeating the purpose of the agreement by his actions … . Thibodeau was hired by RBLP to use his public relations skills to facilitate the production of a play; his actions, in which he made use of confidential information that RBLP had entrusted to him in the course of his employment, made it impossible for RBLP to produce the play as planned. It is difficult to imagine a plainer case of a party to a contract utterly defeating the purpose for which the other party had entered into that contract, or a more blatant example of an agent’s disloyalty to his principal .. . Rebecca Broadway L.P. v Hotton, 2016 NY Slip Op 05839, 1st Dept 8-18-16

CONTRACT LAW (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/COVENANT OF GOOD FAITH AND FAIR DEALING (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/DEFAMATION (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/TORTIOUS INTERFERENCE WITH CONTRACT (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)

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