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NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL.

The First Department, in a full-fledged opinion by Justice Andrias, over an extensive dissenting opinion, determined a New York City local law mandating the disclosure of information about the selection process for construction of affordable housing was not preempted by state statutes and was not unconstitutional:

Although one may reasonably argue, as does the dissent, that the disclosure requirements imposed by the law are costly, difficult or cumbersome, or that the law will not remedy corruption in the developer selection process or further the flexible and economical implementation of publicly funded housing, the wisdom, necessity or efficacy of the law is not the province of the courts… .  … [T]he only issue before us is whether Local Law No. 44 is unconstitutional because it is preempted by state statutes or violates the Due Process and Equal Protection Clauses of the New York State Constitution. Applying well established precedent to the facts, we find that Local Law No. 44 does not unlawfully interfere with or frustrate [New York City Department of  Housing Preservation and Development (HPD)'s] authority under the City Charter or impermissibly conflict with the State Legislature's delegation of authority and discretion over affordable housing programs to HPD, and that it is not otherwise unconstitutional. New York State Assn. for Affordable Hous. v Council of the City of N.Y., 2016 NY Slip Op 04320, 1st Dept 6-2-16

MUNICIPAL LAW (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/AFFORDABLE HOUSING (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/PREEMPTION (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/LOCAL LAW (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/HOUSING  (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)

HOMEOWNER’S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME.

The First Department, reversing Supreme Court, determined the homeowner's exemption from liability under the Labor Law for one- and two-family homes applied, despite evidence three families lived in the home:

The applicability of the homeowner exemption is determined by a “site and purpose” test … , which “hinges upon the site and the purpose of the work” and “must be employed on the basis of the homeowners' intentions at the time of the injury” … . Here, the evidence established that, at the time of the accident, defendants' house was a two-family residential home with a basement apartment, where a family friend lived, and three upper floors, which defendants shared with an adult child and two grandchildren. Defendants did not receive any rental income. That three families, two of which are related, lived in the home is insufficient to raise an issue of fact as to whether the home was a three-family dwelling … . Del Carnen Diaz v Bocheciamp, 2016 NY Slip Op 04305, 1st Dept 6-2-16

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER'S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME)/HOMEOWNER'S EXEMPTION (LABOR LAW, HOMEOWNER'S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME)

GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS.

The First Department determined, under the facts, the police department's Glomar response to the request for documents was appropriate. A Glomar response refuses to admit or deny the existence of documents:

FOIL does not prohibit respondents from giving a Glomar response to a FOIL request — that is, a response “refus[ing] to confirm or deny the existence of records” where, as here, respondents have shown that such confirmation or denial would cause harm cognizable under a FOIL exception … . Although petitioners contend that such a response is impermissible in the absence of express statutory authorization, the Glomar doctrine is “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” … . * * *

Respondents met their burden to “articulate particularized and specific justification” for declining to confirm or deny the existence of the requested records, which sought information related to NYPD investigations and surveillance activities … . In particular, respondents showed that answering petitioners' inquiries would cause harm cognizable under the law enforcement and public safety exemptions of Public Officers Law § 87(2) (see § 87(2)[e], [f] … . Matter of Abdur-Rashid v New York City Police Dept., 2016 NY Slip Op 04318, 1st Dept 6-2-16

FREEDOM OF INFORMATION LAW (FOIL) (GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS)/GLOMAR RESPONSE (FOIL, GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS)

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OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND.

The First Department determined plaintiffs' opening statement, which alleged an intentional act by defendant, warranted dismissal of the negligence claims:

Plaintiffs' opening statement warranted dismissal of the negligence and negligent battery claims, because the claim that defendant … used excessive force in handcuffing plaintiff … is fatally inconsistent with the negligence claims … . Vaynshelbaum v City of New York, 2016 NY Slip Op 04302, 1st Dept 6-2-16

CIVIL PROCEDURE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/NEGLIGENCE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/OPENING STATEMENTS (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)

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PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED AND PURCHASED A CONTROLLING INTEREST, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS.

The First Department, in a full-fledged opinion by Justice Gische, determined plaintiff, a sophisticated investor, did not state a cause of action for fraud on the part of the company (DuCool) in which plaintiff invested:

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]). * * *

Plaintiff is an experienced and sophisticated investor. It did not plead facts to support the justifiable reliance element of fraud … . Plaintiff had total, unfettered access to every aspect of DuCool's company information both before and after its initial investment, even before it held a controlling interest in DuCool. Although learning through the due diligence conducted by its own technology and business consultants that there were frequent technological problems with DuCool products, some of them “severe,” plaintiff proceeded to invest in the company. Thereafter, as the 49% shareholder, plaintiff had the largest percentage ownership of any individual shareholder and it had access to information concerning the operations of the business. There is no factual basis on which to conclude that the alleged fraud involved matters peculiarly within defendants' knowledge, because plaintiff had the means to discover the truth behind any false claims about the condition of the company and whether this was a feasible investment… . MP Cool Invs. Ltd. v Forkosh, 2016 NY Slip Op 04159, 1st Dept 5-31-16

FRAUD (PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS)/CORPORATION LAW (PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS)/CORPORATION LAW (PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED AND PURCHASED A CONTROLLING INTEREST, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS)

DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL.

The First Department, reversing defendant's conviction, determined the trial court should have allowed the disabled and ill defendant to appear at trial remotely by video. Contrary to the trial court's reasoning, the prosecutor's consent to the procedure was not required:

… [T]he court erred in believing that CPL article 182 restricted its authority to use video conferencing to effectuate a defendant's right to be present at trial. “Although the Legislature has primary authority to regulate court procedure, the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute,” and “[b]y enacting Judiciary Law § 2-b(3), the Legislature has explicitly authorized the courts' use of innovative procedures where necessary to carry into effect the powers and jurisdiction possessed by [the court]” * * *

… [W]e conclude that where the court essentially accepted defendant's claims of extreme pain and physical distress, where the alternative of electronic appearance was actually available based on the court's own efforts, where it was not employed only because the court wrongly believed that it lacked the required discretion … , and where the accommodations actually offered by the court were far less efficacious, the court, despite the best intentions, failed to reasonably accommodate defendant's medical concerns … . In these circumstances, defendant's waiver of the right to be present was not knowing, voluntary, and intelligent … . People v Krieg, 2016 NY Slip Op 04134, 1st Dept 5-31-16

CRIMINAL LAW (DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL)/VIDEO (CRIMINAL TRIAL, (DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL)

QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION.

The First Department determined a question of fact about the applicability of the emergency doctrine precluded summary judgment in favor of the plaintiff in this rear-end collision case. Plaintiff's car was stopped because of a flat tire. Defendant alleged he did not see plaintiff's car because his line of sight was blocked by a car in front which merged left just prior to the collision:

Although there is a presumption of liability based upon the rear-end collision (see Francisco v Schoepfer, 30 AD3d 275 [1st Dept 2006]), questions of fact exist as to whether the emergency doctrine applies so as to provide defendant with a reasonable excuse for the collision. Such issues include whether plaintiff's hazard lights were flashing, whether defendant maintained a safe distance behind the car driving in front of him, and whether under the circumstances defendant acted reasonably to avoid the collision … . Gonzalez v Marescot, 2016 NY Slip Op 04105, 1st Dept 5-26-16

NEGLIGENCE (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)/REAR-END COLLISION (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)/EMERGENCY DOCTRINE (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)

ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST.

The First Department, in a full-fledged opinion by Justice Saxe, determined that the state, although the title owner of the property (Pier 40) where plaintiff was injured by a falling beam, was not subject to absolute liability under the Labor Law. Under the Hudson River Park Act, the day to day operation and management of Pier 40 was transferred to a public benefit corporation, the Hudson River Park Trust. The court was careful to note that leasing property does not relieve the owner of Labor Law liability. However, the terms of the Hudson River Park Act indicated the legislature's intent transfer Labor Law liability to the trust:

Section 5 of the Hudson River Park Act (Uncons Laws § 1645[1]), gives the Trust total “authority over the planning, design, construction, operation and maintenance of” the park; the Act also gives the Trust the right to receive rents and other revenues generated from the park (see §§ 1646[g], 1647[10]), although ownership and title would remain with the State (see § 1647[2], [3]). Also, notably, the Act directs that the Trust has the capacity to sue and be sued (§ 1647[1][d][v]), and requires that all tort actions commenced against the Trust comply with the notice of claim requirement of General Municipal Law § 50-e (§ 1651). Most importantly, the Act expressly states that “[u]pon the coming into existence of the trust, the trust shall succeed to all contracts, leases, licenses and other legal obligations respecting the park to which its predecessors are a party at or after the effective date of this act” (§ 1645 [1] [emphasis added]). The legislature's use of the term “succeed to” and its reference to all “other legal obligations” of its predecessors clearly reflects an intent to have the Trust take over all legal liability arising out of ownership of the Park's premises. Costa v State of New York, 2016 NY Slip Op 04119, 1st Dept 5-26-16

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST)/HUDSON RIVER PARK TRUST (LABOR LAW, ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST)

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REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED.

The First Department, reversing Supreme Court, determined petitioner was not entitled to all documents held by the NYC Police Department (NYPD) concerning an unsolved 1987 homicide. The court noted that, although an appeal as of right does not generally lie from a nonfinal order in an Article 78 proceeding, leave to appeal was granted here given the important, substantive issues raised:

NYPD properly withheld the requested materials pursuant to the exemption to FOIL for documents that “are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations” (Public Officers Law § 87[2][e][i]). NYPD met its burden of “identify[ing] the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents” … . In particular, NYPD submitted an affidavit by a detective averring that he was handling an active, ongoing investigation into the homicide, and had recently pursued potential leads. The detective's affidavit established that disclosure of the records could interfere with the active investigation by, among other things, leading to witness tampering or enabling the perpetrator to evade detection. Given the foregoing determination, we need not reach the other exemptions cited by NYPD. Matter of Loevy & Loevy v New York City Police Dept., 2016 NY Slip Op 04099, 1st Dept 5-26-16

FREEDOM OF INFORMATION LAW (FOIL) (REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED)/APPEALS (REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED)

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INSURER’S DUTY TO DEFEND MUST BE DETERMINED SOLELY UPON THE INFORMATION WITHIN THE COMPLAINT, MATTERS OUTSIDE THE COMPLAINT MUST BE RAISED IN A SUMMARY JUDGMENT MOTION OR AT TRIAL.

The First Department determined, in this declaratory judgment action, the insurer has the duty to defend the city in this slip and fall case. The fact that information which is outside the four corners of the complaint may indicate the insurer does not have the duty to defend must be raised in a summary judgment motion or at trial:

Under the circumstances presented, the City’s cross motion is granted to the extent of declaring that plaintiff is obligated to defend it in the underlying litigation. The duty of an insurer to provide a defense for its insured is “exceedingly broad,” arising “whenever the allegations of the complaint suggest. . . a reasonable possibility of coverage” … . Accordingly, “a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence,” even if “facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered” … . Thus, an insurer may be contractually bound to defend “even though it may not ultimately be bound to pay, either because its insured is not factually or legally liable or because the occurrence is later proven to be outside the policy’s coverage” … .

Here, the four corners of the complaint in the underlying action place the allegations squarely within the responsibilities of plaintiff’s insured, triggering the duty to defend. Plaintiff’s primary argument, that the accident was not within its insured’s area of responsibility, is properly made to Supreme Court in a motion for summary judgment dismissing Bari’s complaint or at trial and cannot be resolved by this Court on a motion seeking declaratory relief… . Axis Surplus Ins. Co. v GTJ Co., Inc., 2016 NY Slip Op 04106, 1st Dept 5-26-16

INSURANCE LAW (INSURER’S DUTY TO DEFEND MUST BE DETERMINED SOLELY UPON THE INFORMATION WITHIN THE COMPLAINT, MATTERS OUTSIDE THE COMPLAINT MUST BE RAISED IN A SUMMARY JUDGMENT MOTION OR AT TRIAL)/NEGLIGENCE (INSURER’S DUTY TO DEFEND MUST BE DETERMINED SOLELY UPON THE INFORMATION WITHIN THE COMPLAINT, MATTERS OUTSIDE THE COMPLAINT MUST BE RAISED IN A SUMMARY JUDGMENT MOTION OR AT TRIAL)

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