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BAR AND SECURITY COMPANY COULD BE LIABLE FOR AN ASSAULT BY A SECURITY GUARD UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR.

The First Department, reversing Supreme Court, determined defendants' motion for a directed verdict should not have been granted. Plaintiff alleged he was punched and severely injured by a man dressed like other security guards at a bar. The bar (Hiro) and the security company (NEC) could be liable under the doctrine of respondeat superior. A new trial was ordered:

The trial court erred in granting Hiro's motion for a directed verdict, since there is evidence to support a reasonable jury's finding that plaintiff's assailant was a Hiro employee or an NEC employee who was supervised by Hiro, for whose acts Hiro could have been found liable upon the theory of respondeat superior … . An attack on plaintiff by a security guard could be found to be within the scope of the guard's employment … . Plaintiff's inability to identify his assailant, who left after the incident, does not preclude him from recovery … . Jones v Hiro Cocktail Lounge, 2016 NY Slip Op 04110, 1st Dept 5-26-16

EMPLOYMENT LAW (BAR AND SECURITY COMPANY COULD BY LIABLE FOR AN ASSAULT BY A SECURITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR)/ASSAULT (BAR AND SECURITY COMPANY COULD BY LIABLE FOR AN ASSAULT BY A SECURITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR)/SECURITY GUARDS  (BAR AND SECURITY COMPANY COULD BY LIABLE FOR AN ASSAULT BY A SECURITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR)/RESPONDEAT SUPERIOR (BAR AND SECURITY COMPANY COULD BY LIABLE FOR AN ASSAULT BY A SECURITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR)

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SHAREHOLDERS’ DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined defendant's motion to strike plaintiff's demand for a jury trial in this shareholders' derivative action should have been granted. The court noted that a motion to strike a demand for a jury trial can be made anytime up to the opening of trial:

Supreme Court erred in finding that plaintiff in this shareholders' derivative action was entitled to a jury trial, since the claims brought in his capacity as a shareholder were “derivative and therefore equitable in nature” … . Contrary to plaintiff's contention, the motion was not untimely, since a motion to strike a demand for a jury trial may be made at anytime up to the opening of trial … , and we find no prejudice in defendants' delay of a few months, following the restoration of the case to the calendar, in making their motion. Moyal v Sleppin, 2016 NY Slip Op 04107, 1st Dept 5-26-16

CORPORATION LAW (SHAREHOLDERS' DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (SHAREHOLDERS' DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED)/SHAREHOLDERS' DERIVATIVE ACTION (SHAREHOLDERS' DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED)/JURY TRIAL, MOTION TO STRIKE DEMAND FOR (SHAREHOLDERS' DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED)

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RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION.

The First Department, applying contract interpretation principles to a release, determined the release, narrowly interpreted by its precise terms, applied to the Cabrini Center for Nursing and Rehabilitation, but did not apply to a private attending physician (Nicolescu) at Cabrini:

Assuming arguendo that defendant Nicolescu, a private attending physician at Cabrini, could be considered a “staff” member of Cabrini, the release is unambiguously limited only to “causes of action” that plaintiffs had against Cabrini, and does not release any other tortfeasors not expressly named therein from liability for causes of action asserted against them (General Obligations Law § 15-108[a]…). Interpreting the release as urged by defendant Nicolescu to release him from liability for causes of action asserted against him individually would return to the common law rule in effect before enactment of General Obligations Law § 15-108(a), when general releases were “a trap for the average man who quite reasonably assumes that settling his claim with one person does not have any effect on his rights against others with whom he did not deal” … . Linn v New York Downtown Hosp., 2016 NY Slip Op 03992, 1st Dept 5-24-16

NEGLIGENCE (RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION)/GENERAL OBLIGATIONS LAW (RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION)/CONTRACT LAW (RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION) RELEASES (RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION)

CONFLICTING EVIDENCE OF EXISTENCE OF PUDDLE CREATED A CREDIBILITY ISSUE IN THIS SLIP AND FALL CASE WHICH COULD NOT BE RESOLVED WITHOUT TRIAL.

The First Department determined conflicting evidence in this slip and fall case, submitted by defendants in support of summary judgment, created an issue of fact for trial:

Defendants' employees both testified that the building's janitorial schedule required that the stairs where plaintiff's fall occurred be cleaned before the time of the accident, and that they personally inspected the stairs several times on the morning of the accident, finding no such puddle at any time. In contrast, however, plaintiff's testimony, which was submitted by defendants, was that at nearly the same time that defendants' employees claim to have found the stairs urine-free, she observed a puddle of urine in the same spot where she would later fall. Furthermore, plaintiff's daughter stated that she observed a puddle of urine in the same spot two hours before the accident, which was several hours after plaintiff claimed to have seen the puddle … . Accordingly, summary judgment was not appropriate because there remain issues of fact as to the credibility of defendants' employees and whether the urine puddle was extant on the stairs for six hours prior to plaintiff's accident without remediation by defendants. Mendoza v Fordham-Bedford Hous. Corp., 2016 NY Slip Op 03997, 3rd Dept 5-24-16

NEGLIGENCE (CONFLICTING EVIDENCE OF EXISTENCE OF PUDDLE CREATED A CREDIBILITY ISSUE IN THIS SLOP AND FALL CASE WHICH COULD NOT BE RESOLVED WITHOUT TRIAL)/SLIP AND FALL (CONFLICTING EVIDENCE OF EXISTENCE OF PUDDLE CREATED A CREDIBILITY ISSUE IN THIS SLOP AND FALL CASE WHICH COULD NOT BE RESOLVED WITHOUT TRIAL)

FIXING A LEAKY ROOF NOT ROUTINE MAINTENANCE, PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION PROPERLY SURVIVED MOTION TO DISMISS.

The First Department determined defendant's motion to dismiss plaintiff's Labor Law 240(1) cause of action was properly denied. Plaintiff climbed up a permanent ladder to fix a roof leak. The ladder was wet with rain, shaky and too close to the wall. Plaintiff fell when he attempted to come back down the ladder from the roof:

… [D]efendant [is not] entitled to dismissal of the Labor Law § 240(1) claim. Plaintiff was engaged in repairing the roof, an activity to which Labor Law § 240(1) applies, and not merely in routine maintenance … . Moreover, the permanently affixed ladder that provided the sole access to plaintiff's elevated work site was a safety device within the meaning of Labor Law § 240(1) … . In view of plaintiff's testimony that the ladder shook and was wet and was too close to the wall to allow room for his feet on the rungs, defendant failed to demonstrate as a matter of law that plaintiff was provided with proper protection. Kolenovic v 56th Realty, LLC, 2016 NY Slip Op 04005, 1st Dept 5-24-16

LABOR LAW-CONSTRUCTION LAW (FIXING A LEAKY ROOF NOT ROUTINE MAINTENANCE, PLAINTIFF'S LABOR LAW 240(1) CAUSE OF ACTION PROPERLY SURVIVED MOTION TO DISMISS)

REMOVING A CRATE FROM A FLATBED TRUCK WAS AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240(1).

The First Department determined plaintiff's motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. Plaintiff was attempting to maneuver a 1500-pound crate to a sling for removal from a flatbed truck when it fell over on him:

… [ P]reparing a six-foot-tall crate weighing at least 1,500 pounds for hoisting posed an elevation-related risk for plaintiff within the meaning of Labor Law § 240(1) … , and the crate was “an object that required securing for the purposes of the undertaking” … .

Further, there is unrebutted evidence that various devices, including wooden blocks for bracing, would have stabilized the crate while it was being maneuvered into a position to have slings placed on it for hoisting by the crane. Grant v Solomon R. Guggenheim Museum, 2016 NY Slip Op 04003, 1st Dept 5-24-16

LABOR-CONSTRUCTION LAW (REMOVING A CRATE FROM A FLATBED TRUCK WAS AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240(1))

REVERSIBLE ERROR TO RECONSIDER THE VERDICT.

The First Department determined, in this bench trial, the court's failure to notify counsel, prior to summations, that it would consider a lesser included offense (attempted robbery) was reversible error. After the court found defendant guilty of attempted robbery, upon objection, the court allowed defense counsel to reopen his summation and issued another verdict. The First Department held the trial court did not have the power to reconsider the case after verdict:

The trial court's failure to comply with CPL 320.20(5) by not notifying the parties that it intended to consider a lesser included offense until after it rendered the original verdict, constitutes reversible error. “After formal rendition of a verdict at a bench trial, a trial court lacks authority to reweigh the factual evidence and reconsider the verdict” … . Here, it is undisputed that upon defendant's CPL 330.30 motion, the court reopened summations, and rendered a new verdict. Although this Court has previously held that failure to comply with CPL 320.20(5) constitutes harmless error when the defendant has the opportunity to address the lesser included offenses in a new summation … , the same cannot be said here where the trial court attempted to rectify its error only after it rendered the verdict. …

We agree that the double jeopardy clause bars a new trial on the original indictment. The People must secure a new indictment if they wish to pursue further prosecution on the lesser included charge … . People v Agola, 2016 NY Slip Op 04004, 1st Dept 5-24-16

CRIMINAL LAW (REVERSIBLE ERROR TO RECONSIDER THE VERDICT)/VERDICTS (CRIMINAL LAW, REVERSIBLE ERROR TO RECONSIDER THE VERDICT)/LESSER INCLUDED OFFENSE (IN A BENCH TRIAL, REVERSIBLE ERROR TO FAIL TO NOTIFY COUNSEL, PRIOR TO SUMMATIONS, OF CONSIDERATION OF A LESSER INCLUDED OFFENSE)

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PURCHASER OF UNSOLD SHARES IN A COOPERATIVE BOUND BY A STIPULATION TO WHICH PURCHASER WAS NOT A PARTY; STIPULATION RESTRICTED THE NUMBER OF BOARD MEMBERS WHO COULD BE ELECTED BY HOLDERS OF UNSOLD SHARES.

The First Department, in a full-fledged opinion by Justice Acosta, determined a purchaser of a cooperative apartment, Johnson, was bound by a pre-existing stipulation to which Johnson was not a party. The stipulation required that the holders of unsold shares in the cooperative (HUS) could elect no more than two of the five directors. Unsold shares are held by investors who do not live in the apartments:

The [relevant] documents, including Johnson’s express agreement to take subject to the provisions of the proprietary lease, which incorporated the stipulation, make clear that he was an HUS and was bound by the stipulation’s provisions, including the election restriction … .

[The holder of the unsold shares] should not be permitted to frustrate its obligations under the offering plan or stipulation by transferring its shares to puppet entities to syphon votes away from resident shareholder candidates in order to control the board well beyond the period contemplated by the Attorney General … . Indeed, there is no question that the sole purpose of [the] assign[ment of] 600 shares to Johnson just four days before the … board election was to avoid the provision that prohibited holders of unsold shares from electing more than two directors. Matter of Tiemann Place Realty, LLC v 55 Tiemann Owners Corp., 2016 NY Slip Op 04007, 1st Dept 5-24-16

CONTRACT LAW (COOPERATIVE APARTMENTS, PURCHASER OF UNSOLD SHARES IN A COOPERATIVE BOUND BY A STIPULATION TO WHICH PURCHASER WAS NOT A PARTY; STIPULATION RESTRICTED THE NUMBER OF BOARD MEMBERS WHO COULD BE ELECTED BY HOLDERS OF UNSOLD SHARES)/CORPORATION LAW (COOPERATIVE APARTMENTS, PURCHASER OF UNSOLD SHARES IN A COOPERATIVE BOUND BY A STIPULATION TO WHICH PURCHASER WAS NOT A PARTY; STIPULATION RESTRICTED THE NUMBER OF BOARD MEMBERS WHO COULD BE ELECTED BY HOLDERS OF UNSOLD SHARES)/COOPERATIVES (COOPERATIVE APARTMENTS, PURCHASER OF UNSOLD SHARES IN A COOPERATIVE BOUND BY A STIPULATION TO WHICH PURCHASER WAS NOT A PARTY; STIPULATION RESTRICTED THE NUMBER OF BOARD MEMBERS WHO COULD BE ELECTED BY HOLDERS OF UNSOLD SHARES)

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ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH.

The First Department determined the down payment bearing interest at the rate agreed to in the (real estate) contract was the exclusive remedy. The court should not have awarded interest at the statutory rate:

The contract's terms, requiring that the down payment be placed in an interest-bearing account, so that the party entitled to the down payment would receive compensation for the deprivation of its use of the money in the form of accrued interest, were sufficiently clear to establish that interest paid at the statutory rate was not contemplated by the parties at the time the contract was formed and that the amount escrowed, including interest earned, should be the exclusive remedy to the wronged party … . Ithilien Realty Corp. v 176 Ludlow, LLC, 2016 NY Slip Op 04002, 1st Dept 5-24-16

CIVIL PROCEDURE (ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH)/CONTRACT LAW (ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH)/REAL ESTATE (ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH)

FALL FROM LADDER WHILE SETTING UP AUDIOVISUAL EQUIPMENT NOT COVERED BY LABOR LAW 240 (1).

The First Department determined plaintiff's fall from a ladder while setting up audiovisual equipment was not covered by Labor Law 240 (1):

While the work that the injured plaintiff was doing immediately before his accident should not be viewed in isolation in determining whether he has a potentially viable claim under Labor Law § 240(1) … , the motion court correctly found that the his work was outside the scope of activity protected by that statute. Plaintiff, a lighting engineer, fell off a ladder while attempting to replace a gel that altered the color of one light on a temporary lighting stand secured to the floor by sandbags. The work performed by plaintiff and his employer entailed moving audiovisual, staging and lighting equipment into a hotel ballroom, assembling, setting up, and positioning the equipment as necessary for its use in an event, and removing it after the event ended. There is no evidence that any of this work “altered” or caused a substantial, or indeed any, physical change to the building … . Royce v DIG EH Hotels, LLC, 2016 NY Slip Op 03985, 1st Dept 5-19-16

LABOR LAW (FALL FROM LADDER WHILE SETTING UP AUDIOVISUAL EQUIPMENT NOT COVERED BY LABOR LAW 240 (1))

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