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PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF THE PRECISE TERM.

The First Department, over an extensive dissent, determined the prenuptial agreement waived both parties' entitlement to temporary maintenance during the divorce proceedings. The majority gleaned the intent to waive temporary maintenance from various provisions of the agreement, even though the terms “temporary maintenance” and “interim spousal support” were not used. The dissent argued that the waiver of “maintenance” in the agreement should not be interpreted to waive “temporary maintenance:”

Although the dissent acknowledges that “no particular catechism is required to waive temporary maintenance claims,” it nevertheless finds the agreement ambiguous and suggests that the parties may only have intended to waive a final award of maintenance. No fair reading of the agreement supports that conclusion. When read as a whole, the agreement contains no ambiguity as to whether the parties intended to waive temporary maintenance. As noted, the agreement waives “any and all” maintenance claims, “now and in the future.” Contrary to the dissent's view, there is nothing imprecise about the phrase “any and all.” Indeed, this Court has repeatedly found the use of that phrase to be “clear”… . Further, although minimized by the dissent, the agreement explicitly states that the parties are “fully capable of being self supporting,” which is another indicia that neither intended to seek any kind of maintenance. Anonymous v Anonymous, 2016 NY Slip Op 02016, 1st Dept 3-22-16

FAMILY LAW (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)/MAINTENANCE (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)/PRENUPTIAL AGREEMENT (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)

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OMISSIONS FROM COMPLAINT SUPPLIED BY AFFIDAVIT IN OPPOSITION TO MOTION TO DISMISS, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the omissions from the complaint against defendant insurance company were remedied by an affidavit submitted in opposition to the motion to dismiss:

A complaint must “be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions” that form the basis of the complaint and “the material elements of each cause of action” (CPLR 3013). The factual allegations of the complaint are accepted as true, and afforded “every possible favorable inference” … . “[A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one … . When such affidavits are considered, dismissal should not result unless “a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” … .

Here, the complaint standing alone failed to apprise defendant insurance companies of basic pertinent information to put them on notice of the claims against them, such as the patients treated and the insurance policies issued by defendant, under which plaintiff submitted claims for treatment rendered. However, in opposition to defendant insurance companies' motion to dismiss, plaintiff submitted an affidavit from its principal with an exhibit attached providing such information. Thus, the complaint and affidavit submitted in opposition sufficiently apprise defendant insurance companies of the “transactions, occurrences, or series of transactions” that form the basis of the complaint (CPLR 3013). High Definition MRI, P.C. v Travelers Cos., Inc., 2016 NY Slip Op 02027, 1st Dept 3-22-16

CIVIL PROCEDURE (OMISSIONS FROM COMPLAINT SUPPLIED BY AFFIDAVIT IN OPPOSITION TO MOTION TO DISMISS, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)/COMPLAINTS (OMISSIONS FROM COMPLAINT SUPPLIED BY AFFIDAVIT IN OPPOSITION TO MOTION TO DISMISS, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)

VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE.

The First Department determined a new trial on liability was required. The plaintiff fractured her ankle walking over cobblestones to board a bus which had parked five feet from the curb. The jury found plaintiff was negligent but her negligence was not the proximate cause of her injury. The First Department concluded the verdict was inconsistent and against the weight of the evidence:

The jury's finding that plaintiff was negligent, but that such negligence was not the proximate cause of her injuries, is inconsistent and against the weight of the evidence. The issues “are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . McKenzie v New York City Tr. Auth., 2016 NY Slip Op 01918, 1st Dept 3-17-16

NEGLIGENCE (VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)/VERDICTS (NEGLIGENCE, VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)/SLIP AND FALL (VERDICT FINDING PLAINTIFF WAS NEGLIGENT BUT HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURY WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE)

THE INDUSTRIAL CODE REQUIRED A GUARD ON THE SAW WHICH INJURED PLAINTIFF; DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE ALLEGATION THERE WAS NO PLACE TO INSTALL A GUARD ON THE SAW.

The plaintiff was injured when he was struck by part of a saw blade which broke off from the hand-held reciprocating saw he was using. A provision of the Industrial Code, with a couple of exceptions not relevant to this case, requires guards on hand-held saws. The saw used by plaintiff did not have any guards. Defendant alleged there was no place to attach such a guard on the saw and the plaintiff testified he had never seen a reciprocating saw with a guard. The First Department upheld the motion court's finding that the Industrial Code applied to the saw in question as a matter of law. Therefore defendant's motion for summary judgment was properly denied:

We agree with the motion court that defendant failed to satisfy its burden of establishing that section 23-1.12(c) does not apply to this case. “[T]o support a claim under Labor Law § 241(6) . . . the particular [Industrial Code] provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles” … . “The interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court” … .

Industrial Code § 23-1.12(c)(1) is sufficiently specific to support a Labor Law § 241(6) claim and is applicable because plaintiff was using a “power-driven, hand-operated saw” at the time of his accident. Defendant sought to use plaintiff's deposition testimony that he had never seen a blade cover or guard on that type of saw as expert testimony to establish that the reciprocating saw plaintiff was given was not covered by the Industrial Code provision in question … . Defendant, however, cannot avoid its duty to comply with section 23-1.12(c)(1) by asserting that the saw used by plaintiff had no base plate and could not accommodate a self adjusting guard. Section 23-1.12(c)(1) obligated defendant to ensure that the “power-driven, hand-operated saw” provided to plaintiff to perform his job was secured with guard plates to cover the saw blade. As the motion court observed, “[T]o interpret the regulation in any other manner [] would be to ineffectualize the regulation because employers, owners and contractors would only use tools that would minimize their liability.” Accordingly, we find that Industrial Code (12 NYCRR) § 23-1.12(c)(1)) is applicable to this case as a matter of law. Kelmendi v 157 Hudson St., LLC, 2016 NY Slip Op 01903, 1st Dept 3-17-16

LABOR LAW (INDUSTRIAL CODE REQUIRED A GUARD ON THE SAW WHICH INJURED PLAINTIFF, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE CLAIM THERE WAS NO PLACE TO INSTALL A GUARD ON THE SAW)/INDUSTRIAL CODE (LABOR LAW, INDUSTRIAL CODE REQUIRED A GUARD ON THE SAW WHICH INJURED PLAINTIFF, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE CLAIM THERE WAS NO PLACE TO INSTALL A GUARD ON THE SAW)

PLAINTIFF NEED NOT SHOW LADDER WHICH FELL WAS DEFECTIVE TO BE ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff need not show the ladder which fell was defective to be entitled to summary judgment on his Labor Law 240 (1) cause of action:

Plaintiff made a prima facie showing of his entitlement to summary judgment as to liability on his Labor Law § 240(1) cause of action, by submitting his own testimony that the ladder upon which he was standing to perform his work wobbled, and that both he and the ladder fell to the ground as he descended it to figure out why it had wobbled … . Plaintiff was not required to offer proof that the ladder was defective … .

In opposition, defendant failed to show that plaintiff's conduct was the sole proximate cause of the accident … and that it had provided plaintiff with adequate safety devices to prevent his fall … . Ocana v Quasar Realty Partners L.P., 2016 NY Slip Op 01902, 1st Dept 3-17-16

LABOR LAW (NO NEED TO SHOW LADDER WHICH FELL WAS DEFECTIVE TO BE ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)

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BAILEE CANNOT, PURSUANT TO THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, PURPORTED WAIVER OF SUBROGATION UNENFORCEABLE.

The First Department determined the relationship between the fine art dealer (Chowalski) and the defendant warehouse was that of bailor/bailee with respect to stored artworks.  Under the UCC the bailee (warehouse) cannot contract away liability for damage caused by lack of due care. Therefore, the waiver of subrogation in the bailment agreement was not enforceable. There was a question of fact whether the failure to move the stored artworks as Hurricane Sandy approached constituted a failure to exercise the level of care mandated by the UCC:

UCC 7-204(a) provides that a “warehouse is liable for damages for loss of or injury to the goods caused by its failure to exercise care with regard to the goods that a reasonably careful person would exercise under similar circumstances” and “is not liable for damages that could not have been avoided by the exercise of that care.” UCC 7-204(b) provides that “[d]amages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage beyond which the warehouse is not liable.” However, such limitations on liability are limited by UCC 7-202(c), which provides that such terms must not “impair its . . . duty of care under Section 7-204. Any contrary provision is ineffective.”

Here there is a question of fact concerning whether defendant, in failing to move Chowaiki's goods to either another floor, or to a location above ground level on the floor they were on, was reasonable under the circumstances. If the trier of fact finds that defendant did not act reasonably, then defendant may be liable for damages to Chowaiki's goods .

… [T]he court erred in finding that the waiver of subrogation contained in the agreement's loss/damage waiver is enforceable and bars this action.

Provisions purporting to exempt the bailee from liability for damage to stored goods from perils against which the bailor had secured insurance, even when caused by the bailee's negligence have been held to run afoul of the statutory scheme of UCC Article 7. XL Specialty Ins. Co. v Christie's Fine Art Stor. Servs., Inc., 2016 NY Slip Op 01901, 1st Dept 3-17-16

INSURANCE LAW (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)/UCC (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)/CONTRACT LAW (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)/BAILMENT   (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)/SUBROGATION  (BAILEE CANNOT, UNDER THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, WAIVER OF SUBROGATION UNENFORCEABLE)

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TACIT MISREPRESENTATION BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS.

The First Department, in a full-fledged opinion by Justice Saxe, determined respondent law school had the authority to refuse an LLM degree to a student who had completed the course requirements because of the student's (tacit) misrepresentation at the time of admission to the program. The LLM program was open to students with a law degree from a foreign school. However, the student's law degree was from an online law school—information the student should have provided when he realized the school representative was under the impression his degree was from a foreign school. The student's law school transcript was not provided until after he had begun courses in the LLM program:

With regard to the contract cause of action, petitioner relies on case law holding that “[t]here exists an implied contract between the institution and its students such that if the student complies with the terms prescribed by the institution, he will obtain the degree which he sought” … . However, even assuming that such an implied contract might have been formed here, a school has the authority to rescind a student's admission or to dismiss a student from the school, even after course work has begun or been completed, where there were material misrepresentations or omissions in the student's application … . … Although petitioner here did not affirmatively or explicitly misrepresent facts on his application, he omitted the critical fact that the school from which he had received his J.D. degree was not a foreign law school, which fact disqualified him from eligibility for entry into the LL.M. program. By submitting the application, petitioner was implicitly stating that he satisfied the program's prerequisites for attendance, in particular, the requirement that he had attended a foreign law school. Indeed, he did more than omit that information; he allowed respondents to proceed with his admission knowing that they harbored a misconception regarding the nature of the institution that had awarded him a J.D. degree. Petitioner knew or should have known from the outset that (1) to be eligible for the program to which he applied, he had to have graduated from a foreign law school, and (2) on the date he was admitted, Touro's administrators had incorrectly concluded that Novus was a law school located in the Philippines. Since petitioner's admission was based upon an omission of a material fact of which petitioner was aware, petitioner's conditional admission was falsely obtained. Pursuant to the school's code of conduct, the terms of the application and the law the school had no contractual obligation to award a degree under these circumstances. Matter of Salvador v Touro Coll., 2016 NY Slip Op 01924, 1st Dept 3-17-16

EDUCATION-SHCOOL LAW (TACIT MISREPRESENTATIONS BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS)/CONTRACT LAW (EDUCATION-SCHOOL LAW, TACIT MISREPRESENTATIONS BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS)

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EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL BEFORE A DIFFERENT JUDGE ORDERED.

The First Department concluded the trial judge improperly precluded the plaintiff in a medical malpractice action from presenting expert evidence alleging defendant doctor departed from the standard of care by failing to tie off plaintiff's decedent's femoral artery. The First Department determined the relevant theory had been raised in the bills of particular and notice of the expert's testimony had been timely provided (eight months before trial). A new trial was ordered before a different judge because the record demonstrated the trial judge's bias in favor of the defendants:

The trial court improvidently exercised its discretion in granting the motion and in dismissing the complaint based on the preclusion of evidence. Defendants' argument that they had no notice of plaintiffs' theory and were unfairly surprised is unavailing. The theory concerning vascularization of decedent's left leg was adequately disclosed in plaintiff's original and supplemental bills of particulars. Further, while CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time … , here plaintiff served the CPLR 3101(d) expert disclosure notice about eight months before trial, which was sufficient notice … . Furthermore, during that period, defense counsel were present at several pretrial conferences and raised no objections to the expert disclosure, nor did they reject the notice… .

Given the improper preclusion of evidence, plaintiffs are entitled to a new trial … . Further, the matter should be remitted for trial before a different Justice, as the record shows that the trial court was biased in favor of defendants … . Dedona v DiRaimo, 2016 NY Slip Op 01779, 1st Dept 3-15-16

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/MEDICAL MALPRACTICE (EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/JUDGES (BIAS IN FAVOR OF DEFENDANTS REQUIRED ASSIGNMENT OF NEW TRIAL TO A DIFFERENT JUDGE)

DEFENDANT’S FAILURE TO DEMONSTRATE WHEN AREA WHERE PLAINTIFF FELL WAS LAST INSPECTED OR CLEANED REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION.

The First Department, reversing (modifying) Supreme Court, determined the defendant YMCA's failure to demonstrate when the area where plaintiff fell had last been inspected or cleaned required denial of the YMCA's motion for summary judgment:

Plaintiff alleges that she slipped and fell on a puddle of water that was on the floor of a YMCA owned and maintained by defendants. The YMCA made a prima facie showing that it did not cause or create the alleged condition, because plaintiff testified that she did not see the YMCA's employees working at the accident location prior to the incident and did not know where the water came from … . The YMCA also made a prima facie showing that it lacked actual notice of the alleged condition, because the building engineer for the premises averred that he oversaw the maintenance of the premises and did not receive complaints about water on the floor prior to the accident … . However, the YMCA failed to make a prima facie showing that it lacked constructive notice of the alleged defect. The building engineer failed to aver as to when the YMCA's employees last cleaned or inspected the accident location before the incident occurred … . Graham v YMCA of Greater N.Y., 2016 NY Slip Op 01777, 1st Dept 3-15-16

NEGLIGENCE (SLIP AND FALL, DEFENDANT'S FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF SUMMARY JUDGMENT)/SLIP AND FALL (SLIP AND FALL, DEFENDANT'S FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF SUMMARY JUDGMENT)

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ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE, SEX OFFENDER CIVIL MANAGEMENT PETITION SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the state's petition for sex offender civil management should not have been dismissed after the article 10 probable cause hearing. Expert evidence was presented which alleged respondent suffered from antisocial personality disorder (ASPD) with psychopathy. That was sufficient to demonstrate probable cause:

“[I]n article 10 proceedings, issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury” … . Here, the State expert opined that respondent suffers from a mental abnormality within the meaning of the MHL based on a diagnosis of antisocial personality disorder (ASPD) with psychopathy. Although the factfinder at trial may or may not accept the expert's opinion, the expert's testimony at the hearing was not so deficient as to warrant dismissal of the petition at this early juncture, especially since the expert offered extensive testimony regarding the distinctions between ASPD and psychopathy, and since the Court of Appeals in Donald DD. did not state that a diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality … . Matter of State of New York v Jerome A., 2016 NY Slip Op 01788, 1st Dept 3-15-16

MENTAL HYGIENE LAW (ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR SEX OFFENDER CIVIL COMMITMENT)/SEX OFFENDERS (ANTISOCIAL PERSONALITY DISORDER WITH PSYCHOPATHY SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR SEX OFFENDER CIVIL COMMITMENT)

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