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ARCHITECT MAY BE LIABLE FOR BOTH BREACH OF CONTRACT AND NEGLIGENCE.

The First Department, over a dissent, determined an architect, Perkins, could be sued for both breach of contract and negligence in a lawsuit stemming from the settling of a building and other structures in the vicinity of new construction. The court also concluded the plaintiff city, although not mentioned in the contract with the architect, had raised a question of fact whether the city was an intended third-party beneficiary of the contract. With respect to when a professional-party to a contract can be liable in tort, the court wrote:

Perkins, as architect, may be subject to tort liability based on a failure to exercise due care in the performance of its duties. In making this determination, the court is to look at the nature of the injury and whether the plaintiff is merely seeking the benefit of its agreement. Where the plaintiff is merely seeking the benefit of its agreement, it is limited to a contract claim … .

Where, however, “the particular project . . . is so affected with the public interest that the failure to perform competently can have catastrophic consequences,” a professional may be subject to tort liability as well … . Indeed, “[t]his is one of the most significant elements in determining whether the nature of the type of services rendered gives rise to a duty of reasonable care independent of the contract itself” (… citing Sommer v Federal Signal Corp., 79 NY2d 540, 553 [1992]). As the Court explained in Sommer, “[I]t is policy, not the parties' contract, that gives rise to a duty of care” … . The “nature of the injury, the manner in which the injury occurred and the resulting harm” are also considered … .

Here, there is a factual question whether Perkins assumed an independent legal duty as an architect to perform its work in a manner consistent with the generally accepted standard of professional care in its industry. Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 2016 NY Slip Op 01546, 1st Dept 3-3-16

NEGLIGENCE (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)/CONTRACT LAW (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)/ARCHITECTS (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)

RIDER ASSUMED THE RISK OF BEING THROWN FROM A HORSE.

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted. Plaintiff was injured when thrown from a horse during a recreational ride at defendant’s stable. Plaintiff was deemed to have assumed the risk of being thrown from the horse:

The risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding … . There is no evidence that defendant stable was reckless, nor were there any concealed or unreasonably increased risks … . To the extent plaintiffs’ expert opined otherwise, such opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact … . Blumenthal v Bronx Equestrian Ctr., Inc., 2016 NY Slip Op 01545, 1st Dept 3-3-16

 

NEGLIGENCE (RIDER ASSUMED THE RISK OF BEING THROWN FROM A HORSE)/ASSUMPTION OF RISK (RIDER ASSUMED RISK OF BEING THROWN FROM A HORSE)/HORSES (RIDER ASSUMED RISK OF BEING THROWN FROM A HORSE)

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POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION BASED SOLELY UPON THE APPLICANT’S CRIMINAL RECORD WITHOUT APPLYING THE HIRING CRITERIA GENERALLY REQUIRED BY THE CORRECTIONS LAW.

The First Department, as a matter of first impression, determined the police department (NYPD) could refuse to hire petitioner as a civilian police communication technician (PCT) solely because petitioner had a criminal record, without regard to the criteria set out in Corrections Law article 23-a. The Corrections Law, in an effort to support the hiring of persons with a criminal record, generally requires employers to determine whether an applicant’s criminal record has a direct relationship with the responsibilities of the job and/or whether employment of the applicant would pose an unreasonable risk to the public.  The First Department concluded the Corrections Law excluded law enforcement from the reach of its hiring criteria:

Article 23-A broadly provides that employers, whether public or private, are prohibited from unfairly discriminating against persons previously convicted of one or more criminal offenses, unless after consideration of certain enumerated statutory factors, the employer determines that there is direct relationship between the offense(s) and the duties or responsibilities inherent in the license or employment sought or held by the individual, or such employment or license poses an unreasonable risk to the public, etc. (Correction Law §§ 752, 753). The statute defines the term “employment” as follows: “(5) Employment’ means any occupation, vocation or employment, or any form of vocational or educational training. Provided, however, that “employment” shall not, for the purposes of this article, include membership in any law enforcement agency” (Correction Law § 750[5] emphasis added). Matter of Belgrave v City of New York, 2016 NY Slip Op 01548, 1st Dept 3-3-16

EMPLOYMENT LAW (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)/CORRECTIONS LAW (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)/MUNICIPAL LAW  (POLICE DEPARTMENT CAN REFUSE EMPLOYMENT IN A CIVILIAN POSITION SOLELY ON THE BASIS OF THE APPLICANT’S CRIMINAL RECORD)

NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER.

The First Department determined the defendants demonstrated they did not have constructive notice of a dangerous condition allegedly caused by tracked in rain, noting there was no obligation to continuously mop up tracked in water:

 

“The fact that it was raining and water was being tracked in does not constitute notice of a dangerous situation”; … defendants “were under no obligation . . . to continuously mop up all tracked-in water” … . Moreover, plaintiff's own testimony established that the water on which she slipped was not visible and apparent and therefore could not provide constructive notice … . Plaintiff testified that, despite looking at the floor where she was walking, it was not until after she fell that she was able to discern the wet spots on the floor, which she described as clear droplets in a small area less than two feet in diameter that were “hard to have seen . . . when I was standing up.” Plaintiff failed to raise a triable issue of fact whether the accumulating rain water was a recurrent condition … . Gunzburg v Quality Bldg. Servs. Corp., 2016 NY Slip Op 01438, 1st Dept 3-1-16

 

NEGLIGENCE (NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER)/SLIP AND FALL (NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER)

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STAND-ALONE EXECUTIVE LAW 63 (12) CAUSE OF ACTION FOR FRAUD REINSTATED AGAINST DONALD TRUMP ET AL.

In an action by the Attorney General against Donald Trump, alleging fraud in connection with the operation of Trump University, the First Department, overruling its own precedent, determined Executive law 63 (12) authorized a stand-alone fraud cause of action. The court further held that the three-year statute of imitations for causes of action created by statute did not apply because Executive Law 63 (12) did not create a cause of action which did not exist at common law, rather it merely authorized the Attorney General to bring a fraud cause of action. Applying the six-year statute of limitations, the First Department reinstated the Executive Law 63 (12) cause of action, and concluded questions of fact precluded summary judgment on both the statutory and common law fraud claims:

… [L]ike similar statutes that authorize causes of action, § 63(12) defines the fraudulent conduct that it prohibits, authorizes the Attorney General to commence an action or proceeding to foreclose that conduct, and specifies the relief, including equitable relief, that the Attorney General may seek. Indeed, the language of § 63(12) parallels the language of the Martin Act, under which the Attorney General is undisputedly authorized to bring a standalone cause of action for fraudulent conduct in the securities context … . * * *

… [W]e find … that the fraud claim under § 63(12) is not subject to the three-year statute of limitations imposed by CPLR 214(2), but rather, is subject to the residual six-year statute of limitations in CPLR 213(1) … . … § 63(12) does not create any liability nonexistent at common law, at least under the court’s equitable powers. … § 63(12) does not encompass a significantly wider range of fraudulent activities than were legally cognizable before the section’s enactment … .

Nevertheless, petitioner is not entitled to summary determination of its fraud claims, under either the common law or the statute, because material issues of fact exist as to those claims. Matter of People of the State of N.Y. by Eric T. Schneiderman v Trump Entrepreneur Initiative LLC, 2016 NY Slip Op 01430, 1st Dept 3-1-16

 

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APPEAL WAIVER INVALID, FLAWED ON-THE-RECORD EXPLANATION OF WAIVED RIGHTS NOT REMEDIED BY SIGNED WRITTEN WAIVER.

The First Department, over a dissent, determined defendant’s waiver of appeal was invalid because the trial judge did not make it clear the appeal-rights were distinct from those waived by the guilty plea. The written waiver signed by the defendant was not sufficient to remedy the flawed colloquy:

 

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving, or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Rather, the court merely stated that “as a part of this” — that is, as part of the guilty plea — defendant was waiving his right to appeal and thus, that the convictions would be final because no appellate court would review them. Despite our dissenting colleague’s suggestion otherwise, the problem with the waiver’s validity is not that there was “some ambiguity in the court’s colloquy.” Rather, by using the phrase “as a part of this,” the trial court expressly undercut the principle that a defendant must understand his waiver of appeal to be distinct from the rights forfeited upon a guilty plea … . …

… [T]the written waiver that defendant signed was no substitute for an on-the-record explanation of the nature of the right to appeal … . This conclusion holds especially true here, where the record does not make clear when defendant signed the waiver. Although the waiver itself states that defendant signed the waiver only “after being advised by the Court,” it is not evident from the record whether defendant signed the waiver before the colloquy regarding his right to appeal, or whether he signed it after. People v Bryant, 2016 NY Slip Op 01427, 1st Dept 3-1-16

 

CRIMINAL LAW (INVALID WAIVER OF APPEAL)/APPEALS (CRIMINAL, WAIVER OF APPEAL INVALID)/WAIVER (APPEAL, WAIVER INVALID DESPITE SIGNED WRITTEN WAIVER)

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THE PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, DEFENDANT’S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION PROPERLY GRANTED.

The First Department determined Supreme Court properly dismissed the indictment on speedy trial grounds. At issue was the delay associated with obtaining DNA test results. A delay for that purpose can be an “exceptional circumstance” justifying exclusion of the delay from the speedy trial clock, but only if the People act with due diligence. The court determined numerous other delays during the course of the proceedings demonstrated the People did not act with due diligence:

Pursuant to CPL 30.30(4)(g), periods of delay caused by “exceptional circumstances” are excludable from the time charged to the People; the People have the burden of proving the existence of an exceptional circumstance … . CPL 30.30(4)(g)(i) specifically makes excludable a continuance “granted because of the unavailability of evidence material to the People's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.” Under this provision, the unavailability of DNA test results can be considered an exceptional circumstance, so long as the People exercised due diligence to obtain the results … .

Acknowledging that “[t]here is no precise definition of what constitutes an exceptional circumstance,” the Court of Appeals has made clear that the exception to the rule must conform to the legislative intent of discouraging prosecutorial inaction … . People v Gonzalez, 2016 NY Slip Op 01388, 1st Dept 2-25-16

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)/SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)

NEW YORK COURTS DO NOT HAVE THE POWER TO DISSOLVE A FOREIGN CORPORATION.

The First Department, in a full-fledged opinion by Justice Richter, overruling its own precedent, determined New York courts do not have jurisdiction over the dissolution of a foreign corporation:

 

We agree with the near-universal view that the courts of one state do not have the power to dissolve a business entity formed under another state’s laws. Because a business entity is a creature of state law, the state under whose law the entity was created should be the place that determines whether its existence should be terminated … . Matter of Raharney Capital, LLC v Capital Stack LLC, 2016 NY Slip Op 01425, 2nd Dept 2-25-16

CORPORATION LAW (NEW YORK COURTS CANNOT DISSOLVE A FOREIGN CORPORATIOIN)/JURISDICTION (NEW YORK COURT’S CANNOT DISSOLVE A FOREIGN CORPORATION)/ FOREIGN CORPORATIONS (NEW YORK COURTS CANNOT DISSOLVE)

JUSTICES DISAGREE WHETHER STOLEN PROPERTY AND ASSAULT AND ROBBERY OFFENSES SHOULD HAVE BEEN SEVERED AS NOT SIMILAR IN LAW.

In affirming defendant’s conviction, the First Department, in two concurring memoranda, disagreed about whether the offenses should have been severed. Defendant assaulted and robbed a subway passenger, and upon arrest several stolen MetroCards were seized. Defendant was tried on all offenses in a single trial. Justice Renwick, disagreeing with Justice Andrias, argued that the severance issue was preserved and the motion should have been granted (although the error was harmless):

 

[FROM JUSTICE RENWICK’S CONCURRING MEMORANDUM:] Under the principles set forth in People v Pierce (14 NY3d 564, 573-574 [2010]), the motion court should have granted defendant’s motion to sever the counts charging possession of stolen property, relating to eight stolen MetroCards, from the other counts of the indictment, relating to an assault and robbery. The counts were not properly joined under CPL 200.20(2)(c), because they were not “similar in law,” except to the extent that “both offenses involve misappropriated property,” which does not suffice (id. at 574). Although the counts at issue here are more closely connected, factually, than were the counts in Pierce, we reject the People’s argument that this difference warrants a different result under the statute. While factual or evidentiary connections between counts may be relevant to joinder and severance under other portions of CPL 200.20 that are not applicable here, CPL 200.20(2)(c) only involves similarity of statutory provisions defining offenses. People v Davis, 2016 NY Slip Op 01257, 1st Dept 2-23-16

 

CRIMINAL LAW (JUSTICES DISAGREE WHETHER STOLEN PROPERTY AND ASSAULT AND ROBBERY OFFENSES SHOULD HAVE BEEN SEVERED)/SEVERANCE OF COUNTS (CRIMINAL LAW, JUSTICES DISAGREE WHETHER STOLEN PROPERTY AND ASSAULT AND ROBBERY OFFENSES SHOULD HAVE BEEN SEVERED)

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NO QUESTION OF FACT RAISED ABOUT AN ALLEGED ORAL WAIVER OF A LEASE PROVISION, CRITERIA EXLAINED.

The First Department, in a lease-dispute, determined the tenant’s claim that a provision of the lease requiring percentage rent (based upon the income of the tenant) was orally waived did not raise a question of fact. The lease specifically required any waiver to be in writing. The court explained when an oral waiver can be valid, despite the written-waiver requirement:

 

An agreement in a lease providing that no waiver of a term shall be inferred absent a writing to that effect is enforceable … . Thus, “if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls” … . Tenant correctly notes that the parties to a contract may, by mutual agreement, disregard a no-waiver clause. However, some performance confirming the modification must be present, and it must be “unequivocally referable to the oral modification” …  As stated by this Court, in the context of a lease dispute, there must be “sufficient indicia that the reasonable expectations of both parties under the original lease were supplanted by subsequent actions” … . …

Here, tenant has attempted to establish that it did not pay percentage rent over the years because landlord had orally waived the requirement. However, tenant has failed to establish that nonpayment of the percentage rent was unequivocally referable to the alleged statement … . To be sure, where a party orally waives a contract provision requiring the other party to perform an affirmative act, it may be difficult for the other party to establish the waiver other than by demonstrating that it did not do the thing it was originally required to do. Nevertheless, a nonbreaching party should not have to litigate the issue based only on the breaching party’s unsupported and uncorroborated representation that it orally waived a provision. This is the very reason why many contracts require waivers to be in writing. Such a bald representation is all tenant presents here. Accordingly, it has failed to raise an issue of fact. Paramount Leasehold, L.P. v 43rd St. Deli, Inc., 2016 NY Slip Op 01258, 1st Dept 2-23-16

 

CONTRACT LAW (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)/LANDLORD-TENANT (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)/WAIVER (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)

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