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DEFENDANT DID NOT ESTABLISH IT WAS AN OUT-OF-POSSESSION LANDLORD; MANAGEMENT AGREEMENT INCLUDED THE RIGHT TO INSPECT THE PROPERTY AND AN AGREEMENT TO INDEMNIFY TENANT FOR CLAIMS ARISING FROM TENANT’S NEGLIGENCE.

The First Department determined defendant did not demonstrate it was an out-of-possession landlord and defendant was therefore properly held liable for plaintiff’s slip and fall. Plaintiff worked for nonparty tenant Sunrise Senior Living Management, Inc. (SSLM) with which defendant had a property management agreement. Although the agreement required SSLM to maintain the facility, defendant had access to the facility for inspection and agreed to indemnify SSLM for claims arising from SSLM’s negligence:

Defendant failed to establish that it was an out-of-possession landowner with limited liability to third persons injured on the property … . Its management agreement with SSLM gave SSLM “complete and full control and discretion in the operation … of the Facility” and required SSLM to “maintain the Facility … in conformity with applicable Legal Requirements.” However, defendant had “access to the Facility at any and all reasonable times for the purpose of inspection,” had access to SSLM’s books and records, and was required to fund operating shortfalls, and SSLM was required to report to defendant regularly and to maintain bank accounts in approved financial institutions “as agent for [defendant].”

Significantly, the management agreement requires defendant to indemnify SSLM for claims arising out of SSLM’s own negligence in the performance of its duties. This agreement to indemnify is analogous to the procurement of insurance, which constitutes evidence of ownership and control … . It evidences defendant’s intent to be responsible for any accidents on the property. But for the fortuity of plaintiff’s being an employee who was barred from suing his employer, defendant would be responsible, through the indemnification provision, for his injuries. Waring v Sunrise Yonkers SL, LLC, 2015 NY Slip Op 09174, 1st Dept 12-10-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (DEFENDANT NOT AN OUT-OF-POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)/LANDLORD-TENANT (DEFENDANT NOT AN OUT-OF-POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)/OUT-OF-POSSESSION LANDLORD (DEFENDANT NOT AN OUT-OF POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)

PLAINTIFF, WHO SOLD GOODS TO NEW JERSEY COMPANIES FOR WHICH IT WAS NOT FULLY PAID, FAILED TO DEMONSTRATE NEW YORK JURISDICTION; FACTS PLED DID NOT DEMONSTRATE LONG-ARM JURISDICTION; SITUS OF THE INJURY WAS NEW JERSEY, NOT NEW YORK.

The First Department determined plaintiff did not demonstrate New York jurisdiction under the long arm statute (CPLR 302(a)(1) or under the statute imposing jurisdiction based on an out-of-state tort causing injury in New York (CPLR 302(a)(3)(ii)). Plaintiff allegedly sold goods to two New Jersey companies for which plaintiff was not fully paid.  The assets of the two New Jersey companies were allegedly sold to a European company. Plaintiff alleged the transfer to the European company was a fraudulent conveyance. In finding both jurisdictional arguments lacking, the court wrote:

… [T]he purchase and sale transaction, whereby this in-state plaintiff shipped goods to the out-of-state defendants, who then failed to fully pay for the goods, is “[t]he classic instance in which personal jurisdiction is found not to exist” … . Plaintiff has offered nothing but conclusory assertions to support long-arm jurisdiction under CPLR 302(a)(1). * * *

The court also properly rejected plaintiff’s assertion of jurisdiction under CPLR 302(a)(3)(ii), for an alleged tort committed without the state causing injury within the state. As to the tort committed without the state, plaintiff points to the alleged fraudulent conveyance …. This fails, however, because the “the situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt” … . Thus, this alleged tortious act did not cause injury within New York, but in New Jersey. Plaintiff has also offered nothing but conclusory allegations that any defendant “derives substantial revenue from interstate or international commerce,” as required for jurisdiction under CPLR 302(a)(3)(ii). Cotia (USA) Ltd. v Lynn Steel Corp., 2015 NY Slip Op 09169, 1st Dept 12-10-15

CIVIL PROCEDURE (LONG-ARM JURISDICTION NOT DEMONSTRATED, SALE OF GOODS TO COMPANIES IN NEW JERSEY)/CIVIL PROCEDURE (JURISDICTION BASED UPON SITUS OF THE INJURY NOT DEMONSTRATED)/JURISDICTION (LONG-ARM JURISDICTION AND JURISDICTION BASED UPON SITUS OF THE INJURY NOT DEMONSTRATED)/LONG-ARM JURISDICTION (SALE OF GOODS TO OUT-OF-STATE BUYER NOT SUFFICIENT)/SITUS OF INJURY JURISDICTION (SITUS OF INJURY FROM ALLEGED FRAUDULENT CONVEYANCE WAS NOT NEW YORK)

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INADMISSIBLE TESTIMONIAL HEARSAY, PROSECUTORIAL MISCONDUCT, AND JUDGE’S ACTIONS TO COERCE THE JURY TO REACH A VERDICT DEPRIVED DEFENDANT OF A FAIR TRIAL.

The First Department reversed defendant’s conviction, finding several distinct flaws which deprived defendant of a fair trial. Testimonial hearsay which served to bolster the complainant’s identification of the defendant was improperly admitted. The prosecutor improperly referred to stricken testimony in summation. And the judge effectively coerced the jury into reaching a verdict.  With respect to the coerced verdict, the court wrote:

During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days … . The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system … .

The court further indicated that the jury would likely continue deliberating into the next week although jurors had been told during jury selection that the case would be over by the aforementioned Friday, raising concerns for one juror who was going to start a new job the following Monday and another juror who was solely responsible for his child’s care in the first three days of the next week … . After the court informed the latter juror that he would be required to show up the next week despite the juror’s purportedly fruitless efforts to obtain alternative childcare, and then brought the juror back into the courtroom solely to reiterate that point more firmly, the jury apparently returned its verdict within less than nine minutes, at about 3:29 p.m. on the Friday … . The totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict. People v DeJesus, 2015 NY Slip Op 08959, 1st Dept 12-8-15

CRIMINAL LAW (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, REFERENCE TO STRICKEN TESTIMONY)/CRIMINAL LAW (COERCED VERDICT, MISTRIAL SHOULD HAVE BEEN GRANTED)/EVIDENCE (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/HEARSAY (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)PROSECUTORIAL MISCONDUCT (REFERENCE TO STRICKEN TESTIMONY)/COERCED VERDICT (JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/VERDICT (COERCED, JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/MISTRIAL (JUDGE IMPROPERLY COERCED JURY TO REACH A VERDICT, MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED)

NOTE WITH 12% INTEREST RATE FOR LESS THAN A YEAR WAS USURIOUS.

The First Department determined a note was void as usurious.  Although the face of the note indicated the interest rate was 12%, the duration of the note was less than a year.  The actual interest was a usurious 36%:

It is true that the stated rate on the four-month note is 12%. However, it does not say 12% per annum. Where, as here, the loan is for less than a year, the interest rate is annualized … , and thus, the annual rate on the note is 36%, well above the criminal usury rate of 25%. It is also true that the note says, “in no event shall the rate of interest payable hereunder exceed the maximum interest permitted to be charged by applicable law and any interest paid in excess of the permitted rate shall be credited to principal and any balance refunded to” defendant. However, that does not make the subject note nonusurious … . Furthermore, even if defendant drafted the note, that “does not relieve the lender from a defense of usury” … . Bakhash v Winston, 2015 NY Slip Op 08966, 1st Dept 12-8-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

USURY (EFFECTIVE ANNUAL INTEREST ON NOTE WAS 36%)

RARE CASE WHERE DEFENDANT SUBMITTED SUFFICIENT EVIDENCE TO DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT CREATE OR EXACERBATE A DANGEROUS CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined defendant (Sailsman) was entitled to summary judgment in a slip and fall case. Defendant demonstrated that his snow removal efforts did not create or exacerbate a dangerous condition. [This case is noteworthy because the vast majority of defendants’  motions for summary judgment in similar cases are denied for failure to present the necessary evidence.]:

Sailsman made a prima facie showing that his property is a two-family home in which he resides, not subject to liability pursuant to Administrative Code of City of NY § 7-210 (b), and that his voluntary snow removal efforts did not create or exacerbate the alleged hazardous condition on the sidewalk … . Sailsman testified that the day before the accident, he removed the snow and ice from the sidewalk and applied enough salt to completely melt the ice, and provided a neighbor’s affidavit confirming that the sidewalk was clear and safe to walk on, as well as photographs taken shortly after the accident. Montiel v Sailsman, 2015 NY Slip Op 08968, 1st Dept 12-8-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (PROPERTY OWNER DEMONSTRATED SNOW REMOVAL EFFORTS DID NOT CREATE DANGEROUS CONDITION)/SNOW REMOVAL EFFORTS (DEFENDANT DEMONSTRATED IT DID NOT CREATE DANGEROUS CONDITION)/SLIP AND FALL (SNOW REMOVAL DID NOT CREATE DANGEROUS CONDITION)

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PROOF REQUIREMENTS FOR RACIAL DISCRIMINATION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW EXPLAINED; PLAINTIFF’S ACTION SHOULD HAVE BEEN DISMISSED.

The First Department, in a full-fledged opinion by Justice Acosta, determined plaintiff, who had brought a racial-discrimination action under the New York City Human Rights Law,  was unable to show that the employer’s reasons for terminating her were pretextual. The court held that the phrase “a leopard does not change its spots” and the term “tirade,” used in reference to plaintiff’s behavior, did not have discriminatory meanings. With respect to the proof requirements under the NYC Human Rights Law (“City HRL”), the court explained:

How the City HRL’s distinctive substantive definitions, standards, and frameworks interact with existing standards for summary judgment has been the subject of some confusion … . As with any other civil case, a discrimination plaintiff must produce enough evidence to preclude the moving defendant from being able to prove that (1) no issues of material fact have been placed in dispute by competent evidence, and (2) a reasonable jury (resolving all inferences that can reasonably be drawn in favor of the non-moving party) could not find for the plaintiff on any set of facts under any theory of the case. But recognizing that the general evidentiary standard remains the same in discrimination cases does not permit a court to apply the standard in a manner that ignores the distinctiveness of City HRL causes of action. All the general standard does, in other words, is provide the template that says, “Defendant must prove that no reasonable jury can conclude X.” The “X” depends on the cause of action.

Thus, the only substantive requirement in a City HRL case where the plaintiff goes the “pretext” route is for the plaintiff to produce some evidence to suggest that at least one reason is “false, misleading, or incomplete.” A plaintiff who satisfies this requirement may well have produced less evidence than would be required under the state and federal laws. But he or she will have produced enough evidence to preclude the defendant from proving that no reasonable jury could conclude that any of the defendant’s reasons was pretextual. In other words, the general evidentiary standard comfortably co-exists with the distinctive substantive framework that must be applied to City HRL claims. Cadet-Legros v New York Univ. Hosp. Ctr., 2015 NY Slip Op 08984, 1st Dept 12-6-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

EMPLOYMENT LAW (NYC HUMAN RIGHTS LAW RACIAL DISCRIMINATION ACTION DISMISSED)/HUMAN RIGHTS LAW, NEW YORK CITY (PROOF REQUIREMENTS EXPLAINED)/DISCRIMINATION (NYC HUMAN RIGHTS LAW ACTION DISMISSED)/ MUNICIPAL LAW (DISCRIMINATION ACTION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW)

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STATEMENTS ATTRIBUTED TO PLAINTIFF PROPERLY REDACTED FROM HOSPITAL RECORDS; EXPERT TESTIMONY DISCLOSED DAYS BEFORE TRIAL PROPERLY PRECLUDED.

In a case with a substantial plaintiff’s verdict, the First Department noted the statement that the driver “made an illegal left turn,” which was attributed to the plaintiff, was properly redacted from the hospital records.  It was not clear the plaintiff made the statement.  Even if she did, plaintiff was not the driver so it was not a statement against plaintiff’s interest. The statement was not made for the purpose of diagnosis and treatment. And the statement does not relate to a matter of fact (“illegal” is a conclusion of law). The First Department further noted that the trial court’s preclusion of testimony by defendants’ experts was not an abuse of discretion. The defendants served their disclosures only days before the trial:

The trial court providently exercised its discretion in precluding testimony from defendants’ biomechanical and accident reconstruction experts because defendants served their disclosures only days before the scheduled trial date. We see no reason to disturb the trial court’s exercise of discretion in precluding this testimony … , whether applying a “good cause” standard … or a “willful or prejudicial” standard … . We also see no reason to disturb the trial court’s exercise of discretion in precluding testimony regarding a seatbelt defense … . Coleman v New York City Tr. Auth., 2015 NY Slip Op 08906, 1st Dept 12-3-15

NEGLIGENCE (ADMISSIBILITY OF STATEMENTS IN HOSPITAL RECORDS)/EVIDENCE (ADMISSIBILITY OF STATEMENTS IN HOSPITAL RECORDS)/HOSPITAL RECORDS (ADMISSIBILITY OF STATEMENTS INCLUDED IN)/EXPERT TESTIMONY (LATE NOTICE, PROPERLY PRECLUDED)/EVIDENCE (PRECLUSION OF EXPERT TESTIMONY PROPER, LATE DISCLOSURE)

A QUESTION OF FACT EXISTS WHETHER DEFENDANT DRUG TREATMENT FACILITY OWED A DUTY OF CARE TO PLAINTIFF WHO WAS STABBED BY A PATIENT OF THE FACILITY SHORTLY AFTER DISCHARGE.

The First Department, in a full-fledged opinion by Justice Sweeny, over a full-fledged dissenting opinion by Justice Saxe, determined defendant drug treatment facility (Queens Village) did not demonstrate that it owed no duty  of care to plaintiff who was stabbed by a patient who had just been discharged by the facility. Queens Village is an alternative to incarceration. The patient was there because he had robbed a cab driver at gunpoint. The patient was discharged because he had pushed another patient to the ground and admitted drinking alcohol. The director of Queens Village indicated that the plan was to transfer the patient to an interim facility until he could be returned to the TASC program [Treatment Alternatives for Safer Communities]. However, the patient apparently became enraged when told he was being discharged and was “escorted” from Queens Village by the police. There was no evidence the police took the patient into custody, or that the police were told by Queens Village to take the patient to the interim facility. The majority concluded that the evidence demonstrated Queens Village exercised sufficient control over the patient (he was to be transferred to an interim facility, not released) to give rise to a duty of care owed to plaintiff. Because Queens Village moved for summary judgment, the court deemed that Queens Village did not demonstrate, as a matter of law, that it did not owe plaintiff a duty of care:

Generally, the common law does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; rather, liability for the negligent acts of third persons “arises when the defendant has authority to control the actions of such third persons” … . * * *

The key factor in determining whether a defendant will be liable for the negligent acts of third persons is whether the defendant has sufficient authority to control the actions of such third persons … . Such authority, at a minimum, requires “an existing relationship between the defendant and the third person over whom charge’ is asserted” … .There is no question that Queens Village had “an existing relationship” and sufficient authority to control [the patient’s] actions. Oddo v Queens Vil. Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 2015 NY Slip Op 08943, 1st Dept 12-3-15

NEGLIGENCE (DUTY OF CARE RE: THIRD PARTY)/DUTY OF CARE (OWED TO THIRD PARTY)/THIRD PARTY (DUTY OF CARE OWED TO)

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WAIVER OF APPEAL INVALID; DESCRIPTION OF THE EXTENT OF THE WAIVER WAS ERRONEOUS; NO ASSURANCE DEFENDANT WAS AWARE OF THE DIFFERENCE BETWEEN RIGHTS WAIVED BY GUILTY PLEA AND APPELLATE RIGHTS.

The First Department sent the matter back for resentencing because the record suggested the sentencing judge erroneously thought he did not have the power to impose a reduced sentence. The First Department determined the defendant’s waiver of appeal was invalid because the sentencing judge erroneously stated the relevant law and did not make sure the defendant understood the difference between the rights waived by entering a guilty plea and his appellate rights:

Defendant’s waiver of his right to appeal was invalid, where the court failed to adequately ensure defendant’s understanding that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty … . The court’s statement that defendant was “waiving [his] right to appeal any legal issues connected with the case, including the sentence” (emphasis added) was incorrect, insofar as a defendant cannot waive certain rights, such as the right to challenge the legality of a sentence or raise a speedy trial claim … . The court’s further statement that the “right of appeal is waived by [defendant], the rights I just mentioned are automatically waived by a plea” was insufficient to explain that the right to appeal is not included with those automatically waived by a guilty plea, since the court had “just mentioned” that right. Moreover, defendant’s execution of a written waiver “does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal” … . People v Flores, 2015 NY Slip Op 08905, 1st  Dept 12-3-15

CRIMINAL LAW (WAIVER OF APPEAL INVALID)/APPEALS (CRIMINAL LAW, WAIVER INVALID)/WAIVER OF APPEAL INVALID

O’RAMA-PROCEDURE ERRORS WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR REVIEW BY OBJECTIONS.

The First Department determined that the O’Rama-procedure errors made by the trial judge did not rise to the level of “mode of proceedings” errors and were not preserved for appeal by objection. The note was read essentially verbatim in open court, but the judge did not give counsel advance notice of the contents of the note and did not give the parties the chance for input re: the response:

The trial court’s handling of the note sent out by the jury during deliberations did not constitute a mode of proceedings error … . The note contained two questions and two requests for exhibits. While the court initially read only the first substantive question into the record in the presence of counsel before the jury was brought into the courtroom, once the jury was brought in, the court read the remainder of the note aloud, essentially verbatim, stopping at the end of each of the four parts to provide its response. Although the court did not inform counsel in advance about the entirety of the note or give the parties any opportunity for input into the court’s proposed responses, by reading the full contents of the note in the presence of the parties and the jury, the court satisfied its core responsibility … . People v Ramirez, 2015 NY Slip Op 08772, 1st Dept 12-1-15

CRIMINAL LAW (JURY NOTES, O’RAMA ERROR NOT PRESERVED)/JURY NOTES (O’RAMA ERROR NOT PRESERVED)

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