You are here: / First Department

Tag Archive for: First Department

, ,

New York City Street-Sweeping Vehicles Are Now Exempt from the Rules of the Road Pursuant to Vehicle and Traffic Law 1103 (b) (Subject to the “Reckless Disregard” as Opposed to the “Ordinary Negligence” Standard) But Were Not So Exempt in 2010 When this Accident Occurred

The First Department, over a dissent, determined street-sweeping vehicles, at the time of the accident in 2010,  were not “hazard vehicles” exempted from the rules of the road under Vehicle and Traffic Law 1103 (b) (apparently, under the Rules of City of New York Department of Transportation, street-sweeping vehicles are now so exempt:)

…Vehicle and Traffic Law § 1103(b), which exempts “hazard vehicles” from the rules of the road and limits the liability of their owners and operators to reckless disregard for the safety of others …, does not apply to the New York City street-sweeping vehicle involved in the collision with plaintiff’s vehicle that gave rise to this action. Therefore, defendants are subject to the ordinary negligence standard of liability, not the reckless disregard standard on which their motion was based. At the time of the accident, in 2010, Vehicle and Traffic Law § 1103(b) was superseded by Rules of City of New York Department of Transportation (34 RCNY) § 4-02, which excepted street sweepers, among others, from compliance with traffic rules to the limited extent of making such turns and proceeding in such directions as were necessary to perform their operations (34 RCNY 4-02[d][1][iii][A]). While subparagraph (iv) contained a broader exception, expressly invoking Vehicle and Traffic Law § 1103, we find that subparagraph (iv) did not include street sweepers because that would have rendered subparagraph (iii) redundant and meaningless. Indeed, when 34 RCNY 4-02 was amended, in 2013, the City Council explained in its “Statement of Basis and Purpose” that the effect of the adopted rule would be “that operators of DOT and New York City Department of Sanitation snow plows, sand/salt spreaders and sweepers will now be subject to the general exemption set forth in subparagraph (iv) of that same subsection” (emphasis added) — a strong indication that they were not so subject before then. Deleon v New York City Sanitation Dept, 2014 NY Slip Op 02221, 1st Dept 4-1-14

 

,

Criteria for Judicial Review of Agency’s Action Under the State Environmental Quality Review Act Explained

The First Department determined Supreme Court should not have declared that the NYC Industrial Development Agency’s [IDA’s] issuance of a negative declaration (finding no further environmental review necessary for a project in the Bronx) violated the State Environmental Quality Review Act (SEQRA).  In so finding, the First Department explained the criteria for court review in this context:

“‘[J]udicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure'” …. “[T]he courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives'” … .

Our review of the record establishes that the determination of IDA not to require a Supplemental Environmental Impact Study (SEIS) was not affected by an error of law, arbitrary and capricious, or an abuse of discretion … . Likewise, the record reflects that, as the lead agency, IDA identified the relevant areas of environmental concern related to the proposed action (including traffic, air quality and noise impact), took the requisite “hard look” at them and, in its negative declaration, set forth a reasoned elaboration of the basis for its determination that a SEIS [Supplemental Environmental Impact Statement] was not required … . Thus, Supreme Court should have declared that IDA’s issuance of a negative declaration did not violate SEQRA, was not arbitrary and capricious, and was not an abuse of discretion. Matter of South Bronx Unitd! v New York City Indus Dev Agency, 2014 NY Slip 02132, 1st Dept 3-27-14

 

,

A Gallery, as Agent for an Artist, Was Obligated to Disclose All Material Facts Within the Scope of the Agency/The Failure to Disclose the Gallery’s Intention to Treat Prints Made from the Artist’s Originals as Belonging to the Gallery Precluded Any Claim of Ownership by the Gallery

In a full-fledged opinion by Justice Friedman, the First Department determined the terms of the contract between a gallery and an artist (Scher) designated the gallery as the artist’s agent with respect to prints created from the artist’s original works. Therefore, the artist was the owner of the prints.  In addition, the court determined, under the General Obligations Law, the terms of a written contract were not changed by an alleged oral agreement:

…[S]ection 1 of the 2005 agreement (“Scope of Agency”) expressly provides that Scher was appointing the Gallery “to act as [her] exclusive agent . . . for the exhibition and sales of . . . limited edition prints published exclusively by [the] [G]allery,” among other kinds of artwork, for the duration of the agreement. Thus, when the Gallery commissioned the printer to produce the prints, paid the printer for the prints, and took delivery of the prints, it did so as Scher’s agent and, hence, fiduciary … . Accordingly, the prints must be deemed to be Scher’s property… . …

As Scher’s fiduciary, the Gallery was obligated to disclose to her in plain terms all material facts within the scope of the agency, obviously including any understanding the Gallery had, upon entering with Scher into the oral print deal, that it would own the prints and any intention it entertained to treat the prints as its own property … . If the Gallery did not wish to finance the production of prints that it would not own, it could have sought to reach an agreement with Scher specifying that prints made at the Gallery’s expense would be the Gallery’s property. Alternatively, if the Gallery merely wished to protect itself from being abruptly terminated as Scher’s agent before it had a fair chance to sell the prints, it could have sought to reach an agreement with her on a minimum time-period it would have to sell each batch of prints during which the agency could not be terminated without cause. Instead, the Gallery left itself exposed by going forward with the print deal based on only a vague, unwritten agreement that left nearly all of the terms up in the air except for the basic 90/10 split of sales revenue (and even as to that, there is a dispute as to whether Scher’s cut is calculated based on gross or net sales). We see no reason to relieve a fiduciary, such as this professional art merchant, of the consequences of its own carelessness in dealing with its principal.  Scher v Stendhal Gallery Inc, 2014 NY Slip Op 02154, 1st Dept 3-27-14

 

,

Teacher’s Termination for a One-Time Mistake “Shocks One’s Sense of Fairness”

The First Department determined the termination of a teacher’s employment was a punishment which “shocked one’s sense of fairness.”  The teacher, who was well-respected and had an unblemished record, was found to have engaged in sexual conduct with an adult colleague in the school building after hours. The incident was highly publicized.  In finding the punishment too severe, the court wrote:

“[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved” … . * * *

While petitioner’s behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake … . Of critical significance is that, unlike matters involving some form of romantic involvement or other inappropriate conduct with a student, petitioner’s engaging in what appeared to be consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper.  * * *

Nor is there is any indication in the record that petitioner’s conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination … . Matter of Brito v Walcott, 2014 NY Slip Op 01813, 1st Dept 3-20-14

 

No Need to Allege “the Benefit Was Conferred at the Behest of the Defendant”

In a full-fledged opinion by Justice Acosta, the First Department determined  a 2012 Court of Appeals case (Georgia Malone & Co Inc v Reider, 19 NY3d 511) did not change the law of unjust enrichment and explained the nature of the relationship between the parties which must be alleged in the pleadings:

It is well established that to successfully plead unjust enrichment “[a] plaintiff must allege that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered'” … . A claim for unjust enrichment “is undoubtedly equitable and depends upon broad considerations of equity and justice” … . A plaintiff is not required to allege privity. It must, however, “assert a connection between the parties that [is] not too attenuated” … . Thus, although a plaintiff could satisfy this requirement by alleging that the benefit was conferred at the behest of the defendant …, the Court of Appeals has never required such a relationship. Rather, the pleadings merely have to “indicate a relationship between the parties that could have caused reliance or inducement” … . Philips Intl Invs LLC v Pektor, 2014 Slip Op 01700, 1st Dept 3-18-14

 

, , ,

Taxi Owners Not Entitled to Damages After Ruling by NYC Taxi and Limousine Commission (Which Was Alleged to Have Damaged the Taxi Owners in the Amount of Over $15 Million) Was Found Arbitrary and Capricious

The First Department determined a ruling by the NYC Taxi and Limousine Commission (TLC), which was found to be arbitrary and capricious by the Court of Appeals, did not entitle the petitioners (taxi owners who lease their taxis to drivers) to damages. The court determined the damages were not “incidental” within the meaning of Article 78 and were not available in an Article 78 proceeding (under the facts). The court futher determined the TLC was immune from suit because the ruling at issue was an exercise of discretion . The ruling by the TLC had effectively reduced the amount a taxi owner could charge a driver by requiring that tax payments for which the owner is responsible be included in the amount charged for the lease (called a “lease cap”). After that ruling was found arbitrary by the Court of Appeals, the taxi owners sought “incidental damages” of over $15 million:

Petitioners seek damages based on the Court of Appeals’ determination that the TLC’s effective reduction of the taxi “lease cap” had no rational basis. The Court of Appeals’ determination, however, does not lead to a conclusion that the damages are “incidental to the primary relief sought” (CPLR 7806). Contrary to petitioners’ argument, monetary injury incurred as a result of agency action does not necessarily constitute incidental damages simply because a court later finds the action to have been arbitrary and capricious. Certainly, whether damages are characterized as incidental “is dependent upon the facts and issues presented in a particular case” … . Even so, incidental damages are generally confined to monies that an agency either collected from or withheld from a petitioner and then was obligated to reimburse after a court annulled a particular agency determination. * * *

CPLR 7806 explicitly limits the availability of damages in an article 78 proceeding … . That article 78 permits the court, in certain circumstances, to award damages in an action that also reviews the validity of a government determination does not create a right to damages that does not otherwise exist. * * *…

[T]he TLC’s determination in this case, however unjustified it may have been, was an exercise of discretion; the TLC did consider the issue of imposing the tax rule and decided to impose it. Putting aside the merits of its decision, there is no escaping that the TLC exercised its discretion. Indeed, a governmental function such as rulemaking is necessarily an “exercise of judgment and discretion performed in the public interest,” and is protected as a discretionary act … . Accordingly, in a plenary action, governmental immunity would preclude petitioners from recovering incidental damages. Metropolitan Taxicab Bd of Trade v New York City Taxi & Limousine Commn, 2014 NY Slip Op 01683, 1st Dept 3-18-14

 

,

Failure to Mention the Rate of Compensation Required Dismissal of the Contract Cause of Action Under the Statute of Frauds/However the Allegation Defendant Employed Plaintiff Was Sufficient to Allow the Quantum Meruit Cause of Action to Go Forward

The First Department determined the contract cause of action must be dismissed under General Obligations Law 5-701(a)(10) because there was no mention of the rate of compensation,  but that there were sufficient allegations to allow the quantum meruit cause of action to go forward:

In Davis & Mamber, this Court held that for a writing evidencing a contract “[t]o satisfy the Statute of Frauds . . . a memorandum must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter” … . … Davis & Mamber precluded a contract claim for failure to satisfy the applicable provision of the statute of frauds, because the relied-on writings lacked any reference to the agreed-on compensation; however, it permitted a quantum meruit claim, because the rule for a writing establishing quantum meruit claims is less exacting, requiring only that the writing “evidenced the fact of plaintiff’s employment [by defendant] to render the alleged services” …. Here, as in Davis & Mamber, the emails … fail to make any reference to payment terms, and accordingly fail to satisfy the statute of frauds as to the contract claim … . However, they suffice to show that [defendant] employed plaintiff, and are therefore enough to satisfy the statute for purposes of plaintiff’s quantum meruit claim.  Chapman, Spira & Carson LLC v Helix BioPharma Corp, 2014 NY Slip Op 01685, 1st Dept 3-18-14

 

, ,

Hearsay in Medical Records Should Have Been Redacted/Not Relevant to Diagnosis and Not Clearly Attributable to Plaintiff as an Admission

Although the error was deemed harmless, the First Department determined hearsay statements should have been redacted from the plaintiff’s medical records.  The plaintiff alleged the police had pushed him over a fence, causing injury.  The defendants alleged plaintiff jumped.  The medical records included references to the plaintiff’s “jumping.” The jury found for the defendants.  The court explained how hearsay in a medical report should be handled:

Hearsay entries regarding the cause of an injury contained in a medical record come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff’s injuries … . Alternatively, the entry may be admissible as an admission, but only if there is evidence that connects the party to the entry … . The challenged entries were neither germane to treatment or diagnosis, nor were they admissions.

There was simply no evidence supporting defendants’ position that the medical doctors needed to know whether plaintiff jumped or was pushed from the fence in order for doctors to determine what medical testing he needed upon admission to the hospital. No medical expert provided such testimony … . Defendants’ only expert, a biomechanical engineer and accident reconstruction expert, opined that plaintiff’s injuries were consistent with a jump from a height and not a push to a fall. He did not give any opinion on issues relating to treatment or diagnosis. This is not a case where the conclusion is so obvious that no medical testimony is needed to lay the appropriate evidentiary foundation … .

The particular challenged entries cannot be characterized as admissions. Although the Lincoln Medical and Mental Health Center Admission Assessment form has a box checked that “patient” is the source of the information, the particular entry on that record, “he jumped off the fence,” is not clearly a direct statement attributable to or a quote of plaintiff. The Ambulance Call Report form identifies “PO” or the police officer as the source of the information that plaintiff “jumped off a fence.” No other evidence in the record identifies plaintiff as being the source of this information. Nor is there any evidence connecting plaintiff to the 1/21/97 entry in the Progress Record that “s/p fell from a fence after being chased by police officers” or the 1/23/97 entry “fall from 2 storeys [sic]” to make them admissible as admissions by him. These entries should have been redacted from the medical records received in evidence.  Benavides v City of New York 2014 NY Slip Op 01682, 1st Dept 3-18-14

 

,

Concise Example of a Weight of the Evidence Review

The First Department reversed defendant’s conviction and dismissed the indictment after a weight of the evidence review. The court found too many inconsistencies in the evidence, especially with respect to the identification of the defendant as the attacker.  The decision is a concise example of the kinds of proof problems which are considered significant under a weight of the evidence analysis:

Here, there were troubling discrepancies in the evidence presented to the jury. Most significantly, the complainant testified that the club was sufficiently well-lit for him to see his assailant’s face while the encounter was ongoing. However, the detective who investigated the incident and interviewed the complainant testified, after having had his recollection refreshed with the DD-5 report he prepared in connection with the investigation, that the complainant told him he “did not have a clear recollection of the suspect because it was somewhat dark” in the Maribella. While the complainant denies he told the detective that, the People do not offer, nor can we perceive of, any reason why the detective would have been untruthful not only on the witness stand, but also in a contemporaneous internal report documenting the investigation.

Further clouding the accuracy of the complainant’s identification of defendant was the photograph he picked out of an array. We acknowledge that the complainant did not represent that the person in the photo he chose was his assailant, but rather that he looked like him. Nevertheless, there is a significant difference in the appearances, especially the complexions, of the people depicted in the two photographs, which calls into question the confidence the complainant had in recalling what his attacker looked like.  People v Diaz, 2014 NY Slip Op 01661, 1st Dept 3-13-14

 

,

Conclusory and Unsupported Affidavit from Plaintiff’s Expert Did Not Raise a Question of Fact/Standard of Care for Doctors and Mental Health Professionals In the Context of a Patient’s Post-Treatment Suicide Described

The First Department, in a full-fledged opinion by Justice Sweeny, reversed Supreme Court and granted the defendants’ motion for summary judgment dismissing the action.  The complaint alleged that plaintiff’s husband’s suicide was the result of negligence on the part of the treating doctors, psychiatrists and other health professionals.  The court noted that in most instances the affidavit from an expert asserting a deviation from the appropriate standard of care will be sufficient to defeat summary judgment.  But here the affidavit from plaintiff’s expert was conclusory and unsupported:

It is well settled that “a doctor is not liable in negligence merely because a treatment, which the doctor as a matter of professional judgment elected to pursue, proves ineffective. . .” … . Liability is imposed “only if the doctor’s treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” … . Although a plaintiff’s expert may have chosen a different course of treatment, “this, without more, represents, at most, a difference of opinion among [medical providers], which is not sufficient to sustain a prima facie case of malpractice'” … . In the context of mental health providers, we have held that “[w]hen a psychiatrist chooses a course of treatment, within a range of medically accepted choices for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability” … . Where a psychiatrist fails to predict that a …patient will harm his or herself if released, liability will likewise not attach for a mere error in professional judgment … . While it is true that “the line between medical judgment and deviation from good medical practice is not easy to draw” … , the “prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instance it involves a measure of calculated risk. If liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitations of a vast number of patients would be impeded and frustrated” … . However, if a decision to release a patient was less than a professional medical determination, liability may attach … . A decision will not be insulated by the medical judgment rule if it is not based upon a careful examination … .

Generally, ” the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants'” … . To suffice, the expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” … . However, where “the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment” … . Park v Kovachevich, 2014 NY Slip Op 01679, 1st Dept 5-13-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy