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Handcuffing Defendant Constituted an Arrest/Defendant’s Actions Did Not Justify Use of Handcuffs

The First Department, contrary to the suppression-hearing court, determined the act of handcuffing the defendant constituted an arrest.  [The matter was sent back to allow the hearing court to determine whether a radio transmission from a fellow officer provided probable cause for the arrest, an issue the hearing court had not ruled upon.]:

…[W]e reject the People’s argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances (see People v Acevedo, 179 AD2d 465, 465-66 [1st Dept 1992], lv denied 79 NY2d 996 [1992]). In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. The fact that defendant was “a little resistant” when told to put up his hands is not, on its own, sufficient to establish that the officers had any difficulty restraining defendant. Rather, like Acevedo, this case presents a situation in which the officers’ initial use of handcuffs was not warranted by the threat confronting them…, so that the detention exceeds the proper bounds of an intrusion made on less than probable cause. People v Blanding, 2013 NY Slip Op 07692, 1st Dept 11-19-13

 

Evidence Not Sufficient to Demonstrate Spanish Document Was an Enforceable Judgment; In Motion for Summary Judgment in Lieu of Complaint (CPLR 3213) There Is No Impediment to Plaintiff’s Supplementing Its Papers After Defendant’s Response

The First Department determined Supreme Court should not have decided, as a matter of law, a Spanish document was a judgment enforceable in New York. Only differing expert affidavits were provided and the operative statutes were not translated and submitted to the court. In addition, the court noted that the plaintiff’s submission of papers after defendant responded to the motion for summary judgment in lieu of complaint was properly allowed. Defendant was able to respond to the additional documents:

CPLR 5302 provides that New York will recognize foreign decrees that are “final, conclusive and enforceable where rendered even though an appeal therefrom is pending.” * * * The motion court was provided with the affidavits of the experts whose opinions differed, but was not provided with translated copies of the [statutes] cited by both experts. Thus, the court was not provided adequate information to determine as a matter of law that the document is a final judgment under Spanish law and ripe for enforcement in New York. * * *

There is no absolute rule that in a CPLR 3213 motion, a plaintiff cannot supplement its papers in response to a defendant’s arguments, so as to establish its entitlement to summary judgment in lieu of complaint. “Nothing that is curable by the mere addition of papers should result in a denial of the motion, unless it is a denial with leave to renew on proper papers” (David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:8). “Mere omissions from the affidavits” that can be rectified by filing and serving additional affidavits should be cured by a continuance or adjournment in order for the additional affidavits to be served and filed (id.). * * * Here, defendant had an opportunity to address the merits of the later-submitted documents, in the form of a reply in the cross motion, and therefore plaintiff’s failure initially to include all the documents did not result in prejudice to defendant and require denial of the motion… .  Sea Trade Mar Corp v Coutsodontis, 2013 NY Slip Op 07560, 1st Dept 11-14-13

 

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Revocation of Plumber’s License Too Severe a Penalty

The First Department determined that the NYC Department of Buildings (DOB) imposed too harsh a penalty when it revoked petitioner’s master plumbing license after finding she violated the NYC Building Code:

…[W]e find that the penalty of revocation was excessive upon considering the following factors: the license is petitioner’s sole means of livelihood; this was the only instance of misconduct in an otherwise unblemished history as a licensed master plumber since 2001; there was no resultant harm to the public or the agency; and petitioner seemingly acknowledged the potential for harm when she informed the owner that his worker’s performance was inadequate and proposed that her workers correct the violations … . We note that the record demonstrated that DOB’s precedent indicates that in several other instances where licensees have committed similar acts of misconduct by performing work prohibited by the Code and/or submitting false reports or documents to DOB, which potentially placed the public at greater risk of harm than the misconduct at issue here, the agency imposed far less severe penalties. Matter of Ward v City of New York 2013 NY Slip Op 07569, 1st Dept 11-14-13

 

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Material Breach and Abandonment of Subcontract Waived Notice of Termination and Opportunity to Cure and Warranted Cost-to-Complete Damages

The First Department explained the criteria for cost-to-complete damages for a subcontractor’s breach before completion of performance.  The court noted that plaintiff was not entitled to overpayment damages in addition to the cost-to-complete damages because receipt of both would amount to a double recovery:

Defendants are entitled to cost-to-complete damages because plaintiff materially breached and abandoned the subcontract, and waived any right to notice of termination or an opportunity to cure. The subcontract explicitly provides that time is of the essence, that plaintiff’s delay or failure to meet scheduling requirements warrants termination, and that plaintiff must perform work even if the parties dispute that work’s characterization, yet plaintiff repeatedly failed to timely perform and complete work, despite defendant E-J Electric Installation Co.’s repeated demands … . Among other material breaches, plaintiff repudiated the subcontract by abandoning the work site when only 73.49% of plaintiff’s work was complete … . Accordingly, plaintiff waived any right to notice of termination … .

It is well-settled that if a subcontractor breaches before completing performance, the contractor is entitled to recover reliance, or cost-to-complete damages from the subcontractor… . Kleinberg Elec Inc v E-J Elec Installation Co, 2013 NY Slip Op 07256, 1st Dept 11-7-13

 

Evidence of Availability of Ladders Insufficient to Defeat Summary Judgment in Favor of Plaintiff; Plaintiff Fell While Working Standing on Milk Crates

The First Department determined defendant’s claim that ladders were available was not sufficient to defeat summary judgment in favor of plaintiff who fell while standing on milk crates to work:

Plaintiff alleged that prior to performing his work he unsuccessfully looked for a ladder to use and was directed by the acting foreman to use the milk crates.

Under the circumstances, plaintiff established his entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim. The record shows that plaintiff’s accident involved an elevation-related risk and his injuries were proximately caused by the failure to provide him with proper protection as required by section 240(1) … . Defendants’ claim that ladders were available on the site is conclusory and fails to raise an issue of fact … . The sole evidentiary support for defendants’ argument was an affidavit from an individual who claimed …that there more than enough ladders available for plaintiff’s work. Even if admissible, the affidavit failed to raise a triable issue as to whether plaintiff was the sole proximate cause of his injuries since it does not indicate that plaintiff knew that there were ladders available at the site and that he was expected to use them… . Mutadir v 80-90 Maiden Lane Del LLC, 2013 NY Slip Op 07127, 1st Dept 10-31-13

 

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Administrative Review of a Rent Overcharge Petition Should Have Been Granted; Allegations of Fraud Overcame Four-Year Statute of Limitations

The First Department, over a dissent, reversed Supreme Court’s dismissal of an Article 78 petition for administrative review of the denial of petitioner’s rent overcharge complaint by the NYS Division of Housing and Community Renewal (DHCR).  Petitioner’s rent was increased from $572 to $1750 a month.  To justify that adjustment, the landlord was required to have spent $39,000 improving the apartment.  Petitioner submitted evidence that supported her position the landlord spent very little on the improvements.  The landlord, however, produced no evidence of what was actually spent and, therefore, there was no basis in the record for the DHCR’s determination that the $1750 rental amount was justified.  The First Department noted that the four-year statute of limitations did not apply because there was substantial evidence of fraud:

Under the standard set forth in Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin. (15 NY3d 358 [2010]), petitioner made a sufficient showing of fraud to require DHCR to investigate the legality of the base date rent … . Although the “look-back” for an apartment’s rental history is ordinarily limited to the four-year period preceding the date that the petitioner files the complaint …, where fraud is alleged and there is “substantial indicia of fraud on the record,” DHCR is obliged to investigate whether the base date rate was legal and “act[s] arbitrarily and capriciously in failing to meet that obligation”… .

Thus, we find that DHCR’s disparate treatment of the parties’ claims was arbitrary. While the agency made no attempt to evaluate the legitimacy of petitioner’s claims despite their consistency and degree of detail, DHCR credited the owner’s implicit claim that it spent $39,000 to renovate the apartment simply because “it would not be difficult for anyone with any experience in this industry to believe it could have taken $39,000 … to update the appearance and equipment in an apartment which had not changed hands for thirty-two years.” This justification for the agency’s determination is irrational. Finding that the owner “could have” spent $39,000 …, where the owner never submitted any evidence controverting petitioner’s claims is not equivalent to finding that the owner actually made improvements costing that much. Accordingly, this matter should be remanded to DHCR to give the parties the opportunity to present evidence in connection with the legality of the base rate rent. Matter of Boyd v NYS Division of Housing and Community Renewal…, 2013 NY Slip Op 06966, 1st Dept 10-29-13

 

 

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Loss of Teeth is “Serious Injury” Re: Assault Second

The First Department determined the loss of teeth (in an assault) was a “serious injury” within the meaning of Penal Law 10.00 (10) because the loss of teeth constituted a “serious and protracted disfigurement” notwithstanding replacement by a prostheses:

The element of serious physical injury (Penal Law § 10.00[10]) was established, because the victim’s permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ … . Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious …, this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis.

Furthermore, the victim’s loss of four front teeth also constituted a “serious and protracted disfigurement,” since “a reasonable observer would find her altered appearance distressing or objectionable” … . The fact that the victim received a removable prosthetic device did not ameliorate the seriousness of her injuries, since whenever she removes the device, the disfigurement will be readily apparent.  People v Everett, 2013 NY Slip Op 06954, 1st Dept 10-24-13

 

 

Effect of “Notwithstanding” Clause; Criteria for Reformation of Contract

In a full-fledged opinion by Justice Acosta, the First Department affirmed Supreme Court’s denial of defendant’s motion to dismiss a breach of contract complaint.  Plaintiffs contended the floor share price in the “notwithstanding” clause of the contract was an error, and submitted a supporting email referring to a different price in opposition to the motion to dismiss. The court agreed that the email was sufficient to overcome the dismissal motion and explained the powerful legal effect of a “notwithstanding” clause and the criteria for reformation of a contract:

It is well settled that trumping language such as a “notwithstanding” provision “controls over any contrary language” in a contract … . This Court has likewise noted that “inconsistency provisions” — i.e. those that dictate which of two contract provisions should prevail in the event of an inconsistency — “are frequently enforced by courts” … .

In construing statutes and contracts, the U.S. Supreme Court has remarked that “the use of . . . a notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the notwithstanding’ section override conflicting provisions of any other section” … . Thus, the effect of a “notwithstanding” clause will prevail “even if other provisions of the contract[] might seem to require . . . a [conflicting] result” … . * * *

Before a court will grant reformation of a contract, the party demanding this equitable remedy ” must establish his right to such relief by clear, positive and convincing evidence'” … . The purpose of reformation is not to “alleviat[e] a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties” … . In order to “overcome the heavy presumption” that the contract embodies the parties’ true intent, the party seeking reformation must “show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties” … . Warberg Opportunistic Trading Fund LP v GeoResources, Inc, 2013 NY Slip Op 06826, 1st Dept 10-22-13

 

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Failure to Call Treating Physician Allowed Negative Inference in Case Alleging Mother Incapable of Caring for Child by Reason of Mental Illness

The First Department determined Family Court properly found mother incapable of caring for her child by reason of mental illness and noted the court properly drew a negative inference from the mother’s failure to call her own treating physician to rebut the allegations in the petition and a suspended judgment is not available:

The evidence, including testimony from a court-appointed psychologist who examined respondent mother, provided clear and convincing evidence that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child (see Social Services Law § 384-b[4][c], [6][a]…). The psychologist testified that respondent mother suffers from, inter alia, bipolar disorder, which interferes with her ability to care for the child, placing the child at risk of becoming neglected if she is returned to her mother’s care. Moreover, respondent mother’s testimony confirms that she lacks insight into the nature and extent of her mental illness … .

Contrary to respondent mother’s contention, the Family Court properly exercised its discretion by drawing a negative inference against her for failing to call her treating physician or other medical providers to rebut the allegations raised in the petition and by the testimony after she expressed an intention to call her providers … .

The Family Court did not err in denying respondent mother’s application for a suspended judgment. This dispositional alternative is not available after a fact-finding determination of mental illness (see SSL § 384-b [3] [g], [4] [c]…). Matter of Love Joy F, 2013 NY Slip Op 06792, 1st Dept 10-17-13

 

Plaintiff Cannot Proceed With Case Taking a Position Different from That Taken in a Prior Action

The First Department determined plaintiff could not proceed with her discrimination action against an organization (ECEC) which had agreed to hire her because there had been a determination in another discrimination action that she was employed by the defendant (East Bronx Day Care) in that action.  The court explained the doctrine of judicial estoppel:

The doctrine of judicial estoppel prevents a party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor from advancing a contrary position in another action, simply because his or her interests have changed … . Also known as the “doctrine of estoppel against inconsistent positions” …, the doctrine “rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise” … . Applying this doctrine, we find that plaintiff has failed to show that she was “qualified” for the ECEC position, as required to make out a prima facie case of discrimination since plaintiff is judicially estopped from denying that, at the time she was allegedly discriminated against by defendants, she was actually employed with East Bronx Day Care, which would make it impossible for her to carry out her duties for defendants. Becerril v City of New York Dept of Health & Mental Hygiene, 2013 NY Slip Op 06783, 1st Dept 10-17-13

 

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