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Only Attorney Can Represent Voluntary Association—Appeals Dismissed

In dismissing the appeals, the First Department held that only an attorney can represent a voluntary association

Petitioner is a voluntary association comprised of rent-regulated tenants in the subject building. Patricia Pillette is a member of the association and appears pro se purportedly on behalf of the association. However, Pillette is not an attorney, and a voluntary association may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York (see CPLR 321[a]). Accordingly, petitioner’s failure to appear by attorney requires dismissal of the appeals… .  Matter of Tenants Comm of 36 Gramercy Park v NYS Div of Hous & Community Renewal, 2013 NY Slip Op 04984, 1st Dept 7-2-13

 

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Breach of Fiduciary Duty Allegations Not Specific Enough

The First Department determined plaintiff’s allegations in support of a breach of fiduciary duty cause of action were not specific enough to survive a motion to dismiss:

Because the underlying allegations of wrongdoing were inadequately pleaded, the fiduciary breach and injunction causes of action were not sustainable. Although plaintiff alleges, among other things, that defendant tried to prevent her from having any meaningful participation in the companies’ operation, her allegations are vague and conclusory, made without any specific instances of the alleged misconduct…. The lack of particularity with respect to plaintiff’s allegations of breach of fiduciary duty (CPLR 3016[b]) is not excused by the individual defendant’s alleged refusal to provide information or by the lack of discovery, as information regarding the alleged denial of participation in corporate management was not solely in the individual defendant’s possession…. Moreover, plaintiff failed to assert specific dates that she had requested information, or to specify the information she had requested….  Berardi v Beradi, 2013 NY Slip Op 04976, 1st Dept 7-2-13

 

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Leaky Condominium Roof Supported Negligence and Nuisance

In an action based on a leaky roof in a condominium, the First Department determined plaintiffs were entitled to summary judgment on the negligence cause of action against the sponsor and the cause of action for nuisance, also sounding in negligence, should not be dismissed:

The sponsor owed a nondelegable duty to plaintiffs to keep the condominium, including its roof, in good repair (see Multiple Dwelling Law § 78[1];…) . The sponsor breached that duty: Its principal… admitted that the original roof that the sponsor had caused to be installed did not render the condominium watertight and that there were instances of water infiltration into plaintiffs’ unit that needed to be addressed by the sponsor. * * *

Plaintiffs are correct that nuisance can be negligent; it does not have to be intentional…. In any event, they raised a triable issue of fact whether the sponsor’s allowing water to continue infiltrating their unit was intentional….  Liberman v Cayre Synergy 73rd LLC, 2013 NY Slip Op 04996, 1st Dept 7-2-13

 

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Testimony that Bus Company Held to Higher Standard Required Reversal

In an action based on the allegation a bus was traveling too close to the curb when it struck plaintiff, the First Department (over a dissent) determined testimony that bus drivers’ operating criteria “are much higher than anyone else’s, so I would look at the accident by our standards a lot different from anyone else” required a new trial on liability:

The admission of testimony that holds a defendant to a higher standard of care than required by common law is clearly erroneous…. Moreover, the admitted testimony cannot be considered harmless error because it concerns the ultimate issue to be decided and corroborates unsupported theories of liability proffered by plaintiff’s expert, thereby lending them an unwarranted air of authority. It is well settled that “the duty owed by one member of society to another is a legal issue for the courts”…. Only after the extent of a duty has been established as a matter of law may a jury resolve — as a question of fact — whether a particular defendant has breached that duty with respect to a particular plaintiff…. As this Court has noted numerous times, “Where the offered proof intrudes upon the exclusive prerogative of the court to render a ruling on a legal issue, the attempt by a plaintiff to arrogate to himself a judicial function under the guise of expert testimony will be rejected”….  Williams v NYC Tr Auth, 2013 NY Slip Op 04975, 1st Dept 7-2-13

 

Res Ipsa Loquitur Applied to Garage Door Suddenly Coming Down

The First Department explained the application of res ipsa loquitur, where it was alleged a garage door suddenly came down on plaintiff’s head, as follows:

The motion court correctly determined that res ipsa loquitur applies in this action involving an accident that occurred, according to plaintiff’s testimony, when a garage door suddenly fell and struck him on the head, since this is the type of event that does not normally occur in the absence of negligence … . Notwithstanding defendants’ contentions that others could have had access to the garage door, plaintiff demonstrated sufficient exclusivity of control. “[R]es ipsa loquitur does not require sole physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control” … . Hutchings v Yuter, 2013 NY Slip Op 04988, 1st Dept 7-2-13

 

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Chronic Nonpayment Not Subject to 15-Day Cure Period; Chronic Nonpayment is Treated Differently from Occasional Nonpayment

The First Department explained the legal principles which apply to chronic nonpayment of rent as follows:

…[P]laintiff chronically failed to pay its rent, having forced defendant to bring 10 nonpayment proceedings over the last seven years. This is a breach of a substantial obligation under the lease…, and is a type of default that plaintiff cannot cure within the 15-day cure period provided for in the lease …. Accordingly, plaintiff was properly denied a Yellowstone injunction, since that relief requires a showing that plaintiff is able to cure….  Defendant was not limited to a nonpayment proceeding under the term of the lease that provided for such proceedings for nonpayment. Chronic nonpayment is a violation of a different type than occasional nonpayment. Nor can plaintiff rely on any defect of the notice of default, since no such notice is even necessary for an action based on chronic nonpayment….  Definitions Personal Fitness Inc v 133 E 58th St LLC, 2013 NY Slip Op 04892, 1st Dept 6-27-13

 

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Theories Not Included in Notice of Claim Precluded

In a slip and fall case, the First Department precluded plaintiff from asserting theories of liability not in the notice of claim:

The notice of claim limited plaintiffs’ theory of liability to negligent maintenance, upkeep and repair of the subject staircase, asserting that the infant plaintiff was caused to slip and fall due to a liquid substance on the floor and inadequate lighting. The infant plaintiff testified that he was caused to fall by “slippery juice” that was “all over the stairs.” He testified that he wasn’t able to see all of the juice due to insufficient lighting. Plaintiffs’ new theory, in opposition to the motion for summary judgment, that the infant plaintiff was caused to slip and fall due to various design defects including, inter alia, treads and risers of insufficient length, an improperly placed handrail and stairs not coated with nonskid materials, is precluded… Rodriguez v Board of Educ of the City of NY, 2013 NY Slip Op 04912, 1st Dept 6-27-13

 

Voluntary Participation in Fight Precludes Suit Alleging Inadequate Building Security

The First Department determined that plaintiff’s voluntary participation in a fight severed any causal connection between his injuries and the defendant building owner’s and defendant building manager’s alleged failure to keep the premises safe:

Courts in all four judicial departments have found that one who voluntarily participates in a physical fight cannot recover from a party generally charged with ensuring a safe environment. Thus, in Williams v Board of Educ. of City School Dist. of City of Mount Vernon (277 AD2d 373 [2d Dept 2000]), the duty of supervision normally imposed on a school was found to have been displaced by the plaintiff student’s voluntary participation in a fight. Similar results obtained in Borelli v Board of Educ. of Highland School Dist. (156 AD2d 903 [3d Dept 1989) and in Ruggerio v Board of Educ. of City of Jamestown (31 AD2d 884, 884 [4th Dept 1969] [holding that “(p)laintiff’s conduct, demonstrating a lack of reasonable regard for his own safety, was a direct cause of the incident resulting in his injury and, as such, defeats his right of recovery against the defendant Board of Education”], affd 26 NY2d 849 [1970]).  This Court in Vega v Ramirez (57 AD3d 299 [1st Dept 2008]) also held that a plaintiff’s willing participation in a fight negates any negligence committed by a defendant with a duty to provide security.  Carreras v Morrisania Towers Hous Co Ltd Partnership, 2013 NY Slip Op 04893, 1st Dept 6-27-13

THIRD PARTY ASSAULT

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The Term “Casualty” In Lease Covered Flooding Due to Malfunctioning HVAC System

The First Department determined Supreme Court should have denied plaintiff’s motion for summary judgment. Plaintiff was the owner and landlord of a building and defendant was a commercial tenant.  Section 7.04 of the lease stated: “each party releases the other with respect to any claim (including a claim for negligence) which it might otherwise have against the other party for loss, damage or destruction with respect to its property by fire or other casualty . . . occurring during the terms of this Lease” … .  A gauge in the HVAC system burst, causing flooding. Plaintiff sued defendant for the cost of repair, alleging defendant failed to maintain the HVAC system.  The issue was whether the word “casualty” in the lease meant “act of god” only, or included damage from human error.  The First Department (reversing Supreme Court) determined human error was included in the meaning of “casualty:”

[W]here a clause is unambiguous, contract language and terms are to be given their plain and ordinary meaning…. Here, the lease provides that the parties agreed on mutual releases in case of damage “by fire or other casualty.” In light of this phrasing, in which “other casualty” is placed in the same category as “fire,” it cannot be said that the word “casualty” excludes events resulting from human error. On the contrary, a fire might have myriad causes, many of which do result from human error. However, the parties did not restrict the types of fires that would fall under the release — for example, by stating that only fires caused by severe weather or other natural causes would trigger a release from liability. Accordingly, the phrase “fire or other casualty,” as construed by an ordinary business person, would describe an event, rather than the cause of that event. 45 Broadway Owner LLC v NYSA-ILA Pension Trust Fund, 2013 NY Slip Op 04895, 1st Dept 6-27-13

 

Late Amendment of Complaint (After Note of Issue Filed) Should Have Been Granted

The First Department reversed the IAS court’s denial of plaintiff’s motion to serve a third amended complaint.  The court noted that plaintiff’s failure to vacate his note of issue did not require the denial of the motion. In explaining that mere lateness is not a barrier to amendment, the court wrote:

…”[M]ere lateness is not a barrier to . . . amendment. It must be lateness coupled with significant prejudice to the other side . ….. “The kind of prejudice required to defeat an amendment . . . must . . . be a showing of prejudice traceable not simply to the new matter sought to be added, but also to the fact that it is only now being added. There must be some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add”…. Defendants failed to show such prejudice. Jacobson v Croman, 2013 NY Slip Op 04909, 1st Dept 6-27-13

 

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