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Assumption of Risk Extends to Condition of Outside Basketball Court

The First Department affirmed the grant of summary judgment to the defendant finding that the plaintiff basketball player assumed the risks associated with playing basketball on defendant’s outdoor court:

Plaintiff, an experienced basketball player who had played on the subject court on numerous occasions, was injured when, while heading toward the rim to take a shot, his ankle twisted and he heard his knee “pop,” causing him to fall to the ground. Plaintiff observed that the court was cracked, repaired and uneven, which he believed to be the cause of his fall. Under the circumstances, dismissal of the complaint was proper since plaintiff assumed the risks associated with playing basketball or warming up to play basketball on this outdoor basketball court… . Felton v City of New York, 2013 NY Slip Op 03423, 1st Dept, 5-14-13

 

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Review Criteria for Arbitration Award Explained; Contract Entered Into by Unlicensed Interior and Architectural Design Business Did Not Violate Public Policy

In a full-fledged opinion by Justice Mazzarelli, the First Department upheld an arbitrator’s award which had been confirmed by Supreme Court.  The issue at the heart of the case was whether the fact that the petitioner’s interior and architectural design business did not have a license to practice architecture warranted a finding that a contract entered into by the petitioner with the respondents violated public policy (such that the respondents did not have to pay for services rendered).  Justice Mazzarelli, after collecting relevant cases, determined there was no violation of public policy. The petitioner employed a licensed architect and periodically used a licensed and registered architect as an outside consultant.  In explaining the court’s role in reviewing an arbitrator’s award, the First Department wrote:

Because of the great degree of deference afforded to arbitration awards, the available grounds for vacating them are extremely limited. Mere errors of law or fact reflected in an arbitration award are insufficient for a court to overturn it, since “the courts should not assume the role of overseers to mold the award to conform to their sense of justice” …. A court may only disturb the award “when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator’s power” ….  Matter of McIver-Morgan, Inc, v Dal Piaz, 2013 NY Slip Op 03411, 1st Dept, 5-9-13

 

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Wrong Incident-Address in Notice of Claim (Not Intended to Mislead and Not Resulting in Prejudice to Defendant) Can Be Corrected​

In this slip and fall case, the First Department determined the wrong address in the notice of claim, under the facts, was not intended to mislead and did not prejudice the defendant:

In this trip and fall action, plaintiff’s notice of claim listed the wrong street address… in describing the location of her fall on a sidewalk, adjacent to Central Park, and across the street from that address. However, plaintiff also annexed a photograph to the notice of claim which depicted the intersection …, which is nearly four blocks south of the incorrect address provided in the notice of claim, and the written description of the location in the notice was consistent with the area depicted in the photograph. Moreover, at the statutory hearing held six weeks after the notice was served, and three and a half months after the accident, plaintiff explicitly … identified the location in the photograph as also shown. We also note that less than five months after the hearing, plaintiff served the summons and complaint, providing the proper street address. Under these circumstances, we find that the mistake in the notice was not made in bad faith, nor was it intended to mislead or confuse the City, and hence, it should have been disregarded or plaintiff should have been allowed to correct the notice pursuant to GML § 50-e(6)… . Green v City of New York, 2013 NY Slip Op 03382, 1st Dept, 5-9-13

SLIP AND FALL

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Discrimination (Re Licensing) Based on Criminal Conviction Disallowed

The First Department annulled a determination denying petitioner’s renewal application for a stationary engineer license finding no rational basis for the denial. Petitioner had been convicted of participating in a kickback scheme.  The First Department noted that the equipment maintenance responsibilities of a stationary engineer were not implicated by the conviction.  The First Department wrote

[The actions underlying the conviction] bear no direct relationship to the equipment maintenance duties and responsibilities inherent in the stationary engineer license, and thus do not satisfy the first exception to the general prohibition of discrimination against persons previously convicted of criminal offenses (see Correction Law § 752[1]).The record further shows that respondent failed to afford petitioner the mandatory presumption of rehabilitation attendant to his certificate of relief from disabilities (see Correction Law § 753[2]), and appeared to have disregarded the additional evidence of rehabilitation submitted by petitioner. … We further find that respondent could not have rationally found petitioner to pose an unreasonable risk to public safety or welfare so as to satisfy the second exception to the general prohibition (see Correction Law § 752[2]). Petitioner disclosed his 2006 conviction, based on acts occurring in 2005 and earlier, on his license renewal applications from 2007 through 2010, all of which were granted. Matter of Dellaporte v NYC Dept of Buildings, 2013 NY Slip Op 03281, 1st Dept, 5-7-13

 

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Violent Felony Conviction for which Defendant Not Yet Sentenced Can Be Considered in SORA Assessment

The First Department determined a violent felony conviction for which the defendant had not yet been sentenced could be used as a risk factor in a SORA risk level assessment.  People v Franco, 2013 NY Slip Op 03168, 1st Dept, 5-2-13

 

Height Differential Need Only Be More than “De Minimis”

In reversing the trial court and granting summary judgment to the plaintiff, the First Department noted that a “risk arising from a significant elevation differential” within the meaning of Labor Law 240(1) need only be based on a “height differential” that is more than “de minimis:”

While the record did not specify the height, the uncontroverted evidence shows that the steel beams fell a short distance from the top of the A-frame cart to plaintiff’s leg. Given the beams’ total weight of 1,000 pounds and the force they were able to generate during their descent, the height differential was not de minimis (see McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2d Dept 2012] [elevation differential was within the scope of the scaffold law when a scaffold on wheels fell on the plaintiff who was at the same level as the scaffold, and it traveled a short distance]; Kempisty v 246 Spring Street, LLC, 92 AD3d 474, 474 [1st Dept 2012] [an elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance]; see also Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011] [recovery was permitted under the scaffold law when metal vertical pipes, on the same level as the plaintiff, toppled over on him]; Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]). Marrero v 2075 Holding Co, LLC, 2013 NY Slip Op 03160, 1st Dept, 5-2-13​

 

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Money Paid Into Court in Conjunction with Stay Pending Appeal Does Not Stop Accruing of Interest Until Prevailing Party is Paid

Where money has been paid into the court in conjunction with a stay pending appeal, interest accrues on it until prevailing party is paid.  The First Department explained:

Contrary to respondents’ claim, their payment of $1,763,080.64 into court on February 18, 2011 to stay the judgment pending appeal did not stop interest from accruing …. This is so even though respondents no longer had the use of the money after paying it into court …. Petitioner is entitled to simple interest until the date he was paid ….  Weiderhorn v Merkin, 2013 NY Slip Op 03166, 1st Dept, 5-2-13

 

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Criteria for Application of Equitable Estoppel to Late Disclaimer of Coverage

The circumstances under which an insurer can be equitably estopped from making a late coverage-disclaimer were discussed by the First Department.  Equitable estoppel based on the timing of a disclaimer alone will only be invoked when the insurer has controlled the defense and the character and strategy of the defense can no longer be altered (i.e., when the matter is close to trial).  201-208 Main St Assoc Inc v Arch Ins Co, 2013 NY Slip Op 03159, 1st Dept, 5-2-13

 

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Reporter’s Information Subject to Qualified Protection​

A reporter spent four days “autotrekking” with petitioner’s husband a few months before the husband’s death in an “autotrekking” accident. Petitioner subpoenaed the reporter to appear in an action arising from the death of her husband. The First Department ruled the information gathered by the reporter was entitled to qualified protection under the New York Shield Law:

Contrary to petitioner’s contention, all the information she seeks constitutes “unpublished news obtained or prepared by” Coburn, undisputedly a professional journalist, “in the course of gathering or obtaining [the] news” that was ultimately published in the article, and is therefore subject to qualified protection under the New York Shield Law (see Civil Rights Law § 79-h[c]… .

Petitioner failed to make the “clear and specific showing” required to overcome the protection (see Civil Service Law § 79-h[c]). Even assuming that the information she seeks is “highly material and relevant” and “critical or necessary” to the maintenance of her claims, she has not shown that it is unobtainable “from any alternative source” … . Matter of Gilson v Coburn, 2013 NY Slip Op 03177, 1st Dept, 5-2-13

 

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Criteria for Negligence on Part of Out-of-Possession Landlord with Limited Right of Reentry​

In dismissing a personal injury action stemming from plaintiff’s fall down a two-step interior stairway, the First Department explained the liability criteria for an out-of-possession landlord with limited right to reenter:

As out-of-possession landlords, with a limited right to reenter, they could only be liable for negligence “based on a significant structural or design defect that is contrary to a specific statutory safety provision” …. The only condition alleged on appeal to serve as a predicate for [defendant’s] potential liability involves the riser heights of the steps. Even if the alleged Building Code provision, which concerns uniformity, were applicable and had been violated, the same would not constitute a significant structural or design defect and could not serve as a basis for liability against [defendant]. Drotar v Sweet Thing, Inc, 2013 NY Slip Op 03180, 1st Dept, 5-2-13

SLIP AND FALL

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