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Copyright Infringement Action Re Pre-1972 Recordings Not Precluded by “Safe Harbor” Provision of Digital Millenium Copyright Act

In a full-fledged opinion by Justice Mazzarelli, the First Department determined that the “safe harbor” provisions in the Digital Millenium Copyright Act (DMCA) did not protect defendant, an Internet-based music streaming service, from a copyright infringement action based upon the uploading of recordings made prior to February 15, 1972.  In making this determination, the 2nd Department applied statutory interpretation principles to the relevant provisions of the DMCA and the Copyright Act.  UMG Recs, Inc v Escape Media Group, Inc, 2013 NY Slip Op 02702, 1st Dept, 4-23-13

 

Jury’s Consulting a Dictionary Justified Mistrial

In upholding the trial court’s grant of a mistrial because the jury consulted a dictionary, the First Department wrote:

…[The court properly determined that the jury’s act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was “confused” about the term “substantial” and the court was unable to give curative instructions … .  However, because the jury’s misconduct related only to the issue of liability, and there is no evidence that it affected the jury’s determination on damages, we reinstate the verdict on damages … .  Olshantesky v New York City Tr Auth, 2013 NY Slip Op 02685, 1st Dept, 4-23-13

 

 

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Damages for Breach Must Be Awarded Even if Amount Uncertain

The First Department determined the trial court erred when it did not award damages for breach of contract because the amount of damages was uncertain:

Where, as here, “it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain” … .  Here, plaintiff’s expert used an investment valuation analysis because he determined that there was no market for the 76th Street property, a conclusion with which the lower court agreed. Despite this agreement, the court, mistakenly believing that this Court’s previous order required a market value analysis even if no such market existed, found that plaintiff failed to meet his burden of proof. This was error, especially where, as here, the court had the means to make a market value determination if it so desired.  Cole v Makclowe, 2013 NY Slip Op 02690, 604784/99, 1565, 1st Dept, 4-23-13

 

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Undue Influence and Constructive Fraud Causes of Action Against Attorney Should Not Have Been Dismissed

The First Department reversed Surrogate’s Court’s dismissal of undue influence and constructive fraud causes of action against an attorney who was the beneficiary of a one million dollar trust account created by the decedent.  In finding questions of fact had been raised concerning both causes of action, in part concerning whether the attorney had misrepresented his financial condition to the decedent, the First Department wrote:

Surrogate’s Court erred in dismissing the claim of undue influence as there were conflicting inferences of both undue influence and the lack thereof. For example, the evidence showed that, from September 2009 to January 2010, as decedent’s health continued to deteriorate, defendant repeatedly wrote and called decedent to request the creation of a $1 million trust account and suggested that he would suffer a financial crisis if he did not receive it, and decedent complained to plaintiff (his wife) that defendant would not stop asking him for money. … Under the circumstances presented, defendant failed to overcome the presumption of undue influence and failed to eliminate any triable issue of fact warranting dismissal of the count ….  * * *  The count of constructive fraud was also improperly dismissed. Defendant, who had a substantial net worth at the time of decedent’s death, nevertheless repeatedly represented that his savings were deteriorating and that he would suffer a financial crisis if decedent did not give him the $1 million. While decedent was aware of the salary paid to defendant over the years as counsel to decedent’s company, this alone did not amount to clear evidence to eliminate any triable issue of fact as to whether defendant had misrepresented his financial condition, and whether decedent relied upon it … .  Matter of Schneiderman, 2013 NY Slip Op 02687, 1st Dept, 4-23-13

 

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No Evidence Police Officer Acted in “Reckless Disregard” for Safety

The First Department determined the plaintiff did not raise a question of fact about whether a police officer drove his vehicle (which collided with plaintiff’s) in “reckless disregard for the safety of others,” finding plaintiff’s allegations “conclusory and speculative.:”

Defendants’ proof established that defendant Steve Tompos, a police officer, did not act in “reckless disregard for the safety of others” while operating his vehicle in the wrong direction on a one-way street (see Vehicle and Traffic Law § 1104[e]). Tompos testified that his vehicle’s emergency lights and siren had been activated prior to the accident, and the evidence showed that he reduced his speed before turning onto the subject street and that he veered to his right in an attempt to avoid impact … . We note in particular that Tompos’s partner testified that Tompos reduced the vehicle’s speed to 10 miles per hour as he turned into the street where the accident occurred. Plaintiff’s testimony that Tompos was driving at a “high” rate of speed, which plaintiff was admittedly unable to estimate, is conclusory and speculative .. . We therefore disagree with the dissent’s view that issues of fact preclude summary judgment. Frezzell v City of New York, 2013 NY Slip Op 02700, 8861 116366/07, 1st Dept, 4-23-13

TRAFFIC ACCIDENTS

Question of Fact About Whether Driving to or from Work Constitutes an Act Within the Scope of Employment

Finding that issues of fact had been raised about whether the plaintiff was acting within the scope of his employment (thereby making Workers’ Compensation his only remedy), the First Department wrote:

Defendant contends that workers’ compensation benefits are plaintiff’s exclusive remedy for the injuries he sustained when he was struck by the truck defendant was driving (see Workers’ Compensation Law § 29[6]). However, issues of fact exist whether the parties were “acting within the scope of their employment, as coemployees, at the time of injury” … . * * * While, generally, traveling to and from work is not deemed to be within the scope of employment, as an employee approaches the site of his employment, “there develops a gray area where the risks of street travel merge with the risks attendant with employment” … . Then the test of compensability is whether there is a causal relationship between the employment and the accident and whether the employee “was exposed to a particular risk not shared by the public generally” … . Issues of fact exist whether defendant’s accident was causally related to a risk attendant with his employment rather than one shared by the public generally. Ortiz v Lynch, 2013 NY Slip Op 02667, 9839, 302254/11, 1st Dept, 4-18-13

 

Parent Who, Under a Shared Custody Schedule, Has Custody of the Child the Majority of the Time, Can Not Be Ordered to Pay Child Support to the Other Parent, Financial Issues Are Irrelevant

The motion court awarded child support from the father to the mother, who, by virtue of the motion court’s schedule, did not have custody of the child the majority of the time.  In a full-fledged opinion by Justice Richter, including a dissent, the First Department reversed the motion court, finding that the award of child support, in a shared custody arrangement, must be based solely on the amount of time the child spends with each parent, and not on their respective financial situations.  Therefore, the parent who has custody the majority of the time is deemed the “custodial parent “who cannot be ordered to pay child support to the “noncustodial” parent.  The First Department wrote:

Under the CSSA’s [Child Support Standards Act’s] plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1-b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation (emphasis added)” … . The mandatory nature of the statutory language undeniably shows that the Legislature intended for the noncustodial parent to be the payer of child support and the custodial parent to be the recipient. The CSSA provides for no other option and vests the court with no discretion to order payment in the other direction. * * *

…[T]he father has 56% of time with the child compared to 44% for the mother — an almost 30% difference. Thus, the child spends significantly more time with the father, making the father the custodial parent for child support purposes… . * * *

 In finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties’ financial circumstances rather than their custodial status. In doing so, the court endorsed an approach where the determination of the custodial parent is based not on whom the child spends the majority of the time with, but instead on which parent has the lesser monetary means. No matter how well-intentioned the court may have been, neither the CSSA, nor Bast v Rossoff [91 NY2d 723], allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal. Rubin v Della Salla, 2013 NY Slip OP 02681, 6669, 1st Dept 4-18-13

 

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Resident in Hotel Under Contract to Provide Rooms to Homeless Persons Entitled to Rent Stabilization Protection

In finding that the respondent (Pitt) was a “permanent tenant” of a hotel which rented rooms to homeless persons under an agreement with the NYC Human Resources Administration (thereby entitling the respondent to the protections of the Rent Stabilization Code), the First Department explained the “exception to mootness” doctrine:”

As a threshold matter, we find that this appeal is not rendered moot by the fact that Pitt voluntarily vacated the premises before the appeal was perfected. Although, as a general principle, courts are precluded from considering questions which have become moot by a change in circumstances, an exception to the mootness doctrine exists in situations that present the following: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . This matter presents an issue of substantial public interest that is likely to recur and evade review. Specifically, this Court must address the question of what constitutes a legal tenancy under the Rent Stabilization Code, and what rights are vested in a person occupying premises under the contract between a landlord and a social service agency. This is an issue that affects a large number of New Yorkers who declare permanent tenancy in a SRO [single room occupancy facility]. Thus, it presents an exception to the mootness doctrine … . Branic Intl Realty Corp v Pitt, 2013 NY Slip Op 02522, 9453 & 57024/10, 363, 1st Dept, 4-16-13

 

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No Common Law Negligence Cause of Action to Recover for Injuries Caused by Dog, Even Where Dog Owner May Be Negligent

Where the plaintiff was injured when defendant’s dog collided with his bicycle, the First Department determined defendant’s (the dog owner’s) motion for summary judgment should have been granted, despite allegations of negligence on the part of the defendant (there was a dissent):

Plaintiff was injured when, while riding his bicycle, he collided with defendant’s dog. Plaintiff alleges that defendant was negligent because as plaintiff was riding nearby, defendant called for the dog, which was not wearing a leash, to come to her, resulting in the dog’s running into plaintiff’s path of travel.

“New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” …. Rather, when harm is caused by a domestic animal, its owner can be held liable if he knew, or should have known, of the animal’s vicious propensities …. The term “vicious propensities” includes “the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” …. Here, there is no evidence that defendant had knowledge that her dog had a propensity to interfere with traffic, and her motion for summary judgment should have been granted ….  Doerr v Goldsmith, 2013 NY Slip Op 02501, 9030, 103840/10, 1st Dept, 4-16-13

 

Condition of Fence Gate “Open and Obvious” Precluding Recovery

Plaintiff was injured when, sitting on the ground, he leaned back against a fence-gate which swung open causing him to fall.  The First Department determined the condition of the fence was “open and obvious” precluding recovery (there was a dissent).  The court wrote:

Although property owners have a duty to maintain their property in a reasonably safe condition, and to warn of latent hazards of which they are aware …, they have no duty to protect or warn, and a court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous … . “In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property” …Here, defendant … established prima facie that the unlocked gate that allegedly caused plaintiff to injure himself was open and obvious, and was not inherently dangerous. The color photographs in the record show that the gate was “plainly observable and did not pose any danger to someone making reasonable use of his or her senses” … .  Boyd v New York City Hous Auth, 2013 NY Slip Op 02507, 9724, 310500/10, 2nd Dept 4-16-13

 

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