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Exclusion of Petitioner from Hearing During Testimony of Primary Witness Required Vacation of Award

The exclusion of petitioner from an administrative hearing during the testimony of the only eyewitness to an alleged assault by petitioner required vacation of the arbitrator’s award.  The First Department wrote:

Petitioner’s exclusion from the administrative hearing during the testimony of the only eyewitness to her alleged hitting of a student—the student himself—violated her constitutional right to confront the witnesses against her …. Nothing in the record indicates that a compelling competing interest warranted the exclusion. There is no finding that petitioner’s presence would cause trauma to the student or substantially interfere with his ability to testify. Indeed, the record contains no indication at all of the basis for the exclusion. Petitioner contends that in addition to her constitutional right she had an absolute right to confront witnesses under Education Law § 3020-a. However … there is no such absolute right under § 3020-a… .  Matter of Stergiou v NYC Dept of Educ, 2013 NY Slip Op 03432, 1st Dept, 5-14-13

 

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Whether the “Assault and Battery” Exclusion from Coverage Pertained to an Arson Is a Question of Fact Which Depends Upon the Motives of the Arsonist

A fire in plaintiff’s building left several people dead or injured.  A person was arrested and charged with arson in connection with the fire. The plaintiff brought a declaratory judgment action to determine whether the defendant insurance company was required to defend and indemnify plaintiff.  The main issue was whether the policy exclusion of damages caused by assault and battery applied. The First Department affirmed the trial court’s denial of plaintiff’s motion to dismiss the insurance company’s affirmative defenses, i.e., the assault and battery exclusion and the lack of bodily injury caused by accident or occurrence.  The First Department wrote:

Civil assault and battery are intentional acts, and the assault offenses with which the accused arsonist is charged do not include the intent to harm a specific individual (compare PJI 2d 3:2 [assault]; 3:3 [battery], with Penal Law 120.10[4] [assault in the first degree]; 120.05[6] [assault in the second degree]). Thus, assuming that the insurance policy exclusion is triggered by civil, rather than criminal, assault or battery, the critical inquiry is whether the accused arsonist, in allegedly causing the fire, intended to harm any occupant of the building. Although the determination of the criminal action is therefore not necessary to a determination of the application of the exclusion, the criminal trial may shed light on the accused arsonist’s motives, including whether he intended to harm anyone inside the building. In any event, the criminal trial may enable defendant to obtain access to evidence and witnesses that will assist in determining whether the exclusion applies. Based on representations made at oral argument, the criminal trial has been concluded and, thus, the stay should be lifted. In light of the foregoing, the motion court correctly denied plaintiff’s motion to dismiss the affirmative defenses based on the assault and battery exclusion and the lack of bodily injury caused by an accident or occurrence.  20-35 86th St Realty, LLC v Tower Ins Co of NY, 2013 NY Slip Op 03413, 1st Dept, 5-14-13

 

 

Action for Contingency Fee; No Demonstration Law Firm Had Been Discharged

The plaintiff law firm brought breach of contract cause of action to recover contingency fees under a written retainer agreement.  The motion court granted defendant’s motion to dismiss on the ground the law firm had been discharged.  In reversing the motion court, the First Department wrote:

Although no particular formality is required, the discharge of an attorney is effected by “[a]ny act of the client indicating an unmistakable purpose to sever relations . . .”…. The motion should not have been granted because the amended complaint and the documents attached to it set forth no facts from which an unmistakable purpose to sever the attorney-client relationship can be discerned. … A motion to dismiss for failure to state a cause of action “must be denied if from the pleadings’ four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'” … .  Anderson & Anderson, LLP … v North American Foreign Trade Corp, 2-13 NY Slip Op 03430, 1st Dept, 5-14-13

 

 

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Governmental Immunity Applied to Preclude Recovery by Bicyclist​

In finding the City was not liable for injury to a bicyclist because of governmental immunity, the First Department wrote:

In this action for personal injuries allegedly sustained by plaintiff when his bicycle hit a depression in a grassy area, after he was diverted from the bicycle path in a City park due to cleaning activities by defendants’ employees on a retaining wall, defendants moved to dismiss at the close of plaintiff’s… * * *  …[D]ismissal of the complaint is warranted on the … ground … that defendants’ employees were engaged in a governmental function giving rise to the governmental immunity defense. Diverting traffic to protect the public from the harsh chemicals used in the cleaning process was a discretionary act performed by public employees in the exercise of reasoned judgment … . Stashkevetch v City of New York, 2013, NY Slip Op 03418, 1st Dept, 5-14-13

 

 

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Assumption of Duty to Maintain Sidewalk; No Expert Notice Needed for Treating Physician

In reversing a judgment after a jury trial in a slip and fall case, the First Department discussed several issues that came up in the trial, including the denial of a missing witness charge with respect to one of the defense doctors, a translation problem raised by the translator (which may have given the jury the misimpression plaintiff was confused about an important issue), the assumption by the defendant Department of Education (DOE) of a duty to make the sidewalk outside a school (where plaintiff fell) safe, and the trial court’s ruling that one of plaintiff’s treating physicians could not testify because no “expert witness” notice was provided.  In addressing the school’s assumption of a duty with respect to the condition of the sidewalk and the exclusion of plaintiff’s treating physician, the First Department wrote:

The DOE argues on appeal that the action should have been dismissed as against it because it did not own the sidewalk where plaintiff fell. New York City Charter § 521(a) provides that “title to all property … acquired for school or educational purpose … shall be vested in the city, but under the care and control of the board of education for the purposes of public education, recreation and other public uses.” Education Law § 2554(4) affirmatively charges the DOE with responsibility for “the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work.” ……[W]here there was evidence that the DOE affirmatively undertook the duty to maintain the sidewalk, the court was well within its discretion in submitting the question of the DOE’s negligence to the jury ….

CPLR 3101(d)(1) provides that, upon request, parties must identify those expected to be called as experts and “disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify … and a summary of the grounds for each expert’s opinion.” However, the failure to serve a CPLR 3101(d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician’s expert testimony as to causation where there has been disclosure of the physician’s records and reports, pursuant to CPLR 3121 and 22 NYCRR 202.17 … .  Hamer v City of New York, 2013 NY slip Op 03431, 1st Dept, 5-14-13

 

 

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

 

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