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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Contrary to petitioner’s contention, all the information she seeks constitutes “unpublished news obtained or prepared by” Coburn, undisputedly a professional journalist, “in the course of gathering or obtaining [the] news” that was ultimately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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Transit Authority Employee Properly Found Negligent In Not Summoning Help for Police Officers Injured While Making an Arrest in a Subway Station

The First Department reinstated a verdict in favor of police officers who were injured in the course of making as arrest in a subway station. As the officer chased the suspect, he asked a New York City Transit Authority employee to call for police back up.  The theory of the case was that the employee negligently did not call for back up. The trial judge granted the Transit Authority’s motion for judgment finding the employee was under no duty to call for assistance.  In reversing, the First Department wrote:

Public Authorities Law § 1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system. Although it is a common carrier, the Transit Authority is held to a duty of ordinary care under the particular circumstances of each case …. In Crosland v New York City Tr. Auth. (68 NY2d 165 [1986]), the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. As the Court stated, “Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable” (id. at 170 [citation omitted]). The trial court held that Crosland had no application here because plaintiffs were police officers. This was error.

The broad definition of onlooker liability articulated by the Crosland Court does not lend itself to any exception based upon an injured party’s status as a police officer. To be sure, General Obligations Law § 11-106 gives police officers as well as firefighters, who are injured in the line of duty, a distinct right of action against tortfeasors that cause such injuries. Accordingly, plaintiffs’ recovery is not barred by their status as police officers and the Transit Authority’s liability was established at trial. The Transit Authority also argues that the evidence did not establish that a timely response on Corbin’s part would have prevented plaintiffs’ injuries. We decline to consider this argument as it was raised for the first time on appeal. Were we to consider the argument, we would find it unavailing. Filippo v New York City Tr Auth, 2013 NY Slip Op 03025, 1st Dept, 4-30-13

 

 

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Verdict for Negligent Design Upheld—1987 Car Did Not Have a Starter Interlock Device that Would Prevent Car from Starting When In Gear

The First Department determined a motion to set aside a verdict in a negligent design case was properly denied.  The jury found the car manufacture negligent in not installing a device (starter interlock device) such that the car (1987) car could not be started when it was in gear.  The First Department wrote:

The trial court properly instructed the jury that in determining the negligent design claim it first had to decide whether, from the evidence at trial, there was a general custom or practice by automobile manufacturers selling manual transmission vehicles in the United States in 1987. The proof adduced at trial was sufficient to permit a jury to conclude that the practice was fairly well defined in the car manufacturing industry. Plaintiffs were not required to prove universal application of the practice in order for the jury to consider this question … . The court further properly instructed the jury that if there was such a custom and practice, it could be considered along with all of the other facts and circumstances, in determining whether Volvo had exercised reasonable care … . From all of the evidence in the record, including the experts’ testimony, the jury reasonably concluded that defendants were negligent in failing to use a starter interlock device in its vehicle …. The trial court correctly denied defendants’ motion for a directed verdict because there was sufficient evidence supporting plaintiffs’ negligent design claim. Reis… v Volvo…, 2013 NY Slip Op 03024, 1st Dept, 4-30-13

 

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Product Warranty Does Not Extend Statute of Limitations

In finding that a 10-year warranty on windows and doors did not extend the relevant statute of limitations, the First Department wrote:

Although initially it may seem somewhat unfair for defendant to have given plaintiffs a 10-year warranty and then argue that plaintiffs cannot sue for breach of warranty at any time during that 10-year period, the case law is clear on when this cause of action accrues …. Katopodis v Marvin Windows & Doors, 2013 NY Slip Op 02817, 1st Dept, 4-25-13

 

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Class Certification Properly Granted; Rent Overcharge and Attorney’s-Fees Claims Did Not Seek “Penalties” In Violation of CPLR 901

The First Department affirmed the grant of class certification in a landlord-tenant action finding that plaintiff’s rent overcharge claim and attorney’s-fees claim did not seek “penalties” in violation of CPLR 901.  There was a dissent.  The First Department wrote:

Although plaintiff did not waive her right to reimbursement for alleged overcharges and interest, these claims did not render her action an action for a penalty for purposes of CPLR 901(b), even though such recovery is denominated a penalty by the RSL [Rent Stabilization Law], because they lack a punitive, deterrent and litigation-incentivizing purpose ….

Nor did the attorneys’ fees request seek a penalty, as the general right to attorneys’ fees in landlord-tenant proceedings (Real Property Law § 234) does not apply to administrative proceedings …, and the RSL provision should be understood as having the same nonpunitive purpose as the statute applicable to actions and summary proceedings. Notably, the reference in Rent Stabilization Code (9 NYCRR) § 2526.1(d) to attorneys’ fees as an “additional penalty,” while otherwise not dispositive, is absent from the attorney fee provision in the legislatively enacted RSL. Gudz v Jemrock Realty Co, LLC, 2013 NY SlipOp 02814, 1st Dept, 4-25-13

 

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Class Certification Should Have Been Granted; Plaintiffs Waived Statutory Treble Damages

The First Department reversed the dismissal of a putative class action by tenants against a landlord alleging the landlord deregulated the apartments while receiving tax incentive benefits from the city.  Because the tenants waived the statutory treble damages provision, the First Department determined that the case no longer involved “penalties” and was therefore not precluded by CPLR 901.  In a full-fledged opinion by Justice Andrias, the First Department wrote:

Pursuant to CPLR 901(b), “[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained in a class action.” However, even where a statute creates or imposes a penalty, the restriction of CPLR 901(b) is inapplicable where the class representative seeks to recover only actual damages and waives the penalty on behalf of the class, and individual class members are allowed to opt out of the class to pursue their punitive damages. … . * * * Rent Stabilization Code (9 NYCRR) § 2520.13, which states that “[a]n agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void,” does not require a different result. “[P]laintiffs are seeking to waive their entitlement to treble damages unilaterally, not through agreement. Thus, allowing the class action to proceed would not frustrate the RSC’s purpose of [avoiding] situations whereby the landlord attempts to circumvent the [RSC’s] benefits” … . Downing v First Lenox Terrace Assoc, 2013 NY Slip Op 02853, 1st Dept, 4-25-13

 

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Class Certification in Landlord-Tenant Action Upheld

The First Department upheld Supreme Court’s grant of class certification in an action alleging defendant landlord charged market rents while accepting J-51 [tax incentive] benefits.  The First Department wrote:

The issues of when defendant received J-51 benefits, whether defendant deregulated apartments while receiving those benefits, which tenants resided in those apartments during those time periods, and whether defendant wrongfully charged market rents while accepting J-51 benefits are common issues that “predominate,” thereby meeting the commonality requirement of CPLR 902(a)(2)… . The need to conduct individualized damages inquiries does not obviate the utility of the class mechanism for this action, given the predominant common issues of liability … .

Defendant’s counterclaim for rent arrears does not cause plaintiff to be an atypical member of the class. Her claim is typical of the claims of all class members in that each flows from defendant’s alleged unlawful deregulation of apartments while receiving J-51 benefits … . “[T]hat the underlying facts of each individual plaintiff’s claim vary, or that [defendant’s] defenses vary, does not preclude class certification” …. Defendant’s counterclaim does not materially add to the complexity or difficulty of resolving plaintiff’s individual claim, and defendant’s suggestion that plaintiff might be inclined to settle her case to evade liability on the counterclaim is speculative.  Bordern v 400 East 55th Street Associates, LP, 2013 NY Slip Op 02815, 1st Dept, 4-25-13

 

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Role of Appellate Court in Reviewing an Arbitral Award Which Has Been Confirmed in a Judgment Explained

In a full-fledged opinion by Justice Acosta (with a dissent), the First Department held that payment, by the respondent investment fund, of an arbitral award in stocks as opposed to cash required a hearing to determine the value of the stocks.  The First Department outlined its role where the satisfaction of an arbitral award which has been confirmed in a judgment is before them:

As a threshold matter, we begin by observing that a party may oppose an arbitral award either by motion pursuant to CPLR 7511(a) to vacate or modify the award within 90 days after delivery of the award or by objecting to the award in opposition to an application to confirm the award notwithstanding the expiration of the 90-day period … . Here, respondent did neither. Indeed, it was petitioner who appealed the lower court’s refusal to enforce the judgment. Under such circumstances, contrary to our dissenting colleague, we do not have the authority to grant a non-appealing party relief that it did not seek by vacating a judgment entered against it …. Moreover, we are not empowered to remit the matter to the arbitrator for clarification ….

Where a dispute exists as to the meaning of an arbitration award that has been confirmed in a judgment, it becomes “the Court’s function to determine and declare the meaning and intent of the arbitrator []” …. To that end, a court may review the text of the arbitrator’s award in conjunction with whatever findings, if any, the arbitrator has made …. In so doing, a court should adopt the most reasonable meaning of the text by avoiding any potential interpretations of the award that would render any part of its language superfluous or lead to an absurd result .. . Furthermore, the award must be interpreted in the light most favorable to the prevailing party … .  Matter of Pine St Assoc, LP v Southridge Partners, LP, 2013 NY Slip Op 02854, 1st Dept, 4-25-13

 

Accident Unforeseeable as a Matter of Law

The First Department reversed Supreme Court’s denial of summary judgment and held that the accident was unforeseeable as a matter of law.  The plaintiff fell off a “setback roof” which was accessible only by climbing through the window of plaintiff’s friend’s apartment:

An accident is unforeseeable as a matter of law where the conduct or chain of events was so extraordinary that the defendant’s duty did not extend to preventing it … . Here, given the nature and location of the setback, it was unforeseeable that individuals would choose to access it, and thus defendant had no duty to guard against such an occurrence … . Powers v 32 E 31 LLC, 2013 NY Slip Op 02846, 1st Dept, 4-25-13

 

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