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Even Though Length of Merging Lane Was a Factor in Accident, It Was Not the Proximate Cause of the Accident

Plaintiff’s car was side-swiped by defendant’s van when the van was in a merging lane called a taper.  The taper was 100 feet shorter than required.  In affirming summary judgment to the defendants responsible for constructing the taper, the First Department determined the van was the sole proximate cause of the accident:

The Supreme Court properly found that the alleged negligence of the DOE van’s driver was a proximate cause of the accident. Here, as the van was stopped next to plaintiff’s vehicle, the length of the taper, created by defendants Tully and Verizon, was entirely unrelated to the occurrence of the accident. As noted, the accident was caused by the alleged improper operation of the DOE vehicle. There is no evidence that the van was unable to safely merge, instead of merely trying to get to the front of the line of traffic moving through the construction zone. A jury would thus be required to speculate that the taper was a proximate cause of the accident. As a result, even assuming the taper in this case did not comply with …standards, and that it may have furnished the condition or occasion for the occurrence, it was not a proximate cause of it … . Collins v City of New York, 2013 NY Slip Op 02816, 1st Dept, 4-25-13

TRAFFIC ACCIDENTS

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Defendant Was Not Plaintiff’s “Special Employer”

In finding defendant was not plaintiff’s (Vasquez’) “special employer” (and therefore could not take advantage of the exclusive-remedy provision of the Workers’ Compensation Law), the First Department wrote:

Defendant’s motion for summary judgment, made on the ground that the complaint is barred by the exclusivity provision of the Workers’ Compensation Law (see Workers’ Compensation Law § § 11, 29[6] …, was properly denied. Defendant maintains that it was Vasquez’s special employer because it hired all building employees, including Vasquez, and was also responsible for firing. However, plaintiff asserts the evidence establishes that defendant was not Vasquez’s special employer. Specifically, the property owner, not defendant, paid and provided benefits to Vasquez. Defendant’s evidence failed to establish as a matter of law that it “control[led] and direct[ed] the manner, details and ultimate result of” Vasquez’s work …, and plaintiff acknowledges questions of fact exist on this issue. If the issue of defendant’s status as a special employer is resolved in plaintiff’s favor, plaintiff is entitled to partial summary judgment on liability on her Labor Law § 240(1) claim. Vasquez v Cohen Bros Realty Corp, 2013 NY Slip Op 02682, 1st Dept, 4-23-13​

 

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Employee-Status Proven and Workers’ Compensation Exclusivity Provision Applied; Employee’s Jumping from Stalled Elevator Was Superseding Cause of Accident

The First Department determined the respondent, Plaza Residences, could assert the Workers’ Compensation defense even though petitioner believed he was working for a nonparty (Wavecrest Management, Inc) which directed and controlled his work:

The Workers’ Compensation exclusivity provision applies to those employers, and their agents, that exercise supervision and control over an employee …. Here, the evidence establishes that an actual employment relationship exited between plaintiff and Plaza Residences. Such evidence includes Plaza Residences’ payroll records, state withholding tax and unemployment returns, plaintiff’s own W-2 form, and copies of cancelled paychecks. Each of these documents identified Plaza Residences as plaintiff’s employer, and the fact that Plaza Residences relinquished all authority to nonparty Wavecrest Management, Inc., which directed and controlled plaintiff’s work, did not preclude Plaza Residences from asserting the Workers’ Compensation defense.

The First Department also determined petitioner’s jumping from a stalled elevator was “an unforeseeable, superseding cause of his accident” and dismissal of his complaint was therefore warranted. Clifford v Plaza Hous Dev Fund Co, Inc, 2013 NY Slip Op 02695, 9871, 305519/08, 1st Dept, 4-23-13

 

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Conviction Reversed Because of Improper Cross-Examination by Prosecutor; Defendant Questioned About Boyfriend’s Criminal History and Her Employment History

The First Department reversed a conviction because of the prosecutor’s improper cross-examination of the defendant.  The defendant was accused of smuggling a knife to her boyfriend while he was incarcerated.  The defendant was cross-examined about her boyfriend’s gang membership and criminal history and defendant’s periods of unemployment (among other improper topics).  In addressing the cross-examination about defendant’s boyfriend’s criminal history, the First Department wrote:

The criminal history of defendant’s boyfriend was irrelevant to whether defendant “knowingly and unlawfully introduce[d] any dangerous contraband into a detention facility” … . The fact that Wright was a gang member with an extensive criminal history has no bearing on whether or not defendant knew she was introducing dangerous contraband into the facility, and could only serve to inflame the jury and prejudice defendant. As defendant correctly argues, this evidence served “no purpose but to suggest that defendant was associated with a disreputable person” … .People v Bartholomew, 2013 NY Slip Op 02699, 1st Dept, 4-23-13

PROSECUTORIAL MISCONDUCT

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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

 

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