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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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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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