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Relation-Back” and “Savings Clause” Statutes Explained

The First Department discussed the difference between the relation-back doctrine of CPLR 203(f) and the savings clause of CPLR 205(a):

In a prior appeal in this action, we held that plaintiffs could not utilize the relation-back provisions in CPLR 203(f) to cure their defective initial complaint, based on their failure to comply with the subject agreements’ condition precedent to commencing an action against Impact, since the doctrine is dependent upon the existence of a valid preexisting action .. . However, on this appeal, we find that the savings clause of CPLR 205(a) does not bar plaintiffs’ action, since the statute was “created to serve in those cases in which the prior action was defective and so had to be dismissed” … . The dismissal of the prior action for plaintiffs’ failure to comply with a condition precedent was not a judgment on the merits …, and plaintiff commenced a new action within the six-month period required by CPLR 205(a).  Southern Wine & Spirits of Am, Inc v Impact Envtl Eng’g, PLLC, 2013 NY Slip Op o2i46, 9651, 650083/10, 1st Dept 3-28-13

 

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Judicial Hearing Officer Does Not Have Power to Find Non-Witness Guilty of Contempt

The First Department noted that a judicial hearing officer (JHO) does not have the power to find any person in contempt except a witness before him:

While CPLR 4311 and 4317(a) give a referee, upon consent of the parties, the power to hear and determine all trial issues before the court, CPLR 4301 specifically precludes a referee and, thus, a JHO from “adjudg[ing] any person except a witness before him guilty of contempt.” While [the JHO] had the power to make factual findings concerning violation of his orders, he was without power to adjudge persons in contempt because neither contempt finding involved behavior occurring before him … .  Hoffman v Helm Capital Group, Inc, 2013 NY Slip Op 02141, 603109/08, 9537A, 1st Dept 3-28-13

 

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Child Care Agency Could Be Found Negligent for Failure to Remove Child from Foster Parents’ Home

In a full-fledged opinion by Justice Acosta, the First Department reversed the trial court’s dismissal of a complaint against a child care agency which places children in foster homes.  A child the defendant placed allegedly started a fire in which members of the foster family were either killed or severely injured.  The First Department held that the child care agency, although it did not have a duty to control the child when he was in the foster family’s physical custody, had a duty to remove the child from the foster home upon notice of his propensity for setting fires:

In general, a defendant will not be liable for the conduct of third persons who cause harm to others … . However, the duty to control a third person’s conduct may arise when the defendant has authority to do so, and because of either the relationship between the defendant and the third person or the relation between the defendant and the plaintiff … . An example is the parent-child relationship … .

Thus, a child care agency, acting in loco parentis, has a duty to exercise reasonable care to prevent foster children under its supervision and control from harming others … .  Wynn, as Administratrix … v Little Flower Children’s Services, 2013 NY Slip Op 02156, 15276/95, 9200, 1st Dept 3-28-13

 

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“Professional” Standard of Care Can Be Required Based Solely on Nature of Services Provided

The First Department noted that a “professional” standard of care could be required of a party solely by virtue of the nature of services rendered:

The court properly found that Impact had a professional duty independent of the parties’ agreements. Although Impact, an environmental consultant, was not subject to licensing requirements, public policy requires that it should be held to a “professional” standard of care, given the nature of its services … . Indeed, “[p]rofessionals . . . may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties” … .  Southern Wine & Spirits of Am, Inc v Impact Envtl Eng’g, PLLC, 2013 NY Slip Op o2i46, 9651, 650083/10, 1st Dept 3-28-13

 

Failure to Wear Hard Hat Does Not Preclude 240(1) Claim

he First Department determined a worker was entitled to partial summary judgment on a 240(1) claim based on a falling pipe striking him in the head.  The fact that the worker was not wearing a hard hat did not raise a triable issue of fact on the 240(1) claim:

The evidence demonstrates that plaintiff, a welder who was working at a power plant that was being constructed, was struck on the head by a pipe that fell from a height of approximately 85 to 120 feet as a result of a gap in a toeboard installed along a grated walkway near the top of a generator in the power plant … . It is undisputed that there was no netting to prevent objects from falling on workers and contrary to defendants’ contention, plaintiff is not required to show exactly how the pipe fell, since, under any of the proffered theories, the lack of protective devices was the proximate cause of his injuries …. Nor is plaintiff required to show that the pipe was being hoisted or secured when it fell, since that is not a precondition to liability pursuant to Labor Law § 240(1) … .

In opposition, defendants failed to raise a triable issue of fact since they failed to show that adequate protective devices required by Labor Law § 240(1) were employed at the site. That plaintiff was wearing a welding hood but not a hard hat does not raise an issue of fact since “[a] hard hat is not the type of safety device enumerated in Labor Law § 240(1) to be constructed, placed and operated, so as to give proper protection from extraordinary elevation-related risks to a construction worker” … . Mercado v Caithness Long Is LLC, 2013 NY Slip Op 02005, 9634, 102473/09, 590277/11, 1st Dept 3-26-13

 

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City Deemed Immune from Suit—Governmental and Proprietary Functions Explained 

Plaintiff was injured when a Department of Transportation (DOT) worker, who was setting up cones on the roadway in preparation for road repair, allowed plaintiff to ride through the work area on her bicycle.  The plaintiff was injured when she rode over a pothole. The First Department determined the defendant City was immune from suit because the DOT worker was performing a discretionary/governmental, not a proprietary function, when he allowed the plaintiff to ride through.  The decision includes detailed discussion of discretionary/governmental versus proprietary functions.  Wittorf v City of New York, 2013 NY Slip Op 02014, 8358, 103233/06, 1st Dept 3-26-13

 

Open and Obvious Nature of Condition Required Dismissal of Complaint

In reversing the denial of defendant’s motion to dismiss the complaint, the First Department determined the open and obvious nature of the danger precluded the lawsuit:

Dismissal of the complaint as against the City is warranted inthis action where the 14-year-old decedent drowned after she and friends scaled a fence, ignored signs prohibiting swimming, and entered into the Bronx River, which runs through River Park, even though she did not know how to swim. Although the City has a duty to maintain its property in a reasonably safe condition, in view of all the circumstances …, “the duty to take reasonable precautions does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses” … .  Torres v City of New York, 2013 NY Slip Op 02019, 9607, 303086/11, 1st Dept 3-26-13

 

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Failure to Identify Notice Witness, Erroneous Missing Witness Charge and Erroneous Preclusion of Evidence Required Reversal.

A judgment in favor of the plaintiff after trial was reversed by the First Department because: (1) plaintiff’s son, a notice witness who testified about the alleged defective condition at the core of the lawsuit, had not been identified before trial; (2) a missing witness charge re: a purported employee of the defendant was given in the absence of proof of the employee’s existence; and (3), the testimony of defense witnesses was erroneously precluded or limited.  Collazo v Riverbay Co-op, 2013 NY Slip Op 01904, First Dept. 3-21-13

 

Presumption Disability Related to World Trade Center Work Not Rebutted

In reversing the dismissal of an Article 78 proceeding which sought to annul the denial of petitioner’s application for World Trade Center (WTC) disability benefits, the First Department determined the “World Trace Center presumption” had not been rebutted by the respondents:

Once a petitioner establishes that he worked the requisite number of hours at the site, the “World Trade Center presumption” places the burden on the respondents to show that the petitioner’s qualifying injury was not incurred in the line of duty … . If a determination is made, even postretirement, that the applicant is disabled by a qualifying WTC condition, it will be presumed, unless rebutted, that the disability was sustained due to a work-related accident, thus entitling the applicant to RSSL [Retirement and Social Security Law] § 605(h) disability retirement benefits.

Although the WTC presumption does not mandate enhanced [accident disability retirement] benefits for first responders in all cases, it is nonetheless incumbent on respondents to come forward initially with affirmative credible evidence to disprove that the officer’s disability was causally related to his work at the WTC site … . The Board may not deny benefits solely by relying on the lack of evidence connecting the disability to the exposure, or by “rely[ing] on petitioner’s deficiencies to fill its own gap in proof” … .  Matter of Samadjopoulos v New York City Employee’s Retirement Sys., 2013 NY Slip Op 01901, 400912/10, 9493, 1st Dept. 3-21-13

 

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Prior Ruling on Appeal is Law of the Case for Both Trial and Appellate Courts

In a case which resulted in a second appeal, defendant contested the validity of a board meeting in both the first and second appeal.  The First Department, in a full-fledged opinion by Justice Renwick, explained that the ruling in the first appeal was binding both on the trial court and the appellate court as the “law of the case: “

An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court . . . [and] operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of law”… .  Board of Mgrs. … v Seligson, 2013 NY Slip Op 01926, 1st Dept. 3-21-13

 

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