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IT WAS ALLEGEDLY EVIDENT FROM THE EMPLOYEE’S JOB APPLICATION THAT HE HAD BEEN IN PRISON; THE ALLEGED FAILURE TO INVESTIGATE RAISED QUESTIONS OF FACT IN SUPPORT OF THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION; THE CORRECTION LAW DOES NOT PROHIBIT CONSIDERATION OF PRIOR CONVICTIONS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the negligent hiring and supervision cause of action against defendant LLC stemming from an altercation between plaintiff and the LLC’s employee (McIntosh) should not have been dismissed. It was allegedly evident from McIntosh’s employment application that he had been in prison:

… [P]laintiff raised triable issues of fact as to whether the LLC “should have known of the employee’s propensity for the conduct which caused the injury” … . It is well settled that “an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee” … . McIntosh’s handwritten job application provided facts that should have led the LLC to investigate, as he indicated that he worked at the address of a state prison, he earned a “stipend” instead of the typical hourly wage, and one of his supervisors was a corrections officer, or “C.O.” Although “the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment,” the record shows that the LLC made no effort to investigate … . Its owner-witness admitted that no background check was performed. She did not know whether a restaurant manager called McIntosh’s past employers, and she had no knowledge of his criminal background, as would have been revealed by a call to the past employer … . Contrary to the LLC’s contention, the Correction Law does not prohibit consideration of a job applicant’s prior convictions, but instead provides a balancing test to determine whether there was a “direct relationship between” a prior offense and the job or whether the employment “would involve an unreasonable risk . . . to the safety or welfare of . . . the general public” (Correction Law §§ 752[1]- Darbeau v 136 W. 3rd St., LLC, 2024 NY Slip Op 01672, First Dept 3-26-24

Practice Point: Where an applicant’s job application indicates the applicant had been incarcerated, an employer’s failure to investigate may support a negligent hiring and supervision cause of action. The Correction Law does not prohibit an inquiry into prior convictions.

 

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THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) VIOLATED THE LESS IS MORE ACT (LIMA) BY FAILING TO HOLD A RECOGNIZANCE HEARING WITHIN 24 HOURS, AND FAILING TO HOLD A PRELIMINARY HEARING WITHIN FIVE DAYS OF THE EXECUTION OF THE PAROLE-VIOLATION WARRANT; HABEAS CORPUS PETITION PROPERLY GRANTED (FIRST DEPT).

The First Department, affirming the grant of the habeas corpus petition, in a full-fledged opinion by Justice Gonzalez, determined the Department of Corrections and Community Supervision’s (DOCCS’s) failure to hold a recognizance hearing on petitioner’s alleged violation of parole within 24 hours as required by the Less is More Act (LIMA) (Executive Law 259-i) violated due process:

LIMA’s plain language was abrogated when petitioner’s recognizance hearing was held five days after the execution of the warrant, instead of within the requisite 24 hours. This error was compounded when the preliminary hearing was held seven days after the execution of the warrant, instead of the requisite five days (Executive Law § 259-i[3][c][i][B]). The interpretation that DOCCS advances would bypass LIMA and effectively remove its statutory duty to ensure that recognizance hearings are timely held within 24 hours of the warrant execution … . Matter of People of the State of N.Y. v Annucci, 2024 NY Slip Op 01685, First Dept 3-26-24

Practice Point: The statutory requirement that a recognizance hearing must be held within 24 hours and a preliminary hearing must be held within five days of the execution of a parole-violation warrant is strictly enforced. Failure to comply with the statutory time-limits violates due process and warrant granting a habeas corpus petition.

 

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SM STABBED INFANT PLAINTIFF SHORTLY AFTER BEING TREATED BY DEFENDANT HOSPITAL WHICH ALLEGEDLY NEGLIGENTLY FAILED TO DETAIN OR REPORT SM; ALTHOUGH SM DID NOT WAIVE THE PATIENT-PHYSICIAN PRIVILEGE, PLAINTIFF WAS ENTITLED TO AN IN CAMERA REVIEW OF SM’S MEDICAL RECORDS AND DISCLOSURE OF ANY RELEVANT NONMEDICAL INFORMATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the demand for disclosure of SM’s medical records was properly denied because SM had not waived the physician-patient privilege, but the request for an in camera review of the records for nonmedical information should have been granted. SM has been treated by defendant New York City Health + Hospital/Lincoln Medical Center (NYCHH) shortly before SM stabbed infant plaintiff. Plaintiff alleged NYCHH should have reported SM and detained her or taken some other measures to protect infant plaintiff:

Infant plaintiff and her father allege that NYCHH’s employees negligently treated SM when she presented to the hospital on April 26 and April 27, 2016, shortly before she stabbed the infant plaintiff and brother, resulting in the brother’s death. They allege that SM had a history of mental illness for which she had been treated by NYCHH on “scores of previous occasions,” and that NYCHH failed to detain SM, call a report to the Statewide Central Register of Child Abuse and Maltreatment, or “take any other action to protect” the infant plaintiff. SM, who is currently incarcerated, has not waived the physician-patient privilege and is believed to be unable or unwilling to do so.

Supreme Court properly determined that Mental Hygiene Law § 33.13(c)(1) does not apply to allow disclosure of SM’s hospital records in the interests of justice, absent SM’s consent or express or implied waiver of the physician-patient privilege provided by CPLR 4504, 4507 … . … Supreme Court should have granted plaintiffs’ alternative request for in camera review to determine whether the records include information of a nonmedical nature, such as observations of SM’s conduct, language, and appearance and factual matters, which is subject to disclosure … . S.M. v City of New York, 2024 NY Slip Op 01689, First Dept 3-26-24

Practice Point: Although medical records are protected from disclosure by the patient-physician privilege, relevant nonmedical, factual information in the records may be disclosed pursuant to an in camera review.

 

ALTHOUGH THE PLAINTIFF WAS STANDING ON A LADDER WHEN THE DEFECTIVE GRINDER INJURED HIM, THE LADDER DID NOT FAIL AND THE LABOR LAW 240(1) ACTION WAS PROPERLY DISMISSED; HOWEVER THE DEFECTIVE GRINDER PRESENTED A SAFETY ISSUE COVERED BY LABOR LAW 241(6) AND THE OWNER AND GENERAL CONTRACTOR MAY BE LIABLE EVEN IF THEY DID NOT SUPERVISE THE WORKSITE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 240(1) cause of action was properly dismissed because the ladder did not malfunction, but the Labor Law 241(6) cause of action based upon the defective grinder which kicked back and injured plaintiff should not have been dismissed. The court noted defendants had notice of the defective grinder and the property owner and the general contractor may be liable even if they did not control the worksite:

Defendants established their entitlement to summary judgment on plaintiff’s Labor Law § 240(1) cause of action by submitting evidence that plaintiff’s injury was caused by the grinder and that he did not fall from the ladder. Because plaintiff’s injury did not arise from any elevation-related risk presented by the ladder, Labor Law § 240(1) does not apply … .

However, Supreme Court should have denied defendants’ motion to dismiss plaintiff’s Labor Law § 241(6) claim insofar as it was predicated on a violation of Industrial Code (12 NYCRR) § 23-1.5(c)(3). Despite defendants’ assertion otherwise, the section is a sufficiently specific safety standard to support a Labor Law § 241(6) claim, and the deposition testimony established that plaintiff’s grinder had no guard, thus violating the mandate of the regulation … . Plaintiff also proffered evidence that defendants had notice of a defect in the grinder, as he testified that he complained to his supervisor that the grinder shook and lacked a guard and the owner and general contractor bear the ultimate responsibility for safety practices at building construction sites even where they do not control or supervise the worksite … . Desprez v United Prime Broadway, LLC, 2024 NY Slip Op 01607, First Dept 3-19-24

Practice Point: Although plaintiff was standing on a ladder when he was injured by a defective grinder, because the ladder did not fail the incident was not elevation-related within the meaning of Labor Law 240(1).

Practice Point: Because the defective grinder raised a safety issue about which the defendants had notice, the owner and general contractor may be liable pursuant to Labor Law 241(6) even if they did not supervise the worksite.

 

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IT WAS NOT CLEAR FROM THE RECORD WHETHER THE JUDGE IMPROPERLY DEEMED YOUTHFUL OFFENDER STATUS TO HAVE BEEN WAIVED BY THE PLEA, OR WHETHER THE JUDGE REJECTED YOUTHFUL OFFENDER STATUS AFTER CONSIDERING IT AS REQUIRED; MATTER REMITTED (FIRST DEPT).

The First Department, remanding the matter for consideration of youthful offender status, determined it was not clear from the record whether the judge improperly denied youthful offender status because it has been waived by the plea or whether youthful offender status had been considered and rejected:

Although the court stated at sentencing that it would not grant defendant youthful offender status with regard to Indictment Nos. 3801/16 and 583/17, “there is nothing in the record to indicate that it actually independently considered youthful offender treatment,” as required by CPL 720.20(1) and People v Rudolph (21 NY3d 497 [2013]), “instead of denying such treatment because it was not part of the plea agreement” … . While a court need not set forth its reasons for denying youthful offender treatment … , it is still required to “clarify expressly whether it had ‘actually consider[ed] youthful offender treatment’ or whether it had improperly ‘ruled it out on the ground that it had been waived as part of defendant’s negotiated plea'” … . Because the court did not satisfy this obligation, we remand the matter for a determination of whether defendant should be afforded youthful offender treatment as to the promoting prison contraband and attempted criminal sale of a controlled substance convictions. People v J.G., 2024 NY Slip Op 01520, First Dept 3-19-24

Practice Point: In rejecting youthful offender status, the judge need not give the reasons but the record must reflect the judge considered the issue and did not improperly consider it waived by the plea.

 

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BECAUSE THE RESPONDENT CREATED AMBIGUITY ABOUT WHETHER IT WAS STILL CONSIDERING PETITIONER’S FOIL REQUEST AFTER EXPIRATION OF THE 10-DAY CONSTRUCTIVE-DENIAL PERIOD, THE FOUR-MONTH PERIOD FOR COMMENCING AN ARTICLE 78 PROCEEDING DID NOT START ON THE CONSTRUCTIVE-DENIAL DATE; THE ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent Office of Court Administration (OCA) gave petitioner the impression it was still considering petitioner’s FOIL request after the 10-day period for a response from the OCA expired on May 27, 2022. The OCA produced some documents on June 27, 2022. Therefore, the four-month period for commencing an Article 78 proceeding did not start on May 27, but rather on June 27, rendering the Article 78 commenced on November 8, 2022, timely:

… OCA’s ongoing consideration of the request created an ambiguity and the impression of nonfinality regarding its May 27 constructive denial … . Twice, on June 16 and August 5, 2022, OCA issued substantive rulings on the FOIL request, stating that petitioner had 30 days to take a written appeal of the determination. OCA’s treatment of its May 27 constructive denial as a final agency determination is inconsistent with its statements notifying petitioner that it had opportunities for further administrative appeals … . Thus, petitioner was justified in pursuing the administrative appeals that OCA appeared to offer rather than commencing what would have been a timely article 78 proceeding.

OCA created further doubt about the finality of its May 27 constructive denial when it wrote in its June 23, 2022 email that its substantive response to the FOIL request rendered the appeal of the constructive denial moot and issued a ruling on petitioner’s appeal. OCA’s contention that petitioner’s May 13, 2022 appeal was denied with finality on May 27 is incompatible with its later characterization of that appeal as moot. Similarly, the July 27, 2022 production letter from OCA stated that OCA was producing records in response to petitioner’s FOIL request, which, according to OCA, had been “remanded back . . . in response” to petitioner’s appeal. Petitioner was justified in its understanding that its request had not been denied with finality on May 27, as it could not have been both conclusively denied and simultaneously “remanded back . . . in response” to petitioner’s June 23, 2022 appeal.

Because OCA created an ambiguity, it is resolved against the agency, and the petition is deemed timely … . Matter of Portfolio Media, Inc. v New York State Off. of Ct. Admin., 2024 NY Slip Op 01523, First Dept 3-19-24

Practice Point: Here the respondent did not respond to petitioner’s FOIL request within 10 days. But because the respondent created ambiguity about whether it was still considering the request after the constructive-denial date, the constructive-denial date should not have been used to calculate the four-month period for commencing an Article 78 proceeding. Therefore the Article 78 was timely commenced.

 

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THE NYPD’S FAILURE TO TIMELY COMPLY WITH A COURT ORDER REQUIRING THE RELEASE OF DOCUMENTS PURSUANT TO A FOIL REQUEST WARRANTED THE AWARD OF ATTORNEY’S FEES TO PETITIONER; RESPONDENT NYPD’S ABANDONING AN ISSUE IN A PRIOR APPEAL PRECLUDED APPELLATE REVIEW OF THAT ISSUE IN A SUBSEQUENT APPEAL (FIRST DEPT).

The First Department determined the NYPD’s failure to timely comply with a court order mandating a response to petitioner’s FOIL request warranted the award of attorney’s fees to petitioner:

… [T]he court properly granted attorney’s fees and costs arising from NYPD’s noncompliance with this Court’s prior order. NYPD’s argument, that this noncompliance was justified because some of the records were sealed after NYPD’s final administrative determination, was abandoned in the prior appeal … , and this Court has “no discretionary authority” to reach this unpreserved issue in the interest of justice in this article 78 proceeding challenging an administrative determination … . The court providently exercised its discretion in holding NYPD in civil contempt, given that NYPD waited several months before disclosing a video and 407 heavily redacted pages of responsive records, after which petitioner was forced to continue litigating its entitlement to complete disclosure of unredacted copies of the records. After this Court’s January 2021 order, NYPD should have disclosed all records responsive to petitioner’s FOIL request, without the need for any further proceedings. “Once the court has issued a valid order, it is not for the recipient of that order to fashion its own remedy” … . The “lengthy delay” caused by NYPD “was unreasonable under the particular circumstances of this case,” warranting an award of attorney’s fees and costs pursuant to FOIL … . Matter of Jewish Press, Inc. v New York City Police Dept., 2024 NY Slip Op 01511, First Dept 3-19-24

Practice Point: Failure to timely respond to a court order requiring the release of documents pursuant to a FOIL request, necessitating further litigation by the petitioner, warrants the award of attorney’s fees to petitioner.

 

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THE FACT THAT PLAINTIFF WAS SPECIFICALLY TARGETED FOR A HOME INVASION DID NOT PRECLUDE A FINDING THAT INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property owners should not have been awarded summary judgment in this home invasion case. The fact that plaintiff was specifically targeted did not preclude a finding that building security was inadequate:

Plaintiff was the victim of a home invasion of his apartment in a building owned and operated by defendants. The incident began when someone knocked on plaintiff’s apartment door and asked by name for his niece, who also lived in the apartment. When plaintiff looked through the peephole, he thought he saw a young woman, but the peephole was blurry, as it had been since plaintiff had moved in three or four years earlier. Plaintiff also testified that the chain guard on the door did not function properly. When plaintiff opened the door slightly, the young woman and a man he had not seen through the peephole pushed their way into the apartment and pistol whipped him. After demanding $5,000 that had purportedly been sent to plaintiff’s niece, the two assailants assaulted plaintiff for an extended period and looted the apartment before leaving.

Defendants failed to establish their entitlement to summary judgment dismissing the complaint, as evidence that an attack was targeted toward a particular person does not sever the proximate cause link as a matter of law in cases alleging negligent security … . In light of the record evidence that the building’s locks were malfunctioning, and that plaintiff’s apartment peephole and chain lock were defective, proximate cause is for the factfinder to decide … . Cabrera-Perez v Promesa Hous. Dev. Fund Corp., 2024 NY Slip Op 01338, First Dept 3-14-24

Practice Point: The fact that plaintiff was deliberately and specifically targeted for a home invasion did not preclude a finding that malfunctioning locks and a defective peephole constituted a proximate cause of the invasion and consequent injury.

 

THE STATUTORY CRITERIA FOR A MOTION TO CHANGE VENUE IN CPLR 510(3) WERE NOT MET; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ motion to change the venue in this insurance-coverage dispute should not have been granted because the statutory criteria in CPLR 510(3) were not met. The statute requires detailed information about the witnesses who will testify and how those witnesses would be inconvenienced if venue is not changed:

To warrant a change of venue pursuant to CPLR 510(3), “[t]he affidavit in support of such motion must contain the names, addresses and occupations of the prospective witnesses, must disclose the facts to which the proposed witnesses will testify at the trial, must show that the proposed witnesses are, in fact, willing to testify and must show how the proposed witnesses would be inconvenienced in the event that a change of venue is not granted” … . Defendants have failed to meet any part of this standard. Defendants’ general statements that nonparty witnesses involved in the renovation project will be inconvenienced by venue in New York County is inadequate to satisfy the standard … . Corner of Walnut LLC v Tompkins Ins. Agencies, Inc., 2024 NY Slip Op 01339, First Dept 3-14-24

Practice Point: CPLR 510(3) describes the required contents of a motion to change venue which includes detailed information about the witnesses who will testify and how the witnesses will be inconvenienced if venue is not changed.

 

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PLAINTIFF, A NEW YORK RESIDENT AND A SHAREHOLDER IN DEFENDANT LONDON CORPORATION, ALLEGED DEFENDANT WRONGFULLY FAILED TO PAY DIVIDENDS; THE LONDON DEFENDANT’S MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to dismiss on “forum non conveniens” grounds should have been granted. Plaintiff is a New York resident and the defendant is a London corporation (Anderson). Plaintiff, a shareholder of Anderson, alleged Anderson failed to pay dividends to shareholders:

The doctrine of forum non conveniens permits a court to dismiss an action when it finds that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327[a]). In reviewing the motion court’s exercise of discretion, this Court, however, may exercise such discretion independently … . The factors to be considered on a forum non conveniens motion include: “the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit. The court may also consider that both parties to the action are nonresidents and that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction. No one factor is controlling” … . New York courts “need not entertain causes of action lacking a substantial nexus with New York” … .

… Although plaintiff is a resident of New York, Anderson, its documents, and the witnesses are all located in the United Kingdom. The dispute involves an accounting of a British private company and will likely involve the application of British law to determine what duty, if any, is owed to plaintiff. Furthermore, the United Kingdom has a stronger interest than New York in the actions, duties, and governance of its companies … . Hayes v Anderson & Sheppard Ltd., 2024 NY Slip Op 01344, First Dept 3-14-24

Practice Point: Here plaintiff, a New York resident and a shareholder in defendant London corporation, alleged defendant wrongfully failed to pay dividends. The London defendant’s motion to dismiss on forum non conveniens grounds should have been granted, criteria explained.

 

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