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CASE REMITTED FOR A DETERMINATION OF THE CONSTITUTIONALITY OF THE GUARANTY LAW WHICH WAS FOUND TO HAVE BARRED PLAINTIFF’S CLAIM FOR CERTAIN AMOUNTS (FIRST DEPT).

The First Department sent this case back for a determination whether guarantees at issue are constitutional:

In view of the recent decision in Melendez v City of New York (2023 WL 2746183, 2023 US Dist LEXIS 57050 [SD NY, Mar. 31, 2023, No. 20-CV-5301 (RA)] finding the guaranty law unconstitutional, we remand the constitutional question raised by the parties here so the parties can further develop the record in the trial court for the purpose of applying the Contracts Clause test for constitutionality … . Plaintiff is directed to serve notice on nonparty City of New York under CPLR 1012(b)(2) and file proof of service in order for the City to “intervene in support of its constitutionality” … .

Given the vitality of the constitutional question, we also reverse the dismissal of plaintiff’s claim for those amounts the court determined were barred by the guaranty law for a determination following the court’s resolution of the constitutional issue. 45-47-49 Eighth Ave. LLC v Conti, 2023 NY Slip Op 05180, First Dept 10-12-23

Practice Point: Supreme Court had held plaintiff’s claim to certain amounts was barred by the guaranty law. A federal court has held the guaranty law unconstitutional. This matter was sent back for a determination of the constitutional question.

 

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PLAINTIFF’S EMPLOYER, VERIZON, THREATENED LEGAL ACTION BASED UPON A NON-COMPETE AGREEMENT SIGNED BY PLAINTIFF IF PLAINTIFF RESIGNED TO WORK FOR WARNERMEDIA; PLAINTIFF’S TORTIOUS-INTERFERENCE-WITH-PROSPECTIVE-BUSINESS-RELATIONS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-employer (Verizon) was entitled to summary judgment dismissing the tortious-interference-with-prospective-business-relations cause of action. Plaintiff signed a non-compete agreement. When Verizon learned of plaintiff’s plan to resign and work for WarnerMedia Verizon warned plaintiff that resigning would lead to legal action:

Although plaintiff contends that Verizon wrongfully threatened litigation against him to enforce the noncompete provision, the “wrongful means” element of the cause of action is satisfied only where the threatened lawsuit is frivolous … . In light of the above facts, and considering that Verizon has successfully enforced a similar noncompete provision in the past … , there was an objectively reasonable basis to believe that the provision in its agreement with plaintiff was enforceable. …

Furthermore, the record does not support plaintiff’s argument that Verizon took its legal position solely out of a personal dislike for plaintiff, or solely by a desire to harm him … . On the contrary, the record shows that Verizon’s actions were motivated by economic self-interest … . Lucas v Verizon Communications, Inc., 2023 NY Slip Op 05190, First Dept 10-12-23

Practice Point: In order to support a tortious-interference-with-prospective-business-relations cause of action plaintiff must prove the employer’s threatened action was “wrongful” and was motivated solely by a desire to harm plaintiff. Here the employer threatened only to take legal action to enforce a non-compete agreement. The tortious-interference cause of action should have been dismissed.

 

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THE REPEAL OF CIVIL RIGHTS LAW 50-A, WHICH PROHIBITED ACCESS TO POLICE PERSONNEL RECORDS, APPLIES RETROACTIVELY; PETITIONER PREVAILED RE: THE FOIL REQUEST AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, modifying Supreme Court, determined the repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively. The court further held petitioner had prevailed re: the FOIL request and was therefore entitled to attorney’s fees:

… [F]ormer Civil Rights Law § 50-a provided, with limited exceptions, that “[a]ll personnel records [of law enforcement officers] used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review” … . The legislature repealed Civil Rights Law § 50-a on June 12, 2020 … , and made several related amendments to FOIL on the same date … , stating that all of this legislation including the repeal of section 50-a “shall take effect immediately” … . The “repeal of Civil Rights Law § 50-a . . . reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them … .  * * *

… [W]e hold that the repeal of Civil Rights Law § 50-a applies retroactively to records created prior to June 12, 2020 … . Matter of NYP Holdings, Inc. v New York City Police Dept., 2023 NY Slip Op 05193, First Dept 10-12-23

Practice Point: The repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively.

Practice Point: Where, as here, a petitioner prevails on a FOIL request, petitioner is entitled to the award of attorney’s fees.

 

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PLAINTIFF BUS PASSENGER WAS INJURED WHEN THE BUS DRIVER TOOK ACTION IN AN EMERGENCY; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff-bus-passenger’s injuries resulted from the bus driver’s reaction to an emergency:

In this action for personal injuries arising from a fall on a public bus, defendants established prima facie entitlement to judgment as a matter of law by demonstrating that their bus driver was presented with an emergency situation that was not of his own making when a vehicle abruptly swerved into his lane without signaling, and that he took reasonable action by braking to avoid a collision … .

In opposition, plaintiff failed to submit any evidence tending to show that the bus driver created the emergency or could have avoided a collision by taking a different action other than applying the brakes … . Plaintiff’s claim that an issue of fact is raised by conflicting testimony over whether the driver braked abruptly or gradually is unavailing. The undisputed evidence demonstrates that the driver was required to take immediate action to avoid striking the vehicle and that braking with sufficient force to prevent an accident was a reasonable response to the emergency … . Febres v Metropolitan Transp. Auth., 2023 NY Slip Op 05095, First Dept 10-10-23

Practice Point: Defendants demonstrated the bus driver took justifiable action in an emergency. Plaintiff, a bus passenger, was injured by the movement of the bus. Defendants were entitled to summary judgment.

 

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THE SCAFFOLD COLLAPSED ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE HEARSAY SUBMITTED IN OPPOSITION DID NOT DEFEAT THE MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-collapse case. Plaintiff alleged he was told to assemble use the scaffold despite mismatched parts. The defendants relied on hearsay statements attributed to Sabato, plaintiff’s supervisor, to the effect that Sabato told plaintiff to wait until the correct scaffold parts were supplied. Hearsay alone will not defeat a summary judgment motion:

… [T]estimony establishing that a safety device collapsed is sufficient for a prima facie showing on liability … . * * *

Because defendants’ submissions in opposition rely entirely on Sabato’s inadmissible hearsay statements, they are insufficient to raise a triable issue of fact as to whether plaintiff’s conduct — namely, using a scaffold that he was allegedly instructed not to use – may be the sole proximate cause for his accident and therefore warrant a denial of plaintiff’s motion … . Garcia v 122-130 E. 23rd St. LLC, 2023 NY Slip Op 05096, First Dept 10-10-23

Practice Point: The collapse of a scaffold warrants summary judgment on a Labor Law 240(1) cause of action. Hearsay alone offered in opposition will not defeat the motion.

 

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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO DEFENDANT ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA; THE MATTER WAS REMITTED FOR CONSIDERATION OF THE MOTION AFTER NEW COUNSEL IS ASSIGNED (FIRST DEPT).

The First Department sent the matter back for a ruling on defendant’s pro se motion to withdraw his plea. Defendant’s attorney took a position adverse to the defendant’s by telling the judge the motion would not succeed. New counsel must be assigned:

Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting, among other things, deficiencies in defense counsel’s performance with respect to the plea. The court assigned defendant new counsel, and the People opposed defendant’s motion. At the outset of the sentencing hearing, the court asked counsel if he was seeking an adjournment to supplement defendant’s pro se motion, and counsel responded: “No, I am not, and I am not adopting it because I read the People’s [opposition] and reviewed the case law on this issue and it really doesn’t seem to be worthy of asking for my client to take his plea back.” Under the circumstances, counsel took a position adverse to defendant, requiring assignment of new counsel on the motion … . People v Rivera-Santana, 2023 NY Slip Op 05101, First Dept 19-10-23

Practice Point: Here defense counsel told the judge defendant’s pro se motion to withdraw his plea was weak, thereby taking a position adverse to defendant’s. The First Department sent the matter back for assignment of new counsel and consideration of the motion.

 

PLAINTIFF DEMONSTRATED THE SCAFFOLD FROM WHICH HE FELL DID NOT HAVE GUARDRAILS; HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this scaffold-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff demonstrated the scaffold lacked guardrails. That was enough:

Plaintiff … established prima facie that defendant violated Labor Law § 240(1) and that the violation proximately caused his injuries, as his uncontroverted affidavit demonstrated that the scaffold supplied to him for the work he was performing lacked guardrails and that no other protective devices were provided to protect him from falling. The motion was not premature as defendants failed to show what discovery was needed or what any additional discovery could be expected to reveal (see CPLR 3212 [f] …). Velasquez v 94 E. 208 St. Partners LLC, 2023 NY Slip Op 05110, First Dept 10-10-23

Practice Point: Here, falling from a scaffold with no guardrails warranted summary judgment on the Labor Law 240(1) cause of action.

 

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DEFENDANT PROPERTY OWNERS PRESENTED NO EVIDENCE TO DEMONSTRATE WHEN THE STEPS WHERE PLAINTIFF SLIPPED AND FELL WERE LAST INSPECTED OR CLEANED; THEREFORE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

​The First Department, reversing Supreme Court, determined there was a question of fact whether defendants created or had notice of the slippery condition of the steps alleged to have caused plaintiff’s slip and fall. Defendants presented no evidence about when the steps were last cleaned or inspected:

Defendant Bruhilde Koenig testified during her deposition that she painted the concrete steps leading down to plaintiff’s basement apartment with nonslip paint, and that she never had issues with the patio being slippery when wet prior to plaintiff’s accident. However, she presented no testimony as to the condition of the steps on the day of the accident or as to when the steps had most recently been inspected or cleaned. Plaintiff testified that it was “wet and misty” at the time of the accident, that he observed standing water on the steps, and that he had previously asked Koenig to place safety strips on the staircase, as he and his daughter had slipped and fallen in the past during rainy weather. Plaintiff also testified that the steps were “irregular” and not “very well uniformed [sic].” Plaintiff has raised a triable issue of fact as to whether defendants created or had notice of the alleged defect. Iaccarino v Koenig, 2023 NY Slip Op 05037, First Dept 10-5-23

Practice Point: In a slip and fall case, the property owner cannot demonstrate a lack of notice of the slippery condition without presenting evidence demonstrating when the area was last inspected or cleaned.

 

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DEFENDANT WAS NOT GIVEN AN OPPORTUNITY TO RESPOND TO A RISK-ASSESSMENT THEORY RAISED FOR THE FIRST TIME AT THE HEARING; MATTER REMANDED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant should not have been assessed risk-factor points based on a theory which defendant was unable to respond to because it was raised for the first time at the SORA risk-assessment hearing. The matter was remanded:

… [T]he court should have found that the People acted improperly in raising, for the first time at the hearing, as the basis for scoring defendant 15 points for inflicting physical injury under risk factor 1, a new reason or theory that differed from the basis for that scoring specified in the Board’s case summary and in the People’s prehearing submissions. This deprived defendant of the proper advance, informative notice of “the reasons” and “basis” for the People seeking the 15-point determination to which he was entitled under Correction Law § 168-n (3) and due process, so as to afford him a meaningful opportunity to respond to the assessment … People v Jackson, 2023 NY Slip Op 05043, First Dept 10-5-23

Practice Point: If the People present a new risk-assessment theory at the SORA hearing, the court must give the defendant a meaningful opportunity to respond before issuing a ruling.

 

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TO CONSIDER A LATE MOTION TO DISMISS, THE PARTIES MUST FIRST BE PUT ON NOTICE THE MOTION WILL BE TREATED AS A SUMMARY JUDGMENT MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the post answer motion to dismiss should not have been heard because there was no notice the motion would be treated as a summary judgment:

By summons and complaint dated July 8, 2021, plaintiff commenced this action against defendant to recover approximately $360,000 in unpaid counsel fees. Defendant answered on or about August 18, 2021 and asserted the statute of limitations as an affirmative defense. On September 1, 2022, defendant moved under CPLR 3211(a)(5) to dismiss the complaint as barred by the statute of limitations. Defendant’s post-answer motion to dismiss was not timely (CPLR 3211 [e] …). Thus, the motion could not be properly considered unless the parties were given adequate prior notice that the motion would be treated as a motion for summary judgment under CPLR 3212 or unless an exception to the notice requirement applied (see CPLR 3211[c] … ). Because defendant does not argue that adequate notice was given or that an exception to the notice requirement applied, we reverse and remand for consideration after the parties are given the requisite notice …   Smith, Gambrell & Russell, LLP v 3 W. 16th St., LLC, 2023 NY Slip Op 04952, First Dept 10-3-23

Practice Point: A late (post answer) motion to dismiss should not be considered unless the parties have been notified the motion will be treated as a summary judgment motion, or unless some exception to the notice requirement applies.

 

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