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QUESTIONS OF FACT ABOUT WHETHER REPLACING A WATER HEATER CONSTITUTED A REPAIR AS OPPOSED TO MAINTENANCE AND WHETHER AN ELEVATION-RELATED HAZARD WAS INVOLVED IN MOVING THE WATER HEATER WITH A HAND TRUCK PRECLUDED DISMISSAL OF THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined replacement of a 700 pound water heater which involved moving it with a hand truck raised questions of fact about the applicability of Labor Law 240 (1):

Plaintiff’s evidence * * * raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot tall, 30-inch diameter water heater, weighing, by some estimates approximately 700 pounds, constituted a repair within the meaning of Labor Law § 240(1), as distinguished from routine maintenance … . Defendants did not offer proof, apart from conclusory statements, as to the cause of the water heater’s breakdown other than that the mechanism was leaking and no longer functioning. Defendants offered no specific proof that the water heater’s failure was due to normal wear and tear of particular parts or of its system itself. Triable issues were also raised as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force which devices enumerated in Labor Law § 240(1) were meant to protect against … . Rodriguez v Fawn E. Fourth St. LLC, 2024 NY Slip Op 00690, First Dept 2-8-24

Practice Point: There were questions of fact whether replacing a water heater was a “repair” and whether moving the 700-pound water heater on a hand truck was an “elevation-related” hazard within the meaning of Labor Law 240(1).

 

FAILURE TO FILE AFFIDAVITS OF SERVICE WITH THE CLERK OF THE COURT WITHIN 20 DAYS IS NOT A JURISDICTIONAL DEFECT; SERVICE IS DEEMED COMPLETE 10 DAYS AFTER FILING A MOTION FOR A DEFAULT JUDGMENT WITH THE AFFIDAVITS OF SERVICE (FIRST DEPT). ​

The First Department noted that the “nail and mail” service of process was valid and the failure to file affidavits of service within 20 days was not a jurisdictional defect:

… [E]ach affidavit of service states that the process servers made three separate attempts at serving the individual defendants at various dates and times before resorting to “nail and mail” service (CPLR 308(4) …). Plaintiffs’ failure to file affidavits of service with the clerk of the court within 20 days of service is a “mere irregularity” rather than a jurisdictional defect and does not render the service of process a “nullity” … . In any event, service was deemed complete 10 days after plaintiffs filed their initial motion for default judgment with the affidavits of service … . General Ins. v Leandre, 2024 NY Slip Op 00598, First Dept 2-6-24

Practice Point: The “nail and mail” service was valid despite the failure to fine affidavits of service with the clerk of the court within 20 days of service.

Practice Point: Here service was deemed complete ten days after the motion for a default judgment was filed with the affidavits of service.

 

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A HABEAS CORPUS PETITION WAS AN AVAILABLE METHOD FOR MOTHER TO SEEK CUSTODY DURING FAMILY COURT’S COVID MORATORIUM ON NONESSENTIAL MATTERS; THE PETITION PROVIDED FAMILY COURT WITH JURISDICTION WHICH WAS SUBSEQUENTLY LOST BECAUSE THE CHILDREN WERE TAKEN OUT OF STATE; FAMILY COURT SHOULD HAVE CONVERTED THE HABEAS PETITION TO A CUSTODY PROCEEDING PURSUANT TO CPLR 103 (C) (FIRST DEPT).

The First Department, reversing Family Court, determined that the habeas corpus petition filed by mother during the COVID moratorium on nonessential matters provided Family Court with jurisdiction over mother’s custody matter. Because the children had been out state for more than six months when mother made a subsequent custody application, Family Court did not have jurisdiction over them. Family Court should have converted the habeas corpus petition to a custody proceeding:

Family Court had jurisdiction over the parties to decide the mother’s custody petition pursuant to article 6 of the Family Court Act and, upon that basis and the unique circumstances presented in this case, should have converted the action from a writ of habeas corpus to a custody proceeding pursuant to CPLR 103(c) … .

The mother could not have even filed a custody petition in 2020 as a result of the Family Court’s Covid-19 moratorium on all nonessential matters but petitioning for a writ of habeas corpus was an available option to seek the return of the children to New York at the time. By the time the restriction was lifted, the children had already been out of state for more than six months, and Family Court had no jurisdiction over them which resulted in dismissal of the mother’s subsequently-filed custody application. * * * Although the mother was initially able to serve the father with the writ, her subsequent attempts at serving him were unsuccessful. Matter of Celinette H.H. v Michelle R., 2024 NY Slip Op 00456, First Dept 2-1-24

Practice Point; A habeas corpus petition was an appropriate vehicle for seeking custody during the Family Court COVID moratorium on nonessential matters.

 

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DEFENDANT’S INNOCENT TEMPORARY POSSESSION OF A WEAPON WAS THE RESULT OF HIS DISARMING A MAN WHO WAS ASSAULTING THE MAN’S WIFE; THE POSSESSION-OF-A-WEAPON CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissenting opinion, determined defendant’s temporary possession of a weapon was not “criminal.” Defendant took the weapon from his friend, Moscoso, who was assaulting his (Moscoso’s) wife in an effort to protect her:

… [T]he evidence established that defendant’s possession of the weapon after disarming Moscoso was incidental, temporary, and lawful, and that he did not use the weapon in a dangerous manner. The trial court instructed the jury on “temporary and lawful possession of a weapon” by giving the charge as it appears in the Criminal Jury Instructions … which states in relevant part:

“A person has innocent possession of a weapon when that person comes into possession of the weapon in an excusable manner, and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely.”

The charge does not define “safely.” Instead, it provides a list of non-dispositive factors for the jury to consider — essentially an “amalgam of elements” — with only some relating to how the defendant disposed of the weapon, suggesting that trial courts should expand on or alter the charge where necessary to fit the facts of the case … . People v Ramirez, 2024 NY Slip Op 00390, First Dept 1-30-24

Practice Point: This case has everything you could ever need to know about innocent temporary possession of a weapon.

 

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PLAINTIFF CONTRACTOR DID NOT POSSESS THE REQUIRED NYC HOME IMPROVEMENT CONTRACTOR’S LICENSE; THE CONTRACTOR’S BREACH OF CONTRACT ACTION SEEKING PAYMENT FOR THE RENOVATION WORK PLAINTIFF COMPLETED WAS PROPERLY DISMISSED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Higgitt, determined the plaintiff contractor was required to have a home improvement contractor’s license by the New York City Administrative Code. Therefore plaintiff’s breach of contract, unjust enrichment, account stated and quantum meruit causes action against the owner of the property plaintiff worked on was correctly dismissed. The First Department determined the LLC which owned the property was an “owner” within the meaning of the Administrative Code, and the contract was a home improvement contract within the meaning of the meaning of the code:

Obtaining a home improvement contractor’s license is neither a ministerial act nor a mere technicality … . Rather, “strict compliance with the licensing statute [i.e. Administrative Code § 20-387] is required, with the failure to comply barring recovery regardless of whether the work performed was satisfactory, whether the failure to obtain the license was willful or, even, whether the homeowner knew of the lack of a license and planned to take advantage of its absence” … .

There is no dispute that plaintiff is a “contractor” for licensing purposes (see Administrative Code § 20-386[5]), and that plaintiff did not have a valid license. The controversy here essentially distills to whether defendant owners are “owners” within the meaning of Administrative Code § 20-387(a), and, if so, whether the agreement between the parties was a “home improvement contract” (Administrative Code § 20-386[6]). If the answer to both of those questions is yes, then plaintiff was required to have a home improvement contractor’s license to recover for the work; if the answer to either question is no, then plaintiff did not need a license. KSP Constr., LLC v LV Prop. Two, LLC, 2024 NY Slip Op 00356, First Dept 1-25-24

Practice Point: A contractor who does renovation work in New York City without a NYC Home Improvement Contractor’s license cannot sue for payment for the work.

 

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THE OWNER OF A COOPERATIVE BUILDING WAS PROPERLY FOUND LIABLE FOR FAILING TO REMEDIATE LEAD PAINT IN A SHAREHOLDER’S APARTMENT WHICH WAS SUBLET TO PLAINTIFF AND HER YOUNG DAUGHTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined the owner of the building (Windsor) in which a cooperative shareholder, Sersch, sublet her cooperative apartment to plaintiff, had constructive knowledge plaintiff’s young daughter was living with plaintiff. Plaintiff’s daughter was diagnosed with lead poisoning and peeling lead paint was found in the apartment. Summary judgment finding Windsor liable for failing to remediate the lead paint problem was affirmed:

Windsor’s agents’ frequent and consistent interactions with plaintiff and the infant plaintiff were sufficient to provide constructive notice to Windsor … . Windsor failed to proffer an affidavit from any of the doormen stating that they did not know plaintiff and the infant plaintiff or were unaware of their residence. Under these circumstances, Windsor failed to raise a triable issue of fact as to the issue of constructive notice … . * * *

Windsor argues that section [NYC Administrative Code] 27-2056.15(c) exempts it from the duty to remediate and abate the lead paint in the apartment because Sersch “occupied” the apartment during plaintiffs’ subtenancy. Here, the terms of the sublease and the stipulation of settlement clearly indicate that the apartment was not “occupied” by Sersch during plaintiffs’ subtenancy. E.S. v Windsor Owners Corp., 2024 NY Slip Op 00267, First Dept 1-23-24

Practice Point; Here the owner of a cooperative building was deemed liable under New York City law for failure to remediate lead paint in a shareholder’s apartment which had been sublet to plaintiff and her young daughter.

 

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PLAINTIFF DID NOT CITE A VIOLATION OF ANY INDUSTRIAL CODE PROVISION IN THE COMPLAINT OR BILL OF PARTICULARS, WHICH WOULD ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION; HOWEVER PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS TO ADD A CODE VIOLATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff should have been allowed to amend the bill of particulars to allege a violation of an Industrial Code provision describing the construction of platforms. Plaintiff was walking on a rebar mat when he fell. The rebar mat could be considered to be a “platform” which, under the Industrial Code, requires planking:

Regarding the Labor Law § 241(6) claim, defendants “made a prima facie showing of entitlement to [summary] judgment” because “plaintiff did not cite any Industrial Code provision that allegedly was violated here in his complaint [or] bill of particulars” … . “However, this failure is not necessarily fatal to a section 241(6) claim and, in the absence of unfair surprise or prejudice, may be rectified by amendment, even where a note of issue has been filed” … . Plaintiff, in seeking to amend the bill of particulars, asserted a violation of Industrial Code § 23-1.22(c)(1), which requires that “[a]ny platform used as a working area or used for the unloading of wheelbarrows, power buggies, hand carts or hand trucks” to “be provided with a floor of planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or metal of equivalent strength.” “[T]he platforms contemplated by that section are those used to transport vehicular and/or pedestrian traffic” … . Since it is uncontroverted that plaintiff was traversing the rebar mat carrying more rebar, and workers were expected to walk over the rebar mat, there is at least an issue of fact as to whether the rebar mat qualified as a platform used to transport pedestrian traffic. Plaintiff’s “belated identification of th[is] section[] entails no new factual allegations, raises no new theories of liability, and results in no prejudice to the defendant[s]” … . Thus, plaintiff is granted leave to amend his bill of particulars on this point, and summary judgment dismissing the § 241(6) claim is denied. Marte v Tishman Constr. Corp., 2024 NY Slip Op 00231, First Dept 1-18-24

Practice Point: Here in this Labor Law 240(1) action, plaintiff was allowed to amend his bill of particulars to cite a violation of the Industrial Code. Where there is no prejudice this type of amendment can be allowed even after the note of issue is filed.

 

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DEFENDANT CANNOT APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE SORA RISK-LEVEL PROCEEDING; HE MUST FIRST BE ADJUDICATED BY THE SORA COURT AND MAY SUBSEQUENTLY APPEAL REQUESTING AN ANNULMENT (FIRST DEPT). ​

The First Department, in full-fledged opinion by Judge Pitt-Burke, determined the defendant could not appeal an interlocutory order which denied his motion to dismiss the SORA proceeding. Defendant had been convicted of a federal offense and argued the Penal Law did not criminalize the use of morphed images which did not depict actual sexual conduct by a child. The First Department held the defendant must go through with the SORA hearing and subsequently make this argument on appeal:

By its plain language, Correction Law § 168-n (3) only permits an appeal “as of right” from the SORA court’s risk level determination order. To find otherwise would be to ignore the legislative intent of the statutory language … . Namely, the procedural safeguards afforded to defendant in Correction Law § 168-n (3) require the SORA court to conduct a risk assessment hearing before it renders an order requiring him to register as a sex offender in New York and assigns him a risk level designation. Until a hearing is held and a determination made, the defendant’s liberty interest as related to the SORA proceeding has not yet been adjudicated (see Correction Law § 168-n [3]). …

Under to CPLR 5701 (a) (2) (v), “[a]n appeal may be taken to the appellate division as of right . . . from an order . . . where the motion it decided was made upon notice and it . . . affects a substantial right.” Even assuming defendant’s interpretation of Correction Law § 168-n (3) is correct, the interlocutory order appealed from does not require defendant to register as a sex offender. In fact, the very procedural safeguards noted above prevent the SORA court from issuing such an order without a hearing. People v Lewis, 2024 NY Slip Op 00248, First Dept 1-18-24

Practice Point: Defendant could not appeal the denial of his motion to dismiss the SORA risk-level proceeding before it was conducted. Defendant contended the federal offense of which he was convicted involved morphed images that did not depict actual sexual conduct by a child, a circumstance, he argued, not covered by the New York Penal Law.

 

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THE CONTRACT CALLED FOR LIQUIDATED DAMAGES AS THE “SOLE REMEDY” FOR BREACH; HOWEVER NOTHING IN THE CONTRACT LANGUAGE WAIVED THE NONBREACHING PARTY’S RIGHT TO PREJUDGMENT INTEREST PURSUANT TO CPLR 5001(A) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, determined the contract language, which provided that liquidated damages constituted the “sole remedy” for breach, did not waive the nonbreaching party’s  right to prejudgment interest pursuant to CPLR 5001 (a):

At issue in this appeal is whether the parties’ contract language specifying that purchaser’s “sole remedy” in the event of sellers’ breach is the return of its downpayment constitutes a clear waiver of CPLR 5001 (a) as defined by the Court of Appeals in J. D’ Addario & Co., Inc. v Embassy Indus., Inc. (20 NY3d 113 [2012]) and requires denying the nonbreaching party statutory prejudgment interest. … [W]e conclude that it does not and hold that CPLR 5001 (a) requires that plaintiff …, the nonbreaching purchaser, be awarded prejudgment interest on its $626,250.00 downpayment, at the statutory rate of 9% … . IHG Harlem I LLC v 406 Manhattan LLC,2024 NY Slip Op 00164, First Dept 1-16-24

Practice Point: The contract provided that liquidated damages constituted the “sole remedy” for breach. However, nothing in the contract language indicated the nonbreaching party’s right to prejudgment interest pursuant to CPLR 5001 (a) was waived.

 

PLAINTIFF WAS STRUCK BY A CABLE WHICH WHIPLASHED WHEN A TRUCK RAN INTO IT; THE INDUSTRIAL CODE PROVISION REQUIRING SAFETY MEASURES WHEN WORKING NEAR TRAFFIC APPLIED; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was injured when a truck struck a cable which whiplashed and struck plaintiff. It was alleged Industrial Code section 12 NYCRR 23-1.29(a) was violated. That Code provision reads: “Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons:”

… [T]here is no dispute that the Industrial Code section upon which plaintiff relies is sufficiently specific to support a Labor Law § 241 (6) claim. In addition, the facts show plaintiff was still engaged in construction, aloft in a lift bucket and tightening a newly installed steel cable wire, in close proximity to public vehicular traffic on a roadway, when a moving truck struck the cable that was installed in an underpass area and caused the cable to whiplash and strike plaintiff. At the time, there was no flag person or erected barricades to control traffic in the work area. Accordingly, the evidence established that 12 NYCRR 23-1.29(a) was violated and that this violation was a proximate cause of plaintiff’s injuries. Thus, the court should have granted plaintiff’s motion for partial summary judgment on the Labor Law § 241(6) claim, as plaintiff was not required to demonstrate freedom from comparative fault in order to be awarded summary judgment on that claim … . Bucci v City of New York, 2024 NY Slip Op 00124, First Dept 1-11-24

Practice Point: Here a truck ran into a cable which whiplashed and struck plaintiff. The Industrial Code provision requiring safety measures, such as flagmen or barriers, when working in the vicinity of traffic applied and supported the Labor Law 241(6) cause of action.

 

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