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​ THE ALLEGATIONS DID NOT RAISE A QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT INSURANCE AGENT SUCH THAT PLAINTIFF COULD RELY ON THE AGENT TO CORRECT ANY MISREPRESENTATIONS IN THE INSURANCE APPLICATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the insurance agent’s (Brownstone’s) motion for summary judgment in this insurance-coverage dispute should have been granted. The insurer disclaimed coverage for damage caused by a fire on plaintiff’s property. Plaintiff alleged there was a special relationship between plaintiff and the agent and plaintiff relied on the agent to correct any misrepresentations in plaintiff’s insurance application. The First Department held the allegations did not raise a question of fact about the existence of a special relationship:

Brownstone established its prima facie entitlement to summary judgment dismissing plaintiff’s lone claim against it, based on an affidavit of its representative that coverage on the policy was disclaimed due to plaintiff’s alleged material misrepresentations in its application for insurance. …

There were no allegations, let alone evidence, to support a triable issue that plaintiff made a specific request for Brownstone to review its insurance application for any inaccuracies, or that a special relationship existed between plaintiff and Brownstone solely on the basis that the parties had an extended relationship as to insurance dealings … . Plaintiff’s general requests for coverage will not satisfy the requirement of a specific request for a certain type of coverage … . The property coverage provided was not shown to be insufficient for purposes of the insurance application that plaintiff submitted. Absent evidence of a special relationship, it remained plaintiff insured’s responsibility to both review the insurance policy issued, and to correct any inaccuracies present on the insurance application … . 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 2023 NY Slip Op 00941, First Dept 2-21-23

Practice Point: General requests for insurance coverage and a long relationship with the insurance agent do not establish a special relationship such that the insured can rely on the agent to correct misrepresentations in the insurance application.

 

BECAUSE LOOSE PLANKS ON A SCAFFOLD CONSTITUTED A PROXIMATE CAUSE OF PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF’S ACTS OR OMISSIONS COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE FALL AND THE RECALCITRANT WORKER DEFENSE WAS NOT AVAILABLE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from a fall from a scaffold. Because the scaffold was defective, plaintiff’s actions or omissions could not be the sole proximate cause of the accident. The “recalcitrant worker” defense was also rejected:

Plaintiff made a prima facie showing of entitlement to summary judgment on his claim pursuant to Labor Law § 240 (1). His deposition testimony established that a proximate cause of his injury was the unsecured outrigger scaffold’s planks, which collapsed when he stepped on it with his boss, causing them to fall approximately 16 feet to the ground. Contrary to the court’s finding, defendants did not raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. Since the statutory violation of a defective scaffold was a proximate cause of the accident, plaintiff cannot be the sole proximate cause of his accident and defendants cannot avail themselves of the recalcitrant worker defense … . Francis v 3475 Third Ave. Owner Realty, LLC, 2023 NY Slip Op 00951, First Dept 2-21-23

Practice Point: In a Labor Law 240(1) scaffold-fall case, as long as a defect in the scaffold was a proximate cause of the fall, the plaintiff’s acts or omissions could not be the sole proximate cause and the recalcitrant worker defense won’t fly.

 

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THE CHALLENGES TO THE PROCEDURES FOR RELIGIOUS AND MEDICAL EXEMPTIONS FROM THE COVID-19 VACCINE MANDATE FOR NYC TEACHERS, AS WELL AS “LEAVE WITHOUT PAY” FOR THOSE WHO DID NO APPLY FOR AN EXEMPTION, WERE PROPERLY REJECTED (FIRST DEPT).

The First Department, over a dissent, determined the COVID-19 vaccine mandates imposed by the arbitrator for NYC Department of Education (DOE) employees properly survived the hybrid Article 75/78 challenge. The arbitration initiated by the United Federation of Teachers (UFT) resulted in the September 10, 2021 Impact Award which established procedures for religious and medical exemptions:

The article 75 claims were properly dismissed, as petitioners lack standing to challenge the Impact Award and failed to join UFT as a necessary party. The article 75 claims also fail on the merits. As to the article 78 claims, petitioners are unable to show that DOE made an error of law or acted irrationally. * * *

Petitioners are similarly situated teachers employed by DOE. All received notification by email that they were being placed on Leave Without Pay (LWOP) status because they were not in compliance with DOE’s COVID-19 Vaccine Mandate. They were informed that they could not report to their school sites as of Monday, October 4, and that, in order to return to work, they were required to upload proof of having received the first vaccine shot and “E-sign the attestation stating that you are willing to return to your worksite within seven calendar days of submission.” The notifications also summarized the options for separation and leave extensions. Petitioners, with the exception of Loiacono, did not submit proof of vaccination or request religious or medical exemptions. * * *

When a union represents employees during arbitration, only that union — not individual employees — may seek to vacate the resulting award … .

Petitioners also failed to join UFT as a party. UFT advocated successfully for the exemptions, accommodations, and extended benefits for teachers otherwise unwilling to be vaccinated, all of which were prescribed in the Impact Award. Accordingly, UFT would be adversely impacted by a judgment favorable to petitioners and is thus a necessary party (CPLR 1001[a] …). Matter of O’Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2023 NY Slip Op 00957, First Dept 2-21-23

Practice Point: The individual NYC Department of Education (DOE) employees did not have standing to challenge the results of the COVID-19 vaccine-mandate arbitration initiated by the United Federation of Teachers (UFT). The UFT was a necessary party to the challenge but was not made a party. The DOE did not act arbitrarily or capriciously. Essentially the procedures for religious and medical exemptions to the vaccine mandate were upheld. Teachers who did not apply for an exemption and were not vaccinated were deemed properly placed on leave without pay (LWOP).

 

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FAMILY COURT SHOULD NOT HAVE RELINQUISHED TEMPORARY EMERGENCY JURISDICTION OVER THE NEGLECT PROCEEDING UPON LEARNING FATHER HAD COMMENCED A CUSTODY PROCEEDING IN TEXAS; THERE WAS NO ASSURANCE FROM THE TEXAS COURT RE: SAFEGUARDING THE CHILD (FIRST DEPT).

The First Department, reversing Family Court in this neglect proceeding, determined the judge should not have relinquished temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) when father commenced custody proceedings in Texas:

Family Court improperly relinquished emergency jurisdiction for three reasons. First, there is no evidence in this record, and Family Court’s order fails to state any basis for finding, that the Texas court had “home state” jurisdiction, since the child had not resided there for six months immediately preceding commencement of the father’s Texas custody proceeding (Domestic Relations Law §§ 75-a[7]; 76[1][a]). Second, the record and Family Court’s order are also devoid of any factual basis for finding that any of the alternative jurisdictional bases applied to Texas. There is no evidence that the child at that time had a “significant connection” with Texas or that “substantial evidence . . . concerning the child’s care, protection, training and personal relationships” was available in Texas (Domestic Relations Law § 76[1][b]). Finally, given the allegations in the neglect petition and the fact that Family Court had been informed … that the Texas Department of Family and Protective Services would not investigate whether the father was a danger to the child because the mother and child resided in New York, Family Court should not have relinquished emergency jurisdiction “in the absence of any orders from the Texas court safeguarding the child[]” … .

Moreover, it is not clear whether New York might have had jurisdiction to make an initial custody determination under Domestic Relations Law § 76(1)(b), given that the child had not lived in Texas for the preceding six months, had lived in New York with his mother when the father filed his Texas custody petition, and was receiving medical care, attending daycare, and receiving services through ACS here. Accordingly, Family Court should not have denied the mother’s motion without first holding a hearing. Matter of Nathaniel H. (Nathaniel H.–Dayalyn G.), 2023 NY Slip Op 00927, First Dept 2-16-23

Practice Point: The judge in this neglect proceeding should not have relinquished temporary emergency jurisdiction upon learning of father’s custody proceeding in Texas. Findings of fact required by the Domestic Relations Law were not made and there was no assurance the Texas court would safeguard the child.

 

WHEN A COURT DECIDES AN ACTION BROUGHT AS A SPECIAL PROCEEDING SHOULD HAVE BEEN BROUGHT AS A PLENARY ACTION, THE ACTION SHOULD NOT BE DISMISSED BECAUSE IT WAS BROUGHT IN THE WRONG FORM; THE PETITION SOULD BE DEEMED A COMPLAINT, NOT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the special proceeding should have been converted to a plenary action, not dismissed. Once converted the petition is deemed a complaint, not a motion for summary judgment:

Supreme Court should have converted the special proceeding into a plenary action rather than dismissing the petition, as CPLR 103(c) “prohibits dismissal of [a] proceeding solely on the ground that it was not brought in the proper form” … .

… [W]e decline petitioner’s request to construe the petition and answer as summary judgment papers and to summarily adjudicate his remaining claims at this stage. When a special proceeding is converted into a plenary action in accordance with CPLR 103(c), the petition is deemed a complaint, not a motion for summary judgment … . Zanani v Scott Seidler Family Trust, 2023 NY Slip Op 00836, First Dept 2-14-23

Practice Point: Here the action should not have been dismissed solely because it was in the wrong form. The special proceeding should have been brought as a plenary action. The petition should be deemed a complaint, not a motion for summary judgment.

 

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THE ALLEGATIONS IN THE VERIFIED COMPLAINT IN THIS SLIP AND FALL CASE WERE SUFFICIENT TO SUPPORT PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT; THE DEFENDANT’S FAILURE TO ANSWER IS DEEMED TO BE AN ADMISSION TO THE ALLEGATIONS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment based upon the allegations in the verified complaint should have been granted:

A party seeking a default judgment must submit proof of service of the summons and the complaint and “proof of the facts constituting the claim, the default and the amount due” (CPLR 3215[f] …). To demonstrate “facts constituting the claim,” the movant need only proffer proof sufficient “to enable a court to determine that a viable cause of action exists” … . The movant may do so either by submission of an affidavit of merit or by verified complaint, if one has been properly served … .

Here, contrary to the court’s conclusion, plaintiffs established the facts constituting their claim. Their verified complaint alleges that plaintiff Maria Bigio was walking in front of defendant’s property when she tripped and fell on a defective sidewalk condition, sustaining injuries, and plaintiff stated in her verification that these allegations were true to her own personal knowledge. Because defendant, by defaulting, is deemed to have admitted “all traversable allegations in the complaint, including the basic allegation[] of liability,” the allegations were sufficient to enable the court to determine that a viable negligence cause of action existed … . Bigio v Gooding, 2023 NY Slip Op 00806, First Dept 2-14-23

Practice Point: Here in this slip and fall case the allegations in the verified complaint were sufficient to grant plaintiff’s motion for a default judgment. The failure to answer is deemed an admission to the allegations in the complaint.

 

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THE MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROPOSED CHANGES WERE NOT “REDLINED” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to amend the complaint should not have been denied on the ground the proposed changes were not “redlined” (apparently referring to the failure to mark the proposed changes to make them more visible):

The court improvidently exercised its discretion in denying plaintiff’s cross motion solely on the technical basis that the proposed amended complaint was not redlined (see CPLR 3025[b]), since the proposed amendments to add the third-party defendants as direct defendants were sufficiently described in the moving papers and easily discerned on review of the proposed amended summons and complaint … . Herrera v Highgate Hotels, L.P., 2023 NY Slip Op 00729, First Dept 2-9-23

Practice Point: Although CPLR 3025 (b) requires that “Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” the motion to amend here should not have been denied because the proposed changes were not “redlined.” The accompanying papers sufficiently described the proposed changes.

 

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THE ADMISSION OF AN UNNOTICED STATEMENT BY DEFENDANT WAS NOT HARMLESS ERROR; ALTHOUGH THE PEOPLE HAD DISCLOSED THE INTERVIEW IN WHICH THE STATEMENT WAS MADE, THEY DID NOT DISCLOSE THE SPECIFIC STATEMENT; THE DEFENDANT MOVED TO PRECLUDE THE STATEMENT AT TRIAL (FIRST DEPT).

The First Department, reversing defendant’s convictions, determined the evidence defendant knew the codefendant was armed and shared the codefendant’s intent to cause serious injury was legally insufficient. Although the robbery second conviction was based on legally sufficient evidence, an unnoticed statement was allowed in evidence at trial, a reversible error:

… [D]efendant is entitled to a new trial on the second-degree robbery count. The People should not have been permitted to submit evidence of defendant’s August 9, 2016 statement to a detective regarding defendant’s discussion with the victim about the value of the latter’s jewelry because this statement was not properly noticed pursuant to CPL 710.30(1)(a). Although the People disclosed the interview generally, they did not disclose this particular statement … . At a suppression hearing, defendant only moved to suppress other statements not at issue on appeal, and the statement at issue was first revealed during trial testimony, at which time defendant moved for preclusion on the ground of lack of notice. People v Weathers, 2023 NY Slip Op 00741, First Dept 2-9-23

Practice Point: If the People attempt to introduce a statement made by the defendant which was not provided in the CPL 710.30 notice, and no motion to suppress the statement had been made, introduction of the statement at trial must be precluded. In this case, it was not enough that the People disclosed the interview from which the statement was taken. No notice of the specific statement had been provided.

 

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THE PEOPLE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” BY PRESENTING SUFFICIENT PROOF OF THE LEGALITY OF POLICE CONDUCT AT THE SUPPRESSION HEARING; THERE WAS NO EVIDENCE THE OFFICERS WHO ARRESTED DEFENDANT WERE MADE AWARE OF THE CO-DEFENDANT’S STATEMENT WHICH WAS THE BASIS OF THE ARREST; THE FACT THAT GAPS IN THE PEOPLE’S PROOF MAY HAVE BEEN FILLED IN BY THE DEFENDANT’S TESTIMONY AT THE HEARING DIDN’T CURE THE DEFICIENCY (FIRST DEPT).

The First Department, reversing defendant’s conviction and suppressing his postarrest statement, determined the People did not meet their “burden of coming forward” with proof of the legality of police conduct. The fact that some of the gaps in the proof might have been filled by the defendant’s testimony at the suppression hearing did not cure the defect:

The People failed to submit evidence sufficient to support the suppression court’s findings, thus failing to meet their burden of coming forward … . Although the officers who arrested defendant were not required to testify, the People’s initial evidentiary presentation, consisting of the testimony of the investigating detective, was insufficient to permit the inference that information constituting probable cause was transmitted by the detective to the officers effectuating the arrest of defendant, as required to meet the People’s prima facie burden of establishing the legality of the challenged police conduct and shift the burden of persuasion to defendant … . Although defendant testified after the People rested, we need not consider whether defendant’s testimony before the suppression court could have been used to remedy deficiencies in the People’s presentation. As the People repeatedly informed the court, they relied solely on the detective’s testimony to meet their burden. Further, the suppression court discredited defendant’s testimony as “unworthy of belief” and based its decision to deny defendant’s motion to suppress solely on the testimony of the detective, which it credited. People v Watkins, 2023 NY Slip Op 00742, First Dept 2-9-23

Practice Point: The People have a burden of proof at a suppression hearing called the “burden of going forward.” To meet the burden the People was demonstrate the legality of the police conduct. Here there was no evidence the officers who arrested the defendant were aware of the statement by the codefendant which was the basis for the arrest. Therefore defendant’s postarrest statement should have been suppressed.

 

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THE TENANT MADE GOOD FAITH EFFORTS TO CURE THE DEFAULTS CITED BY THE LANDLORD AND WAS ENTITLED TO A YELLOWSTONE INJUNCTION TOLLING TENANT’S TIME TO CURE (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, determined the tenant liquor-store had made good faith efforts to cure the defaults cited by the landlord and was entitled to a Yellowstone injunction tolling the tenant’s time to cure the defaults. The opinion lays out the fact in a level of detail which cannot be fairly summarized here:

In keeping with public policy against forfeiture, courts grant Yellowstone relief on “far less than the normal showing required for preliminary injunctive relief” … . The tenant need only demonstrate that (1) it holds a lease; (2) it received a notice of default, notice to cure, or threat to terminate the lease; (3) it requested injunctive relief prior to the termination of the lease or expiration of the cure period; and (4) it is prepared to cure the alleged default by any means short of vacating the premises … ,. Once the tenant establishes these elements, the motion court may exercise its discretion to issue a Yellowstone injunction tolling the tenant’s time to cure … . Elite Wine & Spirit LLC v Michelangelo Preserv. LLC, 2023 NY Slip Op 00631, First Dept 2-7-23

Practice Point: If a tenant has made good faith efforts to cure the defaults cited by the landlord, a court may grant the tenant a Yellowstone injunction tolling the tenant’s time for curing the defaults. The Yellowstone criteria are laid out in the opinion.

 

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