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IT IS ONLY PURSUANT TO EXECUTIVE LAW 63(3) THAT THE ATTORNEY GENERAL (AS OPPOSED TO A COUNTY PROSECUTOR) IS EMPOWERED BRING A CRIMINAL PROSECUTION; THE EXECUTIVE LAW ALLOWS REQUESTS FOR AN AG PROSECUTION ONLY FROM THE EXECUTIVE BRANCH, NOT THE JUDICIAL BRANCH; HERE THE CHIEF JUDGE REQUESTED THE PROSECUTION; A WRIT OF PROHIBITION ENJOINING THE PROSECUTION WAS GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined the petitioner’s request for a writ of prohibition to enjoin the attorney general (AG) from prosecuting him for alleged criminal offenses should be granted. The request for the prosecution came from a judge. Executive Law 63(3) does not authorize a request for prosecution from the judicial, as opposed to the executive, branch:

This CPLR article 78 proceeding seeking a writ of prohibition raises an issue of apparent first impression: whether the Attorney General may criminally prosecute an individual based on an Executive Law § 63(3) referral from the Chief Administrative Judge of the Unified Court System. Executive Law § 63(3) authorizes the Attorney General of the State of New York, “[u]pon request of the governor, comptroller, secretary of state, commissioner of transportation, superintendent of financial services, commissioner of taxation and finance, commissioner of motor vehicles, or the state inspector general, or the head of any other department, authority, division or agency of the state,” to investigate and prosecute criminality relating to any matter connected with the referring entity. Petitioner, the subject of the criminal prosecution initiated and maintained by the AG based on the purported Executive Law § 63(3) referral by an officer within the Unified Court System, commenced this special proceeding for a writ of prohibition challenging the validity of the referral and the legality of the AG’s authority to prosecute him. We hold that an Executive Law § 63(3) referral can come only from an agency within the executive branch. Therefore, a referral from an officer within the Unified Court System — that is, the judicial branch of government — is not permitted by the statute, and, for the reasons discussed below, we grant prohibition relief to petitioner. Matter of Makhani v Kiesel, 2022 NY Slip Op 06556, First Dept 11-17-22

Practice Point: The attorney general can bring a criminal prosecution only upon request from an executive agency listed in Executive Law 63(3). Here the chief judge made the request. A writ of prohibition enjoining the prosecution was granted.

 

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BOTH PARTIES MOVED TO EXTEND THE DEADLINE FOR FILING A NOTE OF ISSUE BECAUSE DISCOVERY WAS NOT COMPLETE; DENYING THE MOTION MADE IT IMPOSSIBLE FOR THE CASE TO PROGRESS; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to extend the deadline for filing the note of issue should not have been denied because discovery was incomplete:

The motion court improvidently denied the motions of both parties to extend the deadline to file the note of issue and to complete discovery since discovery was not complete. Under the circumstances, the court’s denial of plaintiff’s motion left the parties in limbo where they could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure to allow the parties to adequately prepare (CPLR 3101[a] …). Additionally, as defendant demonstrated a need for additional discovery and to depose plaintiff’s expert, who was hired to calculate damages in this commercial case, its motion should have been granted (see 22 NYCRR 202.70, Rule 13[c] …). 361 Broadway Assoc. Holdings, LLC v Foundations Group I, Inc., 2022 NY Slip Op 06571, First Dept 11-17-22

Practice Point: if the judge makes it impossible for the case to progress, here by denying both parties’ motions to extend the deadline for filing the note of issue to complete discovery, the appellate court will reverse.

 

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THE BIG APPLE MAP RAISED A QUESTION OF FACT ABOUT WHETHER THE CITY HAD WRITTEN NOTICE OF THE SIDEWALK DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; PLAINTIFF’S COMPLAINT WAS AMENDED TO FIX A DEFICIENCY IN PLEADING THAT THE CITY HAD WRITTEN NOTICE OF THE DEFECT (FIRST DEPT).

​The First Department, reversing Supreme Court, determined: (1) there was a question of fact whether the Big Apple map provided the city with written notice of the sidewalk defect alleged to have caused plaintiff’s slip and fall; (2) the city’s evidence to the contrary was improperly first submitted in reply; (3) the plaintiff was entitled to amend the complaint to correct the deficiency in pleading the city had written notice of the sidewalk defect:

In support of its summary judgment motion, the City submitted evidence, including the most recent Big Apple Map received by the City prior to plaintiff’s accident, and argued that the Map did not depict the type of sidewalk defect that plaintiff testified caused her accident.

Based on all the evidence submitted, including the Big Apple Map and photographs of the sidewalk defect, plaintiff raised a triable issue of fact as to whether the City had prior written notice of the alleged dangerous condition … . The City’s contention that the Big Apple Map had been rendered inapplicable by subsequent sidewalk repairs is unavailing. Aside from the fact that this argument was improperly raised for the first time on reply, the City’s submissions indicated that the defect remained unchanged. Further, the issue of whether the Big Apple Map was sufficiently close in time to provide prior written notice, and whether the area had remained unchanged, was a question for the jury … . Bchakjan v City of New York, 2022 NY Slip Op 06543, First Dept 11-17-22

Practice Point: In NYC, a Big Apple map may provide the city with written notice of a sidewalk defect.

 

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DEFENDANT’S EMPLOYER (TOMS) WAS NOT LIABLE FOR THE ACTS OF DEFENDANT EMPLOYEE (ROSNER) WHICH WERE NOT DONE WITHIN THE SCOPE OF ROSNER’S EMPLOYMENT OR TO FURTHER TOMS’ BUSINESS (FIRST DEPT). ​

​The First Department, reversing Supreme Court, determined that defendant Rosner, an employee of defendant TOMS Capital Management, was clearly not acting within the scope of his employment with TOMS when advising plaintiff on investments, allegedly as part of a scheme to deplete plaintiff’s assets. Therefore plaintiff’s unjust enrichment and negligence causes of action against TOMS based upon respondeat superior should have been dismissed:

In or about June 2020, Rosner allegedly began an affair with plaintiff’s wife. They then allegedly conspired to develop a scheme to deplete plaintiff’s assets. In furtherance of this scheme, Rosner began to advise plaintiff to invest in high-risk stock options which Rosner knew were not suitable for plaintiff and would not be profitable for him. Plaintiff followed the advice and sustained trading losses in excess of $300,000. Plaintiff alleges that this investment advice was part of a scheme by TOMS and Rosner to “better position the stock options,” in which TOMS was also allegedly participating, to benefit TOMS and Rosner and their clients.

The motion court incorrectly determined that the allegations in the complaint sufficiently supported claims for unjust enrichment and negligence against TOMS under a theory of respondeat superior. Even construed in the light most favorable to plaintiff … , the alleged acts by Rosner clearly were not made within the scope of his employment or in furtherance of TOMS’s business, but rather, for his own personal gain … . Courtois v TOMS Capital Mgt. LP, 2022 NY Slip Op 06545, First Dept 11-17-22

Practice Point: Here defendant allegedly gave investment advice to plaintiff which was designed to deplete plaintiff’s assets. Because defendant’s acts were not done within the scope of his employment the unjust enrichment and negligence causes of action against defendant’s employer, pursuant to the doctrine of respondeat superior, should have been dismissed.

 

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NEW YORK DOES NOT HAVE GENERAL OR LONG-ARM JURISDICTION OVER A UK CORPORATION WHICH ALLEGEDLY MANUFACTURED A DEFECTIVE PART OF AN EXCAVATOR (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the Miller defendants, a UK corporation, were not amenable to general or long-arm jurisdiction in New York. Plaintiff alleged a part (a coupler) made by Miller failed causing an excavator bucket to detach and fall:

General jurisdiction exists over a corporate entity only in the state(s) in which it is incorporated and has its principal place of business … . * * *

Defendants have also failed to establish specific jurisdiction over the Miller parties pursuant to CPLR 302(a)(1), CPLR 302 (a)(3)(i) or CPLR 302 (a)(3)(ii). Although the Miller parties might have placed the coupler involved in plaintiff’s accident into the stream of commerce, and while they tout having a global customer base and business model, the Supreme Court of the United States has made clear that “the ‘fortuitous circumstance’ that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of [the] defendant,” or “‘the mere likelihood that a product will find its way into the forum[,]’ cannot establish the requisite connection between [the] defendant and the forum” to support an exercise of specific personal jurisdiction … . Cruz v City of New York, 2022 NY Slip Op 06546, First Dept 11-17-22

Practice Point: The ‘fortuitous circumstance’ that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of [the] defendant,” or “‘the mere likelihood that a product will find its way into the forum[,]’ cannot establish the requisite connection between [the] defendant and the forum” to support an exercise of specific personal jurisdiction. Here New York did not have general or long-arm jurisdiction over a UK corporation which manufactured a part on an excavator which allegedly failed causing the excavator bucket to detach.

 

IN THIS SIDEWALK SLIP AND FALL CASE, THE SUPPORT POLE FOR THE SIDEWALK TENT FURNISHED THE OCCASION FOR THE SLIP AND FALL BY REQUIRING PLAINTIFF TO CHOOSE WHICH SIDE OF THE POLE TO WALK ON BUT WAS NOT THE PROXIMATE CAUSE OF THE SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the support pole for the sidewalk shed furnished a condition for the sidewalk slip and fall but was not the proximate cause of the fall:

The record established as a matter of law that the sidewalk shed was not a proximate cause of plaintiff’s injuries. Plaintiff testified that the support pole for the sidewalk shed was placed in the middle of the sidewalk, dividing the area into two paths that were three feet wide on each side, and that she and her husband elected to walk side-by-side on the path to the left nearest the tree well. Plaintiff stated that her husband “nudged” her to the left, and her foot touched the edge of the tree well, which was not level with the sidewalk, causing her to fall. This testimony established that the placement of the sidewalk shed support pole did not compel plaintiff to step into the tree well to proceed forward, but that its placement merely facilitated the accident or furnished the occasion for it … . Kalnit v 141 E. 88th St., LLC, 2022 NY Slip Op 06552, First Dept 11-17-22

Practice Point: A condition can furnish the occasion for an accident without being the proximate cause of the accident. Here a support pole for a sidewalk tent required plaintiff to choose which side of the pole to walk on but did not cause her slip and fall (she stepped in a tree well).

 

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FAILURE TO FOLLOW DECEDENT’S DIRECTIVES IN A LIVING WILL OR HEALTHCARE PROXY CAN CONSTITUTE MEDICAL MALPRACTICE; HERE THERE WERE QUESTIONS OF FACT ABOUT WHICH HEALTHCARE PROXY APPLIED, WHETHER A PROXY WAS REVOKED BY DECEDENT, AND WHETHER THE TREATMENT GIVEN TO DECEDENT WAS APPROVED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact concerning which of two contradictory healthcare proxies applied and whether one of the healthcare proxies was revoked by decedent’s conversations:

Plaintiff commenced an action against defendants alleging medical malpractice based on the various health proxies and forms. Plaintiff claims that defendants breached their agreement with the decedent by administering antibiotics and IV Hydration from April 15, 2017 onwards that prolonged his life.

Here, there are issues of fact that preclude summary judgment. It is unclear whether the 1993 healthcare proxy (and the living will), the 2016 healthcare proxy or the 2017 FLST [Forgoing Life-Sustaining Treatment Including DNR] governed this dispute and whether the 2016 health care proxy was revoked by decedent through conversations with his agents, pursuant to Public Health Law § 2985(a). Significantly, it is not clear from the record whether the treatment prolonged decedent’s life, as neither side submits an expert affidavit. There is also a question as to whether decedent’s health care agents approved the very treatment for which they now seek to hold defendants liable. Lanzetta v Montefiore Med. Ctr., 2022 NY Slip Op 06554, First Dept 11-17-22

Practice Point: Failure to follow a decedent’s directives in a living will or healthcare proxy can constitute medical malpractice. The directives can be orally revoked.

 

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THE THREE-YEAR STATUTE OF LIMITATIONS FOR AGE DISCRIMINATION CLAIMS UNDER THE NYS AND NYC HUMAN RIGHTS LAW IS TOLLED BY FILING A CHARGE FOR AGE DISCRIMINATION WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) (FIRST DEPT).

The First Department, reversing Supreme Court, determined the age discrimination claims under the NYS and NYC Human Rights Law were timely brought because the three-year statute of limitations was tolled when plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC):

Plaintiff’s action, asserting claims of age discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]) and the New York City Human Rights Law (Administrative Code § 8-107), was timely commenced, as the three-year statute of limitations was tolled by her filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) … . The filing of an EEOC charge constitutes a simultaneous and automatic filing with the New York State Division of Human Rights (SDHR) due to a work-sharing agreement between the two agencies … .

Moreover, Administrative Code § 8-502(d) provides, “[u]pon the filing of a complaint with the city commission on human rights or the state division of human rights and during the pendency of such complaint and any court proceeding for review of the dismissal of such complaint, such three-year limitations shall be tolled.” The interplay between the EEOC/SDHR work-sharing agreement and the tolling provision in § 8-502(d) “indicates that a charge filed with the EEOC would also toll the statute of limitations period for [City HRL] claims” … . Gabin v Greenwich House, Inc., 2022 NY Slip Op 06428, First Dept 11-15-22

Practice Point: Filing an age discrimination charge with the Equal Employment Opportunity Commission (EEOC) tolls the three-year statute of limitation for filing age discrimination claims pursuant the NYS and NYC Human Rights Law.

 

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​ THE GUARDIAN OF THE PERSON AND PROPERTY OF THE INCAPACITATED PERSON (IP) AND THE ATTORNEY APPOINTED TO REPRESENT THE IP WERE PROPERLY REMOVED AND DISCHARGED WITHOUT A TESTIMONIAL HEARING, WHICH IS NOT REQUIRED BY THE MENTAL HYGIENE LAW; THE GUARDIAN AND THE ATTORNEY FAILED TO INVESTIGATE THE BONA FIDES OF THE IP’S MARRIAGE AND THE PRENUPTIAL AGREEMENT (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gische, determined the temporary guardian of the person and property (Mock) and the attorney appointed represent the incapacitated person (IP), Edgar, were properly removed and discharged without a testimonial hearing. The opinion is rich with allegations Edgar was being victimized financially which cannot be fairly summarized here:

On October 2, 2018, Alison Loew, the sister and only sibling of Edgar Valentine Loew, brought a petition for the appointment of an article 81 guardian for her then 74-year-old brother. The petition alleged that Edgar, who is wealthy, but suffers from mental health issues and has some physical limitations, was the victim of systematic financial exploitation by Rachida Naciri. …

A court evaluator (Britt Burner) was appointed on October 2, 2018, appellant Gary Elias was appointed as Edgar’s attorney, and appellant Judy S. Mock was appointed as Edgar’s temporary guardian of the person and property. * * *

The Mental Hygiene Law does not support appellants’ contention that they were entitled to a testimonial hearing in this case before being removed. Mental Hygiene Law § 81.35 provides that a guardian may be removed when she or he “fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … . A motion on notice, served on the persons specified in Mental Hygiene Law § 81.16 (c), is required but there is no statutory right to a hearing (see Mental Hygiene Law §§ 81.16[c]; 81.35). This relaxed requirement stands in distinction to Mental Hygiene Law § 81.11 (a), which provides that the petition for the appointment of a guardian for an alleged IP, whose liberty interests are at stake, “shall be made only after a hearing” … . The reason a guardian has “no due process right to a full hearing,” nor is a “full blown” hearing necessary for their removal, is that a guardian has no “property interest” to protect … .

Although a guardian cannot be summarily removed in the absence of a fully developed record or without any findings, and a hearing may be required where material facts are disputed … , here the parties had not only fully briefed [the] motion, but the salient facts were also known to the court and largely undisputed. A decision to remove a guardian of the person and property of an IP is within the sound discretion of the trial court … . Matter of Loew, 2022 NY Slip Op 06436, First Dept First Dept 11-15-22

Practice Point: The guardian and the attorney appointed to represent the incapacitated person (IP) were properly removed and discharged without a testimonial hearing, which is not required by the Mental Hygiene Law. The guardian and the attorney failed to investigate the bona fides of the IP’s marriage and prenuptial agreement.

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PLAINTIFF PEDESTRIAN ALLEGED THE NEGLIGENCE OF A TRAFFIC OFFICER IN DIRECTING TRAFFIC CAUSED THE ACCIDENT; PLAINTIFF DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP BETWEEN THE CITY AND PLAINTIFF, A PREREQUISITE FOR MUNICIPAL LIABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-pedestrian’s complaint against the city in this traffic accident case should have been dismissed. Plaintiff alleged the traffic officer’s negligence in directing traffic caused the accident. The First Department found there was no demonstration of a “special relationship” between plaintiff and the city, a prerequisite for municipal liability:

Neither the notice of claim nor the complaint alleges the factual predicate for the special relationship theory between plaintiff and the City, as required to hold the City liable for plaintiff’s injuries based on a traffic officer’s alleged negligence in directing traffic and pedestrians at an intersection where plaintiff was crossing the street … . Plaintiff also did not sufficiently allege that the officer, in directing traffic, took control of “a known and dangerous safety condition” so as to set forth the existence of a special duty … . Plaintiff alleged only that the traffic officer negligently directed a vehicle at the intersection, causing the vehicle to hit her, thereby creating a dangerous condition; however, the dangerous condition must exist prior to the traffic officer’s assumption of any duty … . Plaintiff did not assert that the intersection was inherently dangerous or that the drivers of the cars at the intersection were violating any safety laws before the officer was directing pedestrians. Polito v Escorcia, 2022 NY Slip Op 06447, First Dept 11-15-22

Practice Point: In this pedestrian accident case, the plaintiff alleged the negligence of the traffic officer in directing traffic caused the accident. The plaintiff failed to demonstrate a special relationship between the city and plaintiff, a prerequisite for municipal liability.

 

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