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CIVIL SERVICE LAW 75-B SERVES THE SAME PURPOSE AS THE EMPLOYMENT ANTI-RETALIATION STATUTES IN THE NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW; EVEN THOUGH PLAINTIFF HAD RESIGNED AT TIME OF THE SUIT, HIS RETALIATION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s retaliation claim pursuant to Civil Service Law 75-b should not have been dismissed. Plaintiff, an employee of the NYC Department of Buildings (DOB), alleged he was denied a job because of a poor reference allegedly made in retaliation for his reporting a conflict of interest to the City’s Department of Investigation. At the time plaintiff brought this action he had retired, but his retirement did not preclude his Civil Service Law cause of action:

… [W]e reject the motion’s court determination that Civil Service Law § 75-b does not apply to actions taken by a public employer after an employee has resigned. Civil Service Law § 75-b prohibits a public employer from dismissing or taking any “other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment” because the employee discloses information of either (1) a violation of rule or law, which presents a substantial and specific danger to public health and safety, or (2) improper governmental action … . Section 75-b serves a purpose similar to that of other anti-retaliation statutes, including the New York State Human Rights Law (Executive Law § 296) and the New York City Human Rights Law (Administrative Code of City of NY § 8-107), in that they “‘remediat[e] adverse employment actions which, if allowed, would undermine important public policy'” … . Thus, an analogous reading of the term “employee” under Civil Service Law § 75-b to include former employees alleging post-employment retaliation for reports made in the course of their prior employment, is appropriate … . Moreover, blacklisting and providing negative references to an individual’s prospective employers in retaliation for prior reports of government misconduct may constitute adverse personnel action under the statute, in the same way that the State Human Rights Law has been found to cover such acts … . DaCosta v New York City Dept. of Bldgs., 2022 NY Slip Op 01963, First Dept 3-22-22

Practice Point: Civil Service Law 75-b serves the same purpose as the employment anti-retaliation statutes in the New York State and New York City Human Rights Law. The NYC employee’s Civil Service Law 75-b cause of action, alleging he was given a poor reference in retaliation for reporting a conflict of interest, should not have been dismissed, even though he had resigned at the time the suit was filed.

 

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PLAINTIFFS’ LEGAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS’ 2010 BREACH OF A CONDOMINIUM-SALE CONTRACT ACTION WAS DISMISSED ON STATUTE OF FRAUDS GROUNDS; WHEN A WRITTEN CONTRACT SUBSEQUENTLY SURFACED, DEFENDANT ATTORNEYS DID NOT MOVE TO RENEW, VACATE OR APPEAL THE ORDER (FIRST DEPT).

The First Department, reversing Supreme Court, determined the legal malpractice action should not have been dismissed. Plaintiffs, apparently represented by defendant attorneys, brought a 2010 action for breach of a condominium-sale contract which was dismissed on statute of frauds grounds (no written contract). When the written contract for the condominium sale surfaced, the defendants did not move to renew, vacate or appeal the order:

Regardless of whether the dismissal on statute of frauds grounds was ultimately correct, defendants should have known that the condominium claims, which involved the sale of real property, would be subject to the statute of frauds and thus would require reference to a written contract (General Obligations Law § 5-703[2]); that the statute of frauds could be raised and adjudicated on a motion to dismiss under CPLR 3211(a)(5); and that a dismissal under the statute of frauds would be on the merits, thus precluding any future claim for damages on the sale of the condominium … . As a result, with respect to the condominium sale, it cannot be determined as a matter of law that plaintiffs failed to plead a claim for legal malpractice based upon defendants’ actions in litigating the breach of contract claim. Komolov v Popik, 2022 NY Slip Op 01966, First Dept 3-22-22

Practice Point: The defendant attorneys apparently represented plaintiffs in their 2010 action for breach of a condominium-sale contract. The 2010 action was dismissed on statute of frauds grounds. Subsequently a written contract surfaced and defendant attorneys did not move to renew, vacate or appeal the order. Plaintiffs’ legal malpractice complaint should not have been dismissed.

 

DEFENDANT VIDEO-HOSTING SERVICE, VIMEO, DID NOT BREACH ITS CONTRACT WITH PLAINTIFF BY REMOVING FIVE VIDEOS POSTED BY PLAINTIFF CLAIMING CHILDHOOD VACCINATION LEADS TO AUTISM; THE COMMUNICATIONS DECENCY ACT AUTHORIZES INTERNET PROVIDERS TO REMOVE “OBJECTIONABLE” MATERIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined defendant video-hosting service, Vimeo, did not breach its contract with plaintiff by removing five videos posted by plaintiff which Vimeo concluded made false or misleading claims about vaccine safety. The videos claimed that childhood vaccines lead to autism:

This appeal concerns whether a video-hosting service may be held liable for its decision to remove videos that it determines violate its terms of service. Defendant Vimeo, Inc. prohibits users from posting videos that make false or misleading claims about vaccine safety. It removed five videos, posted by a commercial user, because the videos claimed that childhood vaccination leads to autism. The user sued, claiming that Vimeo had breached the parties’ contract. The motion court held that liability was precluded by section 230 of the Communications Decency Act. We agree. Section 230 prevents lawsuits against Internet service providers for their good-faith decisions to remove content that they consider objectionable. If service providers had to justify those decisions in court, or if plaintiffs could circumvent immunity through unsupported accusations of bad faith, section 230 would be a dead letter. This is as true for commercial users as for any other plaintiff. Therefore, we affirm dismissal of the complaint.

… [S]ection 230(c)(2) prohibits holding an interactive computer service provider liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider . . . considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” (47 USC § 230[c][2][A]). Word of God Fellowship, Inc. v Vimeo, Inc., 2022 NY Slip Op 01978, First Dept 3-22-22

Practice Point: The Communications Decency Act allows Internet providers to take down posted material the providers deem “objectionable.” Here a video-hosting service, Vimeo, took down five videos posted by plaintiff which claimed childhood vaccination leads to autism. Plaintiff’s breach of contract action was dismissed.

 

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THE JUDGE DID NOT FOLLOW PROPER PROCEDURE FOR IMPOSING SANCTIONS, I.E., PLAINTIFF’S COUNSEL WAS ORDERED TO PAY $10,000 IN COUNSEL FEES TO DEFENDANT’S COUNSEL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge did not follow the procedural requirements for imposing sanctions, i.e.,  $10,000 in attorney’s fees to defendant’s counsel, to be paid by plaintiff’s counsel:

The motion court’s sua sponte award of sanctions against plaintiff’s counsel did not satisfy the procedural requirements of the Rules of the Chief Administrator of the Court (22 NYCRR) § 130-1. That section provides that a court may award costs or impose sanctions “upon the court’s own initiative, after a reasonable opportunity to be heard” … and “only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate” … . DeSouza v Manhattan RX LLC, 2022 NY Slip Op 01875, First Dept 3-17-22

Practice Point: Before a judge can impose sanctions, here ordering plaintiff’s attorney to pay counsel fees in the amount of $10,000 to defendant’s attorney, the relevant rules in 22 NYCRR 130-1 must be complied with, i.e., affording an opportunity to be heard and issuing a written decision explaining the conduct, why it was found frivolous and the reasons for the amount awarded or imposed.

 

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DEFENDANT COMMODITY FUTURES BROKER IS ENTITLED TO COVERAGE UNDER FIDELITY BONDS FOR LOSSES INCURRED BY THE CRIMINAL ACTIONS OF A BROKER AMOUNTING TO $141 MILLION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined defendant MF Global was entitled to coverage under fidelity bonds for losses incurred by the criminal actions of a broker, Dooley, for which Dooley was ordered to pay restitution to MF Global in the amount of $141 million:

This 2009 declaratory judgment action involves a $141 million insurance coverage dispute between plaintiffs New Hampshire Insurance Company, Liberty Mutual Insurance Company, and Axis Reinsurance Company (Insurers) and defendant, commodity futures broker MF Global Finance USA, Inc. (MF Global). New Hampshire issued the primary bond insurance policy to MF Global’s predecessor and Liberty Mutual and Axis Reinsurance each issued excess financial institution bonds, covering the same policy period and incorporating the provisions and terms of the primary bond. Defendant MF Global seeks coverage under those bonds for a trading loss incurred in February 2008 by Evan Brent Dooley, a broker for MF Global, who in 2012 pleaded guilty to exceeding speculative position limits in violation of 7 USC §§ 6a and 13(a)(5). Dooley was sentenced to five years’ imprisonment and one year of supervised release and was ordered to pay restitution of over $141 million to MF Global upon release from prison.

… [W]e hold that defendant is covered under the fidelity bonds for its loss and is entitled to summary judgment in its favor…. . New Hampshire Ins. Co. v MF Global Fin. USA Inc., 2022 NY Slip Op 01880, First Dept 3-17-22

 

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ALTHOUGH THE PERSON WHO ALLEGEDLY ASSAULTED PLAINTIFF AT JFK AIRPORT WAS AN EMPLOYEE OF AMERICAN AIRLINES, HE WAS NOT ON DUTY AT THE TIME OF THE INCIDENT; THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this vicarious liability, negligent hiring and supervision and premises liability action should have been granted. Plaintiff was allegedly assaulted by Miles, who worked for American Airlines, at JFK airport (owned by defendant Port Authority). Plaintiff sued under respondeat superior and negligence theories. Miles testified he was not on duty at the time of the incident:

Under the doctrine of respondeat superior, an employer may be held vicariously liable for intentional torts committed by employees acting within the scope of their employment, as long as those acts were “generally foreseeable and a natural incident of the employment” … . Where the material facts are not in dispute, the question whether respondeat superior liability attaches is one of law and can be determined on a motion for summary judgment … . Here the threshold question is whether Miles was even working, or under the direction of American, at the time of the incident. … [D]efendants attached the deposition transcript of Miles, who testified that he was not working at the time of the incident. This was sufficient to at least satisfy defendants’ prima facie burden … .

Because the testimony of Miles, who, notably, is not a party to this action, was that he was not on duty when the altercation occurred, defendants shifted the burden on the issue of respondeat superior. Moreover, Miles’s testimony about his job responsibilities — escorting planes in and out, and loading and unloading luggage — established prima facie that the foreseeability element of respondeat superior liability was not present. The alleged assault bore no connection to plaintiff’s work duties, and thus was not “in furtherance of any employer-related goal whatsoever”  Summors v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 01891, First Dept 3-17-22

Practice Point: An American Airlines employee allegedly assaulted plaintiff at JFK airport. The defendants demonstrated the American Airlines employee was not on duty at the time of the incident, which was deemed fatal to respondeat superior (vicarious) liability.

 

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IN THIS NO-FAULT INSURANCE MATTER, PLAINTIFF INSURER DID NOT DEMONSTRATE COMPLIANCE WITH THE NYCRR SUCH THAT IT WAS ENTITLED TO SUMMARY JUDGMENT BASED UPON THE INSURED’S FAILURE TO APPEAR FOR AN INDEPENDENT MEDICAL EXAMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff insurer did not demonstrate it was entitled to summary judgment based upon the insured’s failure to appear for an independent medical examination (IME):

[Plaintiff insurer’s] its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR § 65-3.5[b], [d]) governing the timeframes for scheduling IMEs … .. Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under (11 NYCRR) § 65-3.5(b) and (d) …  American Tr. Ins. Co. v Alcantara, 2022 NY Slip Op 01871, First Dept 3-17-22

Practice Point: An insurer must show compliance with the regulatory timeframes for scheduling an independent medical examination (IME) before it will be entitled to summary judgment based on an insured’s failure to appear at an IME.

 

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ALTHOUGH PLAINTIFF, WHO WAS INJURED WHILE REPAIRING AN ESCALATOR, COULD NOT IDENTIFY THE CAUSE OF THE ESCALATOR’S SUDDEN START-UP, THE MOTION TO COMPEL HIM TO SUPPLEMENT HIS ANSWERS TO INTERROGATORIES WAS PROPERLY DENIED; PRODUCTS LIABILITY ACTIONS CAN BE PROVEN BY CIRCUMSTANTIAL EVIDENCE; AT THIS STAGE PLAINTIFF CAN TESTIFY UNDER OATH THAT HE DOES NOT KNOW THE CAUSE OF THE UNEXPECTED START-UP (FIRST DEPT).

The First Department determined the motion to compel plaintiff to supplement his interrogatories in this products liability case was properly denied. Plaintiff alleged the escalator he was working on started up without warning severely injured his leg. The fact that plaintiff can not identify the cause of the unexpected start-up did not require supplementing his interrogatories as he can so state “under oath:”

“It is well settled that a products liability cause of action may be proven by circumstantial evidence, and thus, a plaintiff need not identify a specific product defect” … . In the absence of evidence identifying a specific defect “a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to [the] defendants” … . If a “plaintiff is unable to prove both elements, ‘a jury may not infer that the harm was caused by a defective product unless [the] plaintiff offers competent evidence identifying a specific flaw'” …

In his interrogatory responses, plaintiff identified several alleged design defects, including the design of the pit, that contributed to his injury. However, he did not identify a cause for the unexpected start up of the escalator. … Presently, plaintiff asserts that he cannot pinpoint the defective component that allowed the escalator’s machinery to begin moving without warning. In an instance where plaintiff “presently lacks the knowledge” to specifically identify the nature of the defect, plaintiff can testify to that “under oath” … . … [I]f he acquires the pertinent information he would be under an obligation to promptly supplement his answers to the interrogatories at issue … . Berkovich v Judlau Contr., Inc., 2022 NY Slip Op 01733, First Dept 3-15-22

Practice Point: Products liability actions can be proven by circumstantial evidence. If a plaintiff does not know the cause of a product malfunction (here, an escalator which allegedly started running unexpectedly) at the discovery stage, the plaintiff can testify to that fact under oath.

 

ALTHOUGH THE MOTION TO DISMISS ON STATUTE OF LIMITATIONS GROUNDS WAS NOT TIMELY, THE ASSERTION OF THE DEFENSE IN THE REPLY TO THE COUNTERCLAIM WAS TIMELY; THE DEFENSE CAN BE RAISED IN A SUBSEQUENT SUMMARY JUDGMENT MOTION (FIRST DEPT). ​

The First Department noted that the statute of limitations affirmative defense was timely served in a reply to a counterclaim

[Defendant] NYCTA did not waive its affirmative defense under CPLR 3211(a)(5) because a defense based upon the statute of limitations is waived only if it is neither asserted in a responsive pleading or in a timely motion … . Here the affirmative defense was timely asserted in NYCTA’s reply to the counterclaim. The motion to dismiss under CPLR 3211(a)(5), however, was not timely made, as required under CPLR 3211(e) … . … We note that NYCTA may pursue relief on its statute of limitations defense by way of a summary judgment motion in the normal course of the litigation … . Han v New York City Tr. Auth., 2022 NY Slip Op 01737, First Dept 3-15-22​

Practice Point: Even if it is too late to move to dismiss on statute-of-limitations grounds, if the defense has been timely asserted, it can be the basis of a subsequent summary judgment motion.

 

PLAINTIFF WAS WALKING UP AN EARTHEN RAMP WHEN HE WAS STRUCK BY AN EXCAVATOR AND ROLLED DOWN THE RAMP; THERE WAS NO “SIGNIFICANT ELEVATION DIFFERENTIAL” SUCH THAT LABOR LAW 24O (1) WOULD APPLY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the circumstances of plaintiff’s injury did not fit the “elevation-related” element of a Labor Law 240(1) cause of action. Plaintiff was walking up an earthen ramp when he was struck by an excavator and rolled down the ramp:

Labor Law § 240(1) is inapplicable to this case because plaintiff’s injuries were not “the direct consequence of a failure to provide adequate protection against a risk from a physically significant elevation differential” … . Plaintiff was struck by an excavator; the fact that at the time he was bringing debris up an earthen ramp, or that he rolled down the ramp after being struck, does not give rise to a cause of action pursuant to Labor Law § 240(1) … . Herrera v Kent Ave. Prop. III LLC, 2022 NY Slip Op 01738, First Dept 3-15-22

Practice Point: Plaintiff was walking up an earthen ramp when he was struck by an excavator and rolled down the ramp. There was no failure to provide equipment to protect against an elevation-related hazard such that Labor Law 240 (1) would apply.

 

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