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DEFENDANT’S EXPERT’S AFFIDAVIT ITSELF RAISED QUESTIONS OF FACT AND WAS OTHERWISE DEFICIENT IN THIS LABOR LAW 240(1) LADDER FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed. Plaintiff alleged he fell off a ladder while cleaning glass with an extension pole. The court noted that the defendant’s expert affidavit was deficient and itself raised questions of fact precluding summary judgment in favor of the defendant:

Summary dismissal of the Labor Law § 240(1) claim is precluded by issues of fact as to whether plaintiff was exposed to an elevation-related risk “attendant to his work [of washing windows] as it was intended to be performed” … . Plaintiff testified that he performed the work using an extension pole with a squeegee attached to one end, while both of his feet were on the rung one or two steps below the top of a 12-foot ladder. Plaintiff was unable to estimate the height of the glass except that it was more than 15 feet above the floor, but he stated that he could not have cleaned the glass while standing on the floor because he would not have been able to apply sufficient force to the glass. * * *

The [defendant’s] expert’s statements raised issues of fact as to his own credibility in opining that plaintiff could have cleaned all of the glass while standing on the floor and plaintiff’s description of the supplies he needed to use and did use in performing the work. Durasno v 680 Fifth Ave. Assoc., L.P., 2022 NY Slip Op 01413, First Dept 3-8-22

Practice Point: Here the defendant’s expert’s affidavit failed to address all of the allegations made by plaintiff in this Labor Law 240(1) ladder-fall case and raised issues as to the expert’s credibility. Defendant’s motion for summary judgment should not have been granted.

 

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PLANTIFF ALLEGED FAILURE TO DIAGNOSE CANCER IN 2014 IN THIS MEDICAL MALPRACTICE ACTION; DESPITE THE ENACTMENT OF LAVERN’S LAW (CPLR 214-A) IN 2018, WHICH EXTENDED THE STATUTE OF LIMITATIONS FOR FAILURE TO DIAGNOSE CANCER BY VIRTUE OF ITS RETROACTIVE-APPLICATION AND REVIVAL PROVISIONS, THE ACTION WAS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s med mal action alleging failure to diagnose lung cancer based upon a CT scan in 2014 was time barred pursuant to the retroactive-application and revival limitations in CPRL 214-a, enacted on January 31, 2018 (called Lavern’s Law):

[Lavern’s Law] “appl[ies] to acts, omissions, or failures occurring within 2 years and 6 months prior to the effective date of this act, and not before” … . Thus, by its terms, the discovery toll in Lavern’s Law’s applies retroactively to causes of action that were not time-barred as of Lavern’s Law’s effective date, i.e., causes of action accruing on or after July 31, 2015. Plaintiff’s causes of action, which accrued on May 16, 2014, predate the earliest date to which Lavern’s Law’s retroactive discovery toll applies.

Lavern’s Law also provides for the revival of certain time-barred medical malpractice causes of action. Where a claim based on the negligent failure to diagnose cancer or a malignant tumor occurred and, “within ten months prior to the effective date of the act . . . became time-barred under any applicable limitations period then in effect, such action or claim may be commenced within six months of the effective date of the act . . . .” … . Therefore, a failure to diagnose cancer or malignant tumor cause of action that became time-barred between March 31, 2017 and January 31, 2018 may be revived if it is commenced no later than July 31, 2018 … . Because plaintiff’s claims became time-barred on November 16, 2016, the limited revival provision of the new law (for certain claims that became time-barred after March 31, 2017) does not avail her … .Ford v Lee, 2022 NY Slip Op 01414, First Dept 3-8-22

Practice Point: Lavern’s Law (CPLR 214-a, enacted in 2018) extended the statute of limitations for failure to diagnose cancer by virtue of its retroactive-application and revival provisions, neither of which applied to plaintiff here who alleged failure to diagnose in 2014.

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THE COMPLAINT SUFFICIENTLY STATED FACTS AMOUNTING TO A BREACH-OF-FIDUCIARY-DUTY CAUSE OF ACTION AGAINST DEFENDANT REAL ESTATE BROKER, DESPITE PLAINTIFF-SELLER’S CONSENT TO THE BROKER’S “DUAL AGENCY;” IT WAS ALLEGED THE BROKER WAS AWARE THE PROPERTY WAS TO BE SUBDIVIDED AND SOLD BY THE BUYERS FOR THREE TIMES THE PRICE AND SHE WOULD BE THE BUYERS’ BROKER FOR THE SUBSEQUENT SALES (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the complaint sufficiently stated a cause of action for breach of fiduciary duty by the defendant real estate broker, despite the plaintiff’s consent to the broker’s “dual agency:”

Although the complaint does not explicitly articulate a cause of action for breach of fiduciary duty, such a cause of action is manifest in its factual allegations, and the documentary evidence fails to utterly refute those allegations … . In connection with his sale of certain real property, plaintiff signed a disclosure form pursuant to Real Property Law § 443, giving his informed consent to a “dual agency with designated sales agent” relationship with defendants. The form states that a dual agent cannot give the seller or buyer “undivided loyalty.” Nevertheless, it does not relieve defendants from all fiduciary duty. The form states that defendant Nikki Carchedi, of defendant Stone House Properties, “is appointed to represent the seller in this transaction.” The complaint establishes a cause of action for breach of a fiduciary duty beyond the acknowledged “divided” duty by alleging that [defendant] Carchedi failed to disclose that she had a personal stake in the sale to the buyers, who planned to subdivide the property immediately after purchase and retain her as the broker for the sale of the subdivided parcels, and that they did so, listing the subdivided parcels for almost three times the price plaintiff received in his sale … . We also note plaintiff’s assertion that the agent representing the buyer was the son of Carchedi’s longtime client about whom plaintiff had expressed concern. Hahn v Stone House Props. LLC, 2022 NY Slip Op 01416, First Dept 3-8-22

​Practice Point: Even though breach-of-fiduciary-duty was not explicitly pled, the facts alleged stated a cause of action against defendant real estate broker.

Practice Point: Even though the seller signed a form consenting to the broker’s “dual agency,” the broker was not relieved of her fiduciary duty to the seller. Allegedly, the broker was aware the buyers were going to subdivide the property, sell it at three times the price, and that she would be the broker for the subsequent sales.

 

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DEFENDANTS’ MOTIONS TO AMEND THEIR ANSWERS IN THIS MED MAL CASE TO ALLEGE PLAINTIFF’S CULPABLE CONDUCT AND COMPARATIVE NEGLIGENCE (RE: HER WEIGHT AND SMOKING) SHOULD HAVE BEEN GRANTED; THE DELAY IN MAKING THE MOTION CAUSED NO PREJUDICE; GOOD CAUSE FOR THE DELAY NEED NOT BE SHOWN; FAILURE TO INCLUDE THE AMENDED PLEADINGS WITH THE MOTION PAPERS AND DEFECTS IN VERIFICATIONS SHOULD HAVE BEEN OVERLOOKED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined: (1) the defendants in this medical malpractice actions should have been allowed to amend their answers to allege culpable conduct and comparative negligence on the part of plaintiff, citing her weight and smoking habit: (2) the defendants failure to attach the proposed amended pleading to the motion papers was a technical defect which should have been overlooked; (3) the defendants did not need to submit a certificate of merit for the proposed amendments; and (4), the defects in the defendants’ verifications should have been overlooked:

“While [defendants were] or should have been aware of the facts and theories asserted in the amended [answers] long before amendment was actually sought, delay alone is not a sufficient ground for denying leave to amend” … . Under the circumstances in this case, there was no unreasonable delay by defendants in seeking leave to amend, as plaintiff has not filed her note of issue nor has the case has been certified as trial-ready … . Further, because there was no extended delay by defendants in moving to amend, they did not need to proffer a reasonable excuse for the delay … .

… “[O]n a motion for leave to amend, [the movant] need not establish the merit of its proposed new allegations, but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit”  … Contrary also to plaintiff’s argument, Golson v Addei [216 AD2d 268] does not stand for the proposition that a comparative negligence defense in a medical malpractice case based on a plaintiff’s smoking history is per se meritless … . Johnson v Montefiore Med. Ctr., 2022 NY Slip Op 01418, First Dept 3-8-22

Practice Point: In a med mal case, plaintiff’s weight and smoking habit maybe grounds for affirmative defenses.

Practice Point: There was no need to submit a certificate of merit with the motion to amend the answers.

Practice Point: Where there has been no prejudice to the plaintiff, the unexcused delay in seeking amendment of the answers here was not a sufficient ground for denying the amendment.

Practice Point: Failure to include the proposed amended answers with the motion for leave to amend, and defects in defendants’ verifications, were technical defects which should have been overlooked.

 

A STACK OF SHEETROCK BOARDS WHICH WERE LEANING AGAINST A WALL FELL ON PLAINTIFF; THERE WERE QUESTIONS OF FACT ABOUT WHETHER IT WAS A GRAVITY-RELATED EVENT AND WHETHER THE ELEVATION DIFFERENTIAL WAS DE MINIMUS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff could recover for injuries under Labor Law 240(1). A stack of 25 to 30 sheetrock boards which had been leaning against a wall fell on him. The court noted that the Labor Law 241(6) cause of action was properly dismissed because the incident happened in an apartment, not a “passageway:”

… [T]he record presents issues of fact as to whether plaintiff’s injuries flowed directly from the application of the force of gravity to the sheetrock, whether the elevation differential was de minimis, and whether the combined weight of the sheetrock panels could generate a significant amount of force as it fell … . Kuylen v KPP 107th St., LLC, 2022 NY Slip Op 01419, First Dept 3-8-22

​Practice Point: A stack of sheetrock boards which had been leaning against a wall fell on plaintiff. There were questions of fact re: whether the accident was covered by Labor Law 240(1) as a gravity-related event where the elevation differential was not de minimus.

 

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THE CONTRACTOR COULD NOT ESCAPE LIABILITY FOR PAYMENT OF THE SUBCONTRACTOR; THE PAY-WHEN-PAID CLAUSE IN THE CONTRACT IS INVALID; NOTHING IN THE CONTRACT INDICATED THE CONTRACTOR WAS ACTING SOLELY AS AN AGENT FOR THE OWNER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendant Sweet was not an agent such that it could avoid responsibility for paying a subcontractor, Arenson, for the construction work done by Arenson. The First Department further held General Business Law 756-a did not invalidate the precedent prohibiting pay-when-paid clauses like the one in the contract between Sweet and Arenson:

The scope letter, which is on Sweet’s letterhead, contains the following clause:”Subcontractor understands that Contractor is acting as an agent for the Owner, and agrees to look only to funds actually received by the Contractor (from the Owner) as payment for the work performed under this Subcontract.” [This is the prohibited pay-when-paid clause.] * * *

… Sweet was not an agent for a disclosed principal. The clearest indicator of Sweet’s role, its signature, supports this conclusion. The signature line for “Sweet Construction Approval” and the signature do not indicate that Sweet signed the contract as agent on behalf of a disclosed principal or reflect any limitations … . …

In characterizing itself as “only a facilitator of payment” and “merely a conduit” Sweet ignores that the subcontract provides that the work is to be performed pursuant to the “SCC General Requirements.” Those requirements, which also appear in the scope letter, provide that Arenson will … indemnify and hold Sweet harmless with respect to Arenson’s work; obtain liability insurance in Sweet’s favor; and recognize Sweet’s authority to issue safety violations and correct unsafe conditions. These general requirements, on their face, apply to Sweet in its own capacity, and not in its capacity as an agent. Bank of Am., N.A. v ASD Gem Realty LLC, 2022 NY Slip Op 01379, First Dept 3-3-22

 

BECAUSE PLAINTIFF HAD TO STAND ON THE GUARDRAILS OF THE MANLIFT TO REACH WHAT HE WAS WORKING ON, THE MANLIFT WAS NOT APPROPRIATE EQUIPMENT; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff had to stand on the guardrails of a manlift to reach what he was working on. He received an electric shock and fell:

Plaintiffs should be granted summary judgment as to defendants’ liability under the statute. The record demonstrates that plaintiff Matthew S. Healy (plaintiff) fell from the guardrails of a manlift after sustaining an electric shock. Plaintiff was required to stand on the manlift’s guardrails because HVAC ductwork prevented him from raising the manlift to the area in which he needed to work. Thus, the manlift was “inappropriate for the task at hand in light of the configuration of the building” and failed to afford plaintiff adequate protection pursuant to the statute … .Healy v BOP One N. End LLC, 2022 NY Slip Op 01388, First Dept 3-3-22

 

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FAMILY COURT DID NOT HAVE JURISDICTION TO MODIFY A SEPARATION AGREEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; A PLENARY ACTION IS REQUIRED (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined Family Court did not have jurisdiction to modify the separation agreement by putting a cap on the child-support/spousal-support credit father was entitled to for his payment of the mortgage and apartment expenses:

A stipulation of settlement which is incorporated but not merged into the parties’ judgment of divorce may be reformed only in a plenary action … . Family Court does not have jurisdiction to modify a separation agreement … . Under the terms of the parties’ stipulation of settlement, the father is entitled to pay his $2,100 in monthly child support directly to the mortgagee of the parties’ former marital apartment. However, the Family Court erred in capping the father’s credit against support arrears at $25,200 per year based on this provision. Although Family Court found that there was no similar provision with respect to spousal support, in fact the parties’ stipulation permits the father to also deduct the payment of apartment expenses, including the mortgage, from his spousal support. Accordingly, Family Court improperly amended the stipulation by imposing an annual maximum credit to which the father is entitled based solely on his child support obligation. Matter of Deborah K. v Richard K., 2022 NY Slip Op 01391, First Dept 3-3-22

 

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PLAINTIFFS-PARENTS’ CAUSE OF ACTION FOR LOSS OF THEIR INJURED DAUGHTER’S SERVICES SHOULD HAVE BEEN DISMISSED; THE PARENTS DEMONSTRATED ONLY THAT THEIR DAUGHTER PERFORMED SERVICES IN HER EMPLOYMENT AT THE COMPANIES OWNED BY THE PARENTS (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the parents’ cause of action for loss of their injured daughter’s services should have been granted:

Defendants established prima facie that plaintiffs Arlene and Herbert Klaar, the parents of the injured plaintiff, Deborah Klaar, are not entitled to recover damages for loss of their daughter’s services since they showed only that their claim rests entirely on the services Deborah performed in her employment at the two companies they own … .

… [P]laintiffs failed to raise an issue of fact. They cited deposition testimony demonstrating that Deborah served as a secretary, office manager, and assistant controller at her parents’ companies, that she was expected to take over the businesses and provide her parents with a monthly payment, and that she had significant difficulty fulfilling all of her many duties following the accident. They did not submit evidence that Deborah regularly performed services for them as their daughter, such as doing chores or running errands for the household, nor that they sustained any pecuniary loss as a result of her failure to do so … .Klaar v Fedex Corp., 2022 NY Slip Op 01393, First Dept 3-3-22

 

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PLAINTIFFS’ MOTION TO RENEW ON THE GROUND THE DEFENDANTS’ WINNING ARGUMENT WAS RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiffs’ motion to renew should have been granted. Defendants’ motion to dismiss was improperly granted based upon an argument first raised in reply papers:

The court granted defendants’ motion to dismiss … based on defendants’ argument raised for the first time in their reply to their motion to dismiss, that [the] operating agreement contained a provision wherein plaintiffs purportedly waived any past, present, and future conflicts of interest. Plaintiffs moved for leave to renew and reargue, claiming that the issue of the waiver provision was improperly raised for the first time in reply, and in substance was contradicted by another section of the operating agreement that provides, among other things, that no one other than the members can enforce any provision of the operating agreement against any member.

The motion to renew should have been granted. Plaintiffs’ claim that the waiver issue was improperly raised in defendants’ reply provides a reasonable justification for granting the renewal motion … . Upon renewal, defendants’ motion should be denied with respect to plaintiffs’ breach of fiduciary duty claim … . Dismissal is warranted only where documentary evidence “conclusively establishes a defense to the asserted claims as a matter of law” … . Mehra v Morrison Cohen LLP, 2022 NY Slip Op 01396, First Sept 3-3-22

 

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