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QUESTION OF FACT WHETHER PLAINTFF SLIPPED AND FELL ON ICE OR SNOW IN AN AREA WHICH HAD BEEN CLEARED SUCH THAT IT CONSTITUTED A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE RE: THIS LABOR LAW 241(6) ACTION (FIRST DEPT).

The First Department determined there was a question of fact in this Labor Law 241(6) action about whether the area where plaintiff slipped and fell on ice or snow was a “passageway” within the meaning of the Industrial Code:

This personal injury action stems from injuries sustained by plaintiff when he allegedly slipped and fell on snow or ice while walking from an area on a roof, where he was performing mason work, to its exit. …

“Although the regulations do not define the term ‘passageway’ . . . , courts have interpreted the term to mean a defined walkway or pathway used to traverse between discrete areas as opposed to an open area” … . …

The record contains competing evidence as to the location of the accident, whether a path had been cleared so that workers could safely walk between the stairway and the location on the roof where the work was being performed and whether it was necessary for plaintiff to traverse the area where he allegedly fell. …

If, as defendants claim, plaintiff’s accident occurred outside of the passageway or pathway defendants claim existed, then issues of fact exist as to whether it was necessary for plaintiff to traverse that area as part of his work … . Venezia v LTS 711 11th Ave., 2022 NY Slip Op 00152, First Dept 1-11-22

 

A STAIRWAY CAN BE A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that a stairway where plaintiff fell could be a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action should not have been dismissed:

For purposes of the applicability of Industrial Code (12 NYCRR) § 23-1.7(d), a staircase may constitute a passageway when that staircase is the sole access to the work site … . Here, plaintiff and his coworkers were required to use the loading dock entrance, where they would check in with security and go down to the basement level; from the basement, the workers proceeded to the floors where construction was ongoing. Although workers had the option of using a single-stop elevator to gain access to the basement, plaintiff’s uncontradicted testimony showed that the workers used the staircase, not the elevator. At the time of plaintiff’s accident, he was with several coworkers, all of whom had just checked in with the security guard and were using the staircase. CJS offered no evidence that any of the workers for any of the contracted trades used the single-stop elevator for purposes other than delivering construction material. Under these circumstances, where the staircase on which plaintiff fell the way in which the workers generally accessed the basement level, the staircase was a passageway for Labor Law § 241(6) purposes … . Tolk v 11 W. 42 Realty Invs., L.L.C., 2022 NY Slip Op 00150, First Dept 1-11-22

 

BECAUSE PLAINTIFF ALLEGED THE ORAL CONTRACT WAS ENFORCEABLE EVEN IF THE TRIGGERING EVENT OCCURRED AFTER A YEAR, THE CONTRACT WAS WITHIN THE STATUTE OF FRAUDS AND THEREFORE MUST IN BE WRITING (FIRST DEPT).

The First Department determined the oral contract was within the statute of frauds because it was not susceptible of performance within one year. Plaintiff alleged he was entitled to 50% of the placement fee received by defendant for job candidates he referred to defendant, even if placement was made after a year:

The alleged oral agreement upon which plaintiff sues is within the statute of frauds, since plaintiff contends that when he refers a job candidate to defendant, he is entitled to 50% of the fee defendants receive for placing the candidate, even when the candidate is placed more than a year after plaintiff’s referral (General Obligations Law § 5-701[a][1] … ). As a result, because plaintiff has fully executed the contract while defendant’s obligation continues past a one-year period, the contract is not, by its terms, susceptible of performance within one year, and therefore must be in writing to be enforceable … . Although oral agreements that violate the statute of frauds are enforceable where the party to be charged admits having entered into the contract, defendant never admitted that it agreed to pay plaintiff a fee on placements occurring more than a year after a referral … . Birnbaum v Goldenberg Consulting Group, Inc., 2022 NY Slip Op 00042, First Dept 1-6-22

 

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IN THIS ARTICLE 78 PROCEEDING, NO APPEAL LIES FROM A JUDGE’S DECLINING TO SIGN AN ORDER TO SHOW CAUSE; THE ONLY REMEDY IS A MOTION TO VACATE THE FINAL JUDGMENT (FIRST DEPT).

The First Department, in this Article 78 proceeding, noted that no appeal lies from a judge’s declining to sign an order to show cause. The only remedy is a motion to vacate the final judgment:

No appeal lies from an order declining to sign an order to show cause, since it is an ex parte order that does not decide a motion made on notice (see CPLR 5701[a][2] … ).

No party requests that we consider relief under CPLR 5704(a). In any event, we note that Supreme Court providently exercised its discretion in declining to sign plaintiffs’ proposed order to show cause … . Plaintiffs sought to bring on a motion to renew an order that denied the petition and dismissed the proceeding, thus terminating the special proceeding. Renewal is not available under such circumstances … . Instead, an application to vacate a final judgment must be brought pursuant to CPLR 5015 … . This principle applies specifically in the context of a challenge to “a judgment dismissing a CPLR article 78 petition” … . Matter of Alliance to End Chickens as Kaporos v New York City Police Dept., 2022 NY Slip Op 00041, First Dept 1-6-22

 

THE JUROR’S SIMULATION OF THE STABBING IN THE JURY ROOM DID NOT CONSTITUTE JUROR MISCONDUCT (FIRST DEPT).

The First Department determined a juror’s use of a piece of cardboard to simulate a stabbing motion with a knife (during deliberations) did not constitute juror misconduct:

… [T]he juror … used a piece of cardboard to simulate a knife and briefly made a stabbing motion in an effort to demonstrate or reenact the crime at issue. Based on the evidence adduced at the hearing, this conduct likewise did not constitute “improper conduct” within the meaning of CPL 330.30(2). “It is well recognized that jurors may conduct a jury room crime reenactment or demonstration provided it involves no more that the jurors’ application of everyday experiences, perceptions and common sense to the evidence” … . In light of the trial evidence and the nature of the demonstration, the juror did not become an unsworn witness, or introduce new facts into the deliberations … . Given the location, simplicity, and brief duration of the demonstration … , as well as the hearing testimony of the jurors who testified that the demonstration had no effect on their deliberations … , the demonstration did not prejudice a substantial right of defendant …. People v Hubbard, 2022 NY Slip Op 00017, First Dept 1-4-22

 

THE DUCT ON THE FLOOR WAS AN INTEGRAL PART OF THE DEMOLITION WORK, THEREFORE LABOR LAW 241 (6) DID NOT APPLY; THE DEFENDANT DID NOT SUPERVISE OR CONTROL PLAINTIFF’S WORK, THEREFORE LABOR LAW 200 DID NOT APPLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the air duct which caused plaintiff’s fall was part of the demolition work plaintiff’s employer was hired to perform. Therefore Labor Law 241(6) was not applicable. In addition, Labor Law 200 did not apply to the defendant who did not supervise or control plaintiff’s work:

Plaintiff fell after trying to climb over an air duct that was left on the floor as part of the demolition work his employer was subcontracted to perform. Accordingly, the air duct constituted an integral part of the work, and 12 NYCRR 23-1.7(e)(2) as a predicate for the Labor Law § 241(6) claim is inapplicable … . Contrary to plaintiff’s contention, defendant properly raised its “integral part” argument in its moving papers.

Defendant cannot be held liable under Labor Law § 200, because the presence of the air duct on the floor was a condition created by the means and methods of the work performed by plaintiff or his employer, and the record demonstrates that defendant had only general supervisory authority over the construction site and did not control plaintiff’s work … . Plaintiff testified that he received instructions only from his employer’s foremen … . Mateo v Iannelli Constr. Co. Inc., 2022 NY Slip Op 00010, First Dept 1-4-22

 

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THE PRIVILEGE AFFORDED ATTORNEYS UNDER THE CIVIL RIGHTS LAW RE: ALLEGEDLY DEFAMATORY CLAIMS INCLUDED IN A COMPLAINT (WITH ONE EXCEPTION NOT APPLICABLE HERE) IS ABSOLUTE, EVEN IN THE FACE OF ALLEGATIONS OF MALICE AND BAD FAITH (FIRST DEPT).

The First Department determined the allegedly defamatory claims included in a complaint against plaintiff were absolutely privileged with respect to the attorneys who drafted the complaint.

… [T]here is no evidence to support a claim that defendant attorneys acted with malice against plaintiff, either in the commencement of this case or in the preparation of the papers as well as any dissemination of the papers, which are for public consumption to a reporter. … [T]here are no … issues of fact as to whether defendant attorneys instituted and sought to publicize a “sham” action containing defamatory allegations against plaintiff for the sole or primary purpose of disseminating those defamatory allegations while cloaking them in the privilege that attends certain statements made in connection with proceedings before a court (see Williams v Williams, 23 NY2d 592, 599 [1969]). …

In the absence of alleged facts supporting the Williams exception, the privilege under Civil Rights Law § 74 is absolute and applies even where the plaintiff alleges malice or bad faith … . Weeden v Lukezic, 2022 NY Slip Op 00026, First Dept 1-4-22

 

RECENT CHANGES TO THE STATUTES: (1) REQUIRING A LANDLORD TO MITIGATE DAMAGES WHEN A TENANT ABANDONS A RESIDENTIAL APARTMENT BEFORE THE END OF THE LEASE; AND (2), APPLYNG A SECURITY DEPOSIT TO REPAIRS, INTERPRETED AND APPLIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, interpreted recent changes to Real Property Law 227-e and General Obligations law 7-108 regarding the landlord’s duty to mitigate damages (when a tenant abandons an apartment before the end of the lease), and the landlord’s use of a security deposit to make repairs:

Real Property Law § 227-e now clearly holds that the duty to mitigate damages applies to all residential leases in New York State. It also clarifies that the doctrine of mitigation of damages is not an affirmative defense to be asserted by a tenant, but rather the burden is on landlord to establish it took reasonable and customary actions to “render the injury as light as possible” … . * * *

Under General Obligations Law § 7-103(1), it is black letter law that money deposited or advanced by a tenant on a lease agreement “shall continue” to be tenant’s money and “shall” be held in trust for the benefit of tenant until the lease is terminated and it is repaid or applied. The deposit is meant to cover the costs of repairing damages to the apartment. …

General Obligations Law § 7-108 (1-a)(d) also newly added, provides a requirement that landlord provide tenant with written notice of a right to have and be present at an inspection of the premises upon moving out. * * *

The penalty of [a landlord’s] forfeiture [of the security deposit] is only mandated when landlord fails to provide an itemized statement of the repairs that it claims are required and justify retention of part or all of the security deposit … . 14 E. 4th St. Unit 509 LLC v Toporek, 2022 NY Slip Op 00002, First Dept 1-4-22

 

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PLAINTIFF’S MOTION TO COMPEL THE DEFENDANT ESTATE TO HIRE AN ATTORNEY OR BE DEEMED IN DEFAULT SHOULD HAVE BEEN GRANTED; WHERE THERE ARE CLAIMS AGAINST AN ESTATE, THE ESTATE CANNOT REPRESENT ITSELF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s motion to require the defendant executor of the estate to hire an attorney for the estate or be deemed in default should have been granted. An estate cannot represent itself:

… [T]he motion court should have granted plaintiffs’ motion seeking to require Madden to retain licensed counsel to represent the estate. Although CPLR 321(a) does not address whether an estate is permitted to represent itself, courts have concluded that, in matters involving claims brought against an estate, estate representatives cannot act pro se because their own individual liberty or property interests are not involved. Rather, the interests belong to the estate beneficiaries … . Alaina Simone Inc. v Madden, 2021 NY Slip Op 07497, First Dept 12-28-21

 

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DEFENDANT EMPLOYER’S LATE MOTION TO AMEND THE ANSWER IN THIS LABOR LAW 240 (1) ACTION TO ASSERT THAT PLAINTIFF’S EXCLUSIVE REMEDY WAS THE WORKER’S COMPENSATION BENEFITS ALREADY AWARDED SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant employer’s (H&M’s) motion to amend its answer to allege Workers’ Compensation was plaintiff’s sole remedy in this Labor Law 240(1) action should have been granted, despite the lateness of the motion:

H&M’s initial failure to submit the proposed amended pleading (CPLR 3025[b]) was a technical defect that the court should have overlooked (see CPLR 2001), particularly since H&M attached the proposed amendment to its reply … . Plaintiff’s arguments that he was prejudiced by the amendment proposed in H&M’s cross motion, filed about three years after this action was commenced and two years after the workers’ compensation ruling was affirmed, are unavailing … . It is not dispositive that leave to amend was sought a few months after the note of issue was filed … .

The valid and final decision of a panel of the Workers’ Compensation Board, affirming a decision by a Workers’ Compensation Law Judge that was based on a finding that H&M was plaintiff’s employer at the time of the accident, “bars [plaintiff] from relitigating the identical issue in this proceeding”  … . Chen v 111 Mott LLC, 2021 NY Slip Op 07501, First Dept 12-28-21

 

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