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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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PARTICIPATION IN A PRISON SEX OFFENDER TREATMENT PROGRAM WAS NOT ENOUGH TO AVOID A 10-POINT ASSESSMENT FOR FAILURE TO ACCEPT RESPONSIBILITY IN THIS SORA RISK-LEVEL PROCEEDING (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined defendant’s participation in a prison sex offender treatment program did not preclude the assessment of 10 points for failing to accept responsibility for his misconduct. The additional 10 points raised defendant’s risk level from two to three:

Factor 12 of the Sex Offender Registration Act (SORA) Risk Assessment Guidelines allows for the assessment of 10 points for a sex offender if he “has not accepted responsibility for his sexual misconduct.” This appeal raises the issue of whether (and to what extent) a sex offender’s participation in a sex offender treatment program is evidence that he has accepted responsibility for his misconduct. We conclude that a sex offender’s participation in a sex offender treatment program is some evidence that the offender has accepted responsibility and that such evidence must be considered in conjunction with any other reliable evidence bearing on the subject (e.g., statements by the sex offender). In light of all of the evidence relevant to the subject of defendant’s acceptance of responsibility for his misconduct, including his participation in a sex offender treatment program and his statements minimizing or denying responsibility for his misconduct, the SORA court correctly concluded that the People established, by clear and convincing evidence, that defendant had not genuinely accepted responsibility for his misconduct, and, accordingly, properly assessed defendant 10 points for Factor 12. People v Solomon, 2021 NY Slip Op 07519, First Dept 12-28-21

 

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PLAINTIFF’S COMPLAINT AGAINST THE DEFAULTING DEFENDANT-ATTORNEY SUFFICIENTLY ALLEGED GENDER DISCRIMINATION AND INFLICTION OF EMOTIONAL DISTRESS BY DEFENDANT-ATTORNEY’S WITHHOLDING REQUESTED LEGAL SERVICES AND ENGAGING IN SEXUAL HARASSMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s complaint against the defaulting attorney-defendant should not have been dismissed. Plaintiff alleged defendant attorney discriminated against her by depriving her of the legal services she sought in connection with a sexual assault. Plaintiff alleged she was sexually harassed by defendant attorney. The matter was sent back to determine damages:

“[B]y defaulting, a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages” … . “Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action,” but the standard of proof is “minimal,” “not stringent” … .

… [P]laintiff averred that defendant … used his position of authority and confidence as an attorney to gain her trust, and then discriminated against her by withholding the legal services she sought in connection with litigation related to a sexual assault of plaintiff and using the pretext of offering such services to harass and subject her to unwelcome sexual conduct and advances. …

Plaintiff established claims under New York State Executive Law § 269(2)(a) (State HRL) that defendant … discriminated against plaintiff based on her gender … . [P]laintiff also made a prima facie showing that defendant[‘s] … discriminatory behavior violated the City HRL … . [P]laintiff established her claim for intentional infliction of emotional distress by demonstrating that defendant … engaged in extreme and outrageous conduct through his deliberate and malicious campaign of harassment, while disregarding a substantial probability that doing so would cause severe emotional distress to her, and that his conduct did in fact did cause her severe emotional distress … . Petty v Law Off. of Robert P. Santoriella, P.C., 2021 NY Slip Op 07527, First Dept 12-28-21

 

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SILENCE DOES NOT CONSTITUTE WAIVER; HERE THE NONPARTY DID NOT EXPRESSLY WAIVE THE COMMON INTEREST, WORK PRODUCT OR TRIAL PREPARATION PRIVILEGES WITH RESPECT TO SUBPOENAED DOCUMENTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined silence did not constitute waiver of common interest, work product or trial preparation privileges with respect to subpoenaed documents:

“Waiver is an intentional relinquishment of a known right and should not be lightly presumed” … . Accordingly, waiver should not be found absent “evidence from which a clear manifestation of intent . . . to relinquish [the right in question] could be reasonably inferred” … . Waiver “will . . . [not] be implied unless the opposite party is misled to his or her prejudice into the belief that a waiver was intended” … ; hence, a finding of waiver cannot be based upon “mere silence or oversight,” or upon “mistake, negligence or thoughtlessness” … . The burden of proving waiver rests with the party asserting it … . * * *

… [I]t is not alleged that appellant or his counsel expressly orally waived the privilege claims at issue, nor does the record reflect that appellant engaged in any gamesmanship with respect to his privilege claims or that he ever “misled [defendants-respondents] to [their] prejudice into the belief that a waiver was intended” … . Homapour v Harounian, 2021 NY Slip Op 07080, First Dept 12-21-21

 

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PLAINTIFF-STUDENT ALLEGED INJURY IN AN AFTERSCHOOL PROGRAM RUN BY TWO TEACHERS; THE DEPARTMENT OF EDUCATION IS IMMUNE FROM SUIT UNDER THE DOCTRINE OF GOVERNMENTAL IMMUNITY; THE PRINCIPAL’S APPROVAL OF THE AFTERSCHOOL PROGRAM WAS DISCRETIONARY AND NO SPECIAL DUTY WAS OWED PLAINTIFF (FIRST DEPT).

The First Department determined the NYC Department of Education (DOE) was immune from suit by a student who alleged injury in an afterschool program run two teachers (Polanish and Gallagher) called “Mind, Body & Sport” (MBS). The school principal’s approval of the program was a discretionary act and no special duty was owned plaintiff:

The school principal’s granting of a permit for MBS to operate on school grounds was a discretionary action taken during the performance of a governmental function, and thus, the DOE was shielded from liability by the doctrine of governmental immunity … . Plaintiffs have failed to establish that the DOE owed the infant plaintiff a special duty that would render the DOE liable to plaintiffs for negligent acts … . Likewise, as to the MBS flyer, the DOE cannot be held liable through the doctrine of apparent authority for issuance of the flyer without the required disclaimer. As with the approval of the permit, the school principal’s approval of the MBS flyer involved the exercise of her reasoned judgment and discretionary authority, thus entitling DOE to governmental function immunity … .

The DOE also cannot be held liable for negligently supervising Polanish and Gallagher’s conduct during the MBS program. That the DOE permitted MBS to run as an afterschool program on school grounds does not provide a basis for holding the DOE liable, since “[a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control” … . R.K. v City of New York, 2021 NY Slip Op 07092, First Dept 12-21-21

 

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THE OWNER OF THE OLD BRONX COURTHOUSE HAS A VALID CAUSE OF ACTION SEEKING AN EASEMENT BY NECESSITY OVER THE SIDEWALK/STREET ABUTTING THE COURTHOUSE, DESPITE THE “DEMAPPING” OF THE ABUTTING STREET AND THE CONVEYANCE OF THE “DEMAPPED” STREET TO THE DEFENDANT; THE ACTION IS NOT PRECLUDED BY THE STATUTE OF LIMITATIONS BECAUSE IT SEEKS TO QUIET TITLE TO THE OWNER’S LAND (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Renwick, determined the plaintiff’s action claiming ownership of, or an easement over, the sidewalk/street area abutting plaintiff’s property (the old Bronx courthouse) was properly dismissed, with exception of the claim of an easement by necessity. The street abutting the courthouse had been “demapped” by the city and conveyed to defendants before plaintiff purchased the courthouse property. The deed description of the courthouse property was unambiguous and was not altered by a hand-drawn circle around the property on the recorded tax map. The action was not precluded by the statute of limitations because it is an action to quiet title to the plaintiff’s land:

… [W]here, like here, the owner is in possession, the right of action to remove a cloud on title is a continuous one accruing from day to day, and this right is not barred by the statute of limitations until the cloud is continued without interruption for a length of time sufficient to effect a change of title as a matter of law … . “The reason for this rule is that while the owner in fee continues subject to an action, proceeding, or suit on the adverse claim, he or she has a continuing right to the aid of a court of equity to ascertain and determine the nature of such claim and its effect on his or her title, or to assert any superior equity in his or her favor”… . Accordingly, the owner may wait until his or her possession is disturbed, or his or her title is attacked, before taking steps to vindicate his or her right … . “The requirement of prompt action is imposed as a policy matter upon persons who would challenge title to property rather than those persons who seek to quiet title to their land” … . * * *

… [T]he deed contains no reference to the altered Tax Map, with the hand-drawn circle, purportedly intended to change the boundaries of the property. Nor is there any indication on the altered Tax Map of the circle’s purpose. If the parties wanted to change the boundaries of the property described in the deed and Current Tax Map to include a surrounding demapped street, they could easily have done so by making such notation on the deed and altered Tax Map. Liberty Sq. Realty Corp. v The Doe Fund, Inc., 2021 NY Slip Op 07082, First Dept 12-21-21

 

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