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PLAINTIFF IN A LABOR LAW 240 (1) AND 241 (6) ACTION NEED NOT SUBMIT AN AFFIDAVIT TO MAKE OUT A PRIMA FACIE CASE; THE HEARSAY STATEMENTS REFERENCING OR ATTRIBUTED TO PLAINTIFF DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court and granting plaintiffs’ summary judgment motion on the Labor Law 240 (1) and 241 (6) causes of action, determined: (1) plaintiff need not submit an affidavit to make out a prima facie case; and (2) defendant’s reliance on hearsay, including statements referenced in the certified medical records, did not raise a question of fact:

Plaintiffs established prima facie that defendant Choice is liable to them under Labor Law § 240(1) and Labor Law § 241(6) predicated on Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) through plaintiff Bledar Greca’s (plaintiff) testimony that he was injured while working on the fifth floor of defendant Choice’s property when a piece of wood that had been placed as a temporary path shifted, causing him to fall through an open area between beams. …

Although plaintiff’s medical records were certified, Choice [defendant] did not establish that the statements contained in them on which it relied either were germane to plaintiff’s diagnosis and treatment or are directly attributable to plaintiff … . The handwritten statement ostensibly by defendant Cekaj Construction Corp.’s principal and the affidavit by the owner of second third-party defendant Donato Plumbing Group, Inc. as to what Cekaj’s principal told him about plaintiff’s accident are both inadmissible hearsay, and do not qualify as admissions by an opposing party … . Greca v Choice Assoc. LLC, 2021 NY Slip Op 06759, First Dept 12-2-21

 

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PETITIONER’S FOIL REQUEST FOR A POLICE MANUAL WAS AT FIRST DENIED, BUT WAS GRANTED AFTER THE ARTICLE 78 PROCEEDING WAS BROUGHT; RESPONDENT DID NOT HAVE A GOOD REASON FOR FIRST DENYING THE REQUEST; PETITIONER “SUBSTANTIALLY PREVAILED” AND WAS ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined petitioner in this FOIL proceeding “substantially prevailed” and was therefore entitled to attorney’s fees:

Upon petitioner’s FOIL request seeking the contents of a medical screening manual used by the New York City Police Department, respondents, relying on Public Officers Law § 87(2)(d) among other sections of the statute, produced only the manual’s cover, title page, and table of contents, maintaining that they lacked the necessary permission from the manual’s developer to release the rest of the manual. After petitioner commenced this article 78 proceeding, however, respondents produced the rest of the manual in unredacted form, except for the appendices, with their response to the petition. Under these circumstances, petitioner substantially prevailed within the meaning of Public Officers Law § 89(4)(c) … .

… [R]espondents have not established that they had a “reasonable basis” for withholding production under Public Officers Law § 87(2)(d). Respondents concede that they sought permission from the manual’s developer to release the information only after receiving the article 78 petition, suggesting that the disclosure was prompted solely by petitioner’s resort to litigation and that respondents could have sought permission in response to the FOIL request itself. This fact militates against a finding that the agency had a “reasonable basis” for withholding production … . Matter of Jaskaran v City of New York, 2021 NY Slip Op 06762, First Dept 12-2-21

 

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THE INSURED, SPACE NEEDLE, LLC, IS LOCATED IN WASHINGTON STATE; ALTHOUGH THE INSURANCE POLICY NAMED NEW YORK AS THE FORUM AND REQUIRED THE APPLICATION OF NEW YORK LAW FOR ANY LAWSUITS, THE WASHINGTON INSURANCE CODE RENDERED SUCH PROVISIONS VOID; THEREFORE THE INSURER WAS NOT ENTITLED TO AN ANTI-SUIT PRELIMINARY INJUNCTION IN NEW YORK (FIRST DEPT).

he First Department determined plaintiff Elite Insurance Company did not demonstrate a likelihood of success or a balancing of the equities in its favor in its attempt to have a preliminary injunction issued in New York to prevent a suit by the insured, Space Needle of Seattle, Washington, after the COVID-related business-loss claim was denied: Although the insurance contract indicated New York would be the forum and New York law would apply, the Washington Insurance Code rendered such provisions void. The decision includes extensive discussions of the leading cases in these areas:

… [P]laintiff did not demonstrate either a likelihood of success on the merits of its claim for an anti-suit injunction based on the contractual choice-of-law and forum selection clauses of the parties’ insurance contract, or a balancing of the equities in its favor. As an insurance company authorized to sell insurance in Washington, plaintiff was required to comply with the Washington Insurance Code’s prohibition against choice-of-law and forum selection clauses in insurance policies sold in Washington (Wash Rev Code Chapter 48). The Code (RCW) expressly provides that no insurance contract delivered or issued for delivery in this state (Washington) . . . “shall contain any condition, stipulation or agreement (a) requiring it to be construed according to the laws of any other state or country. . .; or (b) depriving the courts of this state of the jurisdiction of action against the insurer . . .” (RCW 48.18.200 [1]). RCW further specifies that any such agreement violating this prohibition “shall be void, but such voiding shall not affect the validity of the other provisions of the contract” (RCW 48.18.200 [2]). Thus, plaintiff has not demonstrated that the equities tip in its favor where it is attempting, as Supreme Court stated, “a blatant end run around” Washington’s prohibition against choice-of-law and forum selection clauses. North Am. Elite Ins. Co. v Space Needle, LLC, 2021 NY Slip Op 06769, First Dept 12-2-21

 

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EVIDENCE OF OCCASIONAL MARIJUANA USE DID NOT SUPPORT THE ASSESSMENT OF 15 POINTS IN THIS SORA RISK-LEVEL PROCEEDING (FIRST DEPT).

The First Department determined the evidence did not support the SORA risk-level assessment of 15 points for drug and alcohol abuse:

Defendant admitted to occasional marijuana use, and there is no evidence that he had smoked marijuana at the time of the offense. The only evidence of prior drug treatment was as a condition of parole, on a nondrug-related conviction, that was completed in 2005. There is no evidence that defendant’s use of marijuana was established as anything more than occasional social use, and accordingly it does not warrant assessment of points under the risk factor for drug abuse. People v Baez, 2021 NY Slip Op 06771, First Dept 12-2-21

 

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EVEN THOUGH THE RECONSTRUCTION OF THE EAST RIVER PARK WILL BENEFIT THE SURROUNDING COMMUNITY (FLOOD PROTECTION) AS WELL AS THE PARK, THE RECONSTRUCTION SERVES A PARK PURPOSE AND THE APPROVAL OF THE STATE LEGISLATURE IS THERFORE NOT REQUIRED UNDER THE PUBLIC TRUST DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, determined the planned reconstruction of the East River Park along the waterfront of the lower east side of Manhattan did not require approval by the state legislature pursuant to the public trust doctrine, even though the project benefitted the park and other community objectives (protection against neighborhood flooding):

Petitioners contend that the principal purpose of the project is construction of a coastal shore floodwall to safeguard the residential developments nearby. They argue that the conclusion of a nonpark purpose is warranted because the work proposed is disproportionate to the work required to preserve the Park. There is no dispute that the project will greatly benefit the nearby communities from the risk of coastal flooding. At its core, however, petitioners’ argument is that any project that serves a park purpose cannot serve a dual purpose. Stated differently, that a park purpose is served only if that is the sole objective of a particular project. This is too narrow a reading of the park purpose requirement.

A project that benefits a park as well as other community objectives can still be considered to serve a park purpose under the public trust doctrine. * * * … [E]ven though a coastal flooding protection project will provide communities adjacent to the Park with flood protection, it will also protect the Park from coastal flooding.

Once it is determined that there is a park purpose, the salutary goal of preventing the alienation of parkland is satisfied. Matter of East Riv. Park Action v City of New York, 2021 NY Slip Op 06652, First Dept 11-30-21

 

PLAINTIFF, AN EXPERIENCED SKATER, FELL WHEN HIS SKATE HIT A RUT AS HE WAS COACHING HOCKEY; DESPITE THE APPLICABILITY OF THE ASSUMPTION OF RISK DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT “INHERENT COMPULSION;” HE ALLEGED HE WAS DIRECTED TO CONTINUE THE PRACTICE AFTER COMPLAINING OF THE ROUGH ICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that evidence of “Inherent compulsion” raised a question of fact, despite the applicability of the assumption of risk doctrine. Plaintiff is an experienced skater who fell while coaching hockey when his skate hit a rut in the ice:

Plaintiff does not dispute that defendants made a prima facie showing that his claims were barred by assumption of the risk … . However, plaintiff raised an issue of fact as to inherent compulsion. Plaintiff testified that he understood that his supervisors were [defendant’s] employees. He further testified that when he informed one of these supervisors of his concerns about the rough ice the supervisor dismissed his concerns and directed him to proceed with the practice. Plaintiff believed that he lacked authority to cancel or reschedule practice on his own initiative … . Stewart v Wollman Rink Operations LLC, 2021 NY Slip Op 06661, First Dept 11-30-21

 

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THERE WAS A QUESTION OF FACT WHETHER THE FORKLIFT ACCIDENT RESULTED FROM A HOLE OR CRACK IN THE SIDEWALK ADJACENT TO THE OUT-OF-POSSESSION LANDLORD’S BUILDING; EVEN OUT-OF-POSSESSION LANDLORDS ARE RESPONSIBLE FOR MAINTAINING THE ADJACENT SIDEWALK IN A REASONABLY SAFE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this forklift accident case should not have been granted. There was a question of fact whether the forklift struck a hole or a crack in the sidewalk. Under the NYC Administrative Code, an out-of-possession landlord is responsible for maintaining the adjacent sidewalk in a reasonably safe condition:

… [T]he Administrative Code requires owners of real property abutting any public sidewalk to maintain that sidewalk in a reasonably safe condition (Administrative Code § 7-210 …). This duty, on in- and out-of-possession landlords alike, is nondelegable … . The statute does not impose strict liability, and thus a plaintiff must still prove the elements of negligence in order to hold an owner liable … . Administrative Code § 19-101(d) defines “sidewalk” as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines” … . If the area where plaintiff’s accident occurred was either inside the premises or at an entrance that was within defendant’s property, the Administrative Code does not apply … . Vargas v Weishaus, 2021 NY Slip Op 06663, First Dept 11-30-21

 

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ALTHOUGH THE ELECTRIC BICYCLE WAS SOLD BY A THIRD-PARTY THROUGH AMAZON AND WAS ASSEMBLED BY AN APPROVED AMAZON PROVIDER, THERE IS NO THEORY UNDER WHICH AMAZON CAN BE HELD LIABLE FOR AN INJURY CAUSED BY IMPROPER ASSEMBLY OF THE BICYCLE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, determined Amazon could not be held liable for an injury caused by an electric bicycle purchased through Amazon which apparently was not assembled properly. Eshion, a China-based company, listed the bicycle on Amazon. The purchaser, plaintiff’s father, elected to have the bicycle assembled. Codefendant Tri-State Assembly offers its assembly services on Amazon and was an Amazon approved service provider. Plaintiff alleged the bicycle was not assembled properly (by Tri-State) and plaintiff fell because the handlebars loosened while he was riding it:

The Uniform Commercial Code clearly provides that implied warranties only extend to sellers (see UCC 2-314 [1]; 2-315 … ). Plaintiff’s breach of warranty claim fails because Amazon submitted sufficient documentary evidence and unrefuted affidavits from its representatives to establish prima facie that it did not sell, manufacture, distribute or assemble the bicycle.

The supporting affidavits indicate that, pursuant to contract, third-party sellers such as Eshion are responsible for all aspects of their sales, such as setting a price, describing the product being sold, and offering any warranties. In this case, Eshion sold the bicycle and shipped it directly to plaintiff. At no time was the bicycle ever in Amazon’s possession or control, nor did it ever obtain title to the bicycle (see UCC 2-106 [1]). Further, when placing orders all Amazon.com users agree to its Conditions of Use, wherein Amazon disclaims all warranties for products sold by third-party sellers.

In opposition, plaintiff failed to raise an issue of fact. Wallace v Tri-State Assembly, LLC, 2021 NY Slip Op 06664, First Dept 11-30-21

 

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ALTHOUGH PLAINTIFF’S HOSTILE WORK ENVIRONMENT ALLEGATIONS DID NOT STATE A CAUSE OF ACTION UNDER THE APPLICABLE NEW YORK STATE HUMAN RIGHTS LAW PROVISIONS, THE ALLEGATIONS DID STATE A CAUSE OF ACTION UNDER THE MORE PROTECTIVE NEW YORK CITY HUMAN RIGHTS LAW (CT APP).

The First Department, reversing (modifying) Supreme Court, determined the complaint stated a hostile work environment cause of action under the more protective New York City Human Rights Law, but not under the New York State Human Rights Law:

… [A]lthough the motion court properly concluded that it does not rise to the level of “severe and pervasive” under the applicable pre-2019 State HRL, plaintiff has raised triable issues of fact regarding the hostile work environment claims under the more protective City HRL … . There was evidence that in May and September 2015, several of plaintiff’s coworkers referred to him by using the Spanish word for “monkey,” a racially humiliating and degrading term. Further, the evidence suggested that other coworkers and supervisors, if not everyone at the restaurant, knew that certain employees were using that term to refer to plaintiff … . Under these circumstances, triable issues exist as to whether this rises above the level of a “truly insubstantial” case … . The evidence also raised triable issues as to whether plaintiff was treated differently from other employees of his ethnic background because of his skin color … .

… [T]riable issues of fact exist as to whether defendant was liable for the comments of its workers, and whether defendant took “immediate and appropriate corrective action” to prevent the conduct … . Pichardo v Carmine’s Broadway Feast Inc, 2021 NY Slip Op 06565, First Dept 11-23-21

 

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THE OUT-OF-POSSESSION LANDLORD IN THIS SLIP AND FALL CASE DEMONSTRATED (1) THE LEASE DID NOT REQUIRE IT TO MAINTAIN A DRAIN WHICH PERIODICALLY BECAME CLOGGED CAUSING GARBAGE TO FLOAT TO THE SIDEWALK, AND (2) IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE GARBAGE ON THE SIDEWALK WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the out-of-possession landlord, SMHS, was not responsible for the fish skin on the sidewalk which allegedly caused plaintiff to slip and fall. The tenant, Lobster, a wholesale seafood company, had contracted with defendant Sanitation to remove garbage, including fish parts, from the tenant’s premises. There was a question of fact whether Sanitation was liable under a contract-based Espinal theory for launching an instrument of harm. But SMHS demonstrated the lease did not require SMHS to maintain the sidewalk or the drains which at times became clogged with garbage and that it did not have actual or constructive knowledge of the dangerous condition:

SMHS, an out-of-possession landlord, was not contractually obligated to maintain the premises … .Although its lease with Lobster did not demise to Lobster “the pipes, ducts, conduits, wires, fixtures and equipment, the structural elements which serve the Demised Premises,” SMHS and Lobster’s course of conduct establishes that Lobster was responsible for maintaining and repairing the trench drain … . Moreover, although the lease afforded SMHS a contractual right of reentry to make needed repairs, liability would not be predicated on “‘a significant structural or design defect that is contrary to a specific statutory provision'” … .

Nor can SMHS be held liable for plaintiff’s injuries under Administrative Code of City of NY § 7-210, which imposes a nondelegable duty on land owners to maintain their sidewalks in a reasonably safe condition … . SMHS established … that it neither created the hazardous condition nor had actual notice of it or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Arias v Sanitation Salvage Corp., 2021 NY Slip Op 06534, First Dept 11-23-21

 

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