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A WARNING LETTER ISSUED TO THE NYC MAYOR BY THE NYC CONFLICTS OF INTEREST BOARD MUST BE RELEASED PURSUANT TO A FOIL REQUEST BY THE NEW YORK TIMES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined that a warning letter issued to the NYC mayor by the Conflicts of Interest Board (Board) must be released pursuant to a Freedom of Information Law (FOIL) request:

At issue in this appeal is whether a “private” warning letter issued to the Mayor of the City of New York by the Conflicts of Interest Board (Board) is subject to disclosure pursuant to the Freedom of Information Law (FOIL). The City of New York office of the Mayor (Mayor’s Office) declined to disclose the letter to the New York Times (NYT) on the ground that the letter was exempt pursuant to New York City Charter § 2603(k), which states that “the records, reports, memoranda and files of the board shall be confidential and shall not be subject to public scrutiny.” The Mayor’s Office argues that since the letter was designated as “private” by the Board, and therefore confidential, it falls within the ambit of § 2603(k). We disagree. As the plain text of section 2603(k) indicates, it is meant to protect the confidentiality of documents in possession of the Board. Once the letter was issued to another entity, the Mayor could not rely on section 2603(k), because the NYT sought disclosure from the Mayor and not from the Board … . The Mayor’s Office’s privacy arguments are also inconsistent with the public interest in disclosure of warning letters, contrary to its own past practice of disclosing the Board’s correspondence, and otherwise have no merit. Accordingly, the letter must be disclosed. * * *

DOI [NYC Department of Investigations] found that the Mayor’s Office solicited contributions for CONY [Campaign for One New York] from executives of real estate development firms that likely had or potentially had business pending before the City. Although there was no finding of any quid pro quo, on several occasions, a firm achieved a favorable outcome from a City agency after it had made a donation to CONY … . These findings were transmitted to the Board, whose Chairman declined “for confidentiality reasons,” to tell a reporter whether the Board had issued a private warning letter, the only action available … . …

The NYT reporter to whom the Board chairman had spoken then filed a FOIL request with the Mayor’s Office for “a copy of a letter” sent by the Board to the Mayor’s Office regarding his fundraising for [CONY].” The request was denied on the ground that “the class of records you have requested would be exempt from disclosure pursuant to New York City Charter § 2603(k).” Matter of New York Times Co. v City of New York Off. of the Mayor, 2021 NY Slip Op 01948, First Dept 3-30-21

 

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THE DRIVER BEING VISIBLY NERVOUS, COUPLED WITH THE VEHICLE HAVING OUT-OF-STATE PLATES AND BEING IN A HIGH CRIME AREA, DID NOT PROVIDE A FOUNDED SUSPICION OF CRIMINALITY; THEREFORE THE POLICE OFFICER WAS NOT JUSTIFIED IN ASKING WHETHER THERE WERE ANY WEAPONS IN THE CAR, A LEVEL TWO INQUIRY (FIRST DEPT).

The First Department, reversing defendant’s conviction of attempted criminal possession of a weapon and dismissing the indictment, determined the police officer did not have a founded suspicion of criminality when he asked whether any weapons were in the vehicle:

Defendant was a passenger in a car, bearing a Massachusetts license plate, that was stopped for driving through a red light in a “high crime” neighborhood. The driver of the car complied with the demands of one of the officers for his driver’s license and that he get out of the car, but was “visibly nervous,” breathing heavily, and stammering in his responses to the officer’s questions. Moments later, one of the other officers asked whether there were any weapons in the car. This ultimately led to the recovery of a pistol from defendant.

These circumstances did not give rise to the founded suspicion of criminality that was required to authorize this level two inquiry … . Contrary to the People’s contention, neither occurrence of the stop for a traffic violation in a “high crime” area, nor the unproven perception of one of the officers that in general out-of-state license plates are more highly correlated with criminality than New York license plates, elevated the suspicion to the level required to authorize a common-law inquiry. People v Jonathas, 2021 NY Slip Op 01954, First Dept 3-30-21

 

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THE INFANCY TOLL OF THE STATUTE OF LIMITATIONS IN CPLR 208 APPLIES TO A WRONGFUL DEATH ACTION WHERE THE SOLE DISTUBUTEES ARE INFANTS; THE TOLL, HOWEVER, DOES NOT APPLY TO A RELATED ASSAULT AND BATTERY ACTION WHICH IS PERSONAL TO THE DECEDENT (FRIST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined the infancy toll of the statute of limitations in CPLR 208 applies where the unmarried father of two children dies intestate. The statute of limitations for the ensuing wrongful death action is tolled until the appointment of a guardian of the children’s property. Father was involved in an altercation with a defendant, suffered fatal injuries and died later that day, September 6, 2012. Plaintiffs, the mothers of the two children, were each appointed guardians of the property of their children in 2015. That is when the statute began running on the wrongful death action, rendering the 2016 complaint timely. A wrongful death action directly compensates the distributees, here the children. The assault and battery action, by contrast, is personal to the decedent. Therefore the infancy toll does not apply to the assault and battery cause of action. The First Department explicitly overruled a decision relied upon by the defendants, Ortiz v Hertz Corp., 212 AD2d 374 (1st Dept 1995). (The opinion is comprehensive and can not be fairly summarized here.):

Today we clarify that Ortiz is not good law, because it was based on an incorrect application and interpretation of Hernandez. Therefore, pursuant to the precedent established in Hernandez [78 NY2d 687] … we hold that when the sole distributees of a decedent’s estate are infants, the toll of CPLR 208 applies to a wrongful death claim “until the earliest moment there is a personal representative or potential personal representative who can bring the action whether by appointment of a guardian [of the property of the infant distributee] or majority of [a] distributee, whichever occurs first” … . Machado v Gulf Oil, L.P., 2021 NY Slip Op 01849, First Dept 3-25-21

 

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ALTHOUGH THE COMPLAINT WAS DEFECTIVE, AFFIDAVITS AND OTHER EVIDENCE DEMONSTRATE A POTENTIALLY MERITORIOUS CLAIM; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that a defective complaint will survive a motion to dismiss if affidavits or other evidence demonstrate a potentially meritorious claim:

The amended complaint is defective because it merely alleges that the Bluestone defendants participated in fraudulent transfers, without alleging that they were a transferee of the assets or benefited in any way from the transfers … . However, a defective complaint will not be dismissed where affidavits and other evidence amplify inartfully pleaded but potentially meritorious claims … . Plaintiffs rely on evidence submitted by the Goldman defendants in opposition to the Bluestone defendants’ motion to dismiss which suggests that the Bluestone defendants may have participated in and benefitted from the alleged fraudulent transfers. This evidence indicates that plaintiffs have potentially meritorious fraudulent conveyance claims against the Bluestone defendants. Ninth Space LLC v Goldman, 2021 NY Slip Op 01853, First Dept 3-25-21

 

PLAINTIFF, WHO WAS STRUCK BY A FALLING REBAR, WAS NOT REQUIRED TO DEMONSTRATE THE EXACT CIRCUMSTANCES WHICH LED TO THE REBAR FALLING; IT IS ENOUGH THAT THE REBAR SHOULD HAVE BEEN SECURED SUCH THAT IT WOULD NOT FALL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action in this falling object case should have been granted. Plaintiff was struck by a falling rebar:

Plaintiff, a journeyman ironworker at the Hudson Yards project, was injured when a piece of rebar fell from 30 feet above, striking him. In moving for summary judgment on his Labor Law § 240(1) claim, plaintiff was not required to show the exact circumstances of how the rebar came to strike him, as his testimony, that a coworker was working with rebar 30 feet above him on the same column immediately before the accident, was sufficient evidence that the rebar, whether it was dropped or fell in some other manner, was material requiring securing … . In that plaintiff made a prima facie showing of entitlement to summary judgment on his testimony alone, the admissibility of his coworker’s unsigned deposition transcript is a moot point. Defendants failed to adduce any evidence raising a question of fact to warrant denial of plaintiff’s motion. Pados v City of New York, 2021 NY Slip Op 01855, First Dept 3-25-21

 

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THE NYPD OFFICER WHO EMPLOYED A PROHIBITED CHOKEHOLD ON ERIC GARNER, WHICH CONTRIBUTED TO ERIC’S DEATH, WAS PROPERLY DISMISSED FROM THE NYPD (FIRST DEPT).

The First Department determined the police officer who employed a prohibited chokehold on Eric Garner, which contributed to Eric’s death, was properly dismissed from employment by the New York Police Department (NYPD):

Substantial evidence supports respondents’ conclusion that petitioner recklessly caused injury to Eric Garner by maintaining a prohibited chokehold for 9 to 10 seconds after exigent circumstances were no longer present, thereby disregarding the risk of injury (Penal Law §§ 15.05[3]; 120.00[2] …).

We do not find the penalty “so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness” … . Conduct far less serious than petitioner’s has been found by the Court of Appeals to have a “destructive impact . . . on the confidence which it is so important for the public to have in its police officers” … . Matter of Pantaleo v O’Neill, 2021 NY Slip Op 01857, First Dept 3-25-21

 

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AN EMAIL INFORMING PLAINTIFF THAT DEFENDANT LAW FIRM WOULD NOT APPEAL THE RULING OF THE WORKERS’ COMPENSATION APPELLATE PANEL DID NOT UNEQUIVOCALLY TERMINATE THE FIRM’S REPRESENTATION OF PLAINTIFF IN THE WORKERS’ COMPENSATION MATTER (FIRST DEPT).

The First Department, reversing Supreme Court, determined an email from the attorney defendants to the plaintiff did not unequivocally terminate the firm’s representation of plaintiff before the Workers’ Compensation Board:

Where, as here, defendants were retained in writing to represent plaintiff in all proceedings before the Workers’ Compensation Board related to his claim, plaintiff made a sufficient showing of a continuing relationship with regard to that proceeding to support his contention of continuous representation … . Defendants’ statement in an email that they would not pursue an appeal to the Third Department after having lost before the Workers’ Compensation appellate panel on the issue of whether plaintiff was an employee, did not “unequivocally” terminate the representation in the workers’ compensation matter, which remained pending following the administrative review … . This is particularly true in light of the terms of the retainer agreement. Schwenger v Weitz, Kleinick & Weitz, LLP, 2021 NY Slip Op 01869, First Dept 3-25-21

 

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IN THE CONTEXT OF AN INDEMNIFICATION CLAUSE REQUIRED BY THE WORKERS’ COMPENSATION LAW, THE 1ST DEPARTMENT NOTED THAT, UNDER THE COMMON LAW, UNSIGNED DOCUMENTS ARE ENFORCEABLE AS LONG AS THE PARTIES INTENDED TO BE BOUND (FIRST DEPT).

The First Department noted that the written-indemnification-clause requirement in Workers’ Compensation Law section 11 does not require that the document be signed to be enforceable:

Plaintiff was injured while engaged in renovation of an apartment in Park Regis’s cooperative building. The motion court correctly concluded that ASA, plaintiff’s employer, was bound by the provisions of the alteration agreement between Park Regis and the nonparty cooperative shareholder lessees requiring the lessees’ general contractor to indemnify and procure insurance in favor of Park Regis (see Workers’ Compensation Law § 11 …). …

Even if the alteration agreement were not signed by ASA, ASA would still be bound by it, because the record shows that it intended to be bound by it (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 [2005] [“nothing in the language of (Workers’ Compensation Law § 11) or its legislative history (suggests) that, in addition to requiring a written indemnification clause, the Legislature intended to deviate from the common-law rule that written documents can be enforced even if they are not signed”]). ASA’s field supervisor and project manager testified that ASA “signs every alteration agreement[]” before commencing work, that he believed ASA had done so in connection with this project, that he understood ASA to be bound by the terms of the alteration agreement requiring it to procure insurance for and indemnify Park Regis, and that ASA had indeed procured insurance for Park Regis as required by the alteration agreement. Shala v Park Regis Apt. Corp., 2021 NY Slip Op 01870, First Dept 3-25-21

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, AFTER A COMPLIANCE CONFERENCE, ISSUED A PRECLUSION ORDER BECAUSE THERE WAS NO MOTION PENDING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have, sua sponte, issued a preclusion order after a compliance conference because no motion was pending:

Order … which, upon granting plaintiff’s motion to reargue, reinstated his lost earnings claim but precluded the claim for years which tax returns are not produced to defendants, unanimously reversed, without costs, and the claim reinstated without limitation.

The underlying preclusion order should not have been issued sua sponte at a compliance conference, with no motion pending … . Sullivan v Snow, 2021 NY Slip Op 01873, First Dept 3-25-21

 

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THE ORDER DISMISSING THE COMPLAINT FOR FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN ONE YEAR DID NOT INLCUDE SPECIFIC FINDINGS OF A PATTERN OF DELAY; THEREFORE THE “FAILURE TO PROSECUTE” EXCEPTION IN CPLR 205 (A) DID NOT APPLY; PLAINTIFF’S ACTION BROUGHT WITHIN SIX MONTHS OF DISMISSAL WAS NOT TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint was timely pursuant to the six-month extension afforded by CPLR 205 (a).  The dismissal of the complaint did not include any specific findings of a general pattern of delay. Therefore the six-month extension was not precluded:

In 2018, Supreme Court granted defendant’s motion pursuant to CPLR 3215(c) to dismiss the complaint in the prior, 2010 foreclosure action for plaintiff’s failure to seek a default judgment within one year of defendant’s default. The dismissal order did not include any findings of specific conduct demonstrating a general pattern of delay in proceeding with the litigation, as required to preclude the application of CPLR 205(a) for failure to prosecute … . Under the circumstances, the court should not have granted defendant’s motion to dismiss the complaint in the present action as time-barred, as this action was timely brought within six months after the motion court dismissed plaintiff’s first foreclosure action … . U.S. Bank N.A. v Kim, 2021 NY Slip Op 01876, First Dept 3-25-21

 

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