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Maneuvering a Heavy Door from a Scissors Lift to the Door Opening on the Second Floor Was Not an Elevation-Related Risk within the Meaning of Labor Law 240(1)/Nature of Labor Law 200 Action Explained

The Fourth Department determined maneuvering a heavy door across a two-foot gap between the scissors lift on which plaintiff was standing and the door opening on the second floor was not an elevation-related risk within the meaning of Labor Law 240(1).   Plaintiff’s Labor Law 200 and common law negligence causes of action, however, survived defendant’s summary judgment motion:

“Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide employees with a safe place to work” … . The duty does not, however, “extend to hazards which are part of or inherent in the very work which the contractor is to perform’ ” … . Here, plaintiff’s accident resulted from the manner in which the work was performed, and it is undisputed that defendant had the authority to supervise and control the methods and manner of plaintiff’s work, and that it in fact exercised such supervisory control … . Contrary to defendant’s contention, we conclude that defendant failed to establish as a matter of law that the risk of injury owing to moving a heavy door across a two-foot gap while at an elevated height with the assistance of a single worker was “inherent in plaintiff’s work” … . We agree with defendant, however, that the court erred in denying that part of its motion and granting that part of plaintiffs’ cross motion with respect to the Labor Law § 240 (1) claim, and we therefore modify the order accordingly. “The extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” … . Rather, the statute “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” … . Here, plaintiff injured his back while maneuvering a heavy door across a lateral gap; the door did not fall or descend even a de minimis distance owing to the application of the force of gravity upon it … . Although “the injured plaintiff’s back injury was tangentially related to the effects of gravity upon” the door he was lifting, “it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)” … . We thus conclude that the hazard at issue here, i.e., lifting or carrying a heavy object across a lateral gap, even while positioned at a height, is a “routine workplace risk[]” of a construction site and not a “pronounced risk[] arising from construction work site elevation differentials” … . Carr v McHugh Painting Co., Inc., 2015 NY Slip Op 02584, 4th Dept 3-27-15

 

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County Must Seek a Medical Income Execution Order (to Pay for a Child’s Health Insurance) Where No Medical Income Execution Order Has Yet Been Issued in the Case

The Fourth Department determined petitioner-county must seek a judicial medical income execution order (to pay for a child’s health insurance) and cannot simply issue an income execution on its own where no medical income execution has previously been issued in the matter:

Petitioner contends that, pursuant to CPLR 5241 (b) (2) (ii), it may issue a medical income execution to a new employer of the parent without going to court, and it was therefore error for the Support Magistrate to include the provision that a medical income execution “shall not [be issued] without such Court Order.” We conclude that petitioner’s reliance on CPLR 5241 (b) (2) (ii) is misplaced. A plain reading of that statute shows that it is not applicable here because neither parent provided health insurance coverage for the child at the time the Support Magistrate issued the order. The statute specifically provides that, “where the [parent] provides such coverage and then changes employment,” an amended medical income execution may be issued by petitioner without returning to court (id. [emphasis added]). Inasmuch as there was no medical income execution that was issued in this case, there was nothing to “amend.” Contrary to petitioner’s further contention, a medical income execution can be issued only where a court has ordered a parent to provide health insurance benefits, and that has not occurred yet inasmuch as the Support Magistrate determined that such benefits are not available (see CPLR 5241 [b] [2] [i]…). Matter of Chautauqua County Dept. of Health & Human Servs. v Matteson, 2015 NY Slip Op 02259, 4th Dept 3-20-15

 

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Garage Not Used Exclusively for an Exempt Purpose Not Entitled to Tax Exemption/Supreme Court Should Not Have Deemed the “Statement of Undisputed Material Facts” to Have Been Admitted by the Respondent, Despite Respondent’s Failure to Provide a Paragraph by Paragraph Response As Required by the Rule

The Fourth Department determined that property (a parking garage) was not entitled to tax exempt status because it was not used exclusively for an exempt purpose, noting that parking for private-practice physician’s offices was not exempt (parking for a hospital is). The Fourth Department further held that the respondent city did not admit to the petitioner’s “Statement of Undisputed Material Facts,” even though the city did not submit a paragraph by paragraph response as required by the relevant Rule of the Commercial Division:

It is well settled that, pursuant to the RPTL, “[r]eal property owned by a corporation or association organized or conducted exclusively for . . . hospital . . . purposes . . . and used exclusively for carrying out thereupon . . . such purpose[] . . . shall be exempt from taxation” (RPTL 420-a [1] [a]). Here, respondents concede that petitioner is organized for an exempt purpose, as a hospital, and thus only the second prong of the statute is at issue. “[T]he test of entitlement to tax exemption under the used exclusively clause of [RPTL 420-a (1) (a)] is whether the particular use is reasonably incident[al] to the [primary or] major purpose of the [corporation] . . . Put differently, the determination of whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes” … . “The burden of establishing that the property is entitled to a tax exemption rests with the taxpayer” … . Additionally, when a taxpayer in a tax certiorari proceeding seeks summary judgment, “it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor . . . , and he must do so by tender of evidentiary proof in admissible form” … .

Here, we agree with respondents that petitioner failed to establish that the primary use of the subject parcels is for exempt purposes, and thus it failed to meet its burden on the motion. Indeed, the evidence submitted by petitioner in support of the motion established that an undetermined portion of the people who used the garage did so for purposes associated with nonexempt uses such as the adjacent private physicians’ offices. Inasmuch “[a]s the private practice of medicine by a hospital’s attending physicians is primarily a commercial enterprise, and such physicians’ offices are not entitled to a tax exemption under RPTL 420-a . . . , the parking spaces subleased to those offices cannot be said to so further the hospital’s purposes as to create an entitlement to an exemption” … . * * *

…[W]e conclude that the court abused its discretion in deeming respondents to have admitted all the information in petitioner’s “Statement of Undisputed Material Facts” submitted pursuant to Rule 19-a of the Rules of the Commercial Division of the Supreme Court ([hereafter, 19-a Statement] see 22 NYCRR 202.70 [g] [Rule 19-a (a)]). The 19-a Statement was merely an almost verbatim repetition of an affidavit submitted by one of petitioner’s employees in support of the motion, and respondents clearly disputed the content of the information in it. Further, petitioner failed to submit sufficient evidence in admissible form in support of the 19-a Statement, as required by the Rule (see 22 NYCRR 202.70 [g] [Rule 19-a (d)]; …). Although “the rule gives a motion court the discretion to deem facts admitted, the court is not required to do so” … . Consequently, although “it would have been better for [respondents] to submit a paragraph-by-paragraph response to [petitioner’s] statement” as required by the regulation (… see 22 NYCRR 202.70 [g] [Rule 19-a (b)]), under the circumstances the court abused its discretion in deeming the entire statement admitted. The evidence submitted in support of petitioner’s motion failed to eliminate all “triable issues of fact and the court was not compelled to grant summary judgment solely on the basis of blind adherence to the procedure set forth in Rule 19-a” … . Matter of Crouse Health Sys., Inc. v City of Syracuse, 2015 NY Slip Op 02258, 4th Dept 3-20-15

 

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County Has a Duty to Protect Jail Inmates from the Foreseeable Assaults by Other Inmates

The Fourth Department explained the law concerning when a municipality may be liable for an assault by one inmate (in county jail) upon another.  The court also noted that, absent a local law to the contrary, the county may not be held vicariously liable for the actions of the county sheriff or sheriff’s deputies:

We agree with plaintiff … that the court erred in granting defendant’s motion and dismissing the complaint in its entirety on the ground that it owed no duty of care to plaintiff, who was being held in jail on a pending criminal charge at the time of the assaults. It is well settled that “[a] municipality owes a duty to inmates in correctional facilities to safeguard them from foreseeable assaults [by] other inmates” … . “[T]his duty does not render the municipality an insurer of inmate safety, and negligence cannot be established by the mere occurrence of an inmate assault . . . Rather, the scope of the [municipality’s] duty to protect inmates is limited to risks of harm that are reasonably foreseeable’ ” … . We therefore modify the order… by … reinstating that part of the first cause of action alleging that defendant breached the duty it owed to plaintiff to protect him from foreseeable assaults committed by other inmates. Villar v County of Erie, 2015 NY Slip Op 02229, 4th Dept 3-20-15

 

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Municipalities (Counties) Are Not “Persons” and Therefore Cannot Challenge a Statute on Due Process Grounds

The Fourth Department determined municipalities are not “persons” and cannot sue under the due process clause of the US or New York Constitutions to declare a statute unconstitutional.  Here the counties sought to have a law prohibiting reimbursement for certain Medicaid expenses (section 61) overturned:

Here, petitioners contend that respondents’ enactment of section 61 impermissibly deprived them of vested rights to repayment under Social Services Law § 368-a, in violation of their rights under the due process clauses of the federal and state constitutions. The Fourteenth Amendment of the United States Constitution provides in relevant part that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Similarly, article I, § 6 of the New York State Constitution provides in relevant part that “[n]o person shall be deprived of life, liberty or property without due process of law.” Thus, the constitutional provisions share a common link, i.e., they protect a “person” (id.; see US Const, 14th Amend, § 1).

Contrary to petitioners’ contentions, we conclude that they are not persons within the meaning of the constitutional due process provisions. This principle was stated clearly by the United States Court of Appeals for the Seventh Circuit, which concluded that “[m]unicipalities cannot challenge state action on federal constitutional grounds because they are not persons’ within the meaning of the Due Process Clause” (City of East St. Louis v Circuit Court for Twentieth Judicial Circuit, St. Clair County, Ill., 986 F2d 1142, 1144). Other decisions, without using the term “person,” also support the conclusion that a municipal body may not use the due process clause to challenge legislation of the municipality’s creating state. Thus, “[i]t has long been the case that a municipality may not invoke the protections of the Fourteenth Amendment against its own state . . . A municipality is thus prevented from attacking state legislation on the grounds that the law violates the municipality’s own rights . . . Moreover, while municipalities or other state political subdivisions may challenge the constitutionality of state legislation on certain grounds and in certain circumstances, these do not include challenges brought under the Due Process . . . Clause[] of the Fourteenth Amendment . . . This is because a municipal corporation, in its own right, receives no protection from the . . . Due Process Clause[] vis-a-vis its creating state’ ” … . Matter of County of Chautauqua v Shah, 2015 NY Slip Op 02245, 4th Dept 3-20-15

 

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Fraud Action Based Upon Statements of Opinion Properly Pled/Negligent Misrepresentation Not Properly Pled–No Allegation of Privity or Privity-Like Relationship

In an action stemming from defendant-investment-ratings-agency’s high rating of worthless residential-mortgage-backed securities, the Fourth Department determined the complaint properly pled a fraud cause of action, even though based upon statements of opinion. The court further determined the negligent misrepresentation cause of action was deficient in that privity or a privity-like relationship was not alleged:

Although statements of opinion generally are not actionable in a fraud cause of action …, defendant correctly recognizes that statements of opinion may nevertheless be actionable as fraud if the plaintiff can plead and prove that the holder of the opinion did not subjectively believe the opinion at the time it was made and made the statement with the intent to deceive … . As one court has explained, a fraud claim based on an expression of opinion “is actionable in an appropriate case not because the opinion is objectively’ wrong. Rather, in an appropriate case it is actionable because the speaker either did not in fact hold the opinion stated or because the speaker subjectively was aware that there was no reasonable basis for it . . . In the first instance, the speaker will have lied as to his or her subjective mental state. In the second, he or she implicitly would have represented that there was a reasonable basis for the statement of opinion, knowing that the implicit representation was false” … . Here, we agree with defendant that its credit ratings were statements of opinion, not fact … , but we conclude that plaintiff adequately pleaded that defendant did not believe its opinions when it issued the ratings. Plaintiff set forth in detail the reasons why defendant was aware that the ratings were inflated, including its allegation that defendant failed to follow its own policies and procedures in determining the ratings. * * *

To establish a claim for negligent misrepresentation based on the allegedly inaccurate credit ratings, plaintiff must allege that “(1) the [defendant] must have been aware that the [ratings] were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party . . . was intended to rely; and (3) there must have been some conduct on the part of the [defendant] linking [it] to that party . . . , which evinces the [defendant’s] understanding of that party[‘s] . . . reliance” … . “The indicia, while distinct, are interrelated and collectively require a third party claiming harm to demonstrate a relationship or bond with the once-removed [defendant] sufficiently approaching privity’ based on some conduct on the part of the [defendant]’ ” … .

The complaints here failed to plead that a special or privity-like relationship existed between plaintiff and defendant … . M&T Bank Corp. v McGraw-Hill Cos., Inc., 2015 NY Slip Op 02372, 4th Dept 3-20-15

 

Actus Reus for Burglary and Murder Not the Same—Consecutive Sentences Valid

The Fourth Department, over a two-justice dissent, determined the defendant was properly sentenced to consecutive terms for burglary and murder.  The defendant broke into the victim’s home, dragged her downstairs and murdered her.  The court held that the actus reus for the burglary was completed before the murder:

Defendant was convicted of burglary for unlawfully entering the victim’s dwelling, with the aggravating factors of causing physical injury to the victim (§ 140.30 [2]), and using or threatening the immediate use of a dangerous instrument (§ 140.30 [3]), i.e., a butcher knife. Defendant was charged with intentionally causing the victim’s death by repeatedly stabbing her with a butcher knife. It is well established that, in considering whether sentences must run concurrently under Penal Law § 70.25 (2), “the court must determine whether the [actus reus] element is, by definition, the same for both offenses (under the first prong of the statute), or if the [actus reus] for one offense is, by definition, a material element of the second offense (under the second prong)” … . “[W]hen the actus reus is a single inseparable act that violates more than one statute, single punishment must be imposed” … . Although the actus reus elements of the burglary counts and the murder count overlap under the facts presented here, we nevertheless conclude that the People “establish[ed] the legality of consecutive sentencing by showing that the acts or omissions’ committed by defendant were separate and distinct acts” … . The evidence established that, after defendant entered the apartment through a window that he smashed with a cinder block, he dragged the victim from her bed and down the stairs to the living room, where he killed her. People v Brahney, 2015 NY Slip Op 02227, 4th Dept 3-20-15

 

 

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Cheerleader Assumed the Risk of Practicing with an Injured Teammate

The Fourth Department determined plaintiff’s daughter assumed the risk of practicing with a teammate who had a sprained ankle.  It was alleged that the injured teammate, because of the injury, held on to plaintiff’s daughter too long before throwing her into the air, which in turn caused plaintiff’s daughter to be injured:

It is well settled that, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” … . We have previously held that cheerleading is the type of athletic endeavor to which the doctrine of assumption of the risk applies … . That doctrine does not, however, shield defendants from liability for exposing participants to unreasonably increased risks of injury … . * * *

We agree with defendant that the daughter’s practicing with the teammate while knowing that the teammate had an injured ankle is analogous to a cheerleader practicing without a mat …, or to an athlete playing on a field that is in less than perfect condition … . We therefore conclude that defendant established as a matter of law that this action is barred by the doctrine of assumption of risk, and plaintiff failed to raise an issue of fact … . Jurgensen v Webster Cent. Sch. Dist., 2015 NY Slip Op 02377, 4th Dept 3-20-15

 

Abuse of Discretion to Deny Defendant’s Request for New Defense Counsel—Request Was Supported by Specific Legitimate Concerns and Was Joined by Defense Counsel

The Fourth Department, over a dissent, determined Supreme Court should not have denied defendant’s request for new counsel, which was echoed by defense counsel and supported by specific, legitimate concerns.  The conviction was reversed and a new trial ordered. The Fourth Department outlined the analytical criteria:

The determination “[w]hether counsel is substituted is within the discretion and responsibility of the trial judge . . . , and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[]” … . Thus, where a defendant makes “specific factual allegations” against defense counsel … , the court must make at least “some minimal inquiry” to determine whether the defendant’s claims are meritorious … . Upon conducting that inquiry, “counsel may be substituted only where good cause’ is shown” … .

Here, the court erred in determining that a breakdown in communication between attorney and client cannot constitute good cause for substitution of counsel. Although the mere complaint by a defendant that communications have broken down between him and his lawyer is not, by itself, good cause for a change in counsel …, where a complete breakdown has been established, substitution is required … . Here, both defendant and defense counsel agreed that they were unable to communicate, and nothing said by either of them during the court’s lengthy inquiry indicated otherwise.

We conclude that the court also erred in suggesting that any breakdown in communication was “initiated or promoted by the defendant as opposed to defense counsel.” That conclusion is not supported by the record, which shows that the breakdown in communication resulted from legitimate concerns defendant had about defense counsel’s performance. People v Gibson, 2015 NY Slip Op 02236, 4th Dept 3-20-15

 

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Hockey Player Assumed Risk of Having His Bare Foot Stepped on in the Locker Room by a Player Wearing Skates

The Fourth Department determined plaintiff, a varsity hockey player, had assumed the risk of having his bare foot stepped on in the locker room by a player who was still wearing his hockey skates:

“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ ” … . By engaging in such an activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “The question of whether the consent was an informed one includes consideration of the participant’s knowledge and experience in the activity generally” … .

Initially, we reject plaintiff’s contention that assumption of the risk does not apply because he was no longer playing hockey at the time of his injury. It is undisputed that the accident “occurred in a designated athletic or recreational venue” and that the activity at issue “was sponsored or otherwise supported by the [school district] defendant[s]” … “[T]he assumption [of risk] doctrine applies to any facet of the activity inherent in it” … . * * *

“As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” … . “[A]wareness of risk is not to be determined in a vacuum [but] . . . is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . “[I]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . Litz v Clinton Cent. Sch. Dist., 2015 NY Slip Op 02239, 4th Dept 3-20-15

 

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