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Labor Law 200 and Common Law Negligence Causes of Action Against Owner Properly Dismissed—Owner Did Not Exercise Supervisory Control Over Plaintiff’s Work

The Fourth Department determined the owner was entitled to summary judgment on the Labor Law 200 and common law negligence causes of action based upon evidence the owner did not exercise any supervisory control over plaintiff’s work:

It is well settled that, “[w]here the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” … . Here, defendants met their burden on the motion of establishing that they did not direct or control plaintiff’s work …. “There is no evidence that defendant[s] gave anything more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200” or under the common law.. . Matter of Mitchell v NRG Endergy Inc, 2015 NY Slip Op 01367, 4th Dept 2-13-15

 

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Prosecutorial Misconduct Warranted a New Trial

The Fourth Department reversed defendant’s conviction and ordered a new trial because of the prosecutor’s misconduct.  The prosecutor shifted the burden of proof, vouched for the single witness, and appealed to the sympathies of the jury:

The prosecutor began her summation by improperly characterizing the People’s case as “the truth” and denigrating the defense as a diversion ,,, . In addition, the prosecutor implied that defendant bore the burden of proving that the complainant had a motive to lie, thereby impermissibly shifting the burden of proof to defendant … .

Perhaps most egregiously in this one-witness case where credibility was paramount, the prosecutor repeatedly and improperly vouched for the veracity of the complainant … . The prosecutor asked the jury “to listen carefully to the 911 call. It may not clearly state what happened, but statements that [the complainant] made like, I’m bugging, but I tried to catch him, that’s why I left,’ are examples of the ring of truth.” Defense counsel objected, and the objection was sustained. Nonetheless, the prosecutor continued: “I submit to you the (complainant’s statements) are truthful.” The prosecutor also bolstered the complainant’s credibility by making herself an unsworn witness in the case … . In addressing inconsistencies between the complainant’s testimony and his earlier statement to the police, the prosecutor argued that the complainant made only “[o]ne inconsistent statement, from talking to the police and talking to me” (emphasis added). The prosecutor’s remark suggests that the complainant made numerous prior consistent statements to the police and to the prosecutor herself, and we conclude that such suggestion has no basis in the record … .

The prosecutor also improperly appealed to the sympathies of the jury by extolling the complainant’s “bravery” in calling the police and testifying against defendant … . The prosecutor told the jurors that it was “not an easy decision” for complainant to call the police, and asked them to “hang [their] hat on . . . [the complainant]’s bravery by coming in front of you.” The prosecutor argued that the neighborhood where the crime occurred and where the complainant’s family worked “is an anti-police atmosphere.” After defense counsel’s objection to that comment was sustained, the prosecutor protested that “it was a statement in evidence” when, in fact, that testimony had been stricken from the record, and County Court had specifically warned the prosecutor not “to go into what this area is like.” The prosecutor nonetheless continued her summation by asking the jurors to “[u]se [their] common sense to think about whether or not this happened and why there’s no other witnesses” (emphasis added). The prosecutor argued that the complainant “is someone who knows the game. He knows the neighborhood, and he knows what would have been the easy thing to do, and I submit to you that easy thing to do was not to call 911 that day.” She continued: “So please tell [the complainant] he did the right thing by calling 911 and telling them one man’s word is enough. Tell them that he is brave to report this.” The prosecutor ended her summation by urging the jury to “tell [the complainant] that his truthfulness is enough to convict the defendant” by returning a guilty verdict. People v Griffin, 2015 NY Slip op 01346, 4th Dept 2-13-15

 

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Battery Cause of Action Based Upon the Complete Absence of Consent or Fraudulently Induced Consent Is Not Duplicative of a Dental Malpractice Allegation—Criteria Explained/Questions of Fact Raised Re: the Deceptive Business Practices Cause of Action—Some of the Criteria Explained

The Fourth Department determined the cause of action for battery was not duplicative of the cause of action for dental malpractice because it was based upon the allegations consent to the procedure was completely absent or was fraudulently induced.  In addition, there were questions of fact re: the deceptive business practices cause of action:

…[T]he cause of action asserting the complete absence of consent and/or fraudulently induced consent for treatment is properly treated as one for battery rather than for dental malpractice, and it is not duplicative of the dental malpractice cause of action … . “It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . The court properly denied that part of the … defendants’ motion with respect to the battery cause of action, inasmuch as they failed to meet their initial burden of establishing that they “did not intentionally engage in offensive bodily contact without plaintiff’s consent”… . …

A cause of action for deceptive business practices under section 349 “requires proof that the defendant engaged in consumer-oriented conduct that was materially deceptive or misleading, causing injury” … . Even assuming, arguendo, that the … defendants met their initial burden by establishing that the underlying transaction was private in nature and the allegedly deceptive acts were not aimed at the public at large …, we conclude that plaintiff’s submissions raised issues of fact concerning whether the … defendants engaged in a scheme to place profits before patient care, which allegedly included fraudulent practices that impacted consumers at large beyond a particular dentist’s treatment of an individual patient … . Matter of Smiles, 2015 NY Slip Op 01362, 4th Dept 2-13-15

 

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Elements of Civil Antitrust Action Under the General Business Law (Donnelly Act) Explained; Corporate Officers Can Be Individually Liable

The Fourth Department determined there were questions of fact re: the civil antitrust action and the related individual liability of corporate officers:

… [T]he court erred in granting those parts of defendants’ motions for summary judgment dismissing the fourth cause of action against them, alleging unfair competition and restraint of trade in violation of General Business Law § 340 (1) (hereafter, Donnelly Act), and we therefore modify the judgment accordingly. … “A party asserting a violation of the Donnelly Act is required to (1) identify the relevant product market; (2) describe the nature and effects of the purported conspiracy; (3) allege how the economic impact of that conspiracy is to restrain trade in the market in question; and (4) show a conspiracy or reciprocal relationship between two or more entities” … . The Court of Appeals has recognized, however, “that neither the Donnelly Act nor the Sherman Act, after which it was modeled, has been interpreted as prohibiting every agreement that has the effect of restraining trade, no matter how minimal. Instead, as construed by State and Federal courts, the antitrust laws prohibit only unreasonable’ restraints on trade” … . * * *

“[C]orporate officer[s] can also be held liable in civil antitrust actions” under the Donnelly Act, and there are triable issues of fact regarding their participation in the alleged corporate antitrust violations … . Radon Corp of Am Inc v National Radon Safety Bd. 2015 NY Slip Op 01365, 4th Dept 2-13-15

 

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Town Board and Police Commission Members Entitled to Immunity and Qualified Privilege Re: Defamation Causes of Action—Criteria Described/Power to Terminate Probationary Police Officer Described

The Fourth Department determined statements attributed to members of the town board and police commission with respect to the reasons for plaintiff’s termination as a probationary police officer were protected by governmental immunity and qualified privilege (explaining the relevant criteria).  In addition, the court explained the power to terminate a probationary police officer:

There is complete immunity from liability for defamation for ” an official [who] is a principal executive of State or local government who is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension’ . . . , with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . Here, the Town Board has the statutory authority to “make, adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and of the members thereof” (Town Law § 154) and, as members of the Police Commission, [defendants] were delegated “all the powers relative to police matters conferred upon the town board” (§ 150 [2]). We therefore conclude that Brooks, Sullivan, and Ulinski were entitled to absolute immunity because “members of the Town Board enjoy an absolute privilege against a claim of defamation where . . . the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties” …, and “[t]he privilege of absolute immunity . . . extends to those of subordinate rank who exercise delegated powers’ ” … . …

A qualified privilege arises when a person makes a good[ ]faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest’ ” … . Here, defendants submitted evidence that, at the time of the alleged slanderous communications, Ulinski was a member of the Police Commission and, therefore, had an interest in plaintiff’s performance as a probationary police officer, and that Ulinski made the communications to persons with a corresponding interest in plaintiff’s performance, namely to a member of the Town Board, and to the president of the union that represented plaintiff … . We further conclude that plaintiffs “failed to raise a triable issue of fact whether the statements were motivated solely by malice” … . * * *

As a probationary police officer, plaintiff could be ” dismissed for almost any reason, or for no reason at all[,]’ . . . [and he] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason” … . Fiore v Town of Whitestown, 2015 NY Slip Op 01361, 4th Dept 2-13-15

 

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“Local Authority,” Within the Meaning of the Public Authorities Law, Defined

The Fourth Department determined petitioner, Operation Oswego County, was a “local authority” subject to reporting and oversight requirements of respondent, the New York Authorities Budget Office.  The court defined what a “local authority” is:

A “local authority” under the Public Authorities Law includes “a not-for-profit corporation affiliated with, sponsored by, or created by a county, city, town or village government” (§ 2 [2] [b]). Petitioner is a not-for-profit corporation that acts as a local development corporation by establishing and implementing economic development strategies for Oswego County (County). We agree with respondent that petitioner is a local authority inasmuch as it is affiliated with and/or sponsored by the County … . The record establishes that the County regularly gives grants to petitioner, which comprise the majority of its budget. …[T]he term “sponsor” means, inter alia, ” a person or an organization that pays for or plans and carries out a project or activity’ ” (id. at 1404, quoting Merriam-Webster On-line Dictionary [emphasis added]). The County has also given interest-free loans to petitioner. Furthermore, a County official serves as a voting member of petitioner’s board, and several County officials serve as ex-officio, non-voting members of petitioner’s board. Considering the totality of the circumstances …, we conclude that petitioner is a local authority as defined in the Public Authorities Law. Matter of Operation Oswego County Inc v State of New York Auths Budget Off, 2015 NY Slip Op 01358, 4th Dept 2-13-15

 

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No Statute of Limitations Applies to an Owner Seeking to Have an Apparent Encumbrance Struck from the Record

The Fourth Department determined the six-year statute of limitations did not apply to an owner in possession of land who seeks to have an apparent encumbrance discharged from the record.  Supreme Court erred when it determined a six-year statute began to run when a tax deed erroneously purported to transfer the property:

“It is well settled that an owner in possession has a right to invoke the aid of a court of equity at any time while he is so the owner and in possession, to have an apparent, though in fact not a real incumbrance discharged from the record and such right is never barred by the [s]tatute of [l]imitations. It is a continuing right which exists as long as there is an occasion for its exercise” … . Indeed, “[a] [s]tatute of [l]imitations is one of repose designed to put an end to stale claims and was never intended to compel resort to legal remedies by one who is in complete enjoyment of all he claims . . . The logic of such a view is inescapably correct, for otherwise, the recording of the deed resulting from such a proceeding would transform the owner's absolute title in fee simple into a right of action only, the exercise of which is subject to time limitation” … .

We conclude that, inasmuch as plaintiff and his predecessors in interest have always held title and have been in continuous possession of the disputed property, the tax deed to defendants' predecessor in interest was void with respect to the disputed property because the County of Onondaga could not convey an interest in land that it did not have … . Indeed, “[a] purchaser who fails to use due diligence in examining the title is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed” … . Here, due diligence on the part of defendants would have disclosed the error in the 1959 transfer of the disputed property. Crain v Mannise, 2015 NY Slip Op 01109, 4th Dept 2-6-15


Mother’s Actions and Mental Health Issues Did Not Warrant a Finding of Neglect

The Fourth Department determined mother's actions and mental health issues did not support Family Court's neglect-finding.  The mother had left her child with appropriate caregivers and kept in touch, although she was absent longer than expected:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence . . . , first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (…see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]). “Where a motion is made by the respondent at the close of the petitioner's case to dismiss a neglect petition, [the court] must determine whether the petitioner presented a prima facie case of neglect . . . , viewing the evidence in [the] light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the proof presented” … .

We conclude that, viewing the evidence in the light most favorable to petitioner, the evidence established that the mother left the child with appropriate caregivers, who agreed to care for the child for several days; however, she left the state for approximately 24 hours, and she failed to provide a medical authorization in case of an emergency. Further, although the male caregiver was unable to reach the mother during the confrontation with the mother's grandmother, petitioner's evidence established that the mother had borrowed a telephone and had remained in contact with the caregivers each day that she was away. The evidence also established that the mother was inexperienced as a parent and that the couple with whom she lived was assisting her with parenting skills and in obtaining appropriate housing, as well as medical and other benefits.

We conclude that petitioner failed to establish that, as a result of the mother's actions, the child was in imminent danger, i.e., “near or impending [danger], not merely possible” … . We further conclude that petitioner failed to present any evidence connecting the mother's alleged mental health condition to any actual or potential harm to the child … . We therefore conclude that petitioner failed to establish by a preponderance of the evidence that the child's physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired as a result of the mother's failure to exercise a minimum degree of care for the child … . Matter of Lacey-Sophia TR, 2015 NY Slip Op 01123, 4th Dept 2-6-15


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Action Challenging a City Resolution to Sell City Property to an Identified Purchaser Is a Challenge to an Administrative Act and Is Therefore Governed by the Four-Month “Article 78” Statute of Limitations

The Fourth Department determined the four-month “Article 78” statute of limitations applied to a challenge to a city resolution allowing the sale of city property to a particular, named purchaser  (which was an administrative act).  The action, therefore, was properly dismissed as time-barred. The court explained how an action is analyzed to determine the nature of it for purposes of applying the correct statute of limitations:

The causes of action under General Municipal Law § 51 have no specific limitations period, and we must “examine the substance of th[e] action to identify the relationship out of which the claim[s] arise[] and the relief sought” … . “If the rights of the parties may be resolved in a different form of proceeding for which a specific limitations period applies, then we must use that period” … . Ultimately, “the nature of the remedy rather than the theory of liability is the salient consideration in ascertaining the applicable [s]tatute of [l]imitations” … . Here, plaintiffs are challenging the resolution authorizing defendant Mayor to execute a purchase and sale agreement for the garage. The resolution was an administrative act, rather than a legislative act, inasmuch as it applies only to the City and [the purchaser]… . It is well established that the proper vehicle for challenging an administrative act is a CPLR article 78 proceeding, and thus the four-month statute of limitations under CPLR 217 applies … . Riverview Dev LLC v City of Oswego, 2015 NY Slip Op 01105, 4th Dept 2-6-15


Court Did Not Conduct an Adequate Investigation Into the Allegation of Improper Outside Influence on the Jury Before Granting Plaintiff’s Motion to Set Aside the Verdict—Matter Sent Back for an Evidentiary Hearing

The Fourth Department determined Supreme Court did not conduct an adequate investigation of alleged outside influence upon the jurors before granting plaintiff's motion to set aside the verdict.  There was an allegation a person who worked for an insurance company which insured some of the defendants was “stalking” the jury during the trial:

It is well settled that the decision whether to grant a motion for a new trial pursuant to CPLR 4404 (a) is committed to the trial court's discretion and will not be disturbed absent an abuse of that discretion … . Here, we agree with defendants that the court abused its discretion in the manner in which it investigated and determined the issue whether there had been improper outside influence on the jury that “was such as would be likely . . . to influence the verdict” … . Shortly after the trial had concluded and the jury was discharged, the court received notice of an allegation from one juror that a person attending the trial had been “stalking” the impaneled jurors on lunch breaks and during other recess periods. The juror described the individual's behavior as “creepy.” It was later learned that the individual was a representative of an insurance company monitoring the progress of the trial because it insured many of the defendants. As a result of the “stalking” allegation, the court conducted its own investigation and ultimately set aside the verdict, which had been entirely in defendants' favor, and ordered a new trial. We agree with defendants that the court abused its discretion in conducting an in camera interview of the complaining juror without notifying counsel, without seeking counsels' consent to that procedure …, and without providing counsel with an opportunity to be heard or to participate, even in some restricted manner, in the interview of the juror … . Further, the court limited its investigation to one juror, and we conclude that the court abused its discretion in failing to conduct a more expanded investigation, including, at a minimum, conducting an interview of all of the jurors … . Lastly, the court abused its discretion in prohibiting counsel from contacting any jurors until after plaintiff's motion to set aside the verdict was decided. This unnecessary prohibition essentially precluded defendants from obtaining and submitting any meaningful opposition to plaintiff's motion, the practical result being that the granting of plaintiff's motion was a foregone conclusion. Varano v Forba Holdings LLX 2015 NY Slip OP 01090, 4th Dept 2-6-15


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