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Causes of Action Against County Personnel Based Upon Negligent Hiring, Training and Supervision Should Not Have Been Dismissed–Plaintiff’s Decedent Was Killed at the Hands of Her Mother and Half-Brother—Complaint Alleged County’s Negligence in Failing to Protect Plaintiff’s Decedent

In a lawsuit alleging county personnel, including deputy sheriffs, were negligent resulting in the death of plaintiff’s decedent at the hands of her mother and half-brother, the Fourth Department determined: (1) governmental immunity could not be determined at the pleading stage because whether the government’s actions were discretionary (and therefore immune) was a question of fact; (2) absent a local law to the contrary, a sheriff can not be held vicariously responsible for the actions of deputy sheriffs under the doctrine of respondeat superior; (3) the causes of action for negligent hiring, training and supervision of county personnel should not have been dismissed; (4) the notices of claim were sufficient to notify the county of the negligent hiring, training and supervision causes of action; and (5) the notice of claim was not defective for failing to name the sheriff in his official capacity.  Mosey v County of Erie, 2014 NY Slip Op 03041, 4th Dept 5-2-14

 

Defect Not Trivial as a Matter of Law

The Fourth Department determined defendant failed to establish a defect in pavement was trivial as a matter of law:

Here, we conclude that defendant failed to meet its initial burden of establishing that the defect was trivial and nonactionable as a matter of law … . The photographs submitted in support of defendant’s motion depict a lengthy edge in the pavement that was more than two-thirds of an inch deep and spanned the width of the painted walking area adjacent to the designated handicapped parking space … . Defendant also submitted plaintiff’s deposition testimony, in which she testified that her right foot caught on “a quite high ledge” in the pavement at the rear of the parking space … . Although defendant characterizes the edge as “a small, rounded lip in the pavement,” the photographs depict crumbling asphalt, and the edge appears to be irregular, jagged and abrupt as opposed to gradual …, where the trivial defect involved ” a small area’ ” of a ” cracked and crumbly’ ” curb that “had no measurable depth,’ ” plaintiff’s deposition testimony and the photographs in this case, particularly the photographs depicting the area closest to plaintiff’s vehicle, suggest a measurable edge in the pavement that could pose a tripping hazard. Lupa v City of Oswego, 2014 NY Slip Op 03055, 4th Dept 5-2-14

 

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Requirements for Notice of Intent Met Despite Flaws in Document

The Fourth Department determined a flawed document which followed the format of a Notice of Claim under the General Municipal Law met the requirements for a Notice of Intent under the Court of Claims Act:

Here, we conclude that the document is a proper notice of intent. We agree with defendant that the document “had all the hallmarks of a notice of claim against a municipality,” rather than a notice of intent against the State, including the title of the document, the stated venue as “Supreme Court,” the references to the General Municipal Law, and the naming of the County of Orleans as a “respondent.” Nevertheless, the document names the State as a “respondent” and alleges that the premises where claimant fell were owned by the State, and claimant served the document on the Attorney General. In addition, we conclude that the mistake in naming the place where the claim arose as the “Orleans County Correctional Facility” (emphasis added) does not require dismissal of the claim. Claimant provided the proper address where the claim arose, which showed that her fall occurred at the Orleans Correctional Facility, and not at the Orleans County Jail, which is located on a different street.With regard to the requisite specificity as to the place where the claim arose, we note that ” [w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable [defendant] to be able to investigate the claim promptly and to ascertain its liability under the circumstances’ ” …. .  Mosley v State of New York, 2014 NY Slip Op 03054, 4th Dept 5-2-14

 

Homeowners’ Association Had Power to Direct Property Owners to Remove Chickens

The Fourth Department, over a two-justice dissent, determined the plaintiff homeowners’ association acted properly when it directed defendants to remove two chickens from their property.  The “Declaration of Covenants, Conditions and Restrictions…” gave the board “the absolute power to prohibit a pet from being kept on the Properties…”:

“It is well settled that, [s]o long as the [B]oard [of directors of a homeowners’ association] acts for the purposes of the [homeowners’ association], within the scope of its authority and in good faith, courts will not substitute their judgment for [that of] the [B]oard[ ]’ ” … . The Declaration provides that plaintiff’s Board “shall have the absolute power to prohibit a pet from being kept on the Properties, including inside residences constructed thereon.” Here, plaintiff established that its Board was acting for the purposes of the homeowners’ association and within the scope of its authority when it directed defendants to remove the chickens from the property. In addition, there is no evidence that defendants were ” deliberately single[d] out . . . for harmful treatment’ ” inasmuch as no other residents of the subdivision had chickens or were in violation of the applicable restrictive covenant …, and defendants otherwise ” failed to present evidence of bad faith . . . or other misconduct’ ” … . Preserve Homeowners’ Assn Inc v Zahn, 2014 NY Slip Op 03047, 4th Dept 5-2-14

 

Petitioners Failed to Show the Noise from a Train Affected Them Differently From the Public at Large/Therefore the Petitioners Did Not Have Standing to Raise a Challenge to the Source of the Noise Under the State Environmental Quality Review Act/Purpose of the Standing Requirement in this Context Explained

The Fourth Department determined the petitioners did not have standing to bring  a proceeding to raise a challenge under the State Environmental Quality Review Act (SEQRA) because the noise complaints stemming from a train running through town did not affect the petitioners differently from the public at large.  The train runs through the town pursuant to resolutions allowing the town to sell excess municipal water to a buyer in Pennsylvania.  The Fourth Department noted that the complaints related solely to the operation of the train, not to the operation of the “transloading facility” where the water is loaded onto the trains:

There is no dispute that “[c]ourts surely do provide a forum for airing issues of vital public concern, but so do public hearings and publicly elected legislatures, both of which have functioned here. By contrast to those forums, a litigant must establish its standing in order to seek judicial review” … . “With the growth of litigation to enforce public values, such as protection of the environment, the subject of standing has become a troublesome one for the courts” … . “ ‘[I]njury in fact’ has become the touchstone” for standing …, because “[t]he existence of an injury in fact–an actual legal stake in the matter being adjudicated–ensures that the party seeking review has some concrete interest in prosecuting the action” … .

It is well established that “[s]tanding requirements ‘are not mere pleading requirements but [instead are] an indispensable part of the plaintiff’s case[,]’ and therefore ‘each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof’ ” … . Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise” a challenge under the State Environmental Quality Review Act ([SEQRA] ECL art 8) based solely on a party’s proximity … . In such a situation, the party seeking to establish standing must establish that the injury of which he or she complains “falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected” …, and that he or she “would suffer direct harm, injury that is in some way different from that of the public at large” … .

While we agree with petitioners that noise falls within the zone of interests sought to be protected by SEQRA (…see generally ECL 8-0105 [6]), we conclude that respondents met their burden of establishing as a matter of law that [petitioner] did not sustain an injury that was different from that of the public at large. Matter of Sierra Club… v Village of Painted Post, 202, 4th Dept 3-28-14

 

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Commissioner of Education Has Primary Jurisdiction Over Dispute About the Appropriate Pay for a School Principal Whose Position Was Abolished But Who Was Subsequently Assigned an Assistant Principal Position/Petition for Stay of Arbitration Pursuant to the Collective Bargaining Agreement Should Have Been Granted/Arbitration Prohibited by Public Policy

The Fourth Department determined Supreme Court should have granted petitioner’s application for a stay of arbitration.  A former principal whose position was abolished was hired as an assistant principal.  A grievance was filed by respondent on the former principal’s behalf contending that her new position warranted the same level of pay she had received in the abolished position. After the grievance was denied by petitioner, the respondent demanded arbitration pursuant to the collective bargaining agreement.  The Fourth Department determined the demand for arbitration should have been denied because the matter must be determined by the Commission of Education in the first instance:

It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim (see CPLR 7501…). In making the threshold determination of arbitrability, the court applies a two-part test. It first determines whether “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . “If no prohibition exists,[the court then determines] whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement” … .

Here, we agree with petitioner that the Commissioner of Education has primary jurisdiction over the parties’ dispute, and that arbitration is therefore prohibited by public policy. As we have previously noted, “ ‘the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether the . . . former position and the new position are similar within the meaning of Education Law § [2510 (3) (a)]’ ” … . Based on his or her specialized knowledge and expertise, the Commissioner of Education should “resolve, in the first instance,” the issue of fact whether two positions are sufficiently similar under Education Law § 2510 … . Matter of Arbitration …, 285, 4th Dept 3-28-14

 

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Trial Court Properly Pierced the Corporate Veil/Criteria for Review of a Bench Trial and for Piercing the Corporate Veil Explained

The Fourth Department determined the trial court had properly pierced the corporate veil to find the defendant physician personally liable to the plaintiff landlord.  The defendant ceased paying rent when he joined another urology practice.  The court noted that the defendant (Roehmholdt) made no effort to continue his business (Northtown Urology) at plaintiff’s location, but rather took more lucrative employment, encouraged his patients to follow him, and used corporate funds to satisfy a personal debt.  In the course of upholding the piercing of the corporate veil, the Fourth Department explained how it reviews determinations made in a bench trial:

As a preliminary matter, we note that, “[o]n an appeal from a judgment rendered after a nonjury trial, our scope of review is as broad as that of the trial court … . Upon such a review, the record should be‘viewed in the light most favorable to sustain the judgment’ …, and this Court should evaluate ‘the weight of the evidence presented and grant judgment warranted by the record, giving due deference to the trial court’s determinations regarding witness credibility, so long as those findings could have been reached upon a fair interpretation of the evidence’ …. ‘[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses’ … .

With respect to piercing the corporate veil, we note that it is not “ ‘a cause of action independent of that against the corporation; rather it is an assertion of facts and circumstances which will persuade the court to impose the corporate obligation on its owners’ ” … . “ ‘A plaintiff seeking to pierce the corporate veil must establish that the owners, through their domination, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff . . . Factors to be considered in determining whether [a corporation] has abused [that] privilege . . . include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use’ ” … .

The burden of establishing that the corporate veil should be pierced is a heavy one … but “ ‘[b]roadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, pierce the corporate veil, whenever necessary to prevent fraud or to achieve equity’ ” … . “A decision to pierce the corporate veil is a fact-laden [determination]” …, and “[n]o one factor is dispositive” … . A & M Global Management Corp v Northtown Urology Associates PC, 124, 4th Dept 3-28-14

 

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Trial Court Should Not Have Precluded Expert Testimony Based Upon Failure to Make Timely Disclosures— Rather, the Trial Should Have Been Adjourned

Noting that the appellate court has the power to make its own discretionary determinations about discovery and CPLR article 31 matters, even in the absence of the abuse of discretion by the trial judge, the Fourth Department, over a two justice dissent, found that the trial judge should not have granted the defendants’ motion to preclude testimony by plaintiffs’ experts based upon the failure to make timely disclosures:

“[W]e have repeatedly recognized that ‘[a] trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion’ . . . We have also repeatedly noted, however, ‘that, where discretionary determinations concerning discovery and CPLR article 31 are at issue, [we] “[are] vested with the same power and discretion as [Supreme Court, and thus we] may also substitute [our] own discretion even in the absence of abuse” ’ ” … . Under the circumstances of this case, we substitute our discretion for that of Supreme Court, and we conclude that the court should have adjourned the trial rather than granting defendants’ motion, thereby precluding the subject expert testimony and striking the subject expert disclosures. Smalley … v Harley-Davidson Motor Company Inc…, 372, 4th Dept 3-28-14

 

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“Labor or Services” Complaint Not Specific Enough to Trigger Specific-Answer Requirement Under CPLR 3016

The Fourth Department determined plaintiff nursing home’s motion for summary judgment pursuant to CPLR 3016 was properly denied.  Defendant’s late husband was in plaintiff nursing home for the last 15 months of his life.  Plaintiff sued for $125,265.54 in unpaid invoices. The court determined the complaint did not set forth with sufficient specificity the reasonable value and agreed price of each service provided.  Therefore the statutory requirement for a specific answer to each allegation of service was not triggered:

CPLR 3016 (f) provides that, in an action involving the -2- 205 CA 13-01681 “performing of labor or services,” the plaintiff “may set forth and number in his verified complaint the items of his claim and the reasonable value or agreed price of each.” If the plaintiff does so, “the defendant by his verified answer shall indicate specifically those items he disputes and whether in respect of delivery or performance, reasonable value or agreed price.” “To meet the requirements of CPLR 3016 (f), a complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry” … . If the complaint lacks sufficient specificity, the defendant may serve a general denial answer … .Here, we conclude that the complaint failed to meet the specificity standards of CPLR 3016 (f) and thus “did not trigger a duty on defendant[’]s part to dispute each item specifically” … .  Waterfront Operations Associates LLC… v Candido, 205, 4th Dept 3-28-14

 

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An Issue Raised for the First Time on Appeal Will Not Be Considered Where the Defect Could Have Been Cured If Raised Below/Trial Court Can Grant Summary Judgment Based on an Unpleaded Defense

The Fourth Department noted that it can not consider an argument raised for the first time on appeal where the defect could have been remedied it been raised below and explained when summary judgment can be granted (by the trial court) on the basis of an unpleaded defense:

…[W]e do not address plaintiff’s contention, raised for the first time on appeal, that Supreme Court erred in granting summary judgment in defendant’s favor because defendant failed to plead the defense of failure to comply with a condition precedent with sufficient specificity (see CPLR 3015 [a]). “An issue may not be raised for the first time on appeal . . . where it ‘could have been obviated or cured by factual showings or legal countersteps’ in the trial court” …. Here, defendant could have attempted to cure that alleged deficiency by seeking leave to amend the answer … . In any event, defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense. “ ‘[A] court may grant summary judgment based upon an unpleaded defense where[, as here,] reliance upon that defense neither surprises nor prejudices the plaintiff’ ” Accadia Site Contracting Inc v Erie County Water Authority, 325, 4th Dept 3-28-14

 

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