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​ ALTHOUGH NOT REQUIRED UNDER THE GENERAL MUNICIPAL LAW, FILING A NOTICE OF CLAIM FOR AN EMPLOYMENT DISCRIMINATION ACTION IS REQUIRED UNDER THE TOWN LAW; BECAUSE THE TOWN HAD TIMELY KNOWELDGE OF THE FACTS UNDERLYING THE ACTION, PLAINTIFF WAS ENTITLED TO LEAVE TO FILE A LATE NOTICE OF CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) although plaintiff would not have been required to file a notice of claim for an employment discrimination action against a city pursuant to the General Municipal Law, plaintiff is required to file a notice of claim for the instant employment discrimination action against the town pursuant to the Town Law, and (2) plaintiff was entitled to leave to file a late notice of claim. The notice of claim provisions in the Town Law are broader than those in the General Municipal Law and include “wrong to a person” which encompasses employment discrimination:

Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law. * * *

Although the presence or absence of any given factor is not determinative, it is well settled that “[a] factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the [public corporation] had actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages” … . …

… [T]here is no dispute that the Town and its officers had timely actual knowledge of the facts underlying the claim … . Arnold v Town of Camillus, 2023 NY Slip Op 06627, Fourth Dept 12-22-23

Practice Point: Unlike the General Municipal Law, the Town Law requires the filing of a notice of claim for an employment discrimination action under the Human Rights Law.

Practice Point: The most important criterium for granting leave to file a late notice of claim is the defendant’s timely knowledge of the facts underlying the action.

 

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HERE THE WRITTEN LOGGING CONTRACT WAS COMPLETE AND UNAMBIGUOUS; EVIDENCE OF AN ALLEGED ADDITIONAL ORAL AGREEMENT WAS PRECLUDED BY THE PAROL EVIDENCE RULE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the contract at issue was complete and any evidence of an alleged oral agreement was precluded by the parol evidence rule:

 “The parol evidence rule generally operates to preclude evidence of a prior or contemporaneous communication during negotiations of an agreement that contradicts, varies, or explains a written agreement which is clear and unambiguous in its terms and expresses the parties’ entire agreement and intentions” … . …

Defendants met their initial burden of establishing that the timber sale contract is a complete written instrument, and plaintiffs failed to raise a triable issue of fact in opposition … . The contract sets forth the parties, the address of the property, the contract period, the payment terms, and a description of the items sold … . There is no reference to any other document or map … . Inasmuch as the contract constituted a complete, integrated agreement, plaintiffs may not rely on an alleged oral agreement to permit logging on the southernmost section of the property, permit logging on the middle section of the property only upon additional payment, and prohibit logging on the northernmost section of the property, to vary the terms of the contract. Indeed, one would expect the contract to embody any such restrictions on logging, and “[s]uch a collateral agreement cannot be separately enforced” … . Lentner v Upstate Forestry & Dev., LLC, 2023 NY Slip Op 06626, Fourth Dept 12-22-23

Practice Point: Where a written contract is complete and unambiguous on its face, evidence of an additional oral agreement is precluded by the parol evidence rule.

 

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DEFENDANT, WHO WAS 19 WHEN ARRSTED FOR HAVING CHILD PORNOGRAPHY ON HIS PHONE, AND WHO HAD NEVER COMMITTED ANY OTHER OFFENSES, WAS ENTITLED TO A DOWNWARD DEPARTURE TO SORA RISK-LEVEL ONE; COUNTY COURT APPLIED THE WRONG EVIDENTIARY STANDARD (FOURTH DEPT).

The Fourth Department, reversing County Court, determined (1) County Court erred when it applied the “clear and convincing” evidentiary standard, as opposed to the “preponderance of the evidence” standard to the SORA risk assessment proceeding, and (2) defendant in this child pornography case was entitled to a downward departure to level one. Defendant, who was 19, had child pornography on his phone but had never committed a sexual offense or any other crime. He was sentenced to probation. He was assessed 90 points (level two) by the People (including 30 points for three or more victims [risk factor 3] and 20 points because the victims were strangers [risk factor 7]).

As the Court of Appeals has stated, “in deciding a child pornography offender’s application for a downward departure, a SORA court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … . “The departure process is the best way to avoid potentially ‘anomalous results’ for some child pornography offenders that ‘the authors of the Guidelines may not have intended or foreseen’ ” … .

Here, defendant established by a preponderance of the evidence that there are mitigating factors “not otherwise adequately taken into account by the guidelines” …  The mitigating factors include the fact that defendant was assessed points under risk factors 3 and 7, without which he would have scored as a level one risk. Further, weighing the mitigating factors against any aggravating factors, we conclude that the totality of the circumstances warrants a downward departure to risk level one to avoid an over-assessment of “defendant’s dangerousness and risk of sexual recidivism” … . People v Stagles, 2023 NY Slip Op 06613, Fourth Dept 12-22-23

Practice Point: The correct evidentiary standard for a SORA risk-level assessment is “preponderance of the evidence.”

Practice Point: For offenders convicted of possession of child pornography, who are assessed SORA risk-level points for “three of more victims” and “strangers as victims” based solely on the images, may be entitled to a downward departure.

 

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PLAINTIFFS ALLEGED THE TOWN NEGLIGENTLY MAINTAINED A SEWER MAIN CAUSING SEWAGE TO BACKFLOW INTO PLAINTIFFS’ HOME; AN INTENTIONAL ENTRY IS ONE OF THE ELEMENTS OF TRESPASS; THEREFORE THE TRESPASS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint which alleged the town negligently failed to maintain a sewer main causing sewage to backflow into plaintiffs’ home did not state a cause of action for trespass, which requires an intentional act:

Among other elements, a claim for trespass requires “an intentional entry” … . Intent, in this context, “is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act” … . Here, accepting the allegations in the amended complaint as true … , we conclude that the amended complaint does not state a cause of action for trespass inasmuch as it failed to allege an intentional entry onto plaintiffs’ property … .  Drake v Village of Lima, 2023 NY Slip Op 05833, Fourth Dept 11-17-23

Practice Point: Here the trespass cause of action was based upon the backflow of sewage into plaintiffs’ home allegedly caused by the negligent maintenance of a sewer main. Trespass requires an “Intentional entry” which was not alleged here.

 

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HERE PETITIONERS’ HOUSE WAS DESTROYED BY FIRE AND THE COURT-ORDERED APPRAISAL OF THE AMOUNT OF THE LOSS WAS SET ASIDE THROUGH NO FAULT OF THE PETITIONERS; THE PETITIONERS WERE THEN ENTITLED TO SUE TO SEEK FULL RECOVERY UNDER THE INSURANCE POLICY; THE JUDGE SHOULD NOT HAVE ORDERED FURTHER APPRAISAL PROCEEDINGS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that once the appraisal award was set aside through no fault of the petitioner-insureds further appraisal proceedings should not have been ordered by the judge. Petitioners’ home was destroyed by fire and the insurer valued the loss at $370,000. The petitioners then demanded an appraisal which was ordered by the court. Once the appraisal was set aside through no fault of the petitioners, the petitioners were free to bring a plenary action to sue on the insurance policy:

… [T]he court erred in remitting the appraisal to the umpire and appraisers for further deliberations. It is well settled that “after an appraisal proceeding has terminated in an award and the award has been set aside, without any fault on the part of the insured[s], [they] need not submit to any further appraisement but may sue on the policy” … . Here, it is undisputed that the court set aside the appraisal award due to errors made by the court-appointed umpire—i.e., not due to any fault of petitioners. Consequently, the court could not properly compel petitioners to participate in further appraisal proceedings … . Indeed, we note that petitioners are now entitled to pursue a plenary action in Supreme Court seeking full recovery on their insurance claim under the policy … . Matter of Stanz v New York Cent. Mut. Fire Ins. Co., 2023 NY Slip Op 05832, Fourth Dept 11-17-23

Practice Point: Here there was a court-ordered appraisal to determine the amount of the loss from the destruction of the insureds’ home by fire. The judge set aside the appraisal because of errors made by the umpire. At that point the insureds were entitled to bring a plenary action for full recovery under the fire insurance policy. The judge should not have ordered further appraisal proceedings.

 

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HERE THE MEMORANDUM OF UNDERSTANDING REQUIRED INSTALLATION AND MAINTENANCE OF A GUTTER, DOWNSPOUT AND FENCE FOR $2500; THE MEMORANDUM WAS NOT AN “INSTRUMENT FOR THE PAYMENT OF MONEY ONLY” AND THEREFORE “SUMMARY JUDGMENT IN LIEU OF COMPLAINT” WAS NOT AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined summary judgment in lieu of complaint was not available because the underlying document was not “an instrument for the payment of money only:”

By motion for summary judgment in lieu of complaint (see CPLR 3213), plaintiff moved for judgment in the amount of $2,500.00, plus interest, pursuant to a memorandum of understanding between the parties regarding the installation and maintenance of a gutter, downspout, and fence between their adjoining properties.  * * *

… [T]he court erred in granting the motion inasmuch as the parties’ memorandum of understanding is not “an instrument for the payment of money only” (CPLR 3213 …). Where, as here, an agreement ” ‘requires something in addition to [an] explicit promise to pay a sum of money, CPLR 3213 is unavailable’ ”  Ellicottville Inn Condominium Assn. v Kempisty, 2023 NY Slip Op 05826, Fourth Dept 11-17-23

Practice Point: When a document requires something in addition to the payment of money (here the installation and maintenance of a gutter, downspout and a fence) it is not an “instrument for the payment of money only” and cannot be enforced by summary judgment in lieu of complaint.

 

THE BREACH OF CONTRACT SUIT STEMMED FROM CONSTRUCTION DELAYS; THE LOST PROFITS CLAIM SHOULD HAVE BEEN DISMISSED AS SPECULATIVE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defendants’ motion to dismiss the claim for lost profits in this breach of contract action should have been granted. The suit was premised on construction delays which postponed the start-date for the operation of the business. The underlying business was a start-up. Damages for lost profits therefore were not contemplated when the contract was entered. In addition, because no comparable businesses were identified, lost profits would necessarily be speculative:

To recover damages for lost profits, “it must be shown that: (1) the damages were caused by the breach; (2) the alleged loss must be capable of proof with reasonable certainty[;] and (3) the particular damages were within the contemplation of the parties to the contract at the time it was made” … . * * *

… [W]e conclude that “[i]t would be highly speculative and unreasonable to infer an intent to assume the risk of lost profits in what was to be a start-up venture” … . …

The lay assumption by plaintiff that it would have earned the same net profit during the months in which completion of the project was delayed as it did during the same months of the following year is too speculative to support a calculation of damages … . Buffalo Riverworks LLC v Schenne, 2023 NY Slip Op 05823, Fourth Dept 11-17-23

Practice Point: To recover lost profits under a breach of contract theory, the profits must have been within the contemplation of the parties when the contract was entered and there must be some benchmark by which the amount of lost profits can be measured (comparable businesses for example). Here the business was a start-up and the court determined the amount of profits could not have been within the contemplation of the parties when the construction contract was entered.

 

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DEFENDANT DROVE ON THE RIGHT SHOULDER TO GO AROUND A VEHICLE THAT WAS TURNING AND THEN SUDDENLY CROSSED THE DOUBLE LINE AND STRUCK A MOTORCYCLIST IN THE ONCOMING LANE; THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO CONSTITUTE “RECKLESS” CONDUCT WITHIN THE MEANING OF THE MANSLAUGHTER STATUTE (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction and dismissing the indictment, determined the evidence of how defendant was driving before his vehicle crossed into the oncoming lane and struck the victim’s motorcycle did not rise to the level of recklessness:

The People introduced eyewitness testimony at trial that, before the accident, defendant was tailgating a sport utility vehicle (SUV), “hitting his fist on the steering wheel[,] and looking a little agitated.” The driver and front passenger of the SUV testified that, as they made a left-hand turn, defendant passed their vehicle by driving onto the right shoulder of the two-lane roadway, yelling out that he was “going to get [them].” After defendant passed the SUV, his vehicle sharply turned left, crossed into the opposite lane, and struck the motorcycle.

… A defendant’s conduct is reckless with respect to the death of another person when the defendant “is aware of and consciously disregards a substantial and unjustifiable risk” that death will result from it … . “The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” … .

Here … the only risk-creating conduct by defendant supporting his conviction of manslaughter in the second degree was his briefly driving on the shoulder of the road to pass a vehicle in front of him that was turning and his subsequently making a sharp left turn and crossing over the double yellow line into the opposite lane. … [T]hat conduct, standing alone, did not exhibit “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” necessary to establish recklessness with respect to the death of another … . People v Lavelle, 2023 NY Slip Op 05920, Fourth Dept 11-17-23

Practice Point: The facts of this case, defendant’s suddenly crossing a double yellow line and striking a motorcyclist in the oncoming lane, do not rise to the level of “recklessness” within the meaning of the reckless manslaughter statute.

 

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FAILURE TO RULE ON A MOTION FOR A TRIAL ORDER OF DISMISSAL IS NOT A DENIAL OF THE MOTION; THE MATTER MUST BE SENT BACK FOR A RULING (FOURTH DEPT).

The Fourth Department, sending the matter back for a ruling, noted that the failure to rule on motion for a trial order of dismissal is not a denial which can be raised on appeal.  People v Keane, 2023 NY Slip Op 05915, Fourth Dept 11-17-23

 

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ALTHOUGH PLAINTIFFS COULD HAVE COMMENCED THE LAWSUIT WITHIN THE THREE-YEAR STATUTE OF LIMITATIONS BY FILING BEFORE OR AFTER THE COVID TOLL-PERIOD, THAT IS NOT RELEVANT; THE TOLL EFFECTIVELY ADDED 228 DAYS, THE LENGTH OF THE TOLL-PERIOD, TO THE THREE-YEAR STATUTE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the COVID tolls of the statute of limitations rendered the plaintiffs action timely:

472 days of the 1,095-day limitation period had elapsed by the time the toll began on March 20, 2020. Upon the expiration of the toll on November 3, 2020, the remaining 623 days of the limitation period began to run again, expiring on July 20, 2022 … . Thus, the action was timely commenced on May 18, 2022 … .

Defendants contend that the toll is inapplicable here because plaintiffs could have timely commenced the action at any point between December 4, 2018 [when the cause action accrued], and March 20, 2020 [when the toll began], or between November 3, 2020 [when the toll expired], and December 4, 2021 [three years from accual]. We reject that contention. “[A] toll operates to compensate a claimant for the shortening of the statutory period in which it must commence . . . an action, irrespective of whether the stay has actually deprived the claimant of any opportunity to do so” …  Thus, plaintiffs were entitled to the benefit of tolling for the entire 228-day duration of the COVID-19 Executive Orders. Harden v Weinraub, 2023 NY Slip Op 05822, Fourth Dept 11-17-23

Practice Point: Here the plaintiffs’ action accrued before the COVID toll-period which began on March 20, 2020, and there was still time left on the three-year statute of limitations when the toll was lifted on November 3, 2020. The fact that plaintiffs could have commenced the suit within three years of accrual was not relevant. The three-year statute was extended by the the length of the toll-period, 228 days.

 

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