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THE MAJORITY HELD THE INSTALLATION OF AN AIR TANK ON A FLATBED TRAILER WAS NOT A COVERED ACTIVITY UNDER LABOR LAW 240(1); THE DISSENT ARGUED THE TRAILER WAS A “STRUCTURE” WITHIN THE MEANING OF THE STATUTE (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined plaintiff was not engaged in an activity protected by Labor Law 240(1) when he was injured. Plaintiff, a diesel technician, was injured installing an air tank on a flatbed trailer at a recycling plant. The majority concluded the plaintiff was not involved in construction, renovation or alteration of the recycling plant. The two dissenting justices argued that the truck was a “structure” within the meaning of the Labor Law:

… [P]laintiff, a certified diesel technician, was injured while installing an air tank on a flatbed trailer on the premises of a recycling plant. Inasmuch as plaintiff was “engaged in his ‘normal occupation’ of repairing [vehicles] . . . , a task not a part of any construction project or any renovation or alteration to the [recycling plant] itself,” he was not engaged in a protected activity within Labor Law § 240 (1) at the time of the accident … .

From the dissent:

“Labor Law § 240 (1) provides special protection to those engaged in the ‘erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” … . “Over a century ago, the Court of Appeals made clear that the meaning of the word ‘structure,’ as used in the Labor Law, is not limited to houses or buildings . . . The Court stated, in pertinent part, that ‘the word “structure” in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner’ ” … .. … [W]e [have] held that it was error to dismiss a Labor Law § 240 (1) claim because the crane upon which the plaintiff’s decedent was working fit “squarely within” the definition of a “structure” as set forth by the Court of Appeals … . We have also held that a plaintiff engaged in the conversion of a utility van into a cargo van “was engaged in a protected activity at the time of the accident” and that the van was “a structure” … . “Indeed, courts have applied the term ‘structure’ to several diverse items such as a utility pole with attached hardware and cables . . . , a ticket booth at a convention center . . . , a substantial free-standing Shell gasoline sign . . . , a shanty located within an industrial basement used for storing tools . . . , a power screen being assembled at a gravel pit . . . , a pumping station . . . , and a window exhibit at a home improvement show” … . Here, the flatbed trailer upon which plaintiff was working also fits “squarely within” the definition of a “structure” … . Stoneham v Joseph Barsuk, Inc., 2022 NY Slip Op 06583, Fourth Dept 11-18-22

Practice Point: Plaintiff was installing an air tank on a flatbed trailer when injured. Because the activity was not connected to a construction site, the majority concluded the accident was not covered under Labor Law 240(1). The two dissenters argued the flatbed trailer met the definition of a “structure” within the meaning of Labor Law 240(1).

 

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THE JUDGE IN THIS POST-DIVORCE PROCEEDING ENCOMPASSING FIVE APPEALS, WAS DEEMED TO HAVE MADE MANY RULINGS NOT SUPPORTED BY THE RECORD, IN PART BECAUSE NECESSARY HEARINGS WERE NOT HELD; THE IMPROPER RULINGS INCLUDED A RESTRICTION OF THE ATTORNEY-FOR-THE-CHILD’S (AFC’S) INTERACTIONS WITH THE CHILDREN (FOURTH DEPT).

The Fourth Department, reversing (and modifying) Supreme Court in this post-divorce proceeding encompassing several appeals, determined many of the court’s rulings were not supported by the record, due in part to the court’s failure to hold hearings. The court had imposed “house rules” for the children, refused to hold a Lincoln hearing, made contempt findings, modified father’s visitation, suspended father’s child support obligations, ordered family unification therapy, limited the attorney-for-the-child’s interactions with the children, and made several other rulings with which the appellate division found fault. The decision is far too detailed to fairly summarize here:

The mother and the AFC contend in appeal Nos. 1, 3, and 5 that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children’s best interests. We agree. We therefore modify the orders in appeal Nos. 1, 3, and 5 accordingly, and we reinstate the provisions of the agreement and remit the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement is the children’s best interests.

Where there is “a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children” … , and “[a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child[ren], and what will best promote [their] welfare and happiness” … . Consequently, visitation and “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ “… , “[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of” the children’s best interests … . Burns v Grandjean, 2022 NY Slip Op 06577, Fourth Dept 11-18-22

Practice Point: Here the Fourth Department took issue with many, many rulings made by Supreme Court in this post-divorce proceeding. The decision encompassed five appeals and too many issues to fairly summarize. Many of Supreme Court’s rulings were deemed to have been unsupported by record, in large part because necessary hearings were not held.

 

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THE JUDGE SHOULD NOT HAVE LOOKED BEYOND THE PLEADINGS IN CONSIDERING THE MOTION TO AMEND THE COMPLAINT; THE MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the court abused its discretion by denying the motion to amend the complaint:

“Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit” ( … see CPLR 3025 [b]). “A court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face” … . Here, we conclude that the court erred in denying the motion inasmuch as there was no showing of prejudice arising from the proposed amendments … and the proposed amended complaint adequately asserts causes of action for slander of title … and removal of a cloud on title by reformation or cancellation of a deed … . In making its determination that the proposed causes of action were palpably insufficient, the court improperly looked beyond the face of the proposed pleading to the documents establishing the chain of title to plaintiffs’ properties and a 2011 deed from the Trustees of Grenell Island Chapel to defendant. DiGiacco v Grenell Is. Chapel, 2022 NY Slip Op 06576, Fourth Dept 11-18-22

Practice Point: Here Supreme Court abused its discretion in denying the motion to amend the complaint. The judge should not have looked beyond the pleading in deciding the motion to amend.

 

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THE SUPPRESSION COURT DID NOT RULE ON DEFENDANT’S ARGUMENT THE INITIAL PURSUIT BY THE POLICE WAS NOT JUSTIFIED; AN APPELLATE COURT CANNOT CONSIDER AN ISSUE NOT RULED UPON; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a ruling, determined the appellate court could not consider the suppression argument which was not ruled upon by the motion court. Defendant argued the police did not have reasonable suspicion such that the initial pursuit of the suspect was justified:

At the suppression hearing, the People presented evidence that on the night in question, a police officer was flagged down by an unnamed citizen, who stated that shots had been fired in that area. During that conversation, the officer himself heard a gunshot. He went immediately to the location and observed several people hiding or running into a nearby store. One man took flight, grabbing his waistband with both hands. According to the officer, such a gesture was indicative of a person “holding a very heavy object or a handgun.” That individual was the only person not attempting to hide or seek cover. At that point, the officer began his pursuit, but lost sight of the individual. The officer broadcast a description of the suspect, including specifics of his clothing, over the radio, at which point other officers in the area observed a man fitting that description and pursued him, eventually arresting him at a residence and bringing him to the location of the shooting, where he was identified by two eyewitnesses as the person who had fired the shots. Surveillance video from the store and body camera footage from the officers involved confirms the sequence of events. Following the hearing, the court ruled, inter alia, that there was “more than adequate probable cause.” However, the court did not explain when probable cause existed or rule on whether the officer who initially observed the suspect had reasonable suspicion to pursue him.  People v Anderson, 2022 NY Slip Op 06575, Fourth Dept 11-18-22

Practice Point: If an issue was raised in a suppression motion but was not ruled upon by the suppression court, the appellate court cannot consider the issue. Here the Fourth Department remitted the case for a ruling.

 

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HERE THE LANGUAGE IN THE RELEASE WAS CLEAR AND UNAMBIGUOUS AND NONE OF THE TRADITIONAL FACTORS WHICH INVALIDATE A CONTRACT WERE PRESENT; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the release signed by plaintiff in this snowmobile accident case was enforceable and the complaint should have been dismissed. Plaintiff was a passenger on the snowmobile and she and the driver were represented by the same law firm. The settlement was for $25,000. Plaintiff signed the release but allegedly did not receive any compensation. The decision is comprehensive and well worth consulting; it addresses substantive issues not summarized here:

… [D]efendant met his initial burden of establishing that he was released from any claims by submitting the release executed by plaintiff … . As defendant contends, “the language of [the] release is clear and unambiguous” and plaintiff’s action against defendant to recover for personal injuries is barred … . * * *

The release in this case contains preliminary broad language releasing defendant from “any and all claims, demands, damages, costs, expenses, loss of services, actions, and causes of action whatsoever . . . arising from any act or occurrence up to the present time and particularly on account of BODILY INJURY, loss or damages of any kind” that plaintiff sustained or may sustain as a consequence of the accident, which is later narrowed by the language stating that the “agreement only releases the parties named above with respect to BODILY INJURY damages arising out of the accident” and that the “agreement does not waive any other party or parties from making any other claims that are not discharged or settled by this release” … . It is well established that where the language of a release is “limited to only particular claims, demands, or obligations, the instrument will be operative as to those matters alone, and will not release other claims, demands or obligations” … .

Even so, the release of defendant for any “bodily injury damages” arising from the accident clearly and unambiguously encompasses plaintiff’s action against defendant to recover for personal injuries sustained in the accident … . Putnam v Kibler, 2022 NY Slip Op 06574, Fourth Dept 11-18-22

Practice Point: Absent any of the traditional factors which will invalidate a contract, the unambiguous language of a release will be enforced to prohibit any further litigation in the matter.

 

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THE PROFESSIONAL LIABILITY EXCLUSION IN THE NAIL SALON’S INSURANCE POLICY IS NOT AMBIGUOUS AND EXCLUDES INJURY RESULTING FROM A “COSMETIC SERVICE;” PLAINTIFF ALLEGED SHE CONTRACTED AN INFECTION DURING A PEDICURE; COVERAGE WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the “professional liability” exclusion from the insured nail salon’s policy applied and coverage was properly denied. Plaintiff alleged she contracted an infection during a pedicure:

… [T]he professional liability exclusion states—in clear and unmistakable language—that the insured’s policy “does not apply to ‘bodily injury’ . . . due to . . . [t]he rendering of or failure to render cosmetic . . . services or treatments.” We agree with defendant that, contrary to plaintiff’s contention, “[t]here is no ambiguity in the wording of the exclusion” inasmuch as it is susceptible of only one reasonable interpretation: there is no coverage for bodily injury due to (i.e., “caused by”) the rendering (i.e., the performance) of a cosmetic service or treatment (e.g., a pedicure) … . Thus, employing ” ‘the test to determine whether an insurance contract is ambiguous [by] focus[ing] on the reasonable expectations of the average insured upon reading the policy and employing common speech’ ” … , we conclude that the exclusion is unambiguous because the average insured would understand the policy to exclude coverage for injuries caused by the performance of acts that constitute part of the pedicure service … . Walker v Erie Ins. Co., 2022 NY Slip Op 06332, Fourth Dept 11-10-22

Practice Point: Where an exclusion in an insurance policy is unambiguous it will be enforced. Here the nail salon’s insurance policy had a professional liability exclusion. Plaintiff alleged she contracted an infection during a pedicure. The pedicure was deemed included in the exclusion of bodily injury caused by the rendering of a cosmetic service (i.e., a pedicure).

 

PLAINTIFF LAW FIRM SHOULD HAVE BEEN ALLOWED TO REPRESENT ITSELF IN ITS SUIT FOR ATTORNEY’S FEES AGAINST A FORMER CLIENT; ALTHOUGH THE ATTORNEYS DIRECTLY INVOLVED WITH THE FORMER CLIENT WERE DISQUALIFIED, DEFENDANT DID NOT DEMONSTRATE THE TESTIMONY OF THE DISQUALIFIED ATTORNEYS WOULD PREJUDICE PLAINTIFF LAW FIRM SUCH THAT DISQUALICATION OF THE ENTIRE FIRM WAS WARRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff law firm, HoganWillig, could represent itself in a suit seeking payment from defendant volunteer fire company (SFC), a former client. The attorneys who were directly involved in representing the fire company were disqualified from this suit. The defendant argued the testimony of the disqualified attorneys would be prejudicial to HoganWillig, a violation of Rules of Professional Conduct rule 3.7[b][1]:

… [W]e agree with HoganWillig that SFC failed to establish that “it is apparent that the testimony [of the disqualified attorneys] may be prejudicial to [HoganWillig]” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [b] [1] … ). “The word ‘apparent’ means that prejudice to the client must be visible, as opposed to merely speculative, conceivable, or imaginable,” i.e., the prejudice “has to be a real possibility, not just a theoretical possibility” … . Consistent therewith, a movant’s “vague and conclusory” assertions are insufficient to establish that an attorney’s testimony may be prejudicial to the client … . * * *

Here, the court erred in failing to “consider such factors as [HoganWillig’s] valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification” … . “Disqualification denies a party’s right to representation by the attorney of its choice,” and we conclude under the circumstances of this case that depriving HoganWillig of its right to represent itself in the present action is particularly unwarranted given that counsel and client are one and the same … . As the court properly determined when it first considered the original motion, whether HoganWillig thinks it is desirable, despite the disqualification of three of its attorneys, to continue representing itself is a strategic decision that should be left to HoganWillig. Hoganwillig, PLLC v Swormville Fire Co., Inc., 2022 NY Slip Op 06331, Fourth Dept 11-10-22

Practice Point: Here the plaintiff law firm should have been allowed to represent itself in a suit to recover attorney’s fees from a former client. The fact that the attorneys directly involved in the former client’s case were disqualified did not require disqualification of the law firm itself. It was the defendant’s burden to demonstrate the testimony of the disqualified attorneys would prejudice the law firm (that was the basis for Supreme Court’s disqualification of the entire firm). The defendant was not able show such prejudice.

 

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ALTHOUGH DEFENDANT WAS A VOLUNTEER AMBULANCE DRIVER AND WAS RESPONDING TO A CALL AT THE TIME OF THE TRAFFIC ACCIDENT, DEFENDANT WAS DRIVING HIS OWN PERSONAL PICKUP TRUCK, WHICH WAS NOT AN AUTHORIZED EMERGENCY VEHICLE; THEREFORE THE “RECKLESS DISREGARD” STANDARD OF CARE DID NOT APPLY TO DEFENDANT (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined that, although defendant driver was a volunteer ambulance driver responding to a call at the time of the accident, defendant was driving his own personal pickup truck which did not qualify as an emergency vehicle. Therefore the ordinary negligence, not the “reckless disregard,” standard applied to the defendant:

We agree with plaintiff, however, that he met his initial burden on his cross motion of establishing that defendant was not operating an “authorized emergency vehicle” at the time of the accident and thus that the reckless disregard standard of care does not apply. ” ‘[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) . . . applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)’ ” … . …

… [A]t the time of the accident, defendant was driving his personally-owned vehicle, which was not affiliated with Eden Emergency … . The vehicle also did not comply with Vehicle and Traffic Law § 1104 (c), which requires authorized emergency vehicles to be equipped with “at least one red light.” Moreover, at the time of the accident, defendant’s vehicle was not being “operated by” Eden Emergency because, while defendant was a volunteer with Eden Emergency, he was not on call at the time of the incident … . Further, defendant did not qualify as an ambulance service. Defendant was not an “individual . . . engaged in providing emergency medical care and the transportation of sick or injured persons” (Public Health Law § 3001 [2]). We also note that defendant was not an emergency medical technician … . Spence v Kitchens, 2022 NY Slip Op 06355, Fourth Dept 11-10-22

Practice Point: Here defendant was a volunteer ambulance driver who was responding to a call when the traffic accident occurred. Defendant was driving his own pickup truck, was not “on call” for the ambulance service, was not engaged in emergency care and was not a medical technician. Defendant’s truck was not an “authorized emergency vehicle.” Therefore the “reckless disregard” standard of care for emergency vehicles did not apply.

 

THE FOIL REQUEST FOR THE DISCIPLINARY RECORDS OF POLICE OFFICERS SHOULD NOT HAVE BEEN CATEGORICALLY DENIED PURSUANT TO THE PERSONAL PRIVACY EXEMPTION; RATHER THE RECORDS MUST BE REVIEWED AND ANY DENIALS OR REDACTIONS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the request for the disciplinary records of police officers should not have categorically denied pursuant to the personal privacy exemption. The decision encompasses several important issues not summarized here and therefore should be consulted:

… [T]he personal privacy exemption “does not . . . categorically exempt . . . documents from disclosure”, even in the case where a FOIL request concerns release of unsubstantiated allegations or complaints of professional misconduct. In order to invoke the personal privacy exemption here, respondents must review each record responsive to petitioner’s FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of SPD [Syracuse Police Department] officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner … .

Inasmuch as respondents withheld the requested law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of the records, we conclude that respondents did not meet their burden of establishing that the personal privacy exemption applies … . Respondents further failed to establish that “identifying details” in the law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct “could not be redacted so as to not constitute an unwarranted invasion of personal privacy” … . Thus, the court erred in granting that part of respondents’ motion seeking to dismiss petitioner’s request for law enforcement disciplinary records concerning open or unsubstantiated claims of SPD officer misconduct in reliance on the personal privacy exemption under Public Officers Law § 87 (2) (b).  Matter of New York Civ. Liberties Union v City of Syracuse, 2022 NY Slip Op 06348, Fourth Dept 11-10-22

Similar issues in: Matter of New York Civ. Liberties Union v City of Rochester, 2022 NY Slip Op 06346, Fourth Dept 11-10-22

Practice Point: A FOIL request for the disciplinary records of police officers cannot be categorically rejected pursuant to the personal privacy exemption. Rather the records must be reviewed and any denials an redactions explained.

 

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THE $40,000 PAID BY DECEDENT TO HER CAREGIVERS SHORTLY BEFORE DECEDENT ENTERED A NURSING HOME WAS PAYMENT FOR PAST SERVICES RENDERED PURSUANT TO A PERSONAL SERVICE AGREEMENT (PSA); IT WAS NOT AN “UNCOMPENSATED TRANSFER” SUBJECT TO THE 60-MONTH LOOKBACK FOR MEDICAID ELIGIBILITY (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the $40,000 paid to decedent’s caregivers shortly before decedent entered a nursing home was pursuant to a valid personal service agreement (PSA) for past services rendered. Therefore the payment was not an “uncompensated transfer” to which the Medicaid 60-month lookback applied:

“In determining the medical assistance eligibility of an institutionalized individual, any transfer of an asset by the individual . . . for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services” for a certain penalty period (Social Services Law § 366 [5] [d] [3]). The look-back period is the “[60]-month period[] immediately preceding the date that an [applicant] is both institutionalized and has applied for medical assistance” … . When such a transfer has occurred, a presumption arises that the transfer “was motivated, in part if not in whole, by . . . anticipation of a future need to qualify for medical assistance,” and it is the applicant’s burden to establish his or her eligibility for Medicaid by rebutting the presumption … . As pertinent here, “an applicant may do so by demonstrating that he or she intended to receive fair consideration for the transfers or that the transfers were made exclusively for purposes other than qualifying for Medicaid” … .

Here, petitioner submitted documentary proof of the PSA, which was entered into in 2015, more than three years before decedent entered the nursing home. As noted above, while the PSA contemplated monthly payments for the personal care services, it also contemplated that decedent may make payments in advance. In addition, petitioner submitted bank statements demonstrating that decedent did not have money to pay for the services until after she received cash value for the insurance policies. Petitioner also submitted a monthly calendar that documented the care provided to decedent during the relevant time period. While the calendar did not provide the number of hours spent on each task, “a daily log of hours worked and services rendered is not necessarily required” … . Matter of Boldt v New York State Off. of Temporary & Disability Assistance, 2022 NY Slip Op 06344, Fourth Dept 11-10-22

Practice Point: Here decedent entered a personal care agreement (PSA) in which she agreed to pay her caregivers $2500 per month. Shortly before decedent was admitted to a nursing home she paid $40,000 to the caregivers. It was demonstrated that the $40,000 was for past care rendered pursuant to the PSA. The $40,000 payment, therefore, was not an “uncompensated transfer” subject to the 60-month lookback for Medicaid eligibility.

 

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