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HANDWRITTEN PROVISION OF A LETTER OF INTENT CONTROLS, THE LETTER OF INTENT IS NOT A BINDING CONTRACT, BREACH OF A FIDUCIARY DUTY AND TORTIOUS INTERFERENCE WITH CONTRACT CAUSES OF ACTION PROPERLY DISMISSED IN THE ABSENCE OF A BINDING CONTRACT, UNJUST ENRICHMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE THE BENEFIT TO THE DEFENDANTS WAS UNIDENTIFIED (SECOND DEPT).

The Second Department determined that a letter of intent concerning the development of defendant-church’s property was not a binding contract because of a handwritten provision. Because there was no binding contract, the fiduciary duty, joint venture, covenant of good faith, and tortious interference with contract causes of action were properly dismissed. The unjust enrichment cause of action was properly dismissed because the benefit allegedly received by defendants was not identified:

“It is a fundamental principle of contract interpretation that when a handwritten or typewritten provision conflicts with the language of a preprinted form document, the former will control, as it is presumed to express the latest intention of the parties'” … . Here, there are inconsistent provisions in the letter of intent regarding whether the parties intended it to be a binding agreement. However, the parties modified the letter of intent, with a handwritten provision, to state that it is “not intended to constitute a binding contract.” Accordingly, this handwritten provision controls over the conflicting printed provisions stating that the letter of intent will become binding after a period of five days … . …

“To prevail on a claim of unjust enrichment, a party must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered” … . A bare legal conclusion that it is against equity and good conscience to retain an unidentified benefit is insufficient to adequately allege that an asserted enrichment was unjust … . Here, the complaint does not identify the benefit the defendants allegedly obtained or explain why it is against equity and good conscience to allow the defendants to retain such benefit. FoxStone Group, LLC v Calvary Pentecostal Church, Inc., 2019 NY Slip Op 04916, Second Dept 6-19-19

 

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VIOLATIONS OF ORDINANCES, ADMINISTRATIVE RULES OR REGULATIONS DO NOT CONSTITUTE NEGLIGENCE PER SE, ONLY VIOLATIONS OF STATUTES CONSTITUTE NEGLIGENCE PER SE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that defendant Delco’s motion for summary judgment dismissing the negligence per se cause of action should have been granted. Negligence per se is shown by the violation of a statute, not, as here, by the violation of local ordinances, administrative rules or regulations. Plaintiffs alleged Delco, a painting contractor, caused a fire at plaintiffs’ residence. The Second Department held there was sufficient circumstantial evidence to support the causation element of the negligence cause of action:

Delco failed to eliminate triable issues of fact as to whether it performed electrical work in the area in which the fire started. Although representatives of Delco and Chestnut asserted in their deposition testimony that Delco was not hired to, and did not, perform any electrical work on the subject premises, those averments were contradicted by the deposition testimony of some of the tenant plaintiffs, who asserted that they had observed Delco performing electrical work in the apartment where the fire occurred, and that Delco was the only entity that performed repairs and other work at the premises generally, including electrical work. The foregoing circumstantial evidence set forth sufficient facts upon which Delco’s liability could be reasonably and logically inferred … . …

However, that branch of Delco’s motion which was for summary judgment dismissing the negligence per se causes of action asserted against it by the tenant plaintiffs should have been granted. “[V]iolation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability”… . In contrast, violation of local ordinances or administrative rules and regulations constitutes only evidence of negligence … . Here, the tenant plaintiffs did not allege that Delco violated any particular State statute. Rather, they only alleged violations of local laws … . Rivera v 203 Chestnut Realty Corp., 2019 NY Slip Op 04976, Second Dept 6-19-19

 

PLAINTIFF ASSUMED THE RISK OF PARTICIPATING IN AN OBSTACLE COURSE RACE; PLAINTIFF FELL ATTEMPTING A ‘MONSTER CLIMB’ WHICH HAD BEEN ERECTED ON A ROADWAY WITH NO MATS BENEATH (SECOND DEPT).

The Second Department determined plaintiff assumed the risk of injury by participating in a “Monster Climb” knowing she could fall and knowing there were no protective mats. The event was an obstacle course race sponsored by defendants and held at a public park:

… [T]he plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up. …

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'”… . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine … “It is not necessary . . . 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” … . A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff” … . Ramos v Michael Epstein Sports Prods., Inc., 2019 NY Slip Op 04973, Second Dept 6-19-19

 

REPAIRING A LIGHT FIXTURE IS COVERED UNDER BOTH LABOR LAW 240 (1) AND 241 (6), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court) determined defendants’ motion for summary judgment on plaintiff’s Labor Law 240 (1), 241 (6) and 200 causes of action should not have been granted. Plaintiff fell from an A-frame ladder when he was repairing a light fixture at the Nassau Coliseum. Repairing the light fixture is an activity covered by both Labor Law 240 (1) and 241 (6):

Here, the County defendants’ own submissions highlighted rather than eliminated triable issues of fact as to whether the plaintiff was engaged in repairs or routine maintenance at the time of his accident. Among other things, the County defendants submitted the plaintiff’s deposition testimony in support of summary judgment. Although the plaintiff’s testimony demonstrated that some of the lighting poles on which he worked may have only required the tightening or replacement of a lightbulb, he testified that more labor intensive work was performed on other lighting poles in order to make them function, which fell within the scope of “repairing” a light fixture and, concomitantly, within the scope of Labor Law § 240(1) … . …

“Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in . . . construction, excavation or demolition work”… . “[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively. Under that regulation, construction work consists of [a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” …. Since the plaintiff was arguably engaged in the repair of the subject lighting fixtures, the County defendants failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to the plaintiff’s activities. Wass v County of Nassau, 2019 NY Slip Op 04748, Second Dept 6-12-19

 

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A PRIOR FORECLOSURE ACTION DISMISSED FOR LACK OF STANDING DID NOT ACCELERATE THE MORTGAGE DEBT, THE STATUTE OF LIMITATIONS, THEREFORE, DID NOT START TO RUN (SECOND DEPT).

The Second Department noted that the prior foreclosure action, which was dismissed on the ground the plaintiff lacked standing, did not accelerate the mortgage debt. Therefore the statute of limitations was not triggered by the dismissed action:

[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due, and the Statute of Limitations begins to run on the entire debt” … . Acceleration occurs, inter alia, “when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due” … . “[A]n acceleration of a mortgaged debt, by either written notice or the commencement of an action, is only valid if the party making the acceleration had standing at that time to do so” … .

Auguste contends that the commencement of the prior action in 2007 accelerated the debt, and that the commencement of the instant action, seven years later, was beyond the statute of limitations. Where, as here, the prior action is dismissed on the ground that the plaintiff lacked standing, the purported acceleration is a nullity, and the statute of limitations does not begin to run at the time of the purported acceleration … . U.S. Bank N.A. v Auguste, 2019 NY Slip Op 04747, Second Dept 6-12-19

 

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COURT MUST CONSIDER WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS, A VALID WAIVER OF APPEAL DOES NOT BAR RAISING THE ISSUE (SECOND DEPT).

The Second Department, vacating the sentence and sending the matter back because the court did not consider whether defendant should be afforded youthful offender status, noted that a valid waiver of appeal would not bar raising this issue on appeal (the waiver here was deemed invalid):

CPL 720.20(1) requires that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, even where the defendant fails to request such treatment, or agrees to forgo it as part of a plea agreement . Contrary to the People’s contention, the … defendant’s waiver of his right to appeal was invalid because the Supreme Court failed to confirm that the defendant understood the nature of the right to appeal and the consequences of waiving it … . In any event, a valid waiver would not bar the defendant’s contention that the court failed to consider youthful offender treatment … . People v Ramirez. 2019 NY Slip Op 04727, Second Dept 6-12-19

 

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DEFENSE COUNSEL SUCCESSFULLY PURSUED A MISIDENTIFICATION DEFENSE THROUGHOUT THE TRIAL BUT CONCEDED THE ISSUE IN SUMMATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; A WITNESS MAY IDENTIFY THE DEFENDANT AT TRIAL DESPITE A PROCEDURALLY-DEFECTIVE PRE-TRIAL IDENTIFICATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. During the trial the victim of the robbery twice misidentified the defendant before identifying the defendant, first indicating he did not see the defendant in the courtroom and then indicating a spectator was the assailant. Defense counsel pursued the misidentification defense throughout the trial, successfully challenging the admission of a surveillance video. But in summation defense counsel essentially conceded that defendant was one of the assailants. The Second Department noted that a witness who participated in a procedurally-defective pretrial identification procedure may still identify the defendant at trial if the People demonstrate the in-court identification is based upon the witness’s independent observation of the defendant, here the observations made during the robbery itself:

“A witness may identify the perpetrator of a crime as part of his or her in-court testimony, notwithstanding the existence of a procedurally-defective pretrial identification procedure, provided that the People establish by clear and convincing evidence that the in-court identification is based upon the witness’s independent observation of the defendant” … . Here, contrary to the defendant’s contention, at an independent source hearing, the prosecution proved by clear and convincing evidence that the complainant’s in-court identification of the defendant would be based on his independent observations during the robbery … . * * *

… [D]efense counsel’s confused and contradictory actions, effectively conceding the dispositive issue, deprived the defendant of his right to the effective assistance of counsel … . Given defense counsel’s opening statement and his conduct throughout the course of the trial in advancing his misidentification defense, his decision to abandon his chosen defense midstream in favor of a nebulous and contradictory argument that no forcible taking of property had occurred, “was so unreasonable, inconsistent, and devoid of any possibility of success that it does not even rise to the level of trial strategy” … . Under the circumstances, the defendant was deprived of the effective assistance of counsel and is entitled to a new trial. People v Goondall, 2019 NY Slip Op 04721, Second Dept 6-12-19

 

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THE JUDGE PROPERLY HANDLED A JUROR’S HESITATION WHEN THE JURY WAS POLLED, THE JUROR WAS QUESTIONED BY THE JUDGE OUTSIDE THE PRESENCE OF THE JURY, THE JUDGE DETERMINED THE JUROR WAS NOT UNDER IMPROPER PRESSURE AND SENT THE JURY BACK FOR FURTHER DELIBERATIONS (SECOND DEPT).

The Second Department determined the trial judge properly handled a juror’s (juror number two’s) hesitation when the jury was polled. Outside the presence of the jury, the judge asked the juror about his reasons for hesitation, determined it was not caused by improper pressure, and sent the jury back for more deliberations:

… [T]he Supreme Court providently exercised its discretion in denying his motion for a mistrial based upon juror number two’s hesitation in affirming the verdict. “[T]he jury must, if either party makes such an application, be polled and each juror separately asked whether the verdict announced by the foreman is in all respects his verdict. If . . . any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation” (CPL 310.80). Here, the court appropriately conducted an inquiry, outside the other jurors’ presence, into why juror number two hesitated in affirming the verdict, and further obtained clarification as to the reasons he gave … . Juror number two’s responses clarified that the pressure he perceived did not “[arise] out of matters extraneous to the jury’s deliberations or not properly within their scope” … . Further, his responses established that the “verdict [was] not the product of actual or threatened physical harm” … . Accordingly, we agree with the court’s determination to instruct the jury to continue deliberating … . People v Folkes, 2019 NY Slip Op 04719, Second Dept 6-12-19

 

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THE NEGATIVE CHARACTER TESTIMONY WAS PROPERLY STRUCK, NOT BECAUSE SUCH EVIDENCE IS GENERALLY INADMISSIBLE, BUT BECAUSE THE WITNESS WAS ONLY FAMILIAR WITH THE DEFENDANT’S CHARACTER IN THE WORKPLACE, WHICH WAS NOT RELEVANT TO THE ALLEGED SEXUAL MISCONDUCT WITH A CHILD (SECOND DEPT).

The Second Department determined the negative character evidence was properly stricken. Negative character evidence (i.e., that the witness never heard that defendant acted in a sexually inappropriate or sexually abusive manner in the workplace) is admissible if it relates to the appropriate community. Here the community the witness testified about was the workplace, which was not the relevant community because the alleged sexual misconduct with a child occurred in secret and outside the workplace:

Contrary to the conclusion of the Supreme Court, negative evidence of reputation—i.e., that the witness never heard anyone say anything negative about the defendant—can constitute relevant character evidence … . However, relevant character evidence must be of reputation generally in the community where the crime occurred … . Although that community is more broadly defined in modern times … , the defendant’s reputation in the workplace for lack of sexual impropriety was in no way relevant to whether he sexually abused a child in secret and outside of the workplace. Accordingly, the character evidence was properly stricken, since that evidence was irrelevant. People v Durrant, 2019 NY Slip Op 04716, Second Dept 6-12-19

 

NEITHER PLAINTIFF NOR DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT IN THIS “FALL FROM AN A-FRAME LADDER” CASE (SECOND DEPT).

The Second Department determined both plaintiff’s and defendants’ motions for summary judgment were properly denied. The plaintiff was cutting brackets which held up an air duct with an electric saw when the duct came down and plaintiff fell off an A-frame ladder. The fact that plaintiff fell from a ladder did not, standing alone, warrant summary judgment on plaintiff;s Labor Law 240 (1) cause of action. The defendants did not demonstrate that the ladder provided proper protection or that plaintiff’s conduct was the sole proximate cause of the accident:

… [T]he plaintiff failed to demonstrate, prima facie, that the subject ladder was an inadequate safety device for the work in which he was engaged at the time of his alleged accident … . The mere fact that the plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided … . The opinion of the plaintiff’s expert failed to establish that the ladder that was provided was an inadequate safety device … .

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law on that branch of their cross motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action. The defendants’ expert’s affidavit, in which the expert opined that the subject ladder “was so constructed, placed and operated as to give proper protection,” is conclusory and unsupported by evidence in the record. The defendants also failed to demonstrate, prima facie, that the plaintiff’s conduct was the sole proximate cause of his fall because he allegedly failed to use scaffolding that was readily available at the job site  … . In addition, the defendants failed to establish, prima facie, that the plaintiff’s conduct was the sole proximate cause of his fall because he allegedly improperly positioned the ladder … , did not ask his coworker to cut the bracket for him … , and did not demand that his foreman provide scaffolding … . Orellana v 7 W. 34th St., LLC, 2019 NY Slip Op 04711, Second Dept 6-12-19

 

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