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ATTORNEY GENERAL MAY IMPOSE CIVIL PENALTIES FOR VIOLATION OF THE TIDAL WETLANDS ACT AND THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION WAS ENTITLED TO SUMMARY JUDGMENT ON ITS ACTION TO COMPEL DEFENDANT TO SUBMIT A RESTORATION PLAN AFTER DEFENDANT, CLEARED AND FILLED WETLANDS AND CONSTRUCTED A BULKHEAD AND FENCE ON WETLANDS (SECOND DEPT).

The Second Department, reversing Supreme that the attorney general (AG) can impose civil penalties pursuant to the Environmental Conservation La (ECL fro violations of Tidal Wetlands Act and the Department of Environmental Conservation was entitle to summary on its action to impose penalties and compel defendant to submit a restoration plan:

… [P]laintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability on the fourth cause of action in the amended complaint, which sought to recover civil penalties pursuant to ECL 71-2505 for the defendant’s post-February 1, 2008, violations of the Tidal Wetlands Act, and to compel the defendant to submit a restoration plan addressing those violations. In support of their motion, the plaintiffs submitted evidence demonstrating, inter alia, that between 2011 and 2012, the defendant, without a permit, cleared wetland vegetation and placed fill, constructed a bulkhead in delineated state tidal wetlands and in the tidal creek, and installed a 900-foot long fence in tidal wetland adjacent areas in violation of ECL 25-0401… . In opposition, the defendant failed to raise a triable issue of fact … . New York State Dept. of Envtl. Conservation v Segreto, 2019 NY Slip Op 01084, Second Dept 2-13-19

 

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CHILD’S MOTION FOR FINDINGS TO ALLOW HIM TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SHOULD HAVE BEEN GRANTED, THERE WAS EVIDENCE THE CHILD WOULD BE KILLED UPON RETURN TO EL SALVADOR (SECOND DEPT).

The Second Department, reversing Family Court, determined that the motion for an order making the findings necessary for the child to petition for special immigrant juvenile status (SIJS) should have been granted:

Based upon our independent factual review, the record supports a finding that reunification of the child with the father is not a viable option due to parental neglect… . The record demonstrates that when the child lived with the mother and the father in El Salvador, the father would physically mistreat the mother in the presence of the child by hitting her with objects such as a book and shoes, causing her bruising, and that, when the child attempted to defend the mother, the father would hit the child. The child also averred in his affidavit that “[w]hen [the father] would get angry, which was often, he became very violent toward me, yelling at me and punching me,” and the mother indicated that she had to send the child to live with his maternal grandmother in El Salvador because she was afraid of what the father would do to the child. The record also demonstrates that the father had provided no financial support for the child since the child was 10 years old. Thus, the father’s conduct, including acts of domestic violence perpetrated in the presence of the child, constituted neglect … , which established that the child’s reunification with the father is not viable … .

The record also does not support the Family Court’s determination that the child failed to show that it would not be in his best interests to return to El Salvador. The child testified that gang members in El Salvador tried to recruit him, but he refused to join, that after his refusal to join, the gang members threatened and assaulted him multiple times, “hurt me[ ] very bad,” “left me on the streets after they beat me up,” and would have killed him on one occasion if not for a police patrol “coming by that moment,” that he was afraid to go outside after the incident when he was almost killed, and that “if I go back [to El Salvador] they will kill me” … . Matter of Lucas F.V. (Jose N.F.), 2019 NY Slip Op 01079, Second Dept 2-13-19

 

THE STATUTE OF LIMITATIONS DID NOT TOLL WHILE DEFENDANT WAS OUT OF STATE BECAUSE THE DEFENDANT COULD HAVE BEEN SERVED OUT OF STATE, PLAINTIFFS’ ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statute of limitations did not toll while defendant was out of state and the action was therefore time-barred:

The plaintiffs’ contention that the action was timely because they were entitled to the benefit of the tolling provision of CPLR 207 based on the defendant’s alleged absence from the state did not raise a question of fact. Under that statute, as relevant here, when a defendant leaves the state after an action has accrued, and is continually absent from the state for at least four months, the time of the defendant’s absence is not included in the time during which the action must be commenced. This tolling provision, however, does not apply “while jurisdiction over the person of the defendant can be obtained without personal delivery of the summons to the defendant within the state” (CPLR 207[3] …). In other words, the toll will not apply if there is a means by which the defendant may be served notwithstanding his or her absence from the state … . Here, even during his alleged absence from New York State, the defendant was subject to service of process (see CPLR 302[a][2]; 308[5]; 313 …). The plaintiffs did not submit evidence establishing that the defendant was attempting to evade service of process by, for example, living secretly in a foreign country, such that no means of service of process on him was available … . MP v Davidsohn, 2019 NY Slip Op 01069, Second Dept 2-13-19

 

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PLAINTIFF WAS A NONMEMBER PURCHASER OF A MEMBER’S INTEREST IN THE LIMITED LIABILITY COMPANY (LLC) AND THEREFORE COULD NOT BRING DERIVATIVE CAUSES OF ACTION ON BEHALF OF THE LLC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, who was a nonmember purchaser of a member’s interest in the limited liability company (LLC), could not bring derivative causes of action on behalf of the LLC:

A “[m]ember” is a person who has been admitted as a member of a limited liability company in accordance with the terms and provisions of the Limited Liability Company Law and the limited liability company’s operating agreement, and who has a membership interest in the limited liability company with the rights, obligations, preferences, and limitations specified under the Limited Liability Company Law and the operating agreement (Limited Liability Company Law § 102[q]). A “[m]embership interest” means “a member’s aggregate rights in a limited liability company, including, without limitation: (i) the member’s right to a share of the profits and losses of the limited liability company; (ii) the member’s right to receive distributions from the limited liability company; and (iii) the member’s right to vote and participate in the management of the limited liability company” (Limited Liability Company Law § 102[r]).

Here, the plaintiff does not dispute that she failed to obtain the consent of the nonselling members to be admitted as a member of the LLC when she acquired her membership interest. Paragraph 8 of the LLC’s operating agreement provides that “[n]ew members may be admitted only upon the unanimous consent of the Members and upon compliance with the provisions of this agreement,” and paragraph 32(e) of the operating agreement provides that “[a] non-member purchaser of a member’s interest cannot exercise any rights of a Member unless, by unanimous vote, the non-selling Members consent to him becoming a Member” (see Limited Liability Company Law § 602). Therefore, contrary to the Supreme Court’s determination, the plaintiff, as a nonmember purchaser who had not been admitted as a member of the LLC, lacks standing to pursue derivative causes of action on behalf of the LLC … . Kaminski v Sirera, 2019 NY Slip Op 01067, Second Dept 2-13-19

 

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PLAINTIFF, A PASSENGER ON A MOTORCYCLE, WAS ENTITLED TO SUMMARY JUDGMENT AGAINST THE VAN DRIVER AND THE EMPLOYER OF THE VAN DRIVER WHO MADE A LEFT TURN INTO THE MOTORCYCLE’S PATH, THE GRAVES AMENDMENT MAY APPLY TO THE LESSOR OF THE VAN, PLAINTIFF DID NOT HAVE TO DEMONSTRATE SERIOUS INJURY AS SHE WAS NOT A COVERED PERSON UNDER THE NO-FAULT INSURANCE LAW (SECOND DEPT).

The Second Department addressed several issues in this motorcycle-vehicle accident case. Plaintiff was a passenger on a motorcycle that collided with a van which attempted to make a left turn across the motorcycle’s path. The court held: (1) plaintiff was entitled to summary judgment against the van driver who violated Vehicle and Traffic Law 1146 and 1126 in making the turn; (2) the van driver’s employer was vicariously liable because the driver was operating the van during the course of his employment, the employer leased the van for more than 30 days and therefore was the owner of the van under Vehicle and Traffic Law 388; (3) the Graves Amendment may insulate the lessor of the van from liability; (4) plaintiff was not a covered person under the no fault provisions of the Insurance Law and therefore did not have to demonstrate serious injury before bringing suit. Jung v Glover, 2019 NY Slip Op 01066, Second Dept 2-13-19

 

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PLAINTIFF’S PRO SE MOTION TO DISQUALIFY DEFENDANT’S LAW FIRM PROPERLY GRANTED, AN ATTORNEY FROM THE FIRM RETAINED BY PLAINTIFF WORKED ON PLAINTIFF’S CASE AND SUBSEQUENTLY JOINED THE LAW FIRM REPRESENTING DEFENDANT (SECOND DEPT).

The Second Department determined plaintiff’s pro se motion to disqualify the law firm representing defendant (Ray, Mitiv) was properly granted. An attorney who worked for a law firm retained by plaintiff and who worked almost exclusively on plaintiff’s case left the firm retained by plaintiff and joined Ray, Mitev:

“A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” … . “A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion”… . However, doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety … .

Here, the plaintiff’s showing satisfied all three of the relevant factors, giving rise to an irrebuttable presumption of disqualification … . Accordingly, based on the appearance of impropriety, disqualification was warranted … . Janczewski v Janczewski, 2019 NY Slip Op 01062, Second Dept 2-13-19

 

LOCK BOX ON THE OUTSIDE OF A BUILDING ON WHICH PLAINTIFF STRUCK HIS HEAD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the key lock box on the outside of building, on which plaintiff struck his head, was open and obvious and not inherently dangerous:

The plaintiff alleges that …, as he was walking out of the defendants’ Wendy’s restaurant, he turned right and struck his head on a black Fire Department key lock box that was affixed to the exterior of the red brick wall of the building. The plaintiff commenced this action against the defendants, alleging negligence in, among other things, the maintenance of their premises. In his pleadings, the plaintiff alleged that the presence and positioning of the lock box on the exterior wall constituted a dangerous condition. …

On their motion for summary judgment, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that the subject condition was both open and obvious, and not inherently dangerous  … . In opposition, the plaintiff failed to raise a triable issue of fact … . Erario v Wen Shirley, LLC, 2019 NY Slip Op 01059, Second Dept 2-13-19

 

MOTION TO EXTEND TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED IN THE INTEREST OF JUSTICE, THE STATUTE OF LIMITATIONS HAD RUN AT THE TIME THE MOTION TO EXTEND WAS MADE (SECOND DEPT).

The Second Department determined plaintiff was entitled to an extension of time to serve the summons and complaint in the interest of justice, noting that the statute of limitations had expired when plaintiff made her motion to extend:

The interest of justice standard “requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties” … . “Unlike an extension request premised on good cause, a plaintiff [seeking an extension in the interest of justice] need not establish reasonably diligent efforts at service as a threshold matter” … . “However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the [potentially] meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … .

We agree with the Supreme Court’s determination granting, in the interest of justice, that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant. The statutory 120-day period for service of process commenced in November 2016… . In December 2016, the plaintiff attempted service on the defendant on multiple occasions. Moreover, she promptly moved, inter alia, for an extension of time to serve the summons and complaint after the defendant challenged the service on the ground that it was defective … . The statute of limitations had expired at the time the plaintiff made her motion, and there was no demonstrable prejudice to the defendant. Darko v Guerrino, 2019 NY Slip Op 01058, Second Dept 2-13-19

 

NISSAN, AS THE LESSOR OF THE VEHICLE, WAS ENTITLED TO DISMISSAL OF THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE PURSUANT TO THE GRAVES AMENDMENT, THE COMPLAINT ALLEGED NEGLIGENT MAINTENANCE OR MECHANICAL MALFUNCTION, NISSAN DEFENDANTS DEMONSTRATED THEY DO NOT INSPECT, REPAIR, MAINTAIN OR SERVICE THE VEHICLES THEY LEASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Nissan’s motion to dismiss the complaint in this traffic accident case should have been granted pursuant to the Graves Amendment:

Under the Graves Amendment, in order for recovery to be barred, the owner, or an affiliate of the owner, must be engaged in the trade or business of renting or leasing motor vehicles, and the owner, or its affiliate, must not be negligent … .

Here, the Nissan defendants demonstrated that they were the owners of the subject vehicle and were engaged in the business of renting or leasing motor vehicles… . Additionally, to the extent that the plaintiff’s theory of negligent maintenance or mechanical malfunction was supported by factual allegations, the Nissan defendants established that the allegations were not facts at all through its submissions showing that the Nissan defendants never possess, inspect, repair, maintain, or service the vehicles they lease and that it was the sole responsibility of the lessee of the subject vehicle … to maintain that vehicle … . Cukoviq v Iftikhar, 2019 NY Slip Op 01057, Second Dept 2-13-19

 

PLAINTIFF, WHO WAS HIRED TO MONITOR ASBESTOS LEVELS AT THE WORK SITE, AND WHO FELL AT THE SITE, WAS ENGAGED IN AN ACTIVITY COVERED BY THE LABOR LAW (SECOND DEPT).

The Second Department determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 200 causes of action should not have been granted. Plaintiff was hired to test the air for asbestos at the construction site. He fell when he stepped on a milk crate which was allegedly used by workers to access a scaffold. The court noted that the type of inspection work done by the plaintiff was covered by the Labor Law:

Whether inspection work falls within the purview of Labor Law §§ 240(1) and 241(6) “must be determined on a case-by-case basis, depending on the context of the work” … . Here, the plaintiff, an environmental technician tasked with ensuring that asbestos was properly removed from the school, was a “covered” person under Labor Law §§ 240(1) and 241(6) because “his inspections were essential, ongoing, and more than mere observation” … . Channer v ABAX Inc., 2019 NY Slip Op 01053, Second Dept 2-13-19

 

 

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