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SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT).

The Second Department determined defendant homeowners’ motion for summary judgment in this slip and fall case was properly granted. Plaintiff slipped and fell on ice and snow which was on defendants’ front steps. The defendants demonstrated the storm in progress rule applied and the condition was open and obvious:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including climatological data, demonstrating that they did not have a reasonable opportunity to remedy the condition under the storm in progress rule … . Similarly, the defendants did not have a duty to warn the plaintiff of the open and obvious condition on the front step … . De Chica v Saldana, 2017 NY Slip Op 06251, Second Dept 8-23-17

NEGLIGENCE (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/SLIP AND FALL (SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/WARN, DUTY TO (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))

SECOND MECHANIC’S LIEN MAY BE FILED TO CORRECT THE NAMING OF THE WRONG CONTRACTOR IN THE FIRST LIEN (SECOND DEPT).

The Second Department, reversing Supreme Court’s discharge of a mechanic’s lien, noted that the filing of a second mechanic’s lien to correct a mistake (i.e., naming the wrong party) would be timely as long as the statute of limitations had not run at the time the second lien was filed. In this case, the general contractor’s motion for summary judgment should have been denied because ITS motion papers did not indicate when the statute of limitations began to run:

A public improvement mechanic’s lien may be filed “[a]t any time before the construction or demolition of a public improvement is completed and accepted by the . . . public corporation, and within thirty days after such completion and acceptance” (Lien Law § 12). “Such authority would seem to include the right to file a second lien within the time so provided, at least to cure an irregularity in a lien first filed, or to reassert a lien when the prior one has been lost by delay in its enforcement” … . ” The significant date in section 12 of the Lien Law is the completion and acceptance by the public corporation. The requirement is in the conjunctive and both branches must be met . . . before the time starts running'” … . “Both these requirements, completion and acceptance, are usually questions of fact” … . Munoz Trucking Corp. v Darcon Constr., Inc., 2017 NY Slip Op 06283, Second Dept 8-23-17

LIEN LAW (MECHANIC’S LIEN, SECOND MECHANIC’S LIEN MAY BE FILED TO CORRECT THE NAMING OF THE WRONG CONTRACTOR IN THE FIRST LIEN (SECOND DEPT))/MECHANIC’S LIEN ( SECOND MECHANIC’S LIEN MAY BE FILED TO CORRECT THE NAMING OF THE WRONG CONTRACTOR IN THE FIRST LIEN (SECOND DEPT))

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MISTAKEN COMMENCEMENT DATE IN A LEASE IS A SUFFICIENT GROUND FOR RESCISSION (SECOND DEPT).

The Second Department determined a mistaken start-date in the lease was a sufficient ground for rescission:

Rescission “rests upon the equitable principle that a person shall not be allowed to enrich himself [or herself] unjustly at the expense of another” … , and is invoked “where the parties can be substantially restored to their status quo ante positions” … . The remedy of rescission may be granted where, as here, a mistake existed at the time the contract was entered into if “the mistake is so material that . . . it goes to the foundation of the agreement”… .

Here, the landlord’s principal admitted at trial that a mistake was made regarding the commencement date of the parties’ lease. Contrary to the landlord’s contention, however, the mistake as to the commencement date related to a material term of the lease … , and substantially defeated the purpose of the lease. K.A.M.M. Group, LLC v 161 Lafayette Realty, Inc., 2017 NY Slip Op 06260, Second Dept 8-23-17

 

LANDLORD-TENANT (LEASE, MISTAKEN COMMENCEMENT DATE IN A LEASE IS A SUFFICIENT GROUND FOR RESCISSION (SECOND DEPT))/LEASE (MISTAKEN COMMENCEMENT DATE IN A LEASE IS A SUFFICIENT GROUND FOR RESCISSION (SECOND DEPT))/RESCISSION (LEASE, MISTAKEN COMMENCEMENT DATE IN A LEASE IS A SUFFICIENT GROUND FOR RESCISSION (SECOND DEPT))

BANK DID NOT DEMONSTRATE COMPLIANCE WITH REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank did not demonstrate compliance with statutory notice requirements:

… [T]he plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304 … . In support of its motion, the plaintiff submitted, inter alia, the affidavit of Rodolfo Arias, its vice president of loan documentation, along with a copy of a 90-day notice to the defendants dated May 9, 2010, and Proof of Filing Statements from the New York State Department of Financial Services, demonstrating that the plaintiff filed the information required by RPAPL 1306. Arias stated in his affidavit that the letter dated May 9, 2010, was forwarded to the defendants “by regular and certified mail,” and annexed to his affidavit a copy of the letter. The letter contained a bar code with a 20-digit number below it, but no language indicating that a mailing was done by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service… . While mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay, Arias did not make the requisite showing that he was “familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . The plaintiff’s submission of the Proof of Filing Statements pursuant to RPAPL 1306 was also unavailing. While the statements constituted some proof that a mailing was done, they contained no information indicating that the mailing was done by both registered or certified mail and first-class mail in accordance with RPAPL 1304 … . Wells Fargo Bank, N.A. v Lewczuk, 2017 NY Slip Op 06318, Second Dept 8-23-17

FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE PROCEEDING (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE PROCEEDING (SECOND DEPT))

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PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT).

The Second Department determined one of the petitioners did not have standing to contest the board’s State Environmental Quality Review Act (SEQRA) ruling because he lived more that 2000 feet from the proposed gas station. The other petitioners, whose businesses were across the street from the proposed gas station, had standing. The Second Department held that the board had not taken the required “hard look” at the proposal to add a gas station with 16 pumps to the project which had been approved:

… [T]he Supreme Court properly concluded that the Planning Board failed to comply with the substantive requirements of SEQRA in determining that a second SEIS (Supplemental Environmental Impact Statement] was not required prior to its approval of the site plan. As is relevant to this appeal, a lead agency may require a SEIS, “limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from . . . changes proposed for the project” (6 NYCRR 617.9[a][7][i]). “In making this fact-intensive determination, the lead agency has discretion to weigh and evaluate the credibility of reports and comments submitted to it and must assess environmental concerns in conjunction with other economic and social planning goals”… .

Although a lead agency’s determination whether to require a SEIS, or a second SEIS, is discretionary … , the lead agency must “consider[ ] the environmental issues requiring permits” and must make “an independent judgment that they would not create significant environmental impact” … . Here, the changes proposed for the project after the issuance of the 2009 findings statement included the construction of a large convenience store with 16 gas pumps. …

Under these circumstances, the Planning Board failed to take the requisite hard look at the project change adding the gas station, and did not make a reasoned elaboration of its basis for determining that a second SEIS was not necessary to address that change … . Matter of Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Bd., 2017 NY Slip Op 06273, Second Dept 8-23-17

 

ENVIRONMENTAL LAW (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/STANDING, ENVIRONMENTAL LAW, (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD’S SEQRA RULING APPROVING CONSTRUCTION (SECOND DEPT))

USE OF SIGNERS’ POST OFFICE BOX ADDRESSES ON THE DESIGNATING PETITION WAS PROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the use of the signers’ post office box addresses on the designating petition was proper and did not warrant invalidation:

A candidate’s designating petition must set forth “the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed” (Election Law § 6-130 … ; see Election Law § 6-140[1][a]). Pursuant to the Election Law, “residence” shall be deemed to mean “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return,” but does not specify the manner in which such address shall be recorded, except that customary abbreviations may be used (Election Law § 1-104[22]; see Election Law § 6-134[5]). However, the Election Law also provides that “[a] signature on a petition sheet shall not be deemed invalid solely because the address provided is the post office address of the signer provided that proof that such address is the accepted address of such signer is provided to the board of elections no later than three days following the receipt of specific objections to such signature” (Election Law § 6-134[12]). In addition, the Election Law specifies that a voter’s registration record shall include, inter alia, both “[t]he residence address at which the voter claims to reside and post office address, if not the same” and “[t]he assembly district or ward and the election district in which such residence address is located” (Election Law § 5-500[4][d], [e]).

Here, the signers listed their post office addresses, which are the same addresses utilized by the BOE [Board of Elections] for mailing purposes. Further, the “walk lists” provided for the candidates’ use in canvassing contain those address designations. The BOE asserts that its records also contain a five-digit code identifying the town, ward, and district for each address and that the codes for the addresses in question indicate that, for polling purposes, the addresses at issue lie within the Town of Harrison. The designating petition sets forth “the signer[‘s]” residence addresses, within the geographical boundaries of the Town of Harrison. Thus, under the particular circumstances of this case, the BOE should not have sustained the objections to the signatures at issue … . Matter of Giordano v Westchester County Bd. of Elections, 2017 NY Slip Op 06272, Second Dept 8-23-17

 

ELECTION LAW (USE OF SIGNERS’ POST OFFICE BOX ADDRESSES ON THE DESIGNATING PETITION WAS PROPER (SECOND DEPT))/DESIGNATING PETITIONS (ELECTION LAW, USE OF SIGNERS’ POST OFFICE BOX ADDRESSES ON THE DESIGNATING PETITION WAS PROPER (SECOND DEPT))

PROCEEDING TO VALIDATE A DESIGNATING PETITION SHOULD HAVE BEEN DISMISSED AS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proceeding to validate a designating petition should have been dismissed as untimely:

“A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later” (Election Law § 16-102[2]). ” A petitioner raising a challenge under Election Law § 16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102(2)'” … . A petitioner in a special proceeding under Election Law article 16 is required to provide notice of the proceeding “as the court or justice shall direct” (Election Law § 16-116). The Court of Appeals has repeatedly interpreted the notice requirement of Election Law § 16-116 to ” call[ ] for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced'” … . Here, the parties agree that the last day to commence a proceeding to validate the subject designating petition was July 31, 2017. Thus, contrary to the court's finding, the petitioner was required both to file the petition to validate the designating petition and to serve all necessary parties on or before that date… . Since the petitioner failed to effect service on or before July 31, 2017, this proceeding was not timely commenced … . Matter of DeStefano v Borkowski, 2017 NY Slip Op 06269, Second Dept 8-23-17

ELECTION LAW (PROCEEDING TO VALIDATE A DESIGNATING PETITION SHOULD HAVE BEEN DISMISSED AS UNTIMELY (SECOND DEPT))/DESIGNATING PETITION (ELECTION LAW, PROCEEDING TO VALIDATE A DESIGNATING PETITION SHOULD HAVE BEEN DISMISSED AS UNTIMELY (SECOND DEPT))

DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT).

The Second Department determined Supreme Court should have invalidated a designating petition because the office which was sought by the candidate was not sufficiently described:

Supreme Court erred in finding that the designating petition sufficiently described the office Larsen sought. “Election Law § 6-132(1) requires that each sheet of a designating petition state the public office or party position sought by the candidate'” … . Since many public offices and party positions are susceptible to a variety of descriptions, the “description will be deemed adequate so long as the petition, read as a whole, is sufficiently informative . . . so as to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections'” … .

Here, the candidates’ designating petition described the public office Larsen sought as “Town Board, Town of East Hampton,” but failed to specify the position Larsen sought to fill. Pursuant to Town Law § 60(1), every town board consists of “the supervisor” and “the town councilmen.” These are different public offices, and the candidates elected to each office serve terms of different lengths. By failing to specify the position Larsen sought, the candidates’ designating petition was not sufficiently informative so as to preclude the possibility of confusion … . Accordingly, the Supreme Court should have granted that branch of the petition which was to invalidate so much of the designating petition as pertained to Larsen. Matter of Bragman v Larsen, 2017 NY Slip Op 06267, Second Dept 8-23-17

ELECTION LAW (DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT))/DESIGNATING PETITION (ELECTION LAW, DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT))

PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the prosecutor’s reasons for striking two black prospective jurors were pretextual:

… [T]he record demonstrates that the race-neutral reasons for challenging prospective jurors Nos. 2 and 8 were not applied equally to exclude other prospective jurors who were not black, even though those other jurors had answered the subject hypothetical questions in the same way that prospective jurors Nos. 2 and 8 had answered. Although the uneven application of race-neutral factors does not always indicate pretext where the prosecution can articulate other legitimate reasons to justify the uneven use of its challenges… , the prosecution here failed to do so. Under the circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging prospective jurors Nos. 2 and 8 were pretextual … . Accordingly, the defendant is entitled to a new trial …. . People v Brown, 2017 NY Slip Op 06289, Second Dept 8-23-17

CRIMINAL LAW (JURORS, BATSON CHALLENGE, PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))/JURORS (CRIMINAL LAW, BATSON CHALLENGE, PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))/BATSON CHALLENGE (PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))

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HEALTH SERVICES PROVIDERS’ COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging breach of an implied covenant of good faith and fair dealing should not have been dismissed.  Plaintiffs (heath services providers, hereinafter “the PC”) sued defendant health plan (Fidelis) alleging the health plan did not have grounds for terminating the PC’s contract. The court held the complaint stated a cause of action for breach of the implied covenant of fair dealing, as well as a cause of action alleging a violation of Public Health Law 4406-d:

Even if a party is not in breach of its express contractual obligations, it may be in breach of the implied covenant of good faith and fair dealing when it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain … . Technically complying with the terms of a contract while depriving the plaintiff of the benefit of the bargain may constitute a breach of the covenant of good faith and fair dealing … . Further, “[w]here the contract contemplates the exercise of discretion, this pledge includes a promise not to act arbitrarily or irrationally in exercising that discretion”… .

… The allegations in the complaint that the defendants acted in bad faith by terminating the agreement without justification and by fabricating information to try to justify the termination because the plaintiffs “were determined to be outliers’ with regard to the number and cost of those medical services provided by Plaintiffs to Defendants’ members” were sufficient to state a cause of action to recover damages for breach of contract based upon the alleged breach of the implied covenant of good faith and fair dealing. * * *

… [T]he PC stated a cause of action to recover damages for violation of Public Health Law § 4406-d. The PC is a health care professional that contracted with a health care plan and, therefore, falls within the purview of Public Health Law § 4406-d(2)(a). In addition, the PC is a member of the class for whose particular benefit the statute was enacted. The statute provides for enhanced health care provider protections … . Moreover, a private right of action would be consistent with the legislative scheme, since the statute offers no other practical means of enforcement such that a private right of action is necessary to trigger the protections intended to be afforded to health care providers … . Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 2017 NY Slip Op 06242, Second Dept 8-23-17

CONTRACT LAW (HEALTH SERVICES PROVIDERS’ COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))/COVENANT OF GOOD FAITH AND FAIR DEALING (CONTRACT LAW, HEALTH SERVICES PROVIDERS’ COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))/PUBLIC HEALTH LAW (HEALTH SERVICES PROVIDERS’ COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))

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