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TERMINATION OF OUT OF WORK SCHOOL DISTRICT EMPLOYEE PURSUANT TO THE CIVIL SERVICE LAW IS NOT ARBITRABLE, PETITION TO STAY ARBITRATION SHOULD HAVE BEEN GRANTED.

The Second Department determined the school district’s petition to stay arbitration should have been granted. A school district employee, Turco, was injured on the job and was out of work on Workers’ Compensation leave for more than a year. The district terminated his employment pursuant to Civil Service Law 71. Turco filed a grievance with his union alleging the termination violated the collective bargaining agreement. The Second Department held that the matter was not arbitrable because of the conflict between the agreement and the statute:

Despite the general policy favoring the resolution of disputes by arbitration, some matters, because of competing considerations of public policy, cannot be heard by an arbitrator. “If there is some statute, decisional law or public policy that prohibits arbitration of the subject matter of dispute, . . . the claim is not arbitrable'” … . Indeed, the public policy exception can be invoked as a threshold issue to preclude arbitration pursuant to CPLR 7503 … . “Preemptive judicial intervention in the arbitration process is warranted where the arbitrator [cannot] grant any relief without violating public policy” … . * * *

Here, the district terminated Turco’s employment pursuant to Civil Service Law § 71. Section 71 provides that a public employer may terminate an employee who is absent due to an occupational disability for a cumulative period of one year if the employee remains physically or mentally unable to return to work … . Matter of Enlarged City Sch. Dist. of Middletown N.Y. v Civil Serv. Empls. Assn., Inc., 2017 NY Slip Op 02421, 2nd Dept 3-29-17

 

DEPARTMENT OF CONSUMER AFFAIR’S DETERMINATION WAS AFFECTED BY AN ERROR OF LAW WHICH RESULTED IN A MISINTERPRETATION OF THE ADMINISTRATIVE CODE, DETERMINATION SHOULD HAVE BEEN ANNULLED.

The Second Department determined that the imposition of a fine by the NYC Department of Consumer Affairs (DCA) was improper because the fine was based upon a misinterpretation of a provision of the NYC Administrative Code. The Article 78 petition seeking annulment of the DCA’s determination should have been granted:

Here, the DCA’s determination was affected by an error of law, since its interpretation of the Administrative Code provision which the petitioner was charged with violating was unreasonable … . The Administrative Code provision at issue provides, in relevant part: “Any person requesting application information from a prospective tenant or tenants shall post a sign . . . in any location at which the principal purpose is conducting business transactions pertaining to the rental of residential real estate properties” (Administrative Code § 20-809[a]). It was undisputed by the respondents that the petitioner’s business concerned sales of real estate properties, although the petitioner admitted to handling one or two residential rentals per year. Under these circumstances, the petitioner correctly argued that the Administrative Code provision was inapplicable to it because it did not have a “location at which the principal purpose is conducting business transactions pertaining to the rental of residential real estate properties” (id.). Matter of Arash Real Estate & Mgt. Co. v New York City Dept. of Consumer Affairs, 2017 NY Slip Op 02416, 2nd Dept 3-29-17

 

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PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED.

The Second Department determined plaintiff’s slip and fall complaint was properly dismissed because plaintiff could not identify the cause of his fall:

During his 50-h hearing, the injured plaintiff testified that he was walking on the sidewalk and was about to cross the street when his right foot caught on “some sort of stone,” causing him to fall. He did not see the stone before the accident, but after he fell, he looked and saw stones embedded in the earth around a tree, which caught his foot. At his deposition, however, the injured plaintiff testified that as he was about to cross the street, he was paying attention to traffic and his foot “hit something” causing him to lose his balance and fall. This time, he identified a raised portion of the sidewalk, approximately three feet away from the tree, as the cause of his fall. He distinguished this area from the cobblestones around the tree and testified that he did not make contact with the cobblestones, as he was “further down, to the side of the tree.” Contrary to the plaintiffs’ contention, the injured plaintiff’s own contradictory testimony does not create a question of fact … . Rather, it demonstrates that he is unable to identify the cause of his fall and any determination by the trier of fact as to causation would be based upon sheer speculation … . Vojvodic v City of New York, 2017 NY Slip Op 02085, 2nd Dept 3-22-17

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/SLIP AND FALL (PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)/SIDEWALKS (SLIP AND FALL, PLAINTIFF COULD NOT IDENTIFY CAUSE OF HIS FALL, COMPLAINT PROPERLY DISMISSED)

DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. The defendant city owned the sanitation truck (driven by McPhillips) which struck the car in which plaintiff was a passenger:

… [T]he plaintiffs submitted, inter alia, transcripts of the parties’ deposition testimony, which demonstrated, prima facie, that the injured plaintiff was not comparatively at fault for the happening of the subject accident, and that McPhillips was negligent. Contrary to the City’s contention, the transcript of McPhillips’s deposition testimony did not reveal a triable issue of fact as to whether he demonstrated a nonnegligent explanation for the rear-end collision into the other vehicle. Even if, as McPhillips testified, the other vehicle came to a sudden stop at the subject intersection’s yellow traffic light, McPhillips should have anticipated that the other vehicle might come to a stop at the intersection … . Furthermore, McPhillips’s deposition testimony did not rebut the inference of negligence from the rear-end collision, as he testified that he knew that the road was wet from a recent rain shower and he failed to demonstrate that his skid on known road conditions was unavoidable … . Tumminello v City of New York, 2017 NY Slip Op 02083, 2nd Dept, 3-22-17

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)/REAR-END COLLISION (DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)/COMPARATIVE NEGLIGENCE (REAR-END COLLISION, DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED)

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PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE.

The Second Department determined the petition for leave to file a late notice of claim should have been granted, despite of the lack of an adequate excuse. The plaintiff was involved in an accident with a police car. The police report noted that plaintiff was injured. Therefore the city had timely notice of essential elements of the claim:

Here, the City and the NYPD acquired timely actual notice of the facts underlying the claim. The subject motor vehicle accident involved a police department vehicle and police department employee. The NYPD responded to the scene and conducted an investigation into the facts and circumstances surrounding the accident. Indeed, the police accident report specifically noted that the petitioner, as well as the driver of the vehicle in which she was a passenger, made statements alleging that [the officer] was liable. The police accident report also noted that the petitioner was injured and that a copy of the report was being provided to the Office of the Comptroller, as well as the Motor Transport Division and Personal Safety Unit of the NYPD. Thus, the overall circumstances of this matter support an inference that the City effectively received actual notice of the essential facts constituting the claim … . In light of the City’s actual knowledge of the essential facts constituting the claim, there is no substantial prejudice to the City in maintaining a defense … . “[W]here there is actual notice and an absence of prejudice, the lack of reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Jaffier v City of New York, 2017 NY Slip Op 02039, 2nd Dept 3-22-17

NEGLIGENCE (PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)/MUNICIPAL LAW (NOTICE OF CLAIM, PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)/NOTICE OF CLAIM (MUNICIPAL LAW, PLAINTIFF INJURED IN COLLSION WITH A POLICE CAR, POLICE REPORT PROVIDED CITY WITH NOTICE OF THE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE LACK OF EXCUSE)

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LANDLORD (SUBLESSOR) DID NOT OWE A DUTY TO PLAINTIFF’S SUBROGEE TO PREVENT A MENTALLY ILL TENANT FROM SMOKING IN THE APARTMENT WHERE A FIRE STARTED.

The Second Department determined defendant nonprofit did not owe a duty of care to plaintiff’s subrogee for the actions of a tenant which apparently started a fire in the tenant’s apartment. Defendant nonprofit leased apartments to tenants suffering from mental illness. The tenants lived independently with little supervision:

Under limited circumstances, the relationship between a lessor and a lessee can give rise to a duty of care inasmuch as the lessor “must exercise reasonable care not to expose third persons to an unreasonable risk of harm” … . … [T]he relevant inquiry [is] whether the defendant, as sublessor, exposed the plaintiff’s insured in this case to an unreasonable risk of harm. Moreover, in evaluating the existence and scope of the duty of care, we are mindful that where, as here, the action involves only property damage, “the public policies, factors, and other analytical considerations used in setting the orbit of duty are different from those at play in cases involving physical injury” … .

Under the circumstances presented, the defendant established, prima facie, that it owed no duty to the plaintiff’s insured to take affirmative steps to prevent the tenant from smoking in the demised premises … . The evidence showed, inter alia, that all participants in the defendant’s housing program had to be able to live independently, and the degree of oversight provided by the defendant under the terms of its agreement with the tenant was limited. …

“[I]n the absence of fault or a specific contract provision to the contrary, neither the landlord nor the tenant is obligated to perform repairs after a fire” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the breach of contract cause of action by showing that the subject lease did not impose an obligation on it to repair the premises after a fire … , or to answer in damages for a fire caused by its sublessee … . Tower Ins. Co. of N.Y. v Hands Across Long Is., Inc., 2017 NY Slip Op 02082, 2nd Dept 3-22-17

 

NEGLIGENCE (LANDLORD DID NOT OWE A DUTY TO PLAINTIFF’S SUBROGEE TO PREVENT A MENTALLY ILL TENANT FROM SMOKING IN THE APARTMENT WHERE A FIRE STARTED)/INSURANCE LAW (LANDLORD DID NOT OWE A DUTY TO PLAINTIFF’S SUBROGEE TO PREVENT A MENTALLY ILL TENANT FROM SMOKING IN THE APARTMENT WHERE A FIRE STARTED)/LANDLORD-TENANT (LANDLORD DID NOT OWE A DUTY TO PLAINTIFF’S SUBROGEE TO PREVENT A MENTALLY ILL TENANT FROM SMOKING IN THE APARTMENT WHERE A FIRE STARTED)

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LEASE PROVISION ALLOWING THE COLLECTION OF RENT AFTER EVICTION BY SUMMARY PROCEEDINGS VALID AND ENFORCEABLE.

The Second Department determined the clause in the lease which allowed the landlord to collect rent after eviction by summary proceedings was valid and enforceable:

“Although an eviction terminates the landlord-tenant relationship, the parties to a lease are not foreclosed from contracting as they please” … . “Where a lease provides that a landlord is under no duty to mitigate damages after its reentry by virtue of its successful prosecution of a summary proceeding, and that the tenant remains liable for damages, [the tenant] remain[s] liable for all monetary obligations arising under the lease'” … . Here, the lease did not obligate the plaintiff to mitigate damages after a dispossession by summary proceeding and specifically provided that [tenant] would remain liable for rent after eviction. In addition, the lease clearly stated that if [tenant] breached the lease, the plaintiff was not precluded from any other remedy in law or equity. Consequently, the lease did not limit the plaintiff to recovery of only pretermination rent in the event that it commenced a summary eviction proceeding to regain possession of the premises … . L’Aquila Realty, LLC v Jalyng Food Corp., 2017 NY Slip Op 02027, 2nd Dept 3-22-17

LANDLORD-TENANT (LEASE PROVISION ALLOWING THE COLLECTION OF RENT AFTER EVICTION BY SUMMARY PROCEEDINGS VALID AND ENFORCEABLE)/CONTRACT LAW (LANDLORD-TENANT, LEASE PROVISION ALLOWING THE COLLECTION OF RENT AFTER EVICTION BY SUMMARY PROCEEDINGS VALID AND ENFORCEABLE)

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NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT.

The Second Department determined plaintiff was required to file a notice of claim in his Labor Law action against the city. The notice of claim requirement was not preempted by the Longshoreman’s and Harbor Workers’ Compensation Act (LHWCA). Plaintiff was injured while doing overhaul work in a the Brooklyn Navy Yard:

The LHWCA provides nonseaman maritime workers with the right to bring no-fault workers’ compensation claims against their employer, pursuant to 33 USC § 904(b), and negligence claims against the vessel, pursuant to 33 USC § 905(b). As to those two categories of defendants, 33 USC § 905(a) and (b) expressly preempt all other claims, but 33 USC § 933(a) expressly preserves all claims against third parties … . “Importantly, § 933 recognizes that a covered employee may have tort remedies against third parties under federal or state law. Section 933 preserves and codifies a maritime worker’s common law right to pursue a negligence claim against a third party that is not the employer or a coworker; it does not create a cause of action nor establish a third party’s liability for negligence” … . Fernandez v City of New York, 2017 NY Slip Op 02022, 2nd Dept 3-22-17

LABOR LAW-CONSTRUCTION LAW (NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT)/MUNICIPAL LAW (NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT)/NOTICE OF CLAIM (MUNCIPAL LAW, NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT)/LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT (NOTICE OF CLAIM REQUIREMENT FOR LABOR LAW ACTION AGAINST CITY NOT PREEMPTED BY LONGSHOREMAN’S AND HARBOR WORKERS’ COMPENSATION ACT)

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TREE CUTTING NOT COVERED, PILE OF DEBRIS NOT A STRUCTURE, OUT OF POSSESSION LANDLORD NOT LIABLE UNDER LABOR LAW 200.

The Second Department, in the course of a decision addressing the exclusivity of a Workers’ Compensation recovery and Labor Law 240(1), 241(6) and 200 causes of action, noted that tree cutting was not covered under Labor Law 240(1) and a pile of debris was not a structure within the meaning of Labor Law 240(1) and 241(6). The court further noted that defendant (LLC), as an out of possession landlord, was not liable under Labor Law 200 for either the manner in which work is done or a dangerous condition:

The Supreme Court … properly granted that branch of the respondents’ motion which was for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the LLC, as tree cutting and removal are not activities covered by those statutory provisions … , and the evidence established, as a matter of law, that the mound of old tennis court clay, sand, rocks, and other construction debris was not a “structure” under the Labor Law … . Moreover, the respondents established, prima facie, that the tree cutting and removal was ” routine maintenance outside of a construction or renovation context'” … . …

The Supreme Court also properly granted that branch of the respondents’ motion which was for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against the LLC. “Labor Law § 200 is a codification of a property owner’s common-law duty to provide workers at a site with a reasonably safe place to work” … . To the extent that the plaintiff’s claims are based on the manner in which the work was performed, the respondents established, prima facie, that the LLC did not have authority to supervise or control the means and method of the work … . Likewise, to the extent the plaintiff’s claims were based on a dangerous condition on the premises, by presenting the lease between the LLC and the camp, the respondents also established, prima facie, that the LLC, as an out-of-possession landlord, was not responsible for the plaintiff’s injuries … . The LLC relinquished control of the subject property to the camp and placed all responsibility for landscaping and maintenance work on the camp … . Although the LLC reserved a right of entry under the lease, here, this did not provide a sufficient basis on which to impose liability upon the LLC for injuries caused by a dangerous condition, as the condition did not violate a specific statute, nor was it a significant structural or design defect … . Derosas v Rosmarins Land Holdings, LLC, 2017 NY Slip Op 02019, 2nd Dept 3-22-17

LABOR LAW-CONSTRUCTION LAW (TREE CUTTING NOT COVERED, PILE OF DEBRIS NOT A STRUCTURE, OUT OF POSSESSION LANDLORD NOT LIABLE UNDER LABOR LAW 200)/TREE CUTTING (LABOR LAW-CONSTRUCTION LAW, TREE CUTTING NOT COVERED, PILE OF DEBRIS NOT A STRUCTURE, OUT OF POSSESSION LANDLORD NOT LIABLE UNDER LABOR LAW 200)/STRUCTURE (LABOR LAW-CONSTRUCTION LAW, TREE CUTTING NOT COVERED, PILE OF DEBRIS NOT A STRUCTURE, OUT OF POSSESSION LANDLORD NOT LIABLE UNDER LABOR LAW 200)/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW, TREE CUTTING NOT COVERED, PILE OF DEBRIS NOT A STRUCTURE, OUT OF POSSESSION LANDLORD NOT LIABLE UNDER LABOR LAW 200)

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PLAINTIFF WAS NOT INJURED ON THE CONSTRUCTION SITE, LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED, LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION WERE VIABLE HOWEVER, USE OF ALIAS WAS NOT A FRAUD UPON THE COURT.

The Second Department determined the Labor Law 241(6) cause of action should have been dismissed because plaintiff was not injured on the construction site but rather on a storage site a few blocks away. Plaintiff was injured when he stepped in a hole. However the Labor Law 200 cause of action was viable. The Second Department also determined the plaintiff’s use of an alias to bring suit was not a fraud upon the court (plaintiff is an undocumented immigrant) but held that the complaint should be amended to reflect his actual name:

Turning to the plaintiff’s Labor Law § 241(6) cause of action, Royal and Vista established, prima facie, that at the time of the accident the plaintiff was not working in a construction area within the meaning of Labor Law § 241(6) … . They submitted evidence which established that the lot where the accident occurred was located several blocks away from the construction area, and was used to store materials. There was no construction taking place at the lot, and the plaintiff’s accident occurred as he was taking materials to a truck so they could be transported to the construction site. In opposition to this prima facie showing by Royal and Vista, the plaintiff failed to raise a triable issue of fact. …

With respect to the plaintiff’s Labor Law § 200 and common-law negligence causes of action, this accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site. Under such circumstances, liability may be imposed if the property owner created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time … . Similarly, a general contractor may be held liable in common-law negligence and under Labor Law § 200 if it had control over the work site and actual or constructive notice of the dangerous condition … . Bessa v Anflo Indus., Inc., 2017 NY Slip Op 02013, 2nd Dept 3-22-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT INJURED ON THE CONSTRUCTION SITE, LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED, LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION WERE VIABLE HOWEVER)/CIVIL PROCEDURE (PLAINTIFF WAS NOT INJURED ON THE CONSTRUCTION SITE, LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED, LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION WERE VIABLE HOWEVER, USE OF ALIAS WAS NOT A FRAUD UPON THE COURT)/ALIAS (BRINGING SUIT USING AN ALIAS WAS NOT A FRAUD ON THE COURT)/FRAUD (FRAUD UPON THE COURT, BRINGING SUIT USING AN ALIAS WAS NOT A FRAUD ON THE COURT)

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