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FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY.

The Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell when he attempted to descend a 28-foot ladder. Apparently a 40-foot ladder would have been safer, but there was no showing a 40-foot ladder was available. Therefore plaintiff’s use of a 28-foot ladder could not be the sole proximate cause of his injury:

… [T]he plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that he was injured when he fell while descending an unsecured, 28-foot ladder, and that he was not provided with a safety device to prevent him from falling … . Contrary to Halsted’s (defendant’s) contention, it failed to raise a triable issue of fact as to whether the plaintiff’s decision to use a 28-foot ladder, rather than a 40-foot ladder, was the sole proximate cause of his injuries. The record reveals that there were no 40-foot ladders readily available to the plaintiff on the date of his accident, and that a Halsted employee nevertheless instructed the plaintiff that he was required to complete his job, or be fired. Under these circumstances, the plaintiff’s use of the 28-foot ladder cannot be said to be the sole proximate cause of his injuries … . Pacheco v Halsted Communications, Ltd., 2016 NY Slip Op 07303, 2nd Dept 11-9-16

LABOR LAW-CONSTRUCTION LAW (FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)/LADDERS (FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)/SOLE PROXIMATE CAUSE (LABOR LAW, FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)

REPAIR OF AN AIR CONDITIONER WAS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240(1) OR 246(1), LADDER WAS NOT DEFECTIVE AND DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK, THEREFORE NO LIABILITY UNDER LABOR LAW 200(1) AS WELL.

The Second Department determined defendant (Nickel) was entitled to summary judgment dismissing the Labor Law 200(1), 246(1) and 240(1) causes of action. Plaintiff was injured when he fell of a ladder while attempting to fix an air conditioner which had stopped running. Plaintiff was not engaged in a protected activity under Labor Law 240(1) or 246(1). The Labor Law 200(1) cause of action was properly dismissed because defendant did not control the manner of plaintiff’s work:

Nickel submitted evidence sufficient to establish, prima facie, that the plaintiff was not engaged in an enumerated activity protected under Labor Law § 240(1) at the time of his accident. Furthermore, Nickel submitted evidence sufficient to establish, prima facie, that the plaintiff’s accident did not involve construction, demolition, or excavation and, accordingly, that Labor Law § 241(6) does not apply. In opposition, the plaintiff failed to raise a triable issue of fact.

Supreme Court properly granted that branch of Nickel’s motion which was for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it, albeit for a different reason. Nickel established, prima facie, that the ladder was not defective, and the plaintiff conceded that fact. Thus, the potential liability of Nickel, contrary to the Supreme Court’s finding, was not based on its actual or constructive notice of any dangerous or defective condition of the ladder … . Instead, the plaintiff allegedly was injured as a result of the manner in which he performed his work. Accordingly, recovery against Nickel under Labor Law § 200 or under the common law may only be found if Nickel had the authority to supervise or control the performance of the work … . Nickel established, prima facie, that it did not have authority to exercise supervision or control over the means and methods of the plaintiff’s work. In opposition, the plaintiff failed to raise a triable issue of fact … . Mammone v T.G. Nickel & Assoc., LLC, 2016 NY Slip Op 07300, 2nd Dept 11-9-16

 

LABOR LAW-CONSTRUCTION LAW (REPAIR OF AN AIR CONDITIONER WAS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240(1) OR 246(1), LADDER WAS NOT DEFECTIVE AND DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK, THEREFORE NO LIABILITY UNDER LABOR LAW 200(1) AS WELL)/LADDERS  (REPAIR OF AN AIR CONDITIONER WAS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240(1) OR 246(1), LADDER WAS NOT DEFECTIVE AND DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK, THEREFORE NO LIABILITY UNDER LABOR LAW 200(1) AS WELL)

REPLACING A SPEAKER IN CONJUNCTION WITH INSTALLING PANELING CONSTITUTED ALTERING, ALLEGATION THE LADDER SWAYED SUFFICIENT TO DEMONSTRATE THE FAILURE TO SECURE THE LADDER CAUSED THE FALL.

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(10 cause of action should have been granted. Plaintiff had been hired to install wood paneling. Speakers were removed from wall to install the paneling. Plaintiff was standing on an A-frame ladder, replacing one of the speakers when the ladder swayed and he fell. The Second Department held that plaintiff was engaged in “altering,” a covered activity, and the allegation that the ladder swayed was sufficient to link the fall to a failure of a safety device (failure to secure the ladder):

Although the defendant contends that the act of rehanging a speaker does not constitute the “altering” of a building or structure, “[t]he intent of [Labor Law § 240(1)] was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts” … . The plaintiff was injured while rehanging a speaker that he and his coworkers had removed to enable them to install the wood paneling and, therefore, we conclude that the plaintiff was injured while performing work that was “ancillary to” a covered activity, entitling him to the protections afforded by Labor Law § 240(1) … . “To myopically focus on a job title or the plaintiff’s activities at the moment of the injury would be to ignore the totality of the circumstances in which the plaintiff and his employer were engaged in contravention of the spirit of the statute which requires a liberal construction in order to accomplish its purpose of protecting workers” … .

Further, the plaintiff established, prima facie, the existence of a violation of Labor Law § 240(1) that was a substantial factor in causing his injuries … . “A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1). There must be evidence that the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries” … . Here, the plaintiff’s proof established that the ladder from which he fell was inadequately secured to provide him with proper protection, and that the failure to secure the ladder was a proximate cause of his injuries … . Goodwin v Dix Hills Jewish Ctr., 2016 NY Slip Op 07293, 2nd Dept 11-9-16

LABOR LAW-CONSTRUCTION LAW (REPLACING A SPEAKER IN CONJUNCTION WITH INSTALLING PANELING CONSTITUTED ALTERING, ALLEGATION THE LADDER SWAYED SUFFICIENT TO DEMONSTRATE THE FAILURE TO SECURE THE LADDER CAUSED THE FALL)/ALTERING (LABOR LAW 240(1), REPLACING A SPEAKER IN CONJUNCTION WITH INSTALLING PANELLING CONSTITUTED ALTERING, ALLEGATION THE LADDER SWAYED SUFFICIENT TO DEMONSTRATE THE FAILURE TO SECURE THE LADDER CAUSED THE FALL)/LADDERS (LABOR LAW 240(1), REPLACING A SPEAKER IN CONJUNCTION WITH INSTALLING PANELLING CONSTITUTED ALTERING, ALLEGATION THE LADDER SWAYED SUFFICIENT TO DEMONSTRATE THE FAILURE TO SECURE THE LADDER CAUSED THE FALL)

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COMPLAINT STATED A CAUSE OF ACTION AGAINST BROKER INDIVIDUALLY FOR NEGLIGENT MISREPRESENTATION AND FOR BREACH OF A FIDUCIARY DUTY AGAINST THE BROKER’S CORPORATION.

The Second Department, reversing (modifying), Supreme Court determined the complaint stated a cause of against for negligent misrepresentation against an insurance broker (Weiss) individually and for breach of fiduciary duty against the broker’s corporation (JDW). It was alleged that the defendants failed to add plaintiff’s landlord as an additional insured and the broker signed a certificate which falsely indicated the landlord had been added to the policy:

Here, the Supreme Court erred in determining, upon reargument, that the complaint failed to state a cause of action sounding in negligent misrepresentation against Weiss individually. … [W]e note that the complaint, as amplified by the evidentiary materials submitted by the plaintiffs, alleged that Weiss personally signed a certificate of insurance falsely stating that the plaintiffs’ landlord had been added as an additional insured on a certain commercial general liability insurance policy, and forwarded this certificate to the plaintiffs, knowing that it was required by the plaintiffs’ landlord. This is sufficient, for purposes of CPLR 3211(a)(7), to state a cause of action against Weiss, based on his personal participation in the commission of a tort … . * * *

The common-law rule is that “an insurance broker acting as an agent of its customer has a duty of reasonable care to the customer to obtain [specifically] requested coverage within a reasonable time after the request, or to inform the customer of the agent’s inability to do so, [but] the agent owes no continuing duty to advise, guide or direct the customer insured to obtain additional coverage” … . However “[w]here a special relationship develops between the broker and client, . . . [the] broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage” … . The Court of Appeals has identified three “exceptional situations” which may give rise to such a special relationship: ” (1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on'” … .

Here, contrary to the defendants’ contention, the complaint sufficiently alleged that there was a course of dealing between JDW and the plaintiffs over an extended period of time, which may have given rise to a special relationship between them … . JT Queens Carwash, Inc. v JDW & Assoc., Inc., 2016 NY Slip Op 07295, 2nd Dept 11-9-16

 

INSURANCE LAW (COMPLAINT STATED A CAUSE OF ACTION AGAINST BROKER INDIVIDUALLY FOR NEGLIGENT MISREPRESENTATION AND FOR BREACH OF A FIDUCIARY DUTY AGAINST THE BROKER’S CORPORATION)/CORPORATION LAW (INSURANCE LAW, COMPLAINT STATED A CAUSE OF ACTION AGAINST BROKER INDIVIDUALLY FOR NEGLIGENT MISREPRESENTATION AND FOR BREACH OF A FIDUCIARY DUTY AGAINST THE BROKER’S CORPORATION)/NEGLIGENT MISREPRESENTATION (INSURANCE LAW, COMPLAINT STATED A CAUSE OF ACTION AGAINST BROKER INDIVIDUALLY FOR NEGLIGENT MISREPRESENTATION AND FOR BREACH OF A FIDUCIARY DUTY AGAINST THE BROKER’S CORPORATION)/FIDUCIARY DUTY (INSURANCE LAW, COMPLAINT STATED A CAUSE OF ACTION AGAINST BROKER INDIVIDUALLY FOR NEGLIGENT MISREPRESENTATION AND FOR BREACH OF A FIDUCIARY DUTY AGAINST THE BROKER’S CORPORATION)

WHEN PARENTS HAVE EQUAL PARENTING TIME, THE PARENT WITH THE HIGHER INCOME SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES.

The Second Department, reversing Family Court, determined that mother, who had a substantially higher income than father, should be deemed the noncustodial parent because mother and father had equal parenting time. Therefore, father was entitled to child support from mother:

The “custodial parent” within the meaning of the Child Support Standards Act is the parent who has physical custody of the child for the majority of the time … . Where neither parent has the child for a majority of the time, the parent with the higher income, who bears the greater share of the child support obligation, should be deemed the noncustodial parent for the purposes of child support … . Matter of Conway v Gartmond, 2016 NY Slip Op 07319, 2nd Dept 11-9-16

FAMILY LAW (WHEN PARENTS HAVE EQUAL PARENTING TIME, THE PARENT WITH THE HIGHER INCOME SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES)/CHILD SUPPORT (WHEN PARENTS HAVE EQUAL PARENTING TIME, THE PARENT WITH THE HIGHER INCOME SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES)/NONCUSTODIAL PARENT (WHEN PARENTS HAVE EQUAL PARENTING TIME, THE PARENT WITH THE HIGHER INCOME SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES)

DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING PLAINTIFF TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING PLAINTIFF WAS NOT A PARENT FOR THE PURPOSE OF VISITATION.

The Second Department, reversing Family Court, determined defendant mother was judicially estopped from arguing plaintiff was not a parent for the purpose of visitation. Defendant had previously successfully obtain an order requiring plaintiff to pay child support:

The defendant was judicially estopped from arguing that the plaintiff was not a parent for the purpose of visitation. First, by asserting in her child support petition that the plaintiff was chargeable with support for the subject child, the plaintiff assumed the position before the Family Court that the plaintiff was the subject child’s parent, as it is parents who are chargeable with the support of their children (see Family Ct Act § 413[1][a]). Next, based on her assertion that the plaintiff was chargeable with the subject child’s support, the defendant successfully obtained an order compelling the plaintiff to pay child support for the subject child … . Under this order, the plaintiff was required to pay child support for his children, including the subject child. Furthermore, the record does not support the court’s finding that the defendant unequivocally waived the right to child support. Therefore, the defendant is judicially estopped from arguing that the plaintiff is not a parent for the purpose of visitation … . Paese v Paese, 2016 NY Slip Op 07304, 2nd Dept 11-9-16

FAMILY LAW (DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING DEFENDANT TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING DEFENDANT WAS NOT A PARENT FOR THE PURPOSE OF VISITATION)/VISITATION (DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING DEFENDANT TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING DEFENDANT WAS NOT A PARENT FOR THE PURPOSE OF VISITATION)/CHILD SUPPORT (DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING DEFENDANT TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING DEFENDANT WAS NOT A PARENT FOR THE PURPOSE OF VISITATION)/JUDICIAL ESTOPPEL (FAMILY LAW, DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING DEFENDANT TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING DEFENDANT WAS NOT A PARENT FOR THE PURPOSE OF VISITATION)

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DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW.

The Second Department determined Supreme Court erred in finding defendant did not have standing to contest the search of a van. The court explained that it could not consider the merits of the suppression motion because the merits were not ruled upon by the court below. The options for handling this scenario were explained in some detail. The court opted to hold the appeal in abeyance and remit the matter for a suppression hearing:

This Court has deemed it appropriate to reverse or modify the judgment of conviction, rather than holding the appeal in abeyance, where no purpose would be served by holding the appeal and directing that a new determination be made. This is the case, for example, where a determination of the alternative issue would not change the ultimate determination of the suppression motion … , or where the trial court has already determined the alternative issue in the defendant’s favor, in which case the issue would, in all likelihood, be decided in the defendant’s favor again, and thus would remain unreviewable after remittal … . However, where, as here, the alternative issue raised by the People on appeal has not been determined by the trial court, and the resolution of that issue could affect the determination of the suppression motion, we deem it appropriate to hold the defendant’s appeal in abeyance and remit the matter for consideration of the alternative issue. People v Chazbani, 2016 NY Slip Op 07337, 2nd Dept 11-9-16

 

CRIMINAL LAW (DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)/APPEALS (CRIMINAL LAW, DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)

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COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL.

The Second Department determined plaintiff had stated a cause of action under the “pierce the corporate veil” theory. Weaver was the developer of a construction project and Andrea was the general contractor. Defendant Weinberg was a member of Weaver and a shareholder of Andrea. Plaintiff had obtained a unpaid judgment against Andrea. Plaintiff alleged Weinberg abused the privilege of doing business in corporate form and sought to pierce the corporate veil and hold Weinberg liable for Andrea’s debts. The court noted that, although the contention that New York does not recognize a cause of action for piercing the corporate veil was not raised below, the question could be considered on appeal because it involves a question of law which appears on the record and which could not have been avoided if raised at the proper time:

To survive a motion to dismiss the complaint, a party seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted (1) exercised complete domination over the corporation with respect to the transaction at issue, and (2) through such domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court in equity will intervene … . “Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to [corporate or] LLC formalities, inadequate capitalization, commingling of assets, and the personal use of [corporate or] LLC funds” … .

“Additionally, the corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator’s business instead of its own and can be called the other’s alter ego” … . A cause of action under the doctrine of piercing the corporate veil is “not required to meet any heightened level of particularity in its allegations … .

Here, the plaintiff adequately pleaded allegations that Weinberg dominated Andrea, and that he engaged in acts amounting to an abuse of the corporate form to perpetrate a wrong or injustice against the plaintiff. In this regard, the plaintiff alleged that Andrea was inadequately capitalized, that Weinberg commingled the assets of Andrea with the assets of Weaver, that Weinberg failed to adhere to corporate formalities with respect to Andrea, that Weinberg kept assets out of Andrea to avoid paying its debts and the judgment to the plaintiff, and that Weinberg used the account of Weaver to partially pay the debts of Andrea to the plaintiff. The plaintiff also sufficiently pleaded allegations that Weaver was the alter ego of Andrea. Olivieri Constr. Corp. v WN Weaver St., LLC, 2016 NY Slip Op 07302, 2nd Dept 11-9-16

 

CORPORATION LAW(COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)/PIERCING THE CORPORATE VEIL (COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)/APPEALS (COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)

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COOPERATIVE BOARD’S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE.

The Second Department determined the cooperative board’s parking restriction was a proper exercise of the business judgment rule (and did not constitute a breach of fiduciary duty):

“In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board’s determination [s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith'”… . “[D]ecision making tainted by discriminatory considerations is not protected by the business judgment rule'” … .

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that the decision to enforce parking rules and prohibit parking in the grass area behind one of the cooperative buildings was protected by the business judgment rule … . In particular, the defendants demonstrated that they were acting in the best interests of the cooperative after making a number of capital improvements that added to the aesthetics and value of the property. Beach Point Partners v Beachcomber, Ltd., 2016 NY Slip Op 07284, 2nd Dept 11-9-16

COOPERATIVES (COOPERATIVE BOARD’S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE)/BUSINESS JUDGMENT RULE (COOPERATIVES, COOPERATIVE BOARD’S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE)

AMBIGUOUS TERMS IN CONTRACT NOT CLARIFIED BY PAROL EVIDENCE, TRIABLE ISSUES OF FACT PRECLUDED SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined the applicable provisions of a construction contract were ambiguous and defendant’s motion for summary judgment should have been denied. The plaintiff installed a sidewalk shed around a school building to facilitate its roof work. A dispute arose whether the construction of the sidewalk shed was included in the contract, or whether it was extra work for which extra compensation was due:

A contractor may properly recover payment for extra work that is not contemplated by the terms of the original agreement, and which is performed at the direction of the defendant … . However, a contractor may not recover for any alleged extra work that was actually covered by the terms of the original contract … . * * *

… [T]he contract provision requiring the plaintiff to install sidewalk shedding “to provide proper protection to the school population, workers and pedestrians” is ambiguous with respect to whether it obligated the plaintiff to install a sidewalk shed around the existing building. Moreover, contrary to the Supreme Court’s conclusion, the provision in the contract providing that the plaintiff must install “sidewalk sheds and/or fences . . . in the most conservative manner” is also ambiguous as to whether the plaintiff was required to install a sidewalk shed around the existing building and is subject to different interpretations. The parol evidence submitted by the plaintiff does not conclusively resolve this ambiguity. Thus, in light of these ambiguities as to whether the contract required the plaintiff to perform the work in question, there are triable issues of fact which preclude a grant of summary judgment to either party… . Arnell Constr. Corp. v New York City Sch. Constr. Auth., 2016 NY Slip Op 07282, 2nd Dept 11-9-16

 

CONTRACT LAW (AMBIGUOUS TERMS IN CONTRACT NOT CLARIFIED BY PAROL EVIDENCE, TRIABLE ISSUES OF FACT PRECLUDED SUMMARY JUDGMENT)

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