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GOLFER ASSUMED THE RISK OF SLIPPING ON A WET RAILROAD TIE WHICH LINED A PATH ON THE GOLF COURSE.

The Second Department, reversing Supreme Court, determined plaintiff golfer assumed the risk of slipping on a wet railroad tie which lined a path on the golf course:

 

Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played … .

“[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . Moreover, “[i]t is not necessary to the application of assumption of risk that the injured plaintiff [had] 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” … . While participants are not deemed to have assumed the risks of concealed or unreasonably increased risks … , if “the risks are fully comprehended or obvious and the plaintiff has consented to them, the defendant has satisfied its only duty of care which is to make the conditions as safe as they appear to be” … . Bryant v Town of Brookhaven, 2016 NY Slip Op 00323, 2nd Dept 1-20-16

 

NEGLIGENCE (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURSE PATH)/ASSUMPTION OF RISK (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURS PATH)

ALLEGATION PLAINTIFF WAS TOLD NOT TO WORK ON THE DAY HE FELL FROM A SCAFFOLD PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR; THE DEFINITION OF EMPLOYEE INCLUDES PERMISSION TO WORK.

The Second Department, reversing Supreme Court, determined defendants had raised a triable issue of fact about whether plaintiff had their permission to work when plaintiff fell from a scaffold. The definition of an employee under the Labor Law includes “permission to work.” Here the defendants alleged plaintiff was specifically told not to work until certain demolition work was done:

The Labor Law defines “employee” as “a mechanic, workingman or laborer working for another for hire” (Labor Law § 2[5]), and “employed” as “permitted or suffered to work” (Labor Law § 2[7]). “To come within the special class for whose benefit absolute liability is imposed upon contractors, owners, and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent” … . Aslam v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 2016 NY Slip Op 00316, 2nd Dept 1-20-16

LABOR LAW (DEFINITION OF EMPLOYEE INCLUDES PERMISSION TO WORK, HERE ALLEGATION EMPLOYEE WAS TOLD NOT WORK RAISED ISSUE OF FACT ON LIABILITY)/EMPLOYEE (LABOR LAW DEFINITION INCLUDES REQUIREMENT THAT EMPLOYEE HAVE PERMISSION TO WORK)

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BANK DID NOT NEGOTIATE IN GOOD FAITH IN THE CPLR 3408 MANDATORY FORECLOSURE SETTLEMENT CONFERENCE, CERTAIN SANCTIONS PROPERLY IMPOSED.

The Second Department determined Supreme Court properly found the bank did not negotiate in a mortgage foreclosure settlement conference (CPLR 3408(f)) in good faith and properly imposed certain sanctions on the bank:

 

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see CPLR 3408[f]…). ” The purpose of the good faith requirement [in CPLR 3408] is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution'” … . To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that “the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” … .

Here, contrary to the Bank’s contention, the totality of the circumstances support the Supreme Court’s conclusion that it failed to negotiate in good faith. The homeowner’s submissions demonstrated that the Bank, among other things, engaged in dilatory conduct by “making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided” … . The Bank failed to offer any evidence in opposition to the homeowner’s motion and did not controvert the homeowner’s account of the mandatory settlement negotiations. Accordingly, under the circumstances, the Supreme Court properly concluded that the Bank violated CPLR 3408(f) by failing to negotiate in good faith … . LaSalle Bank, N.A. v Dono, 2016 NY Slip Op 00340, 2nd Dept 1-20-16

 

FORECLOSURE (BANK DID NOT NEGOTIATE IN GOOD FAITH RE: MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CIVIL PROCEDURE (BANK DID NOT NEGOTIATE IN GOOD FAITH IN MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)

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AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER THE DOCTRINE OF COMITY.

The Second Department determined an agreement, called a mahr agreement, which was part of a foreign Islamic divorce decree and which called for the payment to the wife of $250,000, was properly enforced by Supreme Court under the doctrine of comity:

 

“Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States” … . Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York … . Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy … .

Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby … . Badawi v Alesawy, 2016 NY Slip Op 00317, 2nd Dept 1-20-16

 

FAMILY LAW (AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER DOCTRINE OF COMITY)/COMITY (AGREEMENT WHICH WAS PART OF FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED IN SUPREME COURT)

GOOD CAUSE FOR A FIVE-YEAR EXTENSION OF AN ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED.

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Chambers, determined petitioner had made showing of “good cause” for the extension of an order of protection, and the court ordered a five-year extension. The court took the opportunity to define “good cause” in this context:

 

… [I]n determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable … . * * *

The petitioner stated that, because they have a child in common, the parties continue to interact. They come into contact during litigation over custody and visitation issues and when they exchange the child at the drop-off location at the police station. The respondent also has a history of assaulting the petitioner, and their on-going discord continues. There is no evidence in the record to suggest that the petitioner’s more serious allegations were contrived. Moreover, it is undisputed that, since the entry of the subject order of protection, the respondent has pleaded guilty in the Criminal Court to disorderly conduct, and the Criminal Court has issued a two-year order of protection in favor of the petitioner. Therefore, it is clear from the record that the petitioner’s fear that the respondent may stalk, harass, or attack her is well-founded, and that the unavoidable interactions between the parties may subject her to a reoccurrence of violence … . Matter of Molloy v Molloy, 2016 NY Slip Op 00366, 2nd Dept 1-20-16

 

FAMILY LAW (GOOD CAUSE FOR EXTENSION OF ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED)/ORDERS OF PROTECTION (FAMILY COURT, CRITERIA FOR DEMONSTRATION OF GOOD CAUSE FOR AN EXTENSION EXPLAINED)

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RENTAL PERMIT REQUIRED BY TOWN CODE WAS A CONDITION PRECEDENT TO THE LEASE; CODE PROVISION CREATED A PRIVATE RIGHT OF ACTION TO SEEK RESCISSION OF THE LEASE AND RETURN OF RENT PAID.

The Second Department determined plaintiffs-lessees were entitled to bring a private action (pursuant to a provision of the town code) to rescind a lease, and were entitled to rescission and return of the paid rent. After paying $216,000 to lease defendant’s residential property for approximately 3 1/2 months, the plaintiffs learned defendant did not have a rental permit required by section 270 of the town code. The code provision was enacted to address overcrowding in properties rented for the summer. The Second Department held the code provision created a private right of action and the rental permit was a condition precedent to any lease. With respect to the private right of action, the court wrote:

 

Where, as here, a statute “does not explicitly provide for a private cause of action, recovery may be had under the statute only if a legislative intent to create such a right of action is fairly implied’ in the statutory provisions and their legislative history” … . This inquiry involves three factors: ” (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme'” … . The third factor is often noted to be the “most important” … . Where, as here, the legislature clearly contemplated administrative enforcement of the statute, ” [t]he question then becomes whether, in addition to administrative enforcement, an implied private right of action would be consistent with the legislative scheme'”… .

The plaintiffs satisfied the first and second factors here. Town Code § 270 is intended to benefit the occupants of rental properties in the Town of Southampton by requiring owners to obtain a valid rental permit as a condition precedent to the collection of rent (see Town Code § 270-13). Moreover, the legislative purpose is promoted by preventing owners from profiting from the rental of properties that are overcrowded, substandard, or otherwise violate State and Town laws.

The third factor, requiring that a private cause of action under a statute be consistent with the legislative scheme, has also been satisfied. As the Supreme Court correctly observed, Town Code § 270 is directed toward protecting the health, safety, and well-being of persons renting homes in the Town of Southampton. In that regard, Town Code § 270-6 requires that prior to the issuance of a rental permit, the enforcement authority must “make an on-site inspection of the proposed rental property” to ensure that the property “complies with the New York State Uniform Fire Prevention and Building Code and the Code of the Town of Southampton” (Town Code § 270-6). Although Town Code § 270 is intended to be enforced by designated Town officials and provides for penalties and fines, “without the threat of recoupment of rent, aside from the possibility of administrative enforcement, there is no incentive for a landlord to obtain a license, which is an overriding concern of the Town” … . Ader v Guzman, 2016 NY Slip Op 00137, 2nd Dept 1-13-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER HOTEL DEFENDANT VICARIOUSLY LIABLE FOR NEGLIGENCE OF SNOWMOBILE TOUR GUIDE UNDER APPARENT AGENCY THEORY)/AGENCY (QUESTION OF FACT WHETHER HOTEL DEFENDANT VICARIOUSLY LIABLE FOR NEGLIGENCE OF SNOWMOBILE TOUR GUIDE UNDER APPARENT AGENCY THEORY)

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HOSPITAL DEFENDANTS ENTITLED TO MEDICAL-PEER-REVIEW AND COMMON-INTEREST QUALIFIED PRIVILEGE RE: COMMENTS MADE IN CONNECTION WITH THE TERMINATION OF PLAINITFF-PHYSICIAN’S HOSPITAL PRIVILEGES.

The Second Department, reversing Supreme Court, determined defendant hospital and administrators were entitled to summary judgment dismissing plaintiff’s defamation complaint. Plaintiff was a physician with privileges at defendant hospital. Based upon complaints about plaintiff’s behavior, the hospital terminated plaintiff’s hospital privileges pursuant to a recommendation of the hospital’s credentials committee. The statements at issue were made before, during and after the administrative proceedings at the hospital. The Second Department determined the defendants were not entitled to absolute privilege for comments made during the meeting of the credentials committee because those proceedings were not judicial or quasi-judicial in nature. However, the defendants were entitled to qualified privilege for medical peer review proceedings pursuant to 42 USC 1111. With respect to comments made both prior to and during the meeting of the credentials committee, the Second Department found that a “qualified privilege of common interest” applied. The Second Department rejected Supreme Court’s finding that plaintiff had raised a question of fact whether the defendants acted with malice (which would have removed the qualified privilege). With respect to comments made after the termination of plaintiff’s hospital privileges, the Second Department found, based upon plaintiff’s public comments, plaintiff was a limited-purpose public figure and there was no showing defendants’ post-termination comments were made with actual malice.  Concerning the two types of qualified privilege which were found applicable, the court explained:

 

The defendants established, prima facie, that they were entitled to a qualified privilege under 42 USC § 11111(a), part of the Health Care Quality Improvement Act, which creates a qualified privilege for information provided in medical peer review proceedings concerning the competence or professional conduct of a physician, “unless such information is false and the person providing it knew that such information was false” (42 USC § 11111[a][2]…)

* * * With respect to [the] causes of action … predicated upon allegedly defamatory statements made both during and prior to the Credentials Committee meeting, the defendants established, prima facie, that they were entitled to a qualified privilege of common interest … , under state statutory law (see Public Health Law §§ 2805-j[2]; 2805-m[3]; Education Law § 6527[3], [5]), and under [the hospital’s] bylaws … . Colantonio v Mercy Med. Ctr., 2016 NY Slip Op 00147, 2nd Dept 1-13-16

 

DEFAMATION (MEDICAL PEER REVIEW AND COMMON INTEREST QUALIFIED PRIVILEGE APPLIED TO COMMENTS MADE IN CONNECTION OF TERMINATION OF PLAINTIFF’S HOSPITAL PRVILEGES)/QUALIFIED PRIVILEGE (DEFAMATION, MEDICAL PEER REVIEW AND COMMON INTEREST QUALIFIED PRIVILEGE APPLIED TO COMMENTS MADE IN CONNECTION OF TERMINATION OF PLAINTIFF’S HOSPITAL PRVILEGES)/MEDICAL PEER REVIEW QUALIFIED PRIVILEGE (DEFAMATION)/COMMON INTEREST QUALIFIED PRIVILEGE (DEFAMATION)

ALTHOUGH THE ORAL CONTRACT CALLED FOR THE MATURATION OF A LOAN AFTER 15 YEARS, THE STATUTE OF FRAUDS DID NOT APPLY BECAUSE IT WAS POSSIBLE TO PERFORM THE CONTRACT WITHIN A YEAR.

In 1998 plaintiff and defendant allegedly entered an oral agreement for a loan of $71,500 at 9% annual interest. The loan matured on December 31, 2013. When plaintiff sued for payment, the defendant sought to dismiss the complaint, arguing the statute of frauds prohibited the oral agreement because the agreement could not be performed within a year. The Second Department affirmed Supreme Court’s denial of the defendant’s motion, finding that it was possible the agreement could have been performed within a year:

 

Pursuant to the statute of frauds, an agreement not reduced to writing is void if, by its terms, it cannot be performed within one year of its making (see General Obligations Law § 5-701[a][1]…). Only those agreements which, by their terms, “have absolutely no possibility in fact and law of full performance within one year” will fall within the statute of frauds … . “As long as the agreement may be fairly and reasonably interpreted such that it may be performed within a year, the Statute of Frauds will not act as a bar however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … .

Here, contrary to the defendant’s contention, the oral agreement between the parties, by its terms, was capable of being performed within one year of its making. As such, the statute of frauds was inapplicable.  JNG Constr., Ltd. v Roussopoulos, 2016 NY Slip Op 00156, 2nd Dept 1-13-16

 

CONTRACT LAW (STATUTE OF FRAUDS DID NOT RENDER AN ORAL CONTRACT TO PAY OFF A LOAN AFTER 15 YEARS VOID)/STATUTE OF FRAUDS (ORAL CONTRACT TO PAY OFF A LOAN AFTER 15 YEARS WAS NOT VOID, CONTRACT COULD HAVE BEEN PERFORMED WITHIN A YEAR)

LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT; CRITERIA EXPLAINED.

The Second Department determined plaintiff was entitled to lost profits as damages for the wrongful termination of a subcontract. Plaintiff had completed three of seven work items when the contract was terminated and, pursuant to the contract, would have been paid for the remaining four work items in a lump sum and would have been given additional paid work in the form of change orders. The measure of lost-profit damages for the unfinished work was the contractual lump sum minus plaintiff’s anticipated costs. The measure of lost-profit damages for the change orders were the relevant amounts paid to the subcontractor who replaced plaintiff:

 

“A party may not recover damages for lost profits unless they were within the contemplation of the parties at the time the contract was entered into and are capable of measurement with reasonable certainty. The rule that damages must be within the contemplation of the parties is a rule of foreseeability. The party breaching the contract is liable for those risks foreseen or which should have been foreseen at the time the contract was made” … . For damages to be “reasonably certain, does not require absolute certainty. Damages resulting from the loss of future profits are often an approximation. The law does not require that they be determined with mathematical precision. It requires only that damages be capable of measurement based upon known reliable factors without undue speculation” … . Inspectronic Corp. v Gottlieb Skanska, Inc., 2016 NY Slip Op 00155, 2nd Dept 1-13-16

 

CONTRACT LAW (LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT)/DAMAGES (CONTRACT LAW, LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT)/LOST PROFITS (PROPERLY AWARDED AS DAMAGES FOR WRONGFUL TERMINATION OF SUBCONTRACT)

INDUSTRIAL CODE PROVISION REQUIRING THAT SAFETY DEVICES BE KEPT SOUND AND OPERABLE CONSTITUTED A CONCRETE PREDICATE FOR A LABOR LAW 241 (6) CAUSE OF ACTION WHICH ALLEGED INJURY DUE TO THE ABSENCE OF A “PROTECTOR” ON A GRINDER.

The Second Department determined a provision in the Industrial Code, 12 NYCRR 23-9.2(a), was sufficiently concrete to serve as a predicate for a Labor Law 241 (6) cause of action. The plaintiff was using a grinder cut sheet metal when a piece of sheet metal and a piece of the grinder “shot out” and injured him. Plaintiff alleged a “protector” had been removed from the grinder:

Labor Law § 241(6) imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” … . As a predicate to a section 241(6) cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code … . * * *

…[P]laintiff’s Labor Law § 241(6) claim is predicated on an alleged violation of 12 NYCRR 23-1.5(c)(3), which provides that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.” Sections 23-9.2(a) and 23-1.5(c)(3) each set forth an action to be taken (“corrected by necessary repairs or replacement”; “repaired or restored . . . or removed”) and set forth the trigger or time frame for taking such action (“upon discovery”; “immediately . . . if damaged”). Therefore … we hold that 12 NYCRR 23-1.5(c)(3) is sufficiently concrete and specific to support the plaintiff’s Labor Law § 241(6) cause of action … . Perez v 286 Scholes St. Corp., 2015 NY Slip Op 09664, 2nd Dept 12-30-15

LABOR LAW (INDUSTRIAL CODE PROVISION REQUIRING SAFETY DEVICES BE KEPT SOUND AND OPERABLE WAS A CONCRETE PREDICATE FOR A LABOR LAW 241 (6) CAUSE OF ACTION)/INDUSTRIAL CODE (PROVISION REQUIRING SAFETY DEVICES BE KEPT SOUND AND OPERABLE WAS A CONCRETE PREDICATE FOR A LABOR LAW 241 (6) CAUSE OF ACTION)

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