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DEFENDANT DID NOT DEMONSTRATE NON-PARTY SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES; DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DENIED.

The Second Department, reversing Supreme Court, determined defendant was not entitled to summary judgment in a slip and fall case because defendant did not demonstrate the non-party sublessee was responsible for maintaining the premises:

 

“[A]n out-of-possession landlord may be liable for injuries occurring on the premises if it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs'” … . However, “where the premises have been leased and subleased and the subtenant assumes the exclusive obligation to maintain the premises, both the out-of-possession landlord and the out-of-possession lessee/sublessor will be free from liability for injuries to a third party caused by the negligence of the subtenant in possession” … .

Here, viewing the evidence in the light most favorable to the plaintiff, the defendant failed to establish, prima facie, that the nonparty sublessee assumed the exclusive obligation to maintain the premises, and that the defendant, as the lessee/sublessor, had no duty to maintain the premises … . Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiff’s opposition papers … . Iturrino v Brisbane S. Setauket, LLC, 2016 NY Slip Op 00480, 2nd Dept 1-27-16

 

NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)/LANDLORD-TENANT (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)/SLIP AND FALL (LANDLORD-TENANT, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)

ANALYTICAL CRITERIA FOR DETERMINING LIABILITY IN A REAR-END COLLISION CASE CLEARLY EXPLAINED.

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. The court offered a clear, succinct explanation of the analytical criteria:

 

“When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle” (… see Vehicle and Traffic Law § 1129[a]…). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence … . A nonnegligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause … .

Here, on his motion for summary judgment on the issue of liability, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting an affidavit in which he stated that his vehicle was stopped when it was struck in the rear… . In opposition, the defendant failed to submit evidence either denying the plaintiff’s allegations or offering a nonnegligent explanation for the collision … . Binkowitz v Kolb, 2016 NY Slip Op 00462, 2nd Dept 1-27-16

 

NEGLIGENCE (REAR-END COLLISIONS, ANALYTICAL CRITERIA)/REAR-END COLLISIONS (ANALYTICAL CRITERIA FOR LIABILITY)

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COUNTY CHARTER CONTROLLED WHERE THERE WAS A CONFLICT BETWEEN THE CHARTER AND AN ADMINISTRATIVE CODE PROVISION RE: ARBITRATION OF POLICE DISCIPLINARY MATTERS.

The Second Department determined the county did not have the authority to enter into an agreement with the police union (PBA) to arbitrate certain police disciplinary matters. The county charter vested the power to discipline police in the police commissioner. The charter provision was deemed controlling. Therefore the administrative code provision allowing the binding arbitration of disciplinary matters was properly repealed by a local law subsequently enacted by the county:

… [S]ince the County Charter vested the power to discipline members of the Nassau County Police Department exclusively with the Commissioner of Police, the County Legislature’s attempt to divest the Commissioner of a portion of that disciplinary authority by amending the County Administrative Code to allow for binding arbitration of certain disciplinary matters created a conflict between the code and the charter, and, in the face of such a conflict, the charter controlled … . Therefore, the court properly concluded that the County Legislature’s enactment of section 8-13.0(e) of the Nassau County Administrative Code was invalid, and that the subsequent repeal of section 8-13.0(e) of the County Administrative Code by Local Law No. 9-2012 of the County of Nassau was proper and should not be enjoined. Moreover, as the County Legislature expressly committed disciplinary authority over the Nassau County Police Department to the Commissioner of Police, collective bargaining over disciplinary matters was prohibited … . Carver v County of Nassau, 2016 NY Slip Op 00466, 2nd Dept 1-27-16

MUNICIPAL LAW (COUNTY CHARTER TRUMPS ADMINISTRATIVE CODE)/COUNTIES (COUNTY CHARTER TRUMPS ADMINISTRATIVE CODE)/CHARTERS (COUNTY CHARTER TRUMPS ADMINISTRATIVE CODE)/UNIONS (COUNTY CHARTER TRUMPS POLICE COLLECTIVE BARGAINING AGREEMENT)/PUBLIC EMPLOYEES (COUNTY CHARTER TRUMPS COLLECTIVE BARGAINING AGREEMENT)/COLLECTIVE BARGAINING AGREEMENTS (COUNTY CHARTER TRUMPS POLICE COLLECTIVE BARGAINING AGREEMENT)/POLICE (COUNTY CHARTER TRUMPS COLLECTIVE BARGAINING AGREEMENT)

UNDER THE CITY CHARTER, THE MAYOR DID NOT HAVE THE POWER TO ABOLISH A CIVIL SERVICE POSITION; ONLY THE BODY EMPOWERED TO CREATE THE POSITION CAN ABOLISH IT.

The Second Department, affirming Supreme Court, determined the city charter did not give the mayor the authority to abolish a civil service position. Only the Board of Estimate and Apportionment had the power to create the position at issue, therefore only the Board could abolish the position:

 

The questions that may be raised in a CPLR article 78 proceeding include “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803[3]…). Here, the Supreme Court correctly concluded that the Mayor did not have the authority to unilaterally abolish the position of part-time code enforcement officer. The City Charter grants the Middletown Board of Estimate and Apportionment the power to create civil service positions in Middletown, by providing that it “shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees” (City Charter § 64). Although the City Charter authorizes the Mayor, with certain limitations, to suspend [*2]an employee for cause (see City Charter § 54), there is nothing in the City Charter conferring upon the Mayor the authority to unilaterally abolish civil service employment positions. “The general rule, when not qualified by positive law, is that the power which creates an office may abolish it in its discretion and this rule applies to municipal offices created by the act of some municipal body” … . Having been granted the power to create civil service employment positions in Middletown, it is the Board of Estimate and Apportionment, and not the Mayor, that is vested with the power to abolish them … . Matter of Moser v Tawil, 2016 NY Slip Op 00501, 2nd Dept 1-27-16

 

MUNICIPAL LAW (UNDER CITY CHARTER MAYOR DID NOT HAVE POWER TO ABOLISH A CIVIL SERVICE POSITION)/CHARTERS (CITY CHARTER, MAYOR CAN NOT EXCEED POWERS AUTHORIZED IN CHARTER)/CIVIL SERVICE (ONLY BODY WHICH HAS THE POWER TO CREATE A CIVIL SERVICE POSITION CAN ABOLISH IT)

PLAINTIFF’S LEANING TO THE SIDE OF A NON-DEFECTIVE LADDER WAS THE SOLE PROXIMATE CAUSE OF INJURY.

The Second Department determined summary judgment was properly granted to defendants in a Labor Law 240 (1) cause of action. Plaintiff was using an A-frame ladder which was not defective. Plaintiff was injured when he leaned to the side of the ladder and the ladder tipped and the plaintiff fell. It was the act of reaching to the side, not a defective ladder, which was the proximate cause of plaintiff’s injury:

 

“Labor Law § 240(1) imposes a nondelegable duty upon owners, lessees that control the work performed, and general contractors to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . “To recover on a cause of action pursuant to Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of the accident” … . “Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against each of them. Their submissions demonstrated, prima facie, that the injured plaintiff improperly positioned and misused the ladder, which was the sole proximate cause of his injuries … . Scofield v Avante Contr. Corp., 2016 NY Slip Op 00493, 2nd Dept 1-27-16

 

LABOR LAW (LEANING TO THE SIDE OF A NON-DEFECTIVE LADDER WAS THE SOLE PROXIMATE CAUSE OF INJURY)/PROXIMATE CAUSE (LABOR LAW, PLAINTIFF’S MISPOSITION OF A NON-DEFECTIVE LADDER WAS THE SOLE PROXIMATE CAUSE OF INJURY)

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FRAUD CAUSES OF ACTION DID NOT MEET PLEADING REQUIREMENTS.

The Second Department determined a fraud cause of action against defendant Ballard was duplicative of contract causes of action, and another fraud cause of action against other defendants did not meet pleading requirements. The court explained the applicable law:

 

… [T]he alleged misrepresentations set forth in the causes of action alleging fraud against Ballard … are not sufficiently distinct from the claims that Ballard breached that contract so as to constitute separate causes of action … . Not only did the fraud causes of action asserted against Ballard arise out of identical circumstances as the causes of action alleging breach of contract, but they were based upon identical allegations, and did not allege that a misrepresentation resulted in any loss independent of the damages allegedly incurred for breach of contract; indeed, the damages sought were identical … . …

A cause of action to recover damages for fraud requires allegations of: (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages … . Moreover, pursuant to CPLR 3016(b), where a cause of action is based upon fraud or aiding and abetting fraud, the “circumstances constituting the wrong” must be “stated in detail.” Here, inasmuch as the causes of action alleging fraud against [three of the defendants] contained only bare and conclusory allegations, without any supporting detail, they failed to satisfy the requirements of CPLR 3016(b). Doukas v Ballard, 2016 NY Slip Op 00474, 2nd Dept 1-27-16

 

FRAUD (FRAUD CAUSE OF ACTION DUPLICATIVE OF CONTRACT CAUSES OF ACTION)/FRAUD (ALLEGATIONS DID NOT MEET PLEADING REQUIREMENTS)/CONTRACT LAW (FRAUD CAUSE OF ACTION DISMISSED AS DUPLICATIVE OF CONTRACT CAUSES OF ACTION)/CIVIL PROCEDURE (FRAUD ALLEGATIONS DID NOT MEET PLEADING REQUIREMENTS)

YOUTHFUL OFFENDER ADJUDICATION PROPERLY USED TO DETERMINE SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL.

The Second Department, in a full-fledged opinion by Justice Leventhal, over a dissent, determined the Board of Examiners of Sex Offenders (Board) and Supreme Court properly considered defendant’s youthful offender adjudication in assessing defendant’s Sex Offender Registration Act (SORA) risk level. The court distinguished People v Campbell, 98 AD3d 5, where it ruled a juvenile delinquency adjudication could not be considered in a SORA risk-level analysis. Here the youthful offender adjudication resulted in a level three risk-assessment. Without the youthful offender adjudication defendant would have been assessed a level-two risk:

 

[Re:] whether Campbell precluded the Board and the Supreme Court from considering the defendant’s youthful offender adjudication in determining his SORA risk level designation, we note that there are important distinctions between juvenile delinquency adjudications and youthful offender adjudications. While juvenile delinquency adjudications and youthful offender adjudications have somewhat analogous purposes, juvenile delinquency adjudications can only be made in Family Court Act article 3 proceedings, and are based on acts committed by individuals who are too young to be held criminally responsible for their conduct. In contrast, youthful offender adjudications can only follow a criminal conviction. Comparing the relevant sealing provisions of the Family Court Act and the Criminal Procedure Law, it is clear that while evidence from juvenile delinquency proceedings is inadmissible in judicial proceedings, with an exception permitted only for sentencing in a criminal action (see Family Ct Act § 381.2[1]), sealed youthful offender adjudications may be made available if there is specific statutory or judicial authorization to do so (see CPL 720.35[2]…). Thus, as the People correctly contend, the statutory restrictions on the use of juvenile delinquency records addressed by this Court in Campbell are significantly different from the statutory restrictions on the use of youthful offender adjudications. Taking these distinctions in the statutory sealing provisions into account, we conclude that Campbell does not preclude the Board or the courts from considering a defendant’s youthful offender adjudication in determining his SORA risk level designation. * * *

… [A]s amended in 2011, [CPL 168-1(1)] clearly provides that members of the Board are employees of DOCCS, and that all official records relating to a youthful offender adjudication are to be made available to DOCCS [Department of Corrections and Community Services] (see CPL 720.35(2). Where, as here, the language of a statute is clear and unambiguous, the courts must give effect to its plain meaning … .  People v Francis, 2016 NY Slip Op 00488, 2nd Dept 1-27-16

 

CRIMINAL LAW (YOUTHFUL OFFENDER ADJUDICATION PROPERLY USED TO DETERMINE SORA RISK LEVEL)/YOUTHFUL OFFENDER ADJUDICATION (PROPERLY CONSIDERED IN SORA RISK-LEVEL ASSESSMENT)/SORA (YOUTHFUL OFFENDER ADJUDICATION PROPERLY CONSIDERED IN SORA RISK-LEVEL ASSESSMENT)

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REQUESTS FOR RECORDS OF SURGICAL PROCEDURES PERFORMED ON NON-PARTIES AND RECORDS OF COMPLAINTS AGAINST DEFENDANT SURGEON SHOULD NOT HAVE BEEN DENIED.

The Second Department, reversing Supreme Court, determined certain discovery requests made by plaintiff in a medical malpractice action should not have been denied. Plaintiff alleged defendant surgeon’s (Panos’) and defendant hospital’s (Vassar’s) negligence were related to the unprecedented number of surgeries performed by defendant surgeon. Plaintiff sought all the records re: surgeries performed by defendant surgeon on the days plaintiff was operated on. The Second Department held that those records, with non-party names redacted, should be turned over but should not be disclosed beyond the parties and experts. With respect to requests for disclosure of complaints against defendant surgeon, the Second Department held that the documents should be turned over for in camera review to see if they are immune from discovery under the Public Health Law (quality assurance immunity):

 

Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, to compel Vassar to produce intraoperative records pertaining to all surgical procedures performed by Panos on any nonparty patients on the three dates that he performed surgery on the plaintiff, reflecting every medical procedure performed during those surgical procedures, and should have denied that branch of Vassar’s cross motion which was for a protective order striking the plaintiff’s demand for those records … .

… [T]he plaintiff demanded that Vassar produce copies of any written complaints made to Vassar regarding Panos and any written responses thereto. Contrary to Vassar’s contention, these demands specified the documents to be disclosed with reasonable particularity (see CPLR 3120[2]…). Vassar further contends that these documents are immune from discovery pursuant to the quality assurance privilege (see Education Law § 6527[3], Public Health Law § 2805-m…). “Records generated at the behest of a quality assurance committee for quality assurance purposes . . . should be privileged, whereas records simply duplicated by the committee are not necessarily privileged” … . Since it is impossible on this record to determine whether the subject documents were generated at the behest of a quality assurance committee for quality assurance purposes, we remit the matter for an in camera inspection of the documents requested … .  Gabriels v Vassar Bros. Hosp., 2016 NY Slip Op 00478, 2nd Dept 1-27-16

 

CONVERSION (CAUSE OF ACTION TIME-BARRED)/REPLEVIN (CAUSE OF ACTION TIME-BARRED)/UNJUST ENRICHMENT (CAUSE OF ACTION TIME-BARRED)/CIVIL PROCEDURE (CONVERSION, REPLEVIN AND UNJUST ENRICHMENT CAUSES OF ACTION TIME-BARRED)

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MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED, ANALYTICAL CRITERIA EXPLAINED.

The Second Department, reversing Supreme Court, determined the attorney-defendants’ motion to dismiss the malpractice complaint should have been granted. The allegations of malpractice were deemed insufficient and were “utterly refuted” by the documentary evidence submitted. The court explained the analytical criteria:

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the lawyer’s negligence” … . “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” … . “[A] plaintiff must plead and prove actual, ascertainable damages as a result of an attorney’s negligence” … . “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” … . Janker v Silver, Forrester & Lesser, P.C., 2016 NY Slip Op 00481, 2nd Dept 1-27-16

ATTORNEYS (MALPRACTICE ALLEGATIONS INSUFFICIENT)/NEGLIGENCE (ALLEGATIONS OF ATTORNEY MALPRACTICE INSUFFICIENT)/LEGAL MALPRACTICE (ALLEGATIONS INSUFFICIENT)/CIVIL PROCEDURE (ALLEGATIONS OF ATTORNEY MALPRACTICE INSUFFICIENT)

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EXCEPTION TO FINALITY RULE WHERE IT IS CLEAR FURTHER ADMINISTRATIVE PROCEEDINGS WOULD BE FUTILE; DEVELOPER DID NOT HAVE A PROPERTY INTEREST IN A SITE PLAN APPROVAL WHICH WOULD SUPPORT A VIOLATION-OF-DUE-PROCESS CAUSE OF ACTION.

In finding the town planning board’s motion for summary judgment on several causes of action brought by respondent developer should have been granted, the Second Department explained (1) the finality rule need not be mechanically applied where it is clear further administrative proceedings would be futile, and (2) the developer did not have a property interest in a site plan approval which would support a violation-of-due-process cause of action:

 

“To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied'” … . “The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury'” … .

In the area of land use, “[a] final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations” … . In this regard, “[a] property owner, for example, will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied” … . Additionally, an exception to the finality requirement exists where the municipal entity uses “repetitive and unfair procedures in order to avoid a final decision” … . …

[Respondent developer] alleged that it had a cognizable property interest in the approval of the application that was injured in violation of its right to due process under both the United States and New York State Constitutions. However, as the Planning Board has significant discretion in reviewing site plan applications … , East End does not have a cognizable property interest in the approval of a particular site plan application …. .  East End Resources, LLC v Town of Southold Planning Bd., 2016 NY Slip Op 00476, 2nd Dept 1-27-16

 

ADMINISTRATIVE LAW (FINALITY RULE NOT APPLIED WHERE FURTHER PROCEEDINGS FUTILE)/ZONING (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/DUE PROCESS (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/SITE PLAN (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)

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