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Police Officer Who Refused a Light-Duty Assignment Was Not Entitled to Disability Benefits Pursuant to General Municipal Law 207-c

The Second Department determined a police officer was not entitled to refuse a light duty assignment during the period his entitlement to disability benefits pursuant to General Municipal Law 207-c was being determined:

A disabled officer receiving General Municipal Law § 207-c benefits is entitled to a due process hearing before those benefits may be terminated when the officer submits medical evidence contesting the finding of a municipality’s appointed physician that the officer is fit for duty … . Once such evidence has been submitted, an “order to report for duty may not be enforced, or benefits terminated, pending resolution of an administrative hearing, which itself is subject to review under CPLR article 78” … . However, where the municipality’s physician is of the opinion that the officer is able “to perform specified types of light police duty,” payment of the full amount of salary or wages may be discontinued should the officer refuse to perform such light police duty if same “is available and offered to [the officer]” and enables him or her “to continue to be entitled to his [or her] regular salary or wages” (General Municipal Law § 207-c[3]…). If an officer who refuses to return to light duty fails to provide medical proof that he or she is unable to do so, the municipality may discontinue disability payments without a hearing … . Matter of Garvey v Sullivan, 2015 NY Slip Op 05476, 2nd Dept 6-24-15

 

Insured Was Entitled to Settle with Tortfeasor 30 Days After Insured’s Notification of His Insurer of the Settlement Offer—Although Insurer Sent a Letter Responding to the Notification, It Was Sent to the Wrong Address and the Insured Never Received It

In determining the insurer’s (GEICO’s) motion to stay arbitration should have been denied, the Second Department explained the procedure where the insured has been offered a settlement by the tortfeasor for the full amount of the tortfeasor’s policy and permission to settle is sought from the insured’s carrier (GEICO here). The insured timely notified and requested permission to settle from GEICO, but GEICO sent its response to the wrong address and the insured never received it.  After the passage of 30 days, the insured accepted the settlement and served a demand for arbitration on GEICO re: the supplemental uninsured/underinsured motorist (SUM) benefits under the GEICO policy:

As a general rule, an insured who settles with a tortfeasor in violation of a policy condition requiring his or her insurer’s consent to settle, thereby prejudicing the insurer’s subrogation rights, is precluded from asserting a claim for SUM benefits under the policy … . However, the language set forth in 11 NYCRR 60-2.3(f), which must be included in all motor vehicle liability insurance policies in which SUM coverage has been purchased, creates an exception to this rule in situations where the insured advises the insurer of an offer to settle for the full amount of the tortfeasor’s policy, which obligates the insurer either to consent to the settlement or to advance the settlement amount to the insured and assume the prosecution of the tort action within 30 days … . In the event that the insurer does not timely respond in accordance with this condition, the insured may settle with the tortfeasor without the insurer’s consent, and without forfeiting his or her rights to SUM benefits (see 11 NYCRR 60-2.3[f]…).

Here, the burden was on GEICO to come forward with sufficient facts to establish justification for a stay of arbitration … . GEICO’s submission of its letter requesting additional documentation regarding the settlement, which was addressed to the wrong law firm at an address different from that of the law firm which had initially notified GEICO of the settlement offer, failed to sustain this burden. Matter of Government Empls. Ins. Co. v Arciello, 2015 NY Slip Op 05477, 2nd Dept 6-24-15

 

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“Extreme and Outrageous Conduct” Is Not an Element of “Negligent Infliction of Emotional Distress”—Elements of Private Nuisance, Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress Explained in Some Depth—Complaint Should Have Been Dismissed for Failure to State a Cause of Action

The Second Department, in a full-fledged opinion by Justice Miller, reversed Supreme Court and dismissed the complaint for failure to state a cause of action.  The opinion is important because it clarified “negligent infliction of emotional distress,” explaining that “extreme and outrageous conduct” is not one of the elements. Although the court held that the complaint did not state causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, or private nuisance, the nature of those causes of action was explained in some depth. The defendants owned property next door to the plaintiffs’ home.  The defendants rented to tenants, who were not parties to the lawsuit.  The tenants apparently held loud parties at which drugs were used and sold. The plaintiffs at one point called the police to complain about the tenants’ behavior. Subsequently two masked men entered plaintiffs’ home to intimidate them. Plaintiff-husband ultimately shot the two intruders and in the process accidently shot his dog. The men were arrested by the police. The opinion is too detailed to properly summarize here, but the essence of the court’s ruling is that the tenants’ behavior was not sufficiently linked to any acts or omissions by the defendants. The court wrote:

The elements of a private nuisance cause of action are: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . * * *  … [T]he duty to abate a private nuisance existing on real property arises from the power to possess the property and control the activities that occur on it. Accordingly, a landowner who has relinquished possession of his or her property will not be liable for a private nuisance that arises on the property if the landowner neither created the nuisance nor had notice of it at the time that possession of the property was transferred … . In the absence of any such knowledge or consent to the objectionable activity which may be attributable to the landowner at the time the lease is executed, the common-law duty to abate a nuisance that exists during the course of a tenancy lies with the tenant, in his or her capacity as the one in possession of the property … .

… [U]nder New York law, a cause of action alleging intentional infliction of emotion distress “has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress” … . * * * ” Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'” … . * * * Although the individuals who broke into the plaintiffs’ home may have engaged in extreme and outrageous conduct, the complaint alleges no basis upon which the intruders’ conduct may be imputed to the defendants. The defendants’ intentional conduct, as alleged in the complaint, amounts to nothing more than a failure to ensure that their tenants and their friends refrained from committing the acts described in the complaint. * * *

[Re: negligent infliction of emotional distress] …. [T]o the extent that certain of this Court’s past decisions have indicated that extreme and outrageous conduct is an element of negligent infliction of emotional distress … , those cases should no longer be followed. … [A] breach of a duty of care “resulting directly in emotional harm is compensable even though no physical injury occurred” … . However, the mental injury must be “a direct, rather than a consequential, result of the breach” … , and the claim must possess “some guarantee of genuineness” … . … Applying the correct standard to the complaint in this case, we conclude that the plaintiffs’ failure to adequately allege extreme and outrageous conduct is not fatal to their cause of action alleging negligent infliction of emotional distress … . Nevertheless, we conclude that the complaint is deficient in another respect, as it failed to adequately allege facts that would establish that the mental injury was “a direct, rather than a consequential, result of the breach” … . Taggart v Costabile, 2015 NY Slip Op 05464, 2nd Dept 6-24-15

 

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Purchasers Entitled to Return of Downpayment Under Terms of the Purchase Contract and Pursuant to General Obligations Law 5-1311—Home Damaged by Hurricane Sandy Before Appraisal by Lender

The Second Department determined Supreme Court should have granted the purchasers’ motion for summary judgment on the complaint seeking return of the downpayment.  The contract for sale of real property was contingent upon purchasers receiving a commitment for a loan.  The commitments received by the purchasers were contingent upon a property appraisal.  The house was damaged in Hurricane Sandy and the lender, based upon the post-Sandy appraisal, would not issue the loan. The Second Department determined the purchasers were entitled to a return of their downpayment under the terms of the contract and pursuant to General Obligations Law 5-1311:

“For more than a century it has been well settled in this State that a vendee who defaults on a real estate contract without lawful excuse, cannot recover the down payment” … . Where, however, the obligations of a purchaser under a contract of sale are contingent upon the issuance of a firm financing commitment by a lender, a purchaser may be entitled to recover the down payment if he or she was unable to secure a firm commitment in accordance with the terms of the contract … .

Here, the contract of sale was conditioned upon the issuance of a written commitment from an institutional lender. The contract of sale expressly provided that “a commitment conditioned on the Institutional Lender’s approval of an appraisal shall not be deemed a Commitment’ hereunder until an appraisal is approved.” Accordingly, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that they were unable to secure a firm commitment in accordance with the contract of sale, and that they were entitled to the return of their down payment pursuant to the terms of the contract … . In addition, the plaintiffs demonstrated, prima facie, that they were entitled to a return of their down payment by virtue of General Obligations Law § 5-1311, since a “material part” of the property was destroyed by Hurricane Sandy before legal title or possession of the property could be transferred (General Obligations Law § 5-1311[1][a][1]). Walsh v Catalano, 2015 NY Slip Op 05468, 2nd Dept 6-24-15

 

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Family Assessment Response (FAR) Reports Are Not Subject to Expunction (Expungement) Prior to the Expiration of the 10-Year Statutory Period

The Second Department determined the Office of Children and Family Services (OCFS) did not have the authority to expunge a Family Assessment Response (FAR) report prior to the end of the 10-year statutory period.  The decision includes an in-depth analysis of the early expunction (expungement) of reports pursuant to Social Services Law 422(5)(c) and why such early expunction (expungement) is not authorized for Family Assessment Response (FAR) reports pursuant to Social Services Law 427-a:

… Social Services Law § 427-a is not “silent” on the matter of expunction of FAR reports and records. Rather, it expressly requires that FAR reports and records be maintained for 10 years after the initial report is made (see Social Services Law § 427-a[4][c][i]; [5][c]). Thus, as OCFS correctly determined, pursuant to Social Services Law § 427-a, FAR reports and records are only subject to expunction 10 years after the initial report is made to the SCR, and not before.

…[T]he existence of an early expunction provision in Social Services Law § 422 supports … this interpretation. In this respect, the failure of the Legislature to include an early expunction provision in Social Services Law § 427-a, when it had, prior to the enactment of Social Services Law § 427-a, included such a provision in a statute within the same statutory scheme, “should be construed as indicating that the exclusion was intentional” … .

…[T]he interpretation of Social Services Law § 427-a as not incorporating the early expunction process set forth in Social Services Law § 422(5)(c) does not conflict with the legislative intent of section 427-a. As explained in the relevant legislative history, “[t]raditionally, CPS is required to respond to reports of child abuse and maltreatment with a standard investigation that is narrowly focused on determining whether a specific incident of abuse actually occurred and if the child is at risk” … . “The focus of the CPS system on investigation of abuse and maltreatment has created an environment that, for many families, casts suspicion over any offer of services or service referrals” (id.). Implementation of a differential response, in the form of a FAR track, “permits a social service district to conduct an assessment of the family’s needs and strengths rather than investigate the validity of the allegations in a child abuse and maltreatment report” … . “The expectation of FAR is that families will be more likely to seek necessary help when a less adversarial, less threatening, approach is taken” … . Matter of Corrigan v New York State Off. of Children & Family Servs., 2015 NY Slip Op 05473, 2nd Dept 6-24-15

 

Bus Company’s Duty of Care Did Not Include Keeping Steps to the Bus Dry and Free of Snow During a Snow Storm

Reversing Supreme Court, the Second Department determined the defendant bus company could not be held liable for a slip and fall on wet steps on a bus during a snow storm:

“[A] common carrier is subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case” … . Here, contrary to the Supreme Court’s determination, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by showing that it did not breach any duty to the plaintiff under the circumstances that existed at the time of the accident … . Given the inclement weather conditions when the accident occurred, “it would be unreasonable to expect the [defendant] to constantly clean the steps of the subject bus” … . Batista v MTA Bus Co., 2015 NY Slip Op 05430, 2nd Dept 6-24-15

 

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Question of Fact Raised Whether Police Officers Used Excessive Force In Violation of Plaintiff’s Civil Rights—Criteria Explained

The Second Department determined a question of fact had been raised about whether police officers used excessive force in violation of plaintiff’s civil rights.  The court explained the relevant law:

“A claim that a law enforcement official used excessive force during the course of an arrest . . . is to be analyzed under the objective reasonableness standard of the Fourth Amendment” … . The reasonableness of a particular use of force is judged from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” …, and takes into account “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he [or she] is actively resisting arrest or attempting to evade arrest by flight” … . “[A]n officer’s decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others” … . “Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” … . “If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity” … . Williams v City of New York, 2015 NY Slip Op 05470, 2nd Dept 6-24-15

 

Lost Profits Sufficiently Proven in Breach of Contract Action—Criteria Explained

In affirming the judgment, the Second Department explained the criteria for the award of lost profits as damages in a breach of contract action:

To prevail on a cause of action alleging breach of contract, the plaintiff must demonstrate that it sustained “actual damages as a natural and probable consequence” of the defendant’s breach … . Where the plaintiff seeks to recover damages for lost profits, such profits must also be “within the contemplation of the parties at the time the contract was entered into” and, even though required to be proven with reasonable certainty, damages “resulting from the loss of future profits are often an approximation” … . Here, contrary to the defendant’s contentions, the evidence and credible testimony adduced at trial demonstrated that the plaintiff incurred actual damages due to the defendant’s breach of the agreement … . The plaintiff’s witness testified that he determined the lost profits for the plaintiff by subtracting the expenses from the revenue, which would have been generated [if the contract had not been breached]. The evidence produced by the plaintiff provided a reasonably reliable foundation upon which to calculate the plaintiff’s damages … . Family Operating Corp. v Young Cab Corp., 2015 NY Slip Op 05437, 2nd Dept 6-24-15

 

Statements at Issue Were Statements of Opinion Directly Linked to the Plaintiff’s Writings—Defamation Complaint Properly Dismissed

The Second Department determined the defamation action against a newspaper was properly dismissed.  The newspaper article referred to writings by the plaintiff which were described as racist.  The article questioned whether plaintiff, who allegedly held “white supremacist” views, should be the principal of a school with minority students.  The court determined the relevant statements in the article were statements of opinion which were linked directly to quotations from plaintiff’s writings.  Therefore the statements constituted nonactionable opinion:

“Since falsity is a necessary element of a defamation cause of action and only facts’ are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action'” … . In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact … . “The dispositive inquiry . . . is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff” … .

In this case, the context of the complained-of statements was such that a reasonable reader would have concluded that he or she was reading opinions, and not facts, about the plaintiff. Moreover, in all instances, the Daily News defendants made the statements with express reference to the written materials authored by the plaintiff, including quotations from the books. Thus, the statements of opinion are nonactionable on the additional basis that there was full disclosure of the facts supporting the opinions … . Silverman v Daily News, L.P., 2015 NY Slip Op 05463, 2nd Dept 6-24-15

 

Defendant Entitled to Summary Judgment–No Notice of Wet Condition Where Plaintiff Fell

Reversing Supreme Court, the Second Department determined the defendant was entitled to summary judgment in a slip and fall case.  The defendant demonstrated it did not have actual or constructive notice of the condition (wet floor). An affidavit by a member of the maintenance crew stated that the area where plaintiff fell had been inspected 10 to 15 minutes before the fall and there had been no complaints about a wet condition. The court explained the relevant law:

The owner or possessor of property has a duty to maintain his or her property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … .

The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it neither created nor had actual or constructive notice of the condition alleged by the plaintiff to have caused the accident. In support of its motion, the defendant relied upon, among other things, the affidavit of Charles Barber, a member of the maintenance crew at the subject store on the date of the accident. Barber averred that he had inspected the area where the plaintiff alleged that she fell approximately 10 to 15 minutes prior to the accident and observed no water in the area at that time. He further averred in his affidavit that at no point prior to the accident did he ever receive any complaints of any kind concerning the area where the plaintiff allegedly fell. Mehta v Stop & Shop Supermarket Co., LLC, 2015 NY Slip Op 05450, 2nd Dept 6-24-15

 

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