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Plaintiff Was Injured at Work and Again When the Ambulance Taking Him to the Hospital Was Involved in an Accident—Exclusive-Remedy Aspect of Workers’ Compensation Did Not Preclude a Negligence Suit Stemming from the Ambulance Accident

Plaintiff was injured on the job, and was injured again when the ambulance taking him to the hospital was involved in an accident.  The Second Department determined the exclusive-remedy aspect of workers’ compensation did not preclude a negligence action arising out of the ambulance accident:

“In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment” (… see Workers Compensation Law §§ 11, 29[6]). However, even where a plaintiff received workers’ compensation benefits, he or she is not precluded from commencing a separate action based on subsequent negligent conduct to recover damages for injuries causally related to the initial on-the-job injury, but which did not arise out of or in the course of the plaintiff’s employment … .

Here, notwithstanding the plaintiff’s claim for workers’ compensation benefits for the injuries he sustained [at work], he is not precluded from commencing a separate action to recover damages caused by separate injuries that occurred outside the scope of his employment … . Matias v City of New York, 2015 NY Slip Op 03506, 1st Dept 4-29-15

 

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Third-Party Beneficiary of an Indemnification Agreement May Enforce Obligations Owed to the Judgment Debtor by the Indemnifying Party

The Second Department determined the third-party beneficiary of an indemnification agreement could bring an action to collect a debt by suing the entity which entered the indemnification agreement with the judgment debtor. “Pursuant to CPLR 5227, a special proceeding may be commenced by a judgment creditor ‘against any person who it is shown is or will become indebted to the judgment debtor.’ Such a proceeding is properly asserted against one who agreed to indemnify the judgment debtor in the underlying proceeding … . The judgment creditor stands in the judgment debtor’s shoes, and may enforce the obligations owed to the judgment debtor by the indemnifying party… “. Matter of White Plains Plaza Realty, LLC v Cappelli Enters., Inc., 2015 NY Slip Op 03549, 2nd Dept 4-29-15

 

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Failure to Mail Summons and Complaint to the Address the Property Owner Designated for the Receipt of All Relevant Correspondence Required Vacation of the Judgment of Foreclosure and Sale—Property Owner Was Never Properly Served Pursuant to CPLR 308(2)

The Second Department determined the property owner, Murphy, was entitled to vacate the judgment of foreclosure and sale because he was not properly served.  The summons was not served at Murphy’s primary residence in Manhattan (Reade Street), where Murphy had always received correspondence about the subject property (a vacation home referred to as the Noyack property) and where Murphy had requested all correspondence regarding the subject property be sent.  Rather the summons was served on someone other than Murphy (who was not identified) at the Noyack property and was mailed there as well. The court determined the service was invalid because it did not comply with the two prongs of CPLR 308(2):

CPLR 308 sets forth the different ways in which service of process upon an individual can be effected in order for the court to obtain jurisdiction over that person. CPLR 308(2) provides, in pertinent part, that personal service upon a natural person may be made “by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence” (emphasis added). “Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with” … . It “is a two-step form of service in which a delivery and a mailing are both essential” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:3).

Since, under the circumstances of this case, the Noyack property, although Murphy’s vacation home, could properly be characterized as his dwelling place or usual place of abode … , we agree with the Supreme Court that the plaintiff satisfied the first prong of CPLR 308(2) by a fair preponderance of the evidence by serving process upon a person of suitable age and discretion at the Noyack property … .

However, the plaintiff failed to meet its burden of proof that its mailing of copies of the summons and complaint to that same address satisfied the second prong of CPLR 308(2). The undisputed evidence demonstrated that the plaintiff received notice from Murphy that the Reade Street address was to be used with respect to all notices concerning the Noyack property. Thereafter, from 2003 through December 2008, a period of time extending beyond the date of the mailing of copies of the summons and complaint to the Noyack property, the plaintiff actually utilized the Reade Street address to send Murphy all correspondence and notices relating to the Noyack property, including those referable to the mortgage statements and Murphy’s default thereunder. The only documents that the plaintiff mailed to the Noyack property were the summons and complaint, despite its knowledge that Murphy had given notice in accordance with the terms of the mortgage that his residence was the Reade Street address, and that it was at that address that he was to receive all mail. Washington Mut. Bank v Murphy, 2015 NY Slip Op 03520, 1st Dept 4-29-15

 

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Labor Law 200/Common-Law Negligence Cause of Action Properly Dismissed—City Demonstrated It Did Not Have the Authority to Supervise and Control the Work—Labor Law 241(6) Cause of Action, However, Should Not Have Been Dismissed—Nondelegable Duty to Provide a Safe Workplace

Plaintiff’s hand was crushed by an excavator as he was in a trench directing the operation of the excavator.  The Second Department determined the city’s motion for summary judgment on the Labor Law 200/common-law negligence, and Labor Law 240(1) causes of action was properly granted.  But the Labor Law 241(6) cause of action, based upon an Industrial Code provision (12 NYCRR 23-9.5(c)) prohibiting close proximity to an excavator, should not have been dismissed. Labor Law 241(6) imposes a nondelegable duty to provide a safe workplace and requires compliance with the Industrial Code. The Labor Law 200/common-law negligence causes of action were defeated by the city’s demonstration that it did not have the authority to control, direct or supervise the method or manner in which the relevant work was performed.  The Labor Law 240(1) cause of action was properly dismissed because the injury was not the result of an elevation-related incident. The court explained the operative principles re: Labor Law 200 and Labor Law 241(6) causes of action:

Labor Law § 200 is a codification of the common-law duty to exercise due care in providing a safe place to work … . Cases involving Labor Law § 200 fall into two broad categories, namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed … .

The instant case did not involve a dangerous or defective premises condition. “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work'” … . However, ” [t]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence'” … .

Here, the City defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, asserted against them, by demonstrating that they did not have the authority to control, direct, or supervise the method or manner in which the work was performed. * * *

Labor Law § 241(6) imposes a nondelegable duty on owners, contractors, and their agents to provide a safe workplace to workers, and applies to “all areas in which construction, excavation or demolition work is being performed.” Pursuant to that duty, owners, contractors, and their agents must comply with those provisions of the Industrial Code that set forth specific requirements or standards … . The City defendants contend that, since the injured plaintiff was a member of the “excavating crew,” as that term is employed in 12 NYCRR 23-9.5(c), he was authorized to be within range of the moving excavator bucket … , and they submitted an expert’s affidavit in support of that contention. However, a person authorized pursuant to 12 NYCRR 23-9.5 to operate or be within the range of an excavator’s bucket may, contrary to the City defendants’ contention, still claim the protections provided by 12 NYCRR 23-4.2(k) … . Torres v City of New York, 2015 NY Slip Op 03519, 2nd Dept 4-29-15

 

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Under the Facts, the Merger Doctrine Precluded Convictions on Both Kidnapping and Burglary Counts/Statements and Lineup Identification Made after Defendant Invoked His Right to Counsel Should Have Been Suppressed

The Second Department reversed defendant’s convictions, dismissed the counts which violated the merger doctrine, and ordered a new trial on the remaining counts.  The merger doctrine precluded the kidnapping counts because the restraint of the complainants was inseparable from the burglary count of which defendant was convicted. Supreme Court should have suppressed statements made after defendant invoked his right to counsel and should not have allowed identification evidence stemming from a lineup about which defendant’s attorney was not informed. On remand, the court must conduct an “independent source” hearing to determine if the witness can identify the defendant without reliance on the tainted lineup. The Second Department also noted that prior uncharged-crime evidence was improperly admitted to prove “identity:”

The defendant correctly contends that his conviction of four counts of kidnapping in the second degree must be vacated by virtue of the merger doctrine. Under the circumstances of this case, the merger doctrine precludes the convictions of kidnapping in the second degree because the restraint of the complainants was essentially incidental to and inseparable from the count of burglary of which the defendant was convicted … . …

…[T]he hearing court erred in denying those branches of his omnibus motion which were to suppress a statement that he made to law enforcement officials and lineup identification testimony. “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . The defendant, who was in custody, invoked his right to counsel prior to waiving his Miranda rights (see Miranda v Arizona, 384 US 436, 444) and giving a statement to law enforcement officials. Since the defendant gave a statement to those officials in the absence of counsel, and after the right to counsel had indelibly attached, the Supreme Court should have suppressed the statement.

Similarly, the defendant’s right to counsel was also violated when police officers conducted a lineup without apprising the defendant’s attorney and affording the attorney a reasonable opportunity to participate … . Since there was no independent source hearing conducted in connection with an in-court identification of the defendant by one of the complainants, the Supreme Court must conduct a hearing, unless waived by the defendant, to determine whether there was an independent source for the in-court identification or, conversely, whether that identification was tainted by the improperly conducted lineup, and thereby rendered inadmissible … . People v Garnes, 2015 NY Slip Op 03381, 2nd Dept 4-22-15

 

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Decision Whether to Submit a Lesser Included Offense to the Jury Is for the Attorney, Not the Defendant, to Make—Failure to Grant the Attorney’s Request (Because the Defendant Objected) Reversible Error

The Second Department reversed defendant’s conviction because Supreme Court followed the defendant’s, rather than the defendant’s attorney’s, wishes re: the submission of a lesser included offense (here petit larceny) to the jury. The defendant did not want the lesser included offense submitted to the jury, but his attorney did. The Second Department explained that the decision whether to request a jury charge on a lesser included offense is a strategic one made by the attorney, not the defendant:

…[T]he decision whether to seek a jury charge on a lesser-included offense is a matter of strategy and tactics which is “for the attorney, not the accused to make” … .

Contrary to the People’s contention, the failure to submit the lesser-included offense to the jury constituted reversible error under the circumstances of this case. To be entitled to a charge on a lesser-included offense, a defendant must establish that (1) it was impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct, and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater (see CPL 300.50[1]…). The crime of petit larceny is a lesser-included offense of robbery in the first degree … . People v Lowery, 2015 NY Slip Op 03385, 2nd Dept 4-22-15

 

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Landlord Failed to Demonstrate Assault on Tenant Was Not Foreseeable—Landlord’s Summary Judgment Motion Properly Denied

The Second Department determined Supreme Court properly denied landlord’s motion for summary judgment in an action stemming from an assault on a tenant at the landlord’s premises.  The assault took place when the lone security guard took his regular lunch break, leaving the premises unguarded. The defendant did not demonstrate a lack of notice of the same or similar criminal conduct and therefore failed to demonstrate the assault was not foreseeable:

A landlord is not the insurer of the safety of its tenants … . Nevertheless, landlords have a duty to take reasonable precautions to protect tenants and visitors from foreseeable harm, including foreseeable criminal conduct by third parties … . To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location … .

Here, on its motion for summary judgment, [the landlord] failed to establish, prima facie, that it lacked notice of the same or similar criminal activity occurring on the premises. Karim v 89th Jamaica Realty Co., L.P., 2015 NY Slip Op 03329, 2nd Dept 4-22-15

 

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Declaratory Judgment Action Is the Appropriate Vehicle for Challenging a County Law—The Legislative Body Which Enacted the Law Is a Necessary Party

In the course of determining an Article 78 petition which, in part, alleged that the Westchester County Human Rights Law violated state law, the Second Department noted that the challenge must be made in a declaratory judgment proceeding.  The court could not convert the proceeding to one for a declaratory judgment because it did not have jurisdiction over all of the necessary parties—specifically the legislative body which enacted the challenged law:

…[T]he petitioners are, in effect, seeking a declaration that certain sections of the Westchester County Human Rights Law violate State law. However, the petitioners are not entitled to such relief. “A declaratory judgment action is the proper vehicle for challenging the validity of a legislative enactment” … . Pursuant to CPLR 103(c), this Court has the power to convert a proceeding into an action. However, that power is conditioned upon this Court having jurisdiction over all of the necessary parties … . “In a declaratory judgment action challenging a local law or ordinance, the legislative body that enacted the challenged local law or ordinance is a necessary party” … . Since the Westchester County Board of Legislators was not named as a party or joined in this proceeding, this Court cannot exercise its authority pursuant to CPLR 103(c) … . Matter of Hoffmann Invs. Corp. v Ruderman, 2015 NY Slip Op 03361, 2nd Dept 4-22-15

 

Statutory Three-Year Moratorium on Seeking a Lower Tax Assessment Applies to New Owner of the Property

The Second Department, in a full-fledged opinion by Justice Dillon, determined that the three-year moratorium on tax certiorari proceedings following a reduced assessment applied to a subsequent purchaser of the land. The seller of the land successfully won a reduced assessment of the land due to chemical contamination.  The purchaser of the land then sought a further reduction, based upon a much lower appraisal of the value of the land, within the three-year statutory moratorium period:

Central to this appeal is the language, purpose, and legislative intent of RPTL 727(1), which states, in relevant part, that

“where an assessment being reviewed pursuant to this article is found to be unlawful, unequal, excessive or misclassified by final court order or judgment, the assessed valuation so determined shall not be changed for such property for the next three succeeding assessment rolls prepared on the basis of the three taxable status dates next occurring on or after the taxable status date of the most recent assessment under review in the proceeding subject to such final order or judgment” (RPTL 727[1]). * * *

What distinguishes these matters from many tax certiorari proceedings is the change in the property’s ownership … . RPTL 727(2) sets forth certain circumstances under which property assessments may be challenged despite the three-year moratorium, mainly involving revaluations of all properties on a municipal entity’s assessment rolls, physical changes to the property, zoning changes, and other recognized exceptions not relevant here (see RPTL 727[2][a-I]…). These recognized exceptions address situations where changes in circumstances defeat the statute’s purpose of locking in judicially settled assessments to maintain the status quo, because the changed circumstances themselves upset the status quo … .

A change in a property’s ownership is not listed in the statute as an exception to the three-year moratorium of RPTL 727(1). Under the doctrine of expressio unius est exclusio alterius, the presence of exceptions in RPTL 727(2), without inclusion of a property sale exception among them, must be inferentially construed as the Legislature’s intent not to except from the three-year moratorium circumstances where property is sold to a new owner… . Matter of ELT Harriman, LLC v Assessor of Town of Woodbury, 2015 NY Slip Op 03356, 2nd Dept 4-22-15

 

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Hospital Employees, Working With a Non-Employee Attending Physician, Were Not Independently Negligent and Were Not Asked to Follow Orders Which Were Contrary to Normal Practice—Summary Judgment Dismissing Complaint Against Hospital Should Have Been Granted

The Second Department determined defendant hospital (Good Samaritan) was entitled to summary judgment dismissing the complaint. The hospital was not concurrently liable re: conduct of a non-employee attending physician (Schneider) because there was no showing hospital employees acted negligently independently or followed orders made by the attending physician which were contrary to normal practice:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence” … . “However, a hospital can be held concurrently liable with a private attending physician if its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” … . Here, the evidence submitted by Good Samaritan established, prima facie, that there were no independent acts of medical judgment on the part of Good Samaritan or its employees apart from following the orders of Schneider, who was the plaintiff’s private attending physician. Nor were Schneider’s orders contraindicated by normal practice, such that ordinary prudence required inquiry into the correctness of those orders. Tomeo v Beccia, 2015 NY Slip Op 03350, 2nd Dept 4-22-15

 

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