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Written Waiver of Conflict by Defendants Precluded Disqualification of Plaintiff’s Counsel

The Second Department reversed Supreme Court, finding that the motion by the defendants to disqualify plaintiff’s attorney (Brooks) based upon a conflict of interest should have been denied.  The defendants had signed a waiver after full disclosure of the conflict:

” [T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion'” … . Here, the Supreme Court improvidently exercised its discretion in granting the motion to disqualify Brooks …, as counsel for the plaintiff. Pursuant to the written waiver, the …defendants specifically waived any conflict of interest that might arise from Brooks’s representation of the plaintiff. The waiver fully informed the …defendants of the potential conflict of interest and, by executing the waiver, the … defendants consented to have Brooks represent them notwithstanding that conflict … . Grovick Props LLC v 83-10 Astoria Blvd LLC, 2014 NY Slip Op 05627, 2nd Dept 8-6-14

 

Criteria for “Trivial Defect” and “Open and Obvious” Explained

The Second Department determined the defendants’ motion for summary judgment in a slip and fall case was properly denied.  The plaintiff tripped over a lock on sidewalk-level doors adjacent to the defendants’ property (the defendants were the property owner and the tenant in possession).  The defendants unsuccessfully argued the defect was trivial and open and obvious.  The court summarized the relevant law:

An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition … . “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . However, liability will not be imposed for trivial defects which do not constitute a trap or nuisance … . “In determining whether a defect is trivial as a matter of law, a court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstances of the injury” … .

While a possessor of real property has a duty to maintain that property in a reasonably safe condition …, there is no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … .  Doughim v M & US Prop Inc, 2014 NY Slip Op 05623, 2nd Dept 8-6-14

 

Partial Performance of an Oral Modification Will Allow Enforcement of the Oral Modification Even Where the Written Agreement Prohibits Oral Modification

The Second Department explained that an oral modification of a written agreement which prohibits oral modification can be enforced if there is partial performance of the oral modification:

“Generally, a written agreement which prohibits oral modification can only be changed by an executory agreement . . . in writing'” (…General Obligations Law § 15-301 [1]). “However, an oral modification is enforceable if the party seeking enforcement can demonstrate partial performance of the oral modification, which performance must be unequivocally referable to the modification” … . Matter of Latin Events LLC v Doley, 2014 NY Slip Op 05644, 2nd Dept 8-6-14

 

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In the Context of a Challenge to the Tax Assessment of a Home, the Town Must Obtain a Warrant Based Upon Probable Cause Before It Can Enter the Home (Over the Homeowner’s Objection) to Inspect it

The Second Department, in a full-fledged opinion by Justice Dickerson, determined that the Town did not make the requisite showing to justify an inspection of the interior of petitioner’s home.  Petitioner had challenged the tax assessment of her property.  Supreme Court had ruled the Town could enter petitioner’s home to inspect it.  The Second Department reversed, finding that Supreme Court improperly placed the burden on the petitioner to demonstrate why inspection should not be allowed.  The burden should have been placed on the Town to make a showing that a warrant allowing entry of the home was supported by probable cause:

We hold that the Town respondents bore the burden of demonstrating their entitlement to enter the petitioner’s home over her objections. The petitioner bore no burden, in the first instance, to demonstrate her right to preclude the Town respondents from entering into her home against her will. The right to be free from unreasonable searches is granted by the Fourth Amendment, and made applicable to the States and their subdivisions by virtue of the Fourteenth Amendment (see Mapp v Ohio, 367 US 643), though this right is by no means absolute. By directing the petitioner to move to preclude the Town’s appraiser from conducting an interior appraisal inspection of her home, the Supreme Court improperly shifted, from the Town respondents, the burden of demonstrating their entitlement to enter into the petitioner’s home, to the petitioner to demonstrate her right to preclude the Town respondents from sending an agent into her home. We further hold that, based on a proper balancing of the Town respondents’ interest in conducting the inspection against the petitioner’s Fourth Amendment rights, and the privacy invasion that such a “search” would entail, the Town respondents failed to satisfy their burden. * * *

Since the Town respondents sought entry into the petitioner’s home to have the Town’s appraiser conduct an inspection of the premises, the Town respondents were required to obtain a warrant upon a showing of probable cause. By directing the petitioner to move to preclude the Town respondents from conducting an interior inspection of her home, the Supreme Court improperly shifted the burden from the Town respondents to demonstrate their entitlement to entry into the petitioner’s home upon a showing of probable cause, to the petitioner to demonstrate her right to deny entry to the Town respondents … . “[B]y erroneously requiring [the] petitioner[ ] to move to preclude, the court did not properly evaluate the reasonableness of the inspections sought by respondents, i.e., the court did not conduct the necessary Fourth Amendment analysis balancing respondents’ need for interior inspections against the invasion of petitioner[‘s] privacy interests that such inspections would entail” … . Matter of Jacobowitz v Board of Assessors for the Town of Cornwall, 2014 NY Slip Op 05544, 2nd Dept 7-30-14

 

Fact that a Condition May Be Open and Obvious Does Not Eliminate Property Owner’s Duty to Keep Premises Reasonably Safe

The Second Department determined summary judgment should not have been granted to the defendants in a slip and fall case. Plaintiff tripped on a dolly or “pallet jack” which was low to the ground and had been left in an aisle of defendants’ store. The fact that the presence of the dolly was open and obvious did not eliminate the defendants’ obligation to keep the premises safe:

Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition … . While such proof is relevant to the issue of the plaintiff’s comparative negligence, a hazard that is open and obvious “may be rendered a trap for the unwary where the condition is obscured or the plaintiff distracted” … . “The determination of [w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances'” …, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case … .

Here, the defendants contend that, even if they created the condition at issue, they are entitled to judgment as a matter of law because the pallet jack in the aisle was an open and obvious condition, and not inherently dangerous. However, viewing the evidence in the light most favorable to the plaintiff, the defendants failed to eliminate all triable issues of fact as to whether the pallet jack was inherently dangerous …, and failed to establish prima facie that they maintained the premises in a reasonably safe condition… . Russo v Home Goods, Inc, 2014 NY Slip Op 05529, 2nd Dept 7-30-14

 

“Cleaning” Within the Meaning of Labor Law 240(1) Explained

The Second Department determined defendants were not entitled to summary judgment dismissing plaintiff’s Labor Law 240(1) action. Plaintiff fell from a 20-foot ladder while cleaning windows.  The defendants were unable to demonstrate that the activity plaintiff was engaged in was not covered by Labor Law 240(1):

Labor Law § 240(1) provides protection for those workers performing maintenance that involves painting, cleaning, or pointing … . Other than commercial window cleaning, which is afforded protection pursuant to the statute …, whether an activity is considered “cleaning” for the purpose of Labor Law § 240(1) depends on certain factors. An activity is not considered “cleaning” when (1) it is performed on a routine or recurring basis as part of the ordinary maintenance and care of commercial premises, (2) does not require specialized equipment or expertise, (3) usually involves insignificant elevation risks comparable to those encountered during typical domestic or household cleaning, and (4) is unrelated to any ongoing construction, renovation, painting, alteration, or repair project … . “Whether [an] activity is cleaning’ is an issue for the court to decide after reviewing all of the factors. The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other” … .

The evidence submitted by the defendants in support of their motion failed to establish, prima facie, that the plaintiff’s activity at the time of the accident could not be characterized as “cleaning” under Labor Law § 240(1). The evidence did not definitively demonstrate that the plaintiff was performing a routine task or that it was a task that involved an insignificant elevation risk which was comparable to those risks inherent in typical household cleaning … . Pena v Varet & Bogart LLC, 2014 NY Slip Op 05524, 2nd Dept 7-30-14

 

FOIL Request Should Not Have Been Denied—Questions of Fact About Ability to Retrieve Documents

The Second Department determined there were questions of fact whether the Long Island Power Authority (LIPA) was required to retrieve documents pursuant to petitioner’s Freedom of Information Law (FOIL) request.  The court explained the applicable criteria:

The Legislature has declared that “government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article” (Public Officers Law § 84…). The term “record” is defined to mean “any information kept, held, filed, produced or reproduced by, with or for an agency . . . in any physical form whatsoever including . . . papers [and] computer tapes or discs” (Public Officers Law § 86[4]). With limited exceptions, FOIL does not “require any entity to prepare any record not possessed or maintained by such entity” (Public Officers Law § 89[3][a]…). However, “[a]ny programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record” (Public Officers Law § 89[3][a]). An agency may not deny a request because it was too voluminous or burdensome if the request could be satisfied by engaging an outside service (see Public Officers Law § 89[3][a]). Moreover, an agency may recover the costs of engaging an outside service from the person or entity making such a request (see Public Officers Law § 89[3][a]).

“[T]he burden of proof rests solely with the [agency] to justify the denial of access to the requested records” … . This burden must be met “in more than just a plausible fashion” … .

Here, the Supreme Court erred in denying the amended petition and dismissing the proceeding, as there are triable issues of fact as to whether the petitioner requested data or records that could be retrieved or extracted with reasonable effort, whether the requests required the creation of new records, and whether the cost of the retrieval could be passed on to the petitioner (see CPLR 7804[h]…).  Matter of County of Suffolk v Long Is Power Authority, 2014 NY Slip Op 05540, 2nd Dept 7-30-14

 

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Defense Counsel’s Failure to Request that the Jury Be Charged with an Affirmative Defense to Robbery First (Weapon Was Not Capable of Being Discharged) Constituted Ineffective Assistance

The Second Department determined defense counsel’s failure to request that the jury be charged with an affirmative defense constituted ineffective assistance:

…[T]he defendant was deprived of the effective assistance of counsel, under both the federal and state constitutions, as a result of his trial counsel’s failure to request that the trial court submit to the jury the affirmative defense to robbery in the first degree that the object that appeared to be a firearm was not a loaded weapon from which a shot, capable of producing death or other serious physical injury, could be discharged (see Penal Law § 160.15[4]…). “[T]he New York State constitutional standard for the effective assistance of counsel is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … . Thus, denial of a defendant’s fundamental right to counsel generally requires reversal of the conviction and a new trial… . People v Collins, 2014 NY Slip Op 05555, 2nd Dept 7-30-14

 

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Advertising in New York and an Interactive Website Not Enough to Exercise Long-Arm Jurisdiction

The Second Department determined Supreme Court properly dismissed an action against a Vermont ski business (Killington) because plaintiffs failed demonstrate a basis for New York’s long-arm jurisdiction. The court noted that advertising in New York and the existence of an interactive website through which out-of-state residents make reservations for participation in the defendant’s ski camp was not sufficient to bring the defendant within the jurisdiction of New York courts:

Even assuming that Killington engaged in substantial advertising in New York, as the plaintiffs claim, the plaintiffs have not demonstrated that Killington also engaged in substantial activity within this State sufficient to satisfy the solicitation-plus standard. Contrary to the plaintiffs’ contention, this Court’s decision in Grimaldi v Guinn (72 AD3d 37, 49-50) does not stand for the principle that a business’s interactive website, accessible in New York, subjects it to suit in this State for all purposes. Instead, the Grimaldi decision stands only for the more limited principle that a website may support specific jurisdiction in New York where the claim asserted has some relationship to the business transacted via the website … . Here, even Killington’s alleged substantial solicitation in New York constitutes no more than solicitation … .

CPLR 302(a)(1), the section of New York’s long-arm statute at issue in this case, grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries’ “transact[ion of] any business within the state or contract [] . . . to supply goods or services in the state” (CPLR 302[a][1]). Pursuant to CPLR 302(a)(1), jurisdiction is proper “even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” … . “Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” … . Mejia-Haffner v Killington, Ltd, 2014 NY Slip OP 05522, 2nd Dept 7-30-14

 

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Bank Did Not Negotiate a Mortgage Modification in Good Faith as Required by CPLR 3408—Applicable “Good Faith” Standard Determined and Explained

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that Supreme Court had properly found that plaintiff bank did not negotiate in good faith a mortgage modification pursuant to the Home Affordable Mortgage Program (HAMP) (CPLR 3408).  In the course of the opinion, the court described the applicable “good faith” standard:

…[W]e hold that the issue of whether a party failed to negotiate in “good faith” within the meaning of CPLR 3408(f) should be determined by considering whether the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution. We reject the plaintiff’s contention that, in order to establish a party’s lack of good faith pursuant to CPLR 3408(f), there must be a showing of gross disregard of, or conscious or knowing indifference to, another’s rights. Such a determination would permit a party to obfuscate, delay, and prevent CPLR 3408 settlement negotiations by acting negligently, but just short of deliberately, e.g., by carelessly providing misinformation and contradictory responses to inquiries, and by losing documentation. Our determination is consistent with the purpose of the statute, which provides that parties must negotiate in “good faith” in an effort to resolve the action, and that such resolution could include, “if possible,” a loan modification (CPLR 3408[f]…).

Where a plaintiff fails to expeditiously review submitted financial information, sends inconsistent and contradictory communications, and denies requests for a loan modification without adequate grounds, or, conversely, where a defendant fails to provide requested financial information or provides incomplete or misleading financial information, such conduct could constitute the failure to negotiate in good faith to reach a mutually agreeable resolution.

In this case, the totality of the circumstances supports the Supreme Court’s determination that the plaintiff failed to act in good faith, as the plaintiff thwarted any reasonable opportunities to settle the action, thus contravening the purpose and intent of CPLR 3408. US Bank NA v Sarmiento, 2014 NY Slip Op 05533, 2nd Dept 7-30-14

 

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