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Court Does Not Have the Power to Determine Whether Arbitrator Misinterpreted Collective Bargaining Agreement/Court Can Not Review Merits of Arbitrator’s Determination

The Second Department determined Supreme Court should not have vacated the arbitrator’s award because the award was not “irrational:”

“[J]udicial review of arbitration awards is extremely limited” … . In determining any matter arising under CPLR article 75, “the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (CPLR 7501). Accordingly, it is ” not for the courts to interpret the substantive conditions of [a] contract or to [otherwise] determine the merits'” … . “An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached'” … .

The Court of Appeals has recognized “three narrow grounds that may form the basis for vacating an arbitrator’s award—that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power”… . As relevant here, an arbitrator exceeds his or her power if the award “g[ives] a completely irrational construction to the provisions in dispute and, in effect, ma[kes] a new contract for the parties” …

The petitioner’s contention that the arbitrator misinterpreted the terms of the collective bargaining agreement constitutes a challenge to the merits of the arbitrator’s determination … . Since the arbitrator’s determination was not “completely irrational” … , the petitioner’s challenge to the merits of the arbitrator’s determination does not provide a ground for vacating that determination… . Matter of Sheriff Officers Assn Inc v Nassau County, 2014 NY Slip Op 00108, 2nd Dept 1-8-14

 

Petitioners Did Not Have Standing to Challenge Construction of Shopping Mall/No Showing of Unique Environmental Injury

The Second Department determined that members of a “Neighborhood Preservation Coalition” did not have standing to challenge the construction of a shopping mall.  The petitioners lived approximately 1300 to 2000 feet away from the proposed construction site:

Contrary to the petitioners’ contention, the Supreme Court properly concluded that they lacked standing. ” [I]n land use matters . . . the plaintiff[s], for standing purposes, must show that [they] would suffer direct harm, injury that is in some way different from that of the public at …large'” … . Here, the individual petitioners, none of whom allege that the site of the proposed mall is visible from their homes, do not live close enough to the site to be afforded a presumption of injury-in-fact based on proximity alone … . Further, the individual petitioners’ allegations are insufficient to demonstrate that the construction of the proposed mall would cause them to suffer an environmental injury different from that of members of the public at large, who use Fairway Drive for access, inter alia, to a golf course… . Matter of Riverhead Neighborhood Preserv Coalition Inc v Town of Riverhead Town Bd, 2013 NY Slip Op 08640, 2nd Dept 12-26-13

 

No Rigid Formula for a Constructive Trust

The Second Department determined that a petition seeking to impose a constructive trust on an IRA properly survived a motion for summary judgment. The petitioners are the children of James (now deceased) and the former beneficiaries of James’ Oppenheiner Funds IRA.  The respondent, Holbrook, is the executor of the estate of James’ second wife (the decedent) and the current beneficiary of the Oppenheimer IRA.  The petitioners alleged that, in return for James’ naming the decedent the beneficiary of the Oppenheimer IRA, the decedent promised to sign a consent form making petitioners the beneficiaries of another IRA.  The petitioners alleged that, when presented with the consent form, the decedent refused to sign it:

…[T]he petition seeking to impose a constructive trust adequately states a cause of action to impose a constructive trust on the proceeds of the Oppenheimer Funds IRA. “The usual elements of a constructive trust are (1) a confidential or fiduciary relation[ship], (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment'” … . However, these factors “are not an unyielding formula which limits a court’s freedom to fashion this equitable remedy’ and the requirements are not to be rigidly applied” … . Thus, a constructive trust “will be erected whenever necessary to satisfy the demands of justice” … .

Here, the marital relationship between James and the decedent provides the necessary confidential relationship …. . The petitioners have sufficiently alleged a promise by the decedent, a change in beneficiary of the Oppenheimer Funds IRA to the decedent in reliance upon that promise, and the decedent’s, and then Holbrook’s, unjust enrichment therefrom. Contrary to Holbrook’s contention, the petitioners possessed a sufficient interest as the previously designated beneficiaries of the Oppenheimer Funds IRA to seek to impose a constructive trust on the proceeds … . Matter of Harold, 2013 NYSlip Op 08629, 2nd Dept 12-26-13

 

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No Special Duty Owed to Claimant/County Clerk Cannot Be Sued For Failure to Properly Docket a Judgment

In a full-fledged opinion by Justice Angiolillo, the Second Department determined that the County Clerk could not be sued by a judgment debtor based on the clerk’s failure to properly docket a judgment.  The court held that no special duty of care was owed by the municipality to the claimant, and therefore it was unnecessary to address the “sovereign immunity” and “discretionary” versus “ministerial” issues:

A “special duty” is “a duty to exercise reasonable care toward the plaintiff,” and is “born of a special relationship between the plaintiff and the governmental entity” (Pelaez v Seide, 2 NY3d 186, 189, 198-199; see McLean v City of New York, 12 NY3d at 199).

“A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Pelaez v Seide, 2 NY3d at 199-200; see McLean v City of New York, 12 NY3d at 199). * * *

To satisfy the first and second prerequisites, the claimant must be “one of the class for whose particular benefit the statute was enacted,” and it must be shown that “recognition of a private right of action would promote the legislative purpose” of the governing statutes … . A determination that these two prerequisites are met here would require us to conclude that the class for whose particular benefit the governing statutes were enacted comprises judgment creditors, and that the legislative purpose of the statutory scheme was to make judgment creditors whole for their losses. This is simply not the case. * * *

In any event, even if the first two prerequisites have been met, the third one has not. “[T]he most critical inquiry in determining whether to recognize a private cause of action where one is not expressly provided is whether such action would be consistent with the over-all legislative scheme” … . A private right of action for a new type of claim should not be judicially recognized by implication “where the statutes in question already contain[ ] substantial enforcement mechanisms, indicating that the Legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted” … . The judgment lien created by CPLR 5018 and 5203 is simply one weapon in the “arsenal of enforcement mechanisms under CPLR article 52” provided to judgment creditors… .  Flagstar Bank FSB v State of New York, 2013 NY Slip Op 08592, 2nd Dept 12-26-13

 

Defendant Shoveled Sidewalk and Snow Piled on Either Side Melted/Question of Fact Whether Defendant Created the Dangerous Condition Resulting from Subsequent Freezing of Melted Snow

The Second Department determined a question of fact existed about whether defendant created the hazardous condition (ice on a sidewalk) which caused plaintiff to fall.  Defendant testified she shoveled the sidewalk which left one-foot high piles of snow on either side of the sidewalk.  She also testified that she observed the piles of snow melting.  The temperature subsequently fell below freezing and was below freezing at the time of the accident:

The defendant, as the property owner, failed to establish as a matter of law that her snow removal activities did not create the allegedly hazardous icy condition which resulted in the plaintiff’s injuries … . The defendant’s submissions failed to eliminate all triable issues of fact as to whether the ice upon which the plaintiff slipped was formed when snow piles created by the defendant’s snow removal efforts melted and refroze … . Viera v Rymdzionek, 2013 NY Slip Op 08615, 2nd Dept 12-26-13

 

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Rear-End Collision: No Rational Process By Which Jury Could Have Found Plaintiff Negligent

The Second Department determined there was no rational process by which the jury could have found the plaintiff negligent in a rear-end collision case.  Plaintiff’s CPLR 4401 motion for judgment as a matter of law should have been granted. The plaintiff was stopped to allow a pedestrian, who had run in front of the vehicle, to cross.  The defendant acknowledged that he took his eyes off the road briefly to look at the pedestrians and then struck the rear of plaintiff’s car:

” A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision'” … . Moreover, although the issue of comparative fault generally presents a question of fact …, that issue should be submitted to a jury “only where there is a triable issue of fact as to whether the frontmost driver also operated his or her vehicle in a negligent manner” … .

Here, viewing the evidence in the light most favorable to the defendant, there is no rational process by which the jury could find that the defendant had a nonnegligent explanation for the accident, or that the plaintiff was, to any extent, at fault in the happening of the accident. Clarke v Phillps, 2013 NY Slip Op 08585, 2nd Dept 12-26-13

 

“Wheel Stop” in Parking Lot Does Not Present an Unreasonable Risk of Harm

In this slip and fall case, the Second Department determined that a “wheel stop” or concrete divider in a parking lot is an open and obvious condition that does not present an unreasonable risk of harm:

While a landowner has a duty to maintain its premises in a reasonably safe manner for its patrons …, there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally “[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” … . Bellini v Gypsy Magic Enters Inc, 2013 NY Slip Op 08581, 2nd Dept 12-26-13

 

Labor Law 241(6) Action Should Not Have Been Dismissed/Power Washing Was Integral to the Painting Process and Was Not “Routine Maintenance”

The Second Department determined the Labor Law 241(6) action should not have been dismissed because the work plaintiff was doing, power-washing a building in preparation for painting, was not “routine maintenance,” but rather was an integral part of the painting process:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since they did not demonstrate that the plaintiff, who was injured while power washing buildings in preparation for painting them, was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). Painting is an activity enumerated under that provision …, and the power washing performed here … was in preparation for, and a contractual part of, the painting work. Accordingly, the power washing did not constitute “routine maintenance” excluded from the ambit of Labor Law § 241(6), but rather, constituted surface preparation, an integral part of the painting process contemplated by the parties.  Dixson v Waterways at Bay Pointe Home Owners Assn Inc, 2013 NY Slip Op 08591, 2nd Dept 12-26-13

 

“Concerted Action Liability” Causes of Action Dismissed/No Evidence Media Defendants Conspired with the Police to Use Excessive Force During Filmed Execution of Search Warrant

The Second Department affirmed the dismissal of causes of action against media defendants who filmed the execution of a search warrant by the police.  Plaintiff was shot during the incident.  Plaintiff alleged that the media defendants (including Yates and HBO) had conspired with the police to use excessive force to maximize the entertainment value:

A theory of “[c]oncerted action liability rests upon the principle that [a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him [or her]'” … . As stated in our prior decision in this action, the liability of HBO and Yates under a concerted action theory “cannot stem from the mere act of filming the NYPD’s use of excessive force” … . Such liability must be predicated on proof that HBO and Yates “formed a common plan with the NYPD to use excessive force in the execution of the warrant, and that such plan created an unreasonable danger to persons such as the plaintiff and was a proximate cause of her injuries” … .

Here, Yates and HBO established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by demonstrating that they did not participate, either directly or indirectly, in a common plan or design to commit the allegedly tortious act that caused the plaintiff’s injuries… . Rodriguez v City of New York, 2013 NY Slip Op 08609, 2nd Dept 12-26-13

 

Insurance Company’s Failure to Submit Second Request for Verification of No-Fault Claim Precluded Tolling of 30-Day Payment Period

The Second Department determined that defendant insurance company’s failure to issue a second request for verification to the hospital which had submitted a no-fault claim precluded the insurance company from asserting the hospital’s failure to reply to the request for verification as a basis for not paying the claim within 30 days:

Upon the hospital’s failure to timely comply with the defendant’s initial request for verification within “30 calendar days after the original request [for verification]” (11 NYCRR 65-3.6[b]), the defendant was under a regulatory duty to issue a second request for verification within 10 days after the expiration of that 30-day period (see 11 NYCRR 65-3.6[b]…). In the absence of any such second request for verification, there is no merit to the defendant’s contention that the 30-day period within which it had to pay, deny, or request verification of the claim had been extended. The defendant “failed to submit any evidence that it mailed a second or follow-up request for verification at the end of the 30-day period subsequent to [its] mailing [of] the initial request for verification”… . Westchester Med Ctr v Allstate Ins Co, 2013 NY Slip Op 08616, 2nd Dept 12-26-13

 

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