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THE FACT THAT THE AMOUNT TO BE USED TO CALCULATE DEFENDANT’S COMPENSATION WAS NOT SET IN THE CONTRACT, BUT RATHER WAS TO BE ESTABLISHED AND AGREED TO, DID NOT INVALIDATE THE CONTRACT AS A MERE AGREEMENT TO AGREE; THE AMOUNT COULD BE DETERMINED BY EXTRINSIC INFORMATION.

The Third Department, reversing (modifying Supreme Court) determined a material term of a contract could be adequately fleshed out by extrinsic evidence. Therefore the contract should not have been invalidated as a mere “agreement to agree.” Defendant was hired as a consultant by plaintiff, the parent company of a number of banks, to maximize income from overdrafts. Defendant’s fee was to be based on plaintiff’s income over a “baseline” amount to be established by defendant (and agreed to by plaintiff):

Supreme Court determined that, because the baseline was an indefinite material term, the agreement was unenforceable as a “mere agreement to agree” … . We do not agree. “[W]here it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain. Striking down a contract as indefinite and in essence meaningless is at best a last resort” … . If, “at the time of agreement the parties have manifested their intent to be bound, a price term may be sufficiently definite if the amount can be determined objectively without the need for new expressions by the parties; . . . for example, [the price term might] be . . . ascertained by reference to an extrinsic event” … . Here, the parties’ conduct evinced that they intended to be bound by the agreement and, in our view, the baseline could be ascertained with reference to an extrinsic event, that is, defendant’s calculation derived from the existing historical data … . Accordingly, we find that the agreement was enforceable. Tompkins Fin. Corp. v John M. Floyd & Assoc., Inc., 2016 NY Slip Op 07252, 3rd Dept 11-3-16

CONTRACT LAW (THE FACT THAT THE AMOUNT TO BE USED TO CALCULATE DEFENDANT’S COMPENSATION WAS NOT SET IN THE CONTRACT, BUT RATHER WAS TO BE ESTABLISHED AND AGREED TO LATER, DID NOT INVALIDATE THE CONTRACT AS A MERE AGREEMENT TO AGREE; THE AMOUNT COULD BE DETERMINED BY EXTRINSIC INFORMATION)

OPERATOR OF A JANITORIAL CLEANING BUSINESS PURSUANT TO A FRANCHISE AGREEMENT WAS AN EMPLOYEE OF THE FRANCHISOR.

The Third Department determined claimant, who operated a janitorial cleaning business, based upon a franchise agreement with Jan-Pro, was an employee of Jan-Pro and was therefore entitled to unemployment insurance benefits:

The record evidence demonstrates that Jan-Pro assigned claimant a specific geographic territory and required new franchisees to undergo initial mandatory training, which was paid for by Jan-Pro. Franchisees were also required to operate the business in accordance with the procedures established at the training and the standards set forth by Jan-Pro … . To that end, franchisees had to use Jan-Pro-sanctioned equipment, supplies, products and business forms … . Jan-Pro helped resolve any complaints between a customer and a franchisee and retained the right to discontinue a franchisee’s services to any client any time … . Jan-Pro provided franchisees with a starter set of business cards, which contained Jan-Pro’s logo, and claimant’s business card listed Jan-Pro’s name, logo and address … . Although claimant had the option of designing his own business card, any such designs required Jan-Pro’s approval. Furthermore, according to the franchise agreement, if claimant developed any new concepts or techniques that improved Jan-Pro’s business, they became Jan-Pro’s property … .

The franchise agreement also contained a non-compete provision barring claimant from operating for one year in any area of Jan-Pro’s affiliates or franchises … . Moreover, the franchise agreement gave Jan-Pro the sole right to invoice and collect from claimant’s customer accounts, maintain revenue records with respect to such accounts and accept payment from claimant’s customers. While the franchise agreement designated claimant as an independent contractor, such terms are not dispositive of claimant’s status … . Matter of Baez (PD 10276, Inc.–Commissioner of Labor), 2016 NY Slip Op 07061, 3rd Dept 10-27-16

 

NEMPLOYMENT INSURANCE (OPERATOR OF A JANITORIAL CLEANING BUSINESS PURSUANT TO A FRANCHISE AGREEMENT WAS AN EMPLOYEE OF THE FRANCHISOR)

QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT.

The Third Department determined there was a question of fact whether the defect in a sidewalk was trivial, and whether plaintiff could identify the cause of her fall. Therefore, defendant’s motion for summary judgment was properly denied:

Photographs of the sidewalk where plaintiff fell depict a deteriorated area with various cracks in several adjacent slabs on the side of the walk bordering the street. In the location where plaintiff alleges her accident occurred, the deteriorated area takes up approximately one third of the sidewalk. The photographs reveal that the cracked section of concrete where plaintiff fell is depressed below the surface of the rest of the sidewalk, creating a raised, irregular vertical edge measuring, as previously noted, approximately one inch high and 18 inches long. In view of the length and depth of the crack where the fall occurred, the uneven surface of the walkway and the overall size of the deteriorated area, we agree with Supreme Court that it cannot be determined as a matter of law that the condition “was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen” … .

Defendant likewise failed to meet its burden to prove on a prima facie basis that plaintiff’s identification of the location of her fall was too uncertain to establish that the defect was the proximate cause of the fall. A defendant can meet this burden by proving “that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … . However, even when a plaintiff is unable to identify the cause of a fall with certainty, “a case of negligence based wholly on circumstantial evidence may be established if the plaintiff[] show[s] facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … .

Here, although plaintiff acknowledged the delay in identifying the cause of her fall, she testified that she knew that her toe had caught on some object and decided to examine the location in question because she knew that it was “where something has to be.” She identified the cracked area as “exactly that spot that [her] shoe caught.” Brumm v St. Paul’s Evangelical Lutheran Church, 2016 NY Slip Op 07079, 3rd Dept 10-27-16

 

NEGLIGENCE (QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/SLIP AND FALL (SIDEWALKS, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/SIDEWALKS (SLIP AND FALL, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/TRIVIAL DEFECTS (SIDEWALKS, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)

DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF OPERATING EXPENSES TO BE PAID BY INSURERS.

In an extensive, detailed opinion by Justice Clark (too detailed to be fairly summarized here), the Third Department determined statutes requiring insurers to pay pro rata shares of the annual operating expenses of the Department of Finance (formerly the Insurance Department), including expenses associated with certain programs administered by other departments (sub-allocated programs), are constitutional. The Third Department further found the assessments imposed on the insurers, which included the costs of the sub-allocated programs, were not arbitrary and capricious and were not imposed in excess of the authority of the Department of Finance. New York Ins. Assn., Inc. v State of New York, 2016 NY Slip Op 07076, 3rd Dept 10-27-16

 

INSURANCE LAW (DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF THE DEPARTMENT’S OF OPERATING EXPENSES TO BE PAID BY INSURERS)/FINANCE, DEPARTMENT OF (DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF THE DEPARTMENT’S OF OPERATING EXPENSES TO BE PAID BY INSURERS)

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FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED.

The Third Department, reversing Family Court, determined father’s petition should not have been dismissed on forum non conveniens grounds. Father, who is incarcerated, was entitled to six visits per year with the child. Mother, unbeknownst to father, relocated to Georgia and cut off all communication between the child and father:

[A “forum non conveniens”] determination “depends on the specific issue(s) to be decided in the pending litigation,” and must involve consideration of all relevant factors, including those set forth in the statute … .

Although Family Court articulated its consideration of each of the statutory factors, we disagree with the weight it accorded certain factors and find that it failed to view those factors in light of the sole issue to be decided in this proceeding, namely, whether the mother violated [the court order]. First, in considering whether the child or a sibling was the victim of violence, mistreatment or abuse that was likely to continue in the future … , Family Court found that the child was negatively affected by the father’s criminal actions, despite the fact that all of the parties agreed that this factor was not relevant, neither the child nor a sibling was involved in the 2008 [criminal case] case [against father] and Family Court had awarded the father six visits per year in 2011. Next, the father promptly commenced this proceeding four months after the mother relocated with the child … — which occurred without his knowledge or Family Court’s permission — and we find that the additional 12 months that it took to dispose of this proceeding does not militate in favor of finding that New York is an inconvenient forum. Further, the father and the paternal grandmother, whose testimony would be central to the issue of whether a violation occurred, are located in New York, and any testimony by the mother could be presented “by telephone, audiovisual means, or other electronic means” … . Matter of Snow v Elmer, 2016 NY Slip Op 07075, 3rd Dept 10-27-16

FAMILY LAW (FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED)/FORUM NON CONVENIENS (FAMILY LAW, FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED)

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ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER.

The Third Department, in a full-fledged opinion by Justice Peters, determined Supreme Court’s summary denial of youthful offender status, which had not even been addressed by counsel or the probation department, did not satisfy the statutory requirements. The Third Department, notwithstanding that the youthful offender issue had not been raised on appeal, stepped in and adjudicated the defendant a youthful offender. The defendant took sneakers from the victim after lifting his shirt, revealing what may have been a gun in his waistband:

The grievous error of the Probation Department, the People and defense counsel, while not specifically raised on appeal, cries out for resolution. Since we are vested with the broad, plenary power to modify a sentence in the interest of justice, we can address this injustice and, if warranted, exercise our power to adjudicate defendant a youthful offender … . * * *

Defendant was just 16 years old at the time of the present offense and, although he had served a period of juvenile probation, he had no prior criminal record or history of violence … . We reiterate that the crime, although serious, did not cause physical injury to anyone involved and defendant neither brandished the object nor uttered any direct threats of violence during the incident. After his arrest, defendant cooperated with police and provided a statement admitting that he had taken the shoes with no intention of returning them to the victim but denying that he had possessed or displayed anything that resembled a gun … . People v Marquis A., 2016 NY Slip Op 07060, 3rd Dept 10-27-16

 

CRIMINAL LAW (ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)/APPEALS (CRIMINAL LAW, ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)/YOUTHFUL OFFENDER STATUS (ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)

IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT.

In this will construction proceeding, the Third Department determined Surrogate’s Court properly found that the decedent intended to benefit all ten children, including two stepchildren from her husband’s (Warren’s) prior marriage. The will did not anticipate that Warren would die before the decedent. If the laws of intestacy were applied, the two stepchildren would have been excluded. But because decedent’s contrary intent was clear, Surrogate’s Court properly ignored the laws of intestacy:

… [W]hile the residuary clause of the will is silent as to what would happen if decedent outlived Warren, all of her other testamentary dispositions evince the goal of equally dividing her assets among all 10 children, either at the time of her death or Warren’s death. There is nothing in the will to suggest that she intended a contrary result with regard to the residuary estate if Warren died before her, or that she had any interest in excluding petitioner and his sister from that part of her estate. The will implies the contrary and that decedent considered all 10 children as her own, as she named petitioner as one of several trustees in the will and regretted that she could not name all of her “other children” as well. Thus, Surrogate’s Court correctly “g[ave] effect to the expressed general testamentary plan and purpose of the testator” by implying a provision in decedent’s will leaving her residuary estate to all 10 children… . Matter of Warren, 2016 NY Slip Op 06925, 3rd Dept 10-20-16

TRUSTS AND ESTATES (IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)/WILLS (IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)/CONSTRUCTION PROCEEDING (WILLS, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)

FIBER OPTIC CABLES ARE NOT TAXABLE REAL PROPERTY UNDER REAL PROPERTY TAX LAW (RPTL) 102.

The Third Department, in a full-fledged opinion by Justice Peters, reversing Supreme Court, determined that fiber-optic cables are not taxable real property under Real Property Tax Law (RPTL) 102. However, petitioner telecommunications company was not entitled to a refund of taxes paid because no protest was made at the time of payment:

We … address petitioner’s application for a judgment declaring that its fiber optic installations are not taxable real property under the RPTL. Resolution of this issue turns upon the construction of RPTL 102 (12) (f), which provides that real property shall include, among other things, “equipment for the distribution of heat, light, power, gases and liquids.” The parties agree that the fiber optic cables at issue consist of filaments of glass through which light beams are used to transport information and data from one point to another. Yet they sharply disagree as to whether this constitutes the “distribution” of light within the meaning of RPTL 102 (12) (f). …[W]e hold that it does not.  Matter of Level 3 Communications, LLC v Clinton County, 2016 NY Slip Op 06930, 3rd Dept 10-20-16

REAL PROPERTY TAX LAW (FIBER OPTIC CABLES ARE NOT TAXABLE REAL PROPERTY UNDER REAL PROPERTY TAX LAW (RPTL) 102)/FIBER OPTIC CABLES (FIBER OPTIC CABLES ARE NOT TAXABLE REAL PROPERTY UNDER REAL PROPERTY TAX LAW (RPTL) 102)/TAX LAW (FIBER OPTIC CABLES ARE NOT TAXABLE REAL PROPERTY UNDER REAL PROPERTY TAX LAW (RPTL) 102)

QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING.

The Third Department, reversing Supreme Court, determined there was a question of fact whether the operators of a tubing hill unreasonably increased the risk of injury. The issues included whether there was adequate supervision, whether there was adequate protection at the bottom of the hill (hay to slow the tubes), and whether mother and son should have been allowed to tube together (thereby increasing speed):

… [I]t was plaintiff’s burden to demonstrate “facts from which it could be concluded that defendant . . . unreasonably enhanced the danger . . . or created conditions which were unique or above those inherent in [the] activity …”. A supervisor for defendants testified that on busy days, two people were assigned to work at the base of the tubing hill to spread and “fluff” the hay as needed based on conditions. At the time of the accident, however, there was only one attendant working in this area. Further, the supervisor decided to limit the tandem riders to a parent and a child based on conditions and confirmed that weight affected the speed of the tubes, i.e., the greater the weight, the greater the speed. Plaintiff testified that just before the accident, the attendant at the top of the tubing hill assured her that it was safe for her to ride in tandem with her adult-sized son, who was nearly six feet tall and weighed approximately 250 pounds. Plaintiff’s son testified that “there wasn’t a whole lot of hay” spread at the bottom of the course. A nonparty witness testified that the tubing park was very busy and that, before the accident, he observed that the hay had diminished to the point where tubers were dragging their feet to stop their tubes. Notably, defendant’s base attendant testified that once the tandem riders were limited to one adult and one child, no other groups went past the hay, while plaintiff and her son “blew through everything.” She recalled being surprised to see two adult-sized people coming down in tandem because “it was supposed to be an adult and a child.” Connolly v Willard Mtn., Inc., 2016 NY Slip Op 06937, 3rd Dept 10-20-16

NEGLIGENCE (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)/ASSUMPTION OF THE RISK (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)/TUBING (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)

EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL.

The Third Department, reversing Supreme Court, determined defendant, Oak Mountain Ski Center, was entitled to summary judgment based upon plaintiff’s (Schorpp’s) assumption of the risk. Plaintiff, who had decades of skiing experience, and who had skied at Oak Mountain weekly, flipped over when he struck a depression on a “black diamond” trail. It was the first time plaintiff used that particular trail:

Regarding downhill skiing, an individual “assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain” … . The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff” … .

We conclude that defendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing … . Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope … . Schorpp v Oak Mtn., LLC, 2016 NY Slip Op 06932, 3rd Dept 10-20-16

 

NEGLIGENCE (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)/ASSUMPTION OF THE RISK (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)/SKIING (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)

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