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1899 DEED COVENANT TO PROVIDE FREE ELECTRIC POWER TO DEFENDANT’S PREMISES RAN WITH THE LAND; HOWEVER THE IMPLIED DURATIONAL LIMITS ON THE COVENANT HAVE BEEN SURPASSED RENDERING IT UNENFORCEABLE.

The Third Department, reversing Supreme Court, determined that a covenant in an 1899 deed to provide free power to the property now occupied by defendant Allied Healthcare Product (AHP) was no longer enforceable. The covenant was precipitated by the building of a hydroelectric dam which cut off the water supply upon which the mills on the property now owned by AHP relied. The Third Department determined the covenant met all the requirements for running with the land. But the court went on to find that implied durational limits on the covenant have been surpassed:

While the general requisites of an affirmative covenant running with the land have been met, that does not end the matter. “The affirmative covenant is disfavored in the law because of the fear that this type of obligation imposes an 'undue restriction on alienation or an onerous burden in perpetuity'” … . The power covenant has no express limitation on its duration, and “it may 'fall[] prey to the criticism that it creates a burden in perpetuity, and purports to bind all future owners, regardless of the use to which the land is put'” … . AHP rightly points out that the power covenant may be implicitly “conditioned upon the continued existence of” a hydroelectric facility capable of supplying the required power to ongoing manufacturing at the mills … . Suffice it to say, those conditions have only been intermittently met as historical matter and are not met now. The hydroelectric power facility was not in operation from 1994 to 2012 and, while AHP attempts to minimize the fact, there was not constant manufacturing activity at the mills over the course of the last century. The record further shows that the hydroelectric facility, for both technical and legal reasons, cannot supply consistent or usable electricity directly to the mills. To find that the power covenant remains enforceable under these circumstances would render it an “onerous burden in perpetuity” disfavored by the law, as it would reach beyond any implied durational requirements and overlook the very real changes in the hydroelectric facility and the manner for distributing electricity that defeat the original purpose of the power covenant … . This result cannot be countenanced and, as such, the power covenant is unenforceable. Niagara Mohawk Power Corp. v Allied Healthcare Prods., Inc., 2016 NY Slip Op 02504, 3rd Dept 3-31-16

REAL PROPERTY (1899 DEED COVENANT TO PROVIDE FREE ELECTRIC POWER TO DEFENDANT'S PREMISES RAN WITH THE LAND; HOWEVER THE IMPLIED DURATIONAL LIMITS ON THE COVENANT HAVE BEEN SURPASSED RENDERING IT UNENFORCEABLE)/DEEDS (1899 DEED COVENANT TO PROVIDE FREE ELECTRIC POWER TO DEFENDANT'S PREMISES RAN WITH THE LAND; HOWEVER THE IMPLIED DURATIONAL LIMITS ON THE COVENANT HAVE BEEN SURPASSED RENDERING IT UNENFORCEABLE)/COVENANT RUNNING WITH THE LAND (1899 DEED COVENANT TO PROVIDE FREE ELECTRIC POWER TO DEFENDANT'S PREMISES RAN WITH THE LAND; HOWEVER THE IMPLIED DURATIONAL LIMITS ON THE COVENANT HAVE BEEN SURPASSED RENDERING IT UNENFORCEABLE)

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QUESTION OF FACT WHETHER SNOW-REMOVAL CONTRACTOR CREATED THE ICE CONDITION WHERE PLAINTIFF FELL.

The Third Department, in this slip and fall case, determined Inland, the owner of the shopping mall where plaintiff fell on ice, raised a question of fact whether the snow removal contractor, Hayes Paving, created the dangerous condition (i.e., launched an instrument of harm) by piling ice near a building which subsequently melted and refroze:

… [W]e conclude that a question of fact exists as to whether Hayes Paving negligently created a dangerous condition by piling chunks of ice against the Staples store building which, thereafter, melted and refroze into the patch of ice upon which plaintiff allegedly slipped … . Thus, Hayes Paving was not entitled to dismissal of Inland's third-party claim for contribution. Hannigan v Staples, Inc., 2016 NY Slip Op 02506, 3rd Dept 3-31-16

NEGLIGENCE (QUESTION OF FACT WHETHER SNOW-REMOVAL CONTRACTOR CREATED THE ICE CONDITION WHERE PLAINTIFF FELL)/SLIP AND FALL (QUESTION OF FACT WHETHER SNOW-REMOVAL CONTRACTOR CREATED THE ICE CONDITION WHERE PLAINTIFF FELL)/CONTRACT LAW (QUESTION OF FACT WHETHER SNOW-REMOVAL CONTRACTOR CREATED THE ICE CONDITION WHERE PLAINTIFF FELL)

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QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN; QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM.

The Third Depatment, in a full-fledged opinion by Justice Garry, determined questions of fact had been raised about governmental immunity and tort liability arising from contract in a property-damage case arising from road renovation work. Village officials and the contractor hired to do the road work (Merritt) decided to allow what was thought to be a small water leak to remain unaddressed temporarily. The leak was apparently created when a fire hydrant was removed to accommodate the road work. At some point the water main burst, causing flooding and a mudslide which damaged plaintiffs' property. The questions before the court were whether the village should be allowed to amend its answer with a governmental-immunity affirmative defense, and whether an indemnification cross-claim against the contractor (Merritt) by the village should have been allowed. The Third Department answered both questions in the affirmative. Although maintenance of a water system for fire protection is a governmental function to which immunity applies, maintenance of the water system generally is a proprietary function, to which immunity would not apply. With respect to Merritt, although tort liability does not usually arise from a contract, here there was a question of fact whether Merritt “launched an instrument of harm” which would trigger liability in tort. With respect to whether governmental immunity applied, the court explained:

A threshold inquiry in determining if a municipality is entitled to immunity in a negligence action is “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” … . Where the alleged negligence arose out of proprietary, rather than governmental acts, no immunity will attach and a municipality will generally be liable to the same extent as a private actor … . The maintenance of a municipal water system to provide water for the private use of residents has been deemed to be a proprietary function … . However, where the alleged negligence stems from municipal efforts to protect the safety of the public by “aggregating and supplying water for the extinguishment of fires,” it is engaged in a government function entitled to immunity … . These established rules can present challenges as applied to modern municipal water systems that are used to provide water to both homes and hydrants … . In such cases, where a municipality can be seen to be serving dual governmental and proprietary roles, we must look to “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred” … . Billera v Merritt Constr., Inc., 2016 NY Slip Op 02503, 3rd Dept 3-31-16

MUNCIPAL LAW (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/GOVERNMENTAL IMMUNITY (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/PROPRIETARY FUNCTION (QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/NEGLIGENCE (MUNICIPAL LAW, QUESTION OF FACT WHETHER GOVERNMENTAL OR PROPRIETARY ACTS WERE INVOLVED IN CONNECTION WITH A BURST WATER MAIN)/TORT LIABILITY ARISING FROM CONTRACT (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)/CONTRACT LAW (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)/NEGLIGENCE  (QUESTION OF FACT WHETHER ROAD-WORK CONTRACTOR LIABLE IN TORT FOR LAUNCHING AN INSTRUMENT OF HARM)

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ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT.

The Third Department, reversing Supreme Court, determined the lawsuit against the employer, Ross, by three former employees should have been dismissed. The allegations made by the three employees were not sufficient to make out a prima facie case of a hostile work environment due to sexual harassment:

While Ross' alleged conduct was certainly offensive and grossly unprofessional, those aspects of it that were sexually harassing were not severe or pervasive enough to render any plaintiff's work environment objectively hostile and abusive as these terms are construed under the Human Rights Law.

In order to establish the existence of a sexually hostile work environment, an individual plaintiff must show that his or her workplace was “'permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his or her] employment and create an abusive working environment'” … . All of the circumstances must be considered, including “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with [the plaintiff's] work performance” … . Moreover, the workplace must be both subjectively and objectively hostile. That is, a plaintiff must not only perceive that the conditions of his or her employment were altered because of discriminatory conduct, but the conduct also must have created an environment that a reasonable person would find to be hostile or abusive … . Pawson v Ross, 2016 NY Slip Op 02502, 3rd Dept 3-31-16

EMPLOYMENT LAW (ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT)/HUMAN RIGHTS LAW (ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT)/HOSTILE WORK ENVIRONMENT (ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT)/SEXUAL HARASSMENT (EMPLOYMENT LAW, ALLEGATIONS BY THREE FORMER EMPLOYEES DID NOT MAKE OUT A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT DUE TO SEXUAL HARASSMENT)

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TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED.

The Third Department reversed defendant's conviction because the trial judge gave excessive procedural advice to the prosecutor (ADA). During several sidebars, the judge explained to the ADA how to lay a proper foundation for the admission of evidence and how to use evidence to refresh a witness's recollection. The judge's well-intentioned assistance was deemed to have created the perception the prosecution received a tactical advantage:

During the course of the trial, the ADA in question demonstrated difficulty in laying the proper foundation for the admission into evidence of certain photographs and bank records and in utilizing a particular document to refresh a witness's recollection. In response, County Court conducted various sidebars, during the course of which the court, among other things, explained the nature of defense counsel's objections, outlined the questions that the ADA needed to ask of the testifying witnesses, referred the ADA to a certain evidentiary treatise and afforded him a recess in order to consult and review the appropriate section thereof. Without further belaboring the point, suffice it to say that our review of the record confirms what County Court itself acknowledged — namely, that in attempting to “explain[] some of the law” and in an effort to avoid portraying defense counsel as “obstructionist,” it “explained one thing too many, in all fairness.” As County Court's assistance in this regard — although well-intentioned — arguably created the perception that the People were receiving an unfair tactical advantage, we are persuaded that this matter should be remitted for a new trial … . People v Kocsis, 2016 NY Slip Op 02480, 3rd Dept 3-31-16

CRIMINAL LAW (TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED)/JUDGES (CRIMINAL LAW, TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED)

LIABILITY UNDER CONTRACT CAN ARISE IN THE ABSENCE OF PRIVITY WHERE A PARTY IS A JOINT VENTURER OR PARTNER WITH A SIGNATORY TO THE CONTRACT.

The Third Department, reversing Supreme Court, determined there was a question of fact whether defendant Rock Solid was in a joint venture with defendant Catamount at the time Catamount entered a contract with plaintiffs. Plaintiffs sought specific performance of the contract. Supreme Court had dismissed the action against Rock Solid finding that Rock Solid was not in privity of contract with plaintiffs. However, because plaintiffs alleged Rock Solid and Catamount were joint venturers, and because Rock Solid did not address that issue in its motion for summary judgment, the motion should not have been granted:

Liability under a contract can arise in the absence of privity where it is established that the defendant is in a joint venture or partnership with a signatory to the contract (see Partnership Law § 28…). “A joint venture is an association of two or more persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge” … . “The essential elements of a joint venture are an agreement manifesting the intent of the parties to be associated as joint venturers, a contribution by the coventurers to the joint undertaking (i.e., a combination of property, financial resources, effort, skill or knowledge), some degree of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses” … .

Here, Supreme Court concluded that Rock Solid established its prima facie entitlement to summary judgment as a matter of law by demonstrating that it was not a party to the 2005 agreement … . … [T]he court failed to address whether Rock Solid satisfied its additional burden to refute plaintiffs' assertions in the complaint that Rock Solid was Catamount's joint venturer or partner. Alper Rest., Inc. v Catamount Dev. Corp., 2016 NY Slip Op 02509, 3rd Dept 3-31-16

CONTRACT LAW (LIABILITY UNDER CONTRACT CAN ARISE IN THE ABSENCE OF PRIVITY WHERE A PARTY IS A JOINT VENTURER OR PARTNER WITH A SIGNATORY TO THE CONTRACT)/JOINT VENTURES (LIABILITY UNDER CONTRACT CAN ARISE IN THE ABSENCE OF PRIVITY WHERE A PARTY IS A JOINT VENTURER OR PARTNER WITH A SIGNATORY TO THE CONTRACT)

INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW.

The Third Department, over a two-justice dissent, determined petitioner police officer was not injured in an “accident” within the meaning of the Retirement and Social Security Law, and therefore was not entitled to accidental disability retirement benefits. The officer was injured during Hurricane Sandy when he entered an unstable house to rescue people inside:

For the purposes of Retirement and Social Security Law § 363, an injury that results from “a risk of the work performed” is not an accident … . Consistent with this principle, this Court has long recognized that police officers face many substantial risks in the regular course of their duties that are inherent to the work that they perform… .

According to petitioner, he was considered a first responder to emergency calls and had a duty to assist injured persons. The Uniform Police Officer Job Description that governed petitioner's job confirmed petitioner's testimony to the extent that it dictated that his professional responsibilities included “[a]ssist[ing] any injured persons.” Petitioner acknowledged that, due to the hurricane, his supervisors had impressed upon him that his professional duty extended to responding to emergency calls involving life and limb. Petitioner explained that he answered a call regarding occupants of a house who were trapped due to a tree falling onto and through the home. Petitioner acknowledged that, when he arrived, the home was not a stable structure and debris was still falling, but he explained that he had to go in to help the trapped occupants. Petitioner was thereafter injured while throwing debris off of the trapped occupants and while holding up debris that continued to fall during that rescue effort. Accordingly, a reasonable conclusion to draw from the record is that the threat that compelled petitioner's response as a police officer and first responder — the dangerous condition in the home — was the same threat that ultimately caused petitioner's injuries. Matter of Kelly v DiNapoli, 2016 NY Slip Op 02132, 3rd Dept 3-24-16

RETIREMENT AND SOCIAL SECURITY LAW (POLICE OFFICERS INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW)/POLICE OFFICERS (INJURY DURING HURRICANE SANDY RESCUE OPERATIONS DID NOT RESULT FROM AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW)

IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED.

The Third Department reversed County Court finding that defendant should have been allowed to withdraw his guilty plea on the ground it was not knowingly and voluntarily entered. Although plaintiff was pleading to a lesser crime, during the plea colloquy County Court elicited an admission to an act which negated an element of the crime defendant was pleading to. Defendant pled to a rape where the victim was unable to consent. However, in the plea colloquy defendant admitted the victim demonstrated she did not consent:

Where, as here, a defendant pleads to a lesser crime as part of a plea bargain, the court is not required to engage in a factual recitation in order to establish the elements of the crime … , and, in fact, “under such circumstances defendants can even plead guilty to crimes that do not exist” … . In this instance, although not required to do so, County Court nevertheless sought to elicit the details of the crime from defendant prior to accepting his plea and led him in a factual recitation. The questions posed by the court during the allocution appeared to be designed to elicit from defendant facts supporting the elements of rape in the third degree, a crime which had been charged in the indictment, but was to be dismissed as part of the plea to rape in the second degree; notably, rape in the third degree includes the element that the victim's “words and acts” demonstrated that he or she did not consent to sexual intercourse with the defendant (Penal Law § 130.05 [2] [d]; see Penal Law § 130.25). In response to the court's inquiries, defendant admitted that he had engaged in nonconsensual sexual intercourse with the victim and that the intercourse was nonconsensual because the victim had “indicated to [him], by words or actions, that she did not wish to engage in sexual intercourse with [him].” This factual recitation was inconsistent with the crime to which he was pleading and, in fact, negated an element of that crime, namely that the victim be “incapable of consent by reason of being mentally disabled or mentally incapacitated” (Penal Law § 130.30 [2] … ).

County Court failed to conduct any further inquiry prior to accepting the plea in order “to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered” … . People v Banks, 2016 NY Slip Op 02127, 3rd Dept 3-24-16

CRIMINAL LAW (IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED)/ GUILTY PLEA (IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED)

STATUTORY PRESUMPTION THAT UNWITNESSED ACCIDENT AROSE FROM EMPLOYMENT DID NOT CREATE A PRESUMPTION THE ACCIDENT HAD HAPPENED, DENIAL OF CLAIM AFFIRMED.

The Third Department determined there was insufficient evidence to support claimant's allegation he was injured in an accident which no one witnesses and for which claimant did not seek immediate attention medical attention. The court noted that the presumption that unwitnessed accidents arose from employment did not create a presumption that an accident had happened:

… Workers' Compensation Law § 21, “which affords a presumption that an unwitnessed or unexplained workplace accident arose out of the injured person's employment, . . . cannot be utilized to demonstrate that an accident occurred in the first place”… . Matter of Siennikov v Professional Grade Constr., Inc., 2016 NY Slip Op 01889, 3rd Dept 3-17-16

WORKERS' COMPENSATION (STATUTORY PRESUMPTION INJURY AROSE FROM EMPLOYMENT DID NOT CREATED A PRESUMPTION THE ACCIDENT HAD HAPPENED)

CARRIER’S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS.

The Third Department determined the carrier's inability to conduct an independent medical examination (IME) of claimant, ostensibly due to claimant's medical restrictions, warranted suspending claimant's compensation payments:

… [W]e note that “refusal by the claimant to submit to [an IME] at such time or times as may reasonably be necessary in the opinion of the [B]oard, shall bar the claimant from recovering compensation for any period during which he or she has refused to submit to such examination” (Workers' Compensation Law § 13-a [4] [b]). Whether suspending compensation payments on account of a claimant's attempt to frustrate a carrier's right to engage in an IME is a question of fact for the Board to resolve … . Here, there are opposing views as to why claimant did not submit to an IME. It was within the Board's purview to credit the carrier's assertion that it has engaged in extraordinary efforts to schedule the IME … and that such efforts were thwarted by claimant's perpetual requests and demands of rescheduling and relocating the IME … . As such, we find that substantial evidence supports the Board's finding that claimant frustrated the carrier's right to engage an independent consultant by unreasonably refusing to attend an IME so as to warrant suspension of her benefits (see Workers' Compensation Law § 13-a [4] [b]…). Matter of Duncan v John Wiley & Sons, Inc., 2016 NY Slip Op 01881, erd Dept 3-17-16

WORKERS' COMPENSATION LAW (CARRIER'S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS)/INDEPENDENT MEDICAL EXAMINATION (IME) (WORKERS' COMPENSATION, CARRIER'S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS)

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