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LANDLORD ACCEPTED TENANT’S SURRENDER OF THE PREMISES BY OPERATION OF LAW, CRITERIA EXPLAINED.

The Third Department, affirming Supreme Court, found plaintiffs-landlord had accepted defendant-tenant’s surrender of the premises by operation of law. The tenant, upon sufficient notice to the landlord, had moved most of its operation to a new location but continued to pay rent. The landlord then rented parts of the premises to two new tenants and changed the locks so defendant could not access the premises. At that point the tenant stopped paying rent and the landlord sued for the rent for the remaining portion of the lease. The court explained the elements of “surrender by operation of law:”

 

“A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated” … . A surrender by operation of law is inferred from the conduct of the parties, namely, the tenant’s abandonment of the demised premises and the landlord’s acceptance thereof; whether a surrender by operation of law has occurred in a particular case is generally a factual determination … .

Here, defendant established that plaintiffs relet parts of the premises without notice to defendant and refused to provide defendant with a key to the remaining premises, after having changed the locks. Plaintiffs also placed all the utility accounts in their own names. Plaintiffs’ assertion that a question of fact was raised as to whether there was construction in the leased premises precluding defendant’s use is unavailing. By their own account, plaintiffs refused to provide defendant with new keys and access to the “area in question” due to “ongoing construction” and liability concerns. Whether or not plaintiffs were simply replacing a generator outside the leased premises does not alter their refusal to allow defendant access to the premises. Nor do we overlook the fact that, in their complaint, plaintiffs seek to recover the full rent payable under the lease, without offset for rent received from the two new tenants … . Fragomeni v Aim Servs., Inc., 2016 NY Slip Op 00563, 3rd Dept 1-28-16

 

LANDLORD-TENANT (SURRENDER BY OPERATION OF LAW)/SURRENDER BY OPERATION OF LAW (LANDLORD-TENANT)

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ACTION SEEKING RESCISSION OF A CONSERVATION EASEMENT RESTRICTING DEVELOPMENT ON UPSTATE LAND WITHIN THE NEW YORK CITY WATERSHED PROPERLY DISMISSED; UNIQUE LAW RE: MODIFICATION OR EXTINGUISHMENT OF A CONSERVATION EASEMENT EXPLAINED.

In an action seeking rescission of a conservation easement which restricts development on upstate land within the watershed for New York City, the Third Department affirmed the dismissal of the complaint and explained the unique law which pertains to the modification or extinguishment of a conservation easement:

 

“Conservation easements are of a character wholly distinct from the easements traditionally recognized at common law and are excepted from many of the defenses that would defeat a common-law easement” (… see ECL 49-0305 [2], [5]…). Pursuant to ECL 49-0307 (1), “[a] conservation easement held by a not-for-profit conservation organization may only be modified or extinguished” (1) pursuant to the terms of the instrument creating the easement, (2) in a proceeding pursuant to RPAPL 1951, or (3) by eminent domain. Notably, ECL 49-0307 provides the exclusive means by which a conservation easement may be modified or extinguished (see ECL 49-0305 [2]). Argyle Farm & Props., LLC v Watershed Agric. Council of the N.Y. City Watersheds, Inc., 2016 NY Slip Op 00559, 3rd Dept 1-28-16

 

ENVIRONMENTAL LAW (CONSERVATION EASEMENT, UNIQUE LAW APPLICABLE TO MODIFICATION OR EXTINGUISHMENT)/EASEMENTS (CONSERVATION EASEMENTS, UNIQUE LAW APPLICABLE TO MODIFICATION OR EXTINGUISHMENT)/CONSERVATION EASEMENTS (MODIFICATION OR EXTINGUISHMENT)

THE INSTALLATION OF LIGHT FIXTURES ON A PARTY WALL EXCEEDED ANY EASEMENT THAT MIGHT ARISE FROM THE EXISTENCE OF A PARTY WALL.

A wall separating plaintiff’s (NYCAR’s) and defendant’s property was located entirely on NYCAR’s property. Defendant installed light fixtures on the wall for commercial purposes (an outdoor eating area for defendant’s restaurant). The defendant also installed a door in the wall to act as an emergency exit for patrons of the restaurant. Defendant argued the wall was a party wall and the easement which accompanies a party wall allowed the installation of fixtures on the wall. The Third Department explained that the installation of fixtures on the wall exceeded any easement which might exist:

 

Defendant concedes that the survey that plaintiff submitted in support of its motion for summary judgment shows that the wall lies wholly on NYSARC’s property, but argues that defendant’s installation of the fixtures and utilities was nevertheless proper because it is a party wall. “‘A party wall is generally described as a wall erected between two adjoining pieces of property and used for the common advantage of both owners'” … . Party walls are often located on the boundary line between parcels, in which case the portion of the wall on each property belongs to that parcel’s owner, subject to an easement in the other building’s owner for its support … . A party wall, however, may also “belong[] entirely to one of the adjoining owners, but [be] subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements” … .

Here, defendant’s actions were beyond the scope of a party wall easement; the fixtures and utilities that defendant placed on the exposed eastern portion of the wall neither provided support to defendant’s building nor contributed in any way to the maintenance of a dividing wall between the buildings. Instead, they were installed solely for defendant’s “mere convenience or advantage” in operating its restaurant … . Stamp v 301 Franklin St. Café, Inc., 2016 NY Slip Op 00410, 3rd Dept. 1-21-16

 

REAL PROPERTY (PARTY WALL, EASEMENT EXCEEDED BY INSTALLATION OF LIGHT FIXTURES ON THE WALL)/PARTY WALL (EASEMENT EXCEEDED BY INSTALLATION OF LIGHT FIXTURES ON THE WALL)/EASEMENTS (EASEMENT ASSOCIATED WITH A PARTY WALL WAS EXCEEDED BY THE INSTALLATION OF LIGHT FIXTURES ON THE WALL)

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SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING HIS MAXIMUM SENTENCE ON THE GROUND SUITABLE HOUSING HAD NOT YET BEEN FOUND.

The Third Department, in a full-fledged opinion by Justice Lynch, determined a sex offender could not be kept in prison after he had served his maximum sentence on the ground that suitable housing had not yet been found:

 

There is no dispute here that, due to petitioner’s status as a risk level III sex offender, his release was subject to the mandatory condition that he have suitable housing located more than 1,000 feet from school grounds (see Executive Law § 259-c [14]…). Further, petitioner concedes that the Board of Parole (hereinafter the Board) was authorized to order, on January 15, 2015, that he be transferred to an RTF [residential treatment facility] (see Penal Law § 70.45 [3]; Correction Law § 73 [10]). In response to the petition, respondents explain that petitioner was assigned, but never actually transferred, to Woodbourne Correctional Facility, an RTF, due to an unspecified mental health condition … . Accordingly, there is no dispute that petitioner remained confined in a maximum security correctional facility for more than eight months past the expiration of his three-year determinate sentence. Respondents provide no convincing authority for this unilateral decision, nor do we discern any.

We have previously held that the Board has discretion to deny parole release to an inmate who has not secured an approved residence on his or her conditional release date … . In contrast, we recently held that DOCCS does not have the authority to retain an inmate beyond the inmate’s maximum expiration date in order to finalize the terms of PRS [postrelease supervision], because it was conclusively bound by the sentence and commitment order … . … [W]e find that when a risk level III sex offender reaches his or her maximum expiration date, DOCCS must release the individual to either an approved residence or to an RTF. Where an individual needs mental health treatment not otherwise available at an RTF, DOCCS must, prior to the release date, seek a court order authorizing continued hospitalization pursuant to Mental Hygiene Law article 9 or admission to a secure detention facility pursuant to Mental Hygiene Law article 10 (see Correction Law § 404). People ex rel. Green v Superintendent of Sullivan Corr. Facility, 2016 NY Slip Op 00417, 3rd Dept 1-21-16

 

CRIMINAL LAW (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)/SEX OFFENDERS (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)/MENTAL HYGIENE LAW (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)

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EVIDENCE OF AN UNRELATED DRUG SALE WAS NOT ADMISSIBLE TO SHOW DEFENDANT’S MOTIVE, CONVICTION REVERSED.

The Third Department reversed defendant’s conviction in a drug-sale case because evidence of a prior unrelated drug sale was allowed to be introduced. There was no issue in the case to which the prior crime pertained. The evidence was not necessary to demonstrate defendant’s motive. The prejudicial effect of the evidence, therefore, outweighed its probative value:

 

Evidence of prior bad acts or uncharged crimes may be admissible to show motive to commit a crime under one of the traditional Molineux exceptions — where the probative value exceeds its prejudicial effect … . That said, “there is usually no issue of motive in a drug sale case, as the seller’s motivation is nearly always financial gain” … . Moreover, “evidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his [or her] past” … . The [evidence in question] is highly suggestive of an illicit drug transaction, and it is difficult to discern any relevant impact other than to show defendant’s criminal propensity. As this case largely turned on [a witness’] credibility, we cannot characterize the error in admitting this evidence as harmless, notwithstanding County Court’s curative instruction … . People v Magee, 2016 NY Slip Op 00399, 3rd Dept 1-21-16

 

CRIMINAL LAW (EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/MOLINEUX (EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)

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WHERE A WITNESS STATES SHE DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT.

The Third Department determined County Court properly denied defense counsel’s request to enter the victim’s statement in evidence as a prior inconsistent statement. The court explained that, where a witness states she does not recall making a statement, it is necessary to call a witness who was present when the statement was made to lay a proper foundation for admission. The court also noted that the statement was not so inconsistent with the witness’ testimony as to warrant its use in cross-examination. With respect to the foundation for the evidence, the court wrote:

 

“It is well established that a witness’ prior inconsistent statements may be used to impeach his [or her] trial testimony [a]nd the test of inconsistency . . . is not limited to outright contradictions between a witness’ prior statements and his [or her] trial testimony” … . However, before a witness may be impeached with such a statement, a proper foundation must be laid … , and, “[i]f the witness denies that the statement was made or does not remember making it, he or she may be impeached by the testimony of others who heard the statement” … .

Here, while cross-examining the victim at trial, defense counsel questioned her about the statement that she gave to State Trooper Joseph Smith several hours after the attack occurred. Specifically, counsel asked the victim if she remembered giving a statement to Smith, to which she said, “I don’t recall. I don’t remember a lot.” Counsel then asked, “You don’t remember giving a statement?” to which the victim answered, “I remember giving a statement, yes, I do, but everything was jumbled.” Counsel then asked if the victim remembered telling Smith that she was sleeping on the couch just before the altercation. The victim denied making such statement and explained that she told Smith that she was lying on the couch trying to go to sleep. After being shown the statement by counsel, the victim confirmed that it was, in fact, the statement she vaguely recalled being read to her by Smith and that she had signed. Defendant then unsuccessfully attempted to offer the victim’s statement into evidence. County Court sustained the People’s hearsay objection, noting that Smith was available to be called as a witness and questioned with regard to the victim’s statement. Inasmuch as defendant failed to lay a proper foundation for admission of this hearsay evidence, we find no abuse of discretion in County Court’s ruling. People v Maxam, 2016 NY Slip Op 00391, 3rd Dept 1-21-16

 

CRIMINAL LAW (WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/EVIDENCE (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION)

INTERPRETER WAS AN EMPLOYEE, NOT AN INDEPENDENT CONTRACTOR.

The Third Department determined claimant, a Cantonese and Mandarin interpreter, was an employee of Language Services Associates, Inc. (LSA), not an independent contractor:

 

The record establishes that LSA advertises for interpreters, like claimant, to provide translation services to its clients. Interpreters are screened for their experience and, if approved by LSA following an interview, they are placed on a roster for future assignments. Clients contact LSA directly to request the services of an interpreter, at which point LSA decides who to call from its pool of interpreters. Although interpreters are free to decline assignments, there was testimony that they are not permitted to substitute someone else in their place once an assignment is accepted. LSA provides interpreters with the requisite information for accepted assignments, and interpreters are advised by LSA, not the client, of any changes in assignments. Moreover, interpreters are prohibited from accepting future assignments from a client without obtaining LSA’s permission and are subject to penalties for arriving late or failing to appear for an assignment without providing LSA with notice and a reasonable explanation. LSA requires interpreters to submit invoices detailing the hours worked for each in-person interpretation assignment, pays interpreters directly and reimburses them for transportation expenses associated with assignments.

The record further reflects that LSA records and monitors telephone interpretation services to ensure that interpreters are adequately performing their services. To that end, LSA assigned interpreters, including claimant, to evaluate other interpreters’ telephone services. Claimant herself received feedback and instructions from LSA on how to improve her services, and she conducted, at LSA’s request, numerous evaluations of other interpreters’ services. Based upon these evaluations, interpreters are given a rating that could affect whether an interpreter receives future assignments from LSA. Matter of Soo Tsui (Commissioner of Labor), 2016 NY Slip Op 00229, 3rd Dept 1-14-16

 

UNEMPLOYMENT INSURANCE (INTERPRETER WAS AN EMPLOYEE)/INTERPRETERS (UNEMPLOYEMENT INSURANCE, INTERPRETERS WERE EMPLOYEES)

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QUESTION OF FACT WHETHER HOTEL DEFENDANTS WERE VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF A SNOWMOBILE TOUR GUIDE UNDER AN APPARENT AGENCY THEORY.

The Third Department affirmed the denial of the hotel defendants’ motion for summary judgment. Plaintiff was severely injured and her husband was killed when the snowmobile they were using was struck by a car. The hotel promoted snowmobile tours. All the arrangements for the tour were made by the plaintiffs and hotel personnel. The actual tour was conducted by Adirondack Snowmobile Rental (ASR). The tour guide, driving the lead snowmobile, crossed a road without waiting for plaintiff and plaintiff’s decedent, who were following. Plaintiff and plaintiff’s decedent were struck by a car when they attempted to cross the road. The Third Department determined plaintiff had stated a cause of action in negligence against the hotel defendants, alleging the hotel defendants were vicariously liable for the negligence of ASR under an apparent agency theory:

 

… “[I]t is fundamental to the principal/agent relationship that [a principal] is liable to a third person for the wrongful or negligent acts . . . of its agent when made within the general or apparent scope of the agent’s authority” … . To establish a negligence claim based upon an apparent agency theory, a plaintiff must show evidence of “words or conduct of the principal . . . communicated to a third party, which give rise to a reasonable belief and appearance that the agent possesses authority to [act on the principal’s behalf]” … .

Here, the evidence includes a screenshot of the resort’s website that can be read to suggest that snowmobiling is a service provided by defendants’ agents or employees, as it is listed among the winter activities available on the premises. … [P]laintiff stated that she and decedent only dealt with the resort staff in organizing the tour and had never heard of ASR prior to the tour’s commencement. Viewing this evidence in a light most favorable to plaintiff as the nonmoving party, we find that Supreme Court properly denied the portion of defendants’ motion seeking dismissal of plaintiff’s negligence claim based upon the doctrine of apparent agency. In our view, defendants’ promotional materials, together with the testimony regarding the overall experience that defendants and their staff strive to provide for guests of the resort, create a question of fact as to whether plaintiff could have reasonably believed that ASR possessed the authority to conduct the snowmobile tour as defendants’ agent … . Taylor v The Point at Saranac Lake, Inc., 2016 NY Slip Op 00247, 3rd Dept 1-14-16

 

NEGLGENCE (TORT LIABILITY ARISING FROM CONTRACT, AND INTERVENING, SUPERSEDING CAUSE OF INJURY EXPLAINED)/CONTRACT LAW (TORT LIABILITY TO THIRD PERSONS EXPLAINED)/INTERVENING, SUPERSEDING CAUSE OF INJURY (CRITERIA EXPLAINED)/SUPERSEDING CAUSE OF INJURY (CRITERIA EXPLAINED)

STACKED SCAFFOLDING FRAMES WHICH TOPPLED ONTO PLAINTIFF DID NOT CONSTITUTE AN ELEVATION RISK, LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DISMISSED; LABOR LAW 241 (6) CAUSE OF ACTION, BASED UPON CODE PROVISION REQUIRING SAFE, STABLE STORAGE OF BUILDING MATERIALS, PROPERLY SURVIVED.

Scaffolding frames had been stacked vertically against a column on ground level. Plaintiff, Hebbard, was injured when he attempted to move a frame and other frames toppled onto him. The Third Department determined the accident was not the result of an “elevation risk” and therefore would not support a Labor Law 240 (1) cause of action. However the Labor Law 241 (6) cause of action was supported by an industrial code provision requiring safe, stable storage of building materials:

 

Here, Hebbard was six feet tall. The frames were about the same height as Hebbard and they were located on the same level as him. He was engaged in moving them from one place on the garage floor to another place on the same floor and did so by carrying one at a time. As he picked up one frame, other frames also located on the same level tipped over. Under the circumstances and in light of recent precedent, the Labor Law § 240 (1) cause of action was properly dismissed.

… Elements of a viable Labor Law § 241 (6) cause of action include “the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury and that the violation was the proximate cause of the injury” … . “The Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … .

The relevant regulation provides: “All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare” (12 NYCRR 23-2.1 [a] [1]). Hebbard v United Health Servs. Hosps., Inc., 2016 NY Slip Op 00248, 3rd Dept 1-14-16

 

LABOR LAW (STACKED FRAMES WHICH FELL OVER NOT AN ELEVATION RISK)/LABOR LAW (STACKED FRAMES WHICH FELL OVER SUPPORTED LABOR LAW 246 (1) CAUSE OF ACTION)

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PETITIONERS, WHO HELD CATERED EVENTS, INCLUDING WEDDINGS, AT THEIR FARM, COMMITTED AN UNLAWFUL DISCRIMINATORY PRACTICE WHEN THEY REFUSED TO ALLOW RESPONDENTS’ SAME-SEX MARRIAGE AT THE FARM.

The Third Department, in a full-fledged opinion by Justice Peters, determined the State Division of Human Rights (SDHR) properly found petitioners (the Giffords) discriminated against respondents (the McCarthys) by refusing to hold the McCarthys’ same-sex marriage at the Giffords’ farm (Liberty Ridge). The Giffords held catered events on their farm, including weddings. The Third Department held the farm was “a place of public accommodation” within the meaning of the Human Rights Law (Executive law 290 [3]) and was therefore subject to the statutory prohibition of “unlawful discriminatory practice[s]” in “a place of public accommodation.” The federal and state constitutional arguments raised by the owners of the farm  (free exercise of religion, free speech, compelled speech and expressive association) were discussed in detail and rejected. SDHR’s award of $1500 each to the respondents, and the imposition of a $10,000 civil penalty on the Giffords was upheld. With respect to the definition of “a place of public accommodation,” the court explained:

Executive Law § 292 (9) “defines ‘place of public accommodation, resort or amusement’ inclusively and illustratively, not specifically, and sets forth an extensive list of examples of places within the statute” … . Such term includes “establishments dealing with goods or services of any kind” and “any place where food is sold for consumption on the premises” (Executive Law § 292 [9]). Over the years, the statutory definition has been expanded repeatedly, “provid[ing] a clear indication that the Legislature used the phrase place of public accommodation ‘in the broad sense of providing conveniences and services to the public’ and that it intended that the definition of place of accommodation should be interpreted liberally” … .

Here, Liberty Ridge’s wedding facilities fall comfortably within the broad definition of “place of public accommodation.” It is undisputed that petitioners open Liberty Ridge to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that Liberty Ridge does not provide is an officiant for the wedding ceremony. The couples who contract to wed at Liberty Ridge’s facilities are members of the general public who, like the McCarthys, may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large… . Matter of Gifford v McCarthy, 2016 NY Slip Op 00230, 3rd Dept 1-14-16

LABOR LAW (SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION SUPPORTED BY NON-DEFECTIVE A-FRAME LADDER WHICH FELL OVER WITH PLAINTIFF HOLDING ON TO IT AFTER PLAINTIFF WAS JOLTED WITH ELECTRICITY)

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