You are here: / Third Department

Tag Archive for: Third Department

,

Garagekeeper’s Lien Ineffective Against Owner of Leased Vehicle/Lessee Did Not Have Apparent Authority to Consent to Vehicle Repair and Storage on Owner’s Behalf

A leased vehicle was damaged by hail and the lessee brought the car to respondent’s garage for repairs.  When no one picked up the car or paid for the repairs, the garage served a garagekeeper’s lien on the owner (lessor) of the vehicle.  The Third Department determined the lien was not effective against the owner, who never consented to the repairs or storage of the vehicle, and the lessee did not have apparent authority to consent on the owner’s behalf:

Supreme Court properly held that respondent failed to establish the validity of its garagekeeper’s lien.  A garage owner is entitled to such a lien if he or she establishes that the garage is duly registered as a repair shop as required by statute, is the bailee of a motor vehicle, performed garage services or storage with the vehicle owner’s consent, and the parties had agreed upon a price or – absent such agreement – the charges were reasonable … .  The dispositive issue here is whether respondent provided repair services and storage with the owner’s consent.  It is undisputed that respondent never had any communication with petitioner, the title owner, until well after the repairs were performed.  …

While a lessee may be considered an owner for purposes of Lien Law § 184 if he or she has apparent authority …, “[a]pparent authority will only be found where words or conduct of the principal – not the agent – are communicated to a third party, which give rise to a reasonable belief and appearance that the agent possesses authority to enter into the specific transaction at issue” … .  Respondent does not indicate that it undertook any steps to determine the scope of the [lessee’s]  authority… .  Petitioner’s actions in allowing [lessee] to register the vehicle in New Jersey and … to obtain insurance on the vehicle do not constitute permission to enter into a transaction that would allow a lien to attach to the vehicle.  Respondent does not point to any other words or actions of petitioner…that could create a reasonable belief that [the lessee] had authority to enter into a transaction as an owner, so as to permit the creation of a garagekeeper’s lien.  Matter of Daimler Trust…v SG Autobody LLC, 516792, 3rd Dept 12-12-13

 

 

Court Erred In Applying the “15% Increase in Income” Criteria for Support Modification to an Order Which Predated the 2010 Effective Date of the “15% Increase” Statutory Amendment/the 2008 Order Was Incorporated But Not Merged Into a 2012 Judgment

The Third Department determined Family Court erred in modifying child support based upon the father’s income having increased by 15%.  The 2008 child support order at issue pre-dated the 2010 effective date of the “15% increase” statutory amendment and the order was not merged with the 2012 judgment of divorce:

Family Court erred in finding that child support should be modified based on a 15% change in the father’s income.  Family Ct Act § 451 (2) (b) (ii) allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party’s gross income has changed by 15% or more since the order was entered or modified.  When that provision was added to the statute through a 2010 amendment, however, the Legislature provided that “if the child support order incorporated without merging a valid agreement or stipulation of the parties, the amendments [to section 451] shall only apply if the incorporated agreement or stipulation was executed on or after [October 13, 2010]” (L 2010, ch 182, § 13).  The 2008 order was based upon the parties’ agreement, incorporated into the 2012 judgment of divorce and entered prior to the effective date of the statute’s 2010 amendments.  Accordingly, the amendments did not apply to a modification of this order, and Family Court should not have relied on the father’s 15% increase in income as the basis for modification.

For agreements executed prior to the effective date of the amendments to Family Ct Act § 451, the standard for modifying an order based on the parties’ agreement is whether the petitioning party has demonstrated “an unanticipated and unreasonable change in circumstances” or that the children’s needs are not being met … .  The mother’s generalized testimony that the costs of food, health care and clothing for the children had increased, as had the father’s income, was insufficient to meet her burden under that standard … .  Matter of Zibell v Zibell, 516324, 3rd Dept 12-12-13

 

No Employer-Employee Relationship—Agency Places Waiters and Bartenders with Clients for Catered Functions

The Third Department reversed the appeal board and determined waiters and bartenders placed with clients for catered functions by John Lack Associates, LLC, were not John Lack employees:

Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence … .  “[S]uch a relationship will be found to exist where the employer exercises control over the results produced or the means used to achieve those results, with the latter being more important”… .

John Lack provides its clients with individuals fitting the client’s requirements for each particular event.  The agency neither interviews nor screens the workers, other than to ensure that they have the necessary uniform and equipment.  However, the workers generally provide their own uniform and equipment. Although the client may provide a uniform on occasion, John Lack does not.  After being retained by a client, John Lack contacts individuals from its lists and explains the details and requirements of the available job.  The individual is free to refuse a job and may do so, for example, if the pay rate offered is unacceptable.  Notably, most of the waiters and bartenders accept work from other placement agencies.  If the worker accepts the job offered by John Lack, the agency directs him or her to report to a representative of the client at the event.  However, it is the client that instructs, controls and supervises the worker at the event.  In this regard, the client explains the rules of conduct to the worker and, if a worker’s performance is not satisfactory, the client will instruct the individual to leave or fire him or her from the job.  There is no indication in the record that John Lack provides workers with any training.  Matter of John Lack Associates, LLC …, 516638, 3rd Dept 12-5-13

 

No Question of Fact About Whether Defendant Was Strictly Liable for Actions of Dog—Bicyclist Injured When Dog Ran Into Path of Bicycle

The Third Department determined plaintiff did not raise a question of fact about whether a dog had a propensity to chase bicyclists or run into the path of bicyclists. Therefore, the plaintiff, a bicyclist injured when defendant’s dog (Dudley) ran into plaintiff’s path, did not raise a question of fact about whether defendant was strictly liable for the actions of defendant’s dog:

The sole viable claim against the owner of a dog that causes injury is one for strict liability … .  To establish strict liability, “there must be evidence that the animal’s owner had notice of its vicious propensities” … .  “Vicious propensities include the ‘propensity to do any act that might endanger the safety of the persons and property of others in a given situation'” … . Indeed, “a dog’s habit of chasing vehicles or otherwise interfering with traffic could be a ‘vicious propensity'” … .  Therefore, in a case such as this, in the absence of proof that Dudley has a history of chasing bicycles or vehicles or otherwise interfering with traffic, “there is no basis for the imposition of strict liability” … .  Notably, evidence that a dog has a history of barking and running around is insufficient, by itself, to establish a vicious propensity, as such actions “are consistent with normal canine behavior” … . Buicko v Neto, 516669, 3rd Dept 12-5-13

 

Question of Fact Whether Tavern Served Visibly Intoxicated Defendant

The Third Department determined the defendant tavern was unable to exclude the possibility defendant driver was served alcohol after defendant driver was visibly intoxicated in violation of General Obligations Law 11-101:

In order to establish its entitlement to summary judgment, the Tavern was required to present evidence excluding the possibility that it served [defendant driver] alcohol when she was visibly intoxicated (see Alcoholic Beverage Control Law § 65 [2]…).  Hurtado… v Williams, 516727, 3rd Dept 12-5-13

 

,

Defendant’s Snow Removal Practices May Have Caused Icy Condition in Parking Lot

In a slip and fall case, the Third Department determined there was a question of fact about whether the snow removal practices of defendant’s contractor created the dangerous icy condition:

…[T]here are factual issues posed as to whether defendant’s snow removal procedures created the dangerous condition.  Defendant had hired an outside contractor to plow the snow into piles.  Plaintiff alleges that some of the piles were located on the parking lot’s perimeter, as well as between her parking spot and the sidewalk adjacent to the building.  There is a slight grade extending from these areas, encompassing the area of her fall.  Thus, there are factual issues as to whether the snow removal techniques caused the dangerous icy condition when the snow piles melted in the warm weekend weather and then refroze in the night before plaintiff’s accident… . Riozzi v 30 Kingston Realty Corporation, 516533, 3rd Dept 12-5-13

 

Comparative Negligence Not Available in Labor Law 240 (1) Action—Claimant Entitled to Partial Summary Judgment—Suspended Cable On Which Claimant Was Walking to Access Scaffolding Broke

The Third Department determined claimant was entitled to partial summary judgment on his Labor law 240 (1) action.  A cable suspended under a bridge (which held up scaffolding) broke when claimant was walking on the cable to get to the scaffolding. The defendant countered that the workers were instructed to use ladders, not the suspended cables, to access the scaffolding, and claimant should have attached his lanyard to a separate safety cable, not the cable he was walking on:

The purpose of the suspension cables at the work site was to support workers and materials at the elevated height where the work necessarily occurred.  The cable that broke failed to fulfill this fundamental function, and that failure resulted in claimant’s fall.  Claimant established a prima facie case for liability under Labor Law § 240 (1).  Defendant produced proof that, contrary to claimant’s assertion, a separate safety cable was available that he should have used instead of attaching his lanyard to the cable upon which he was walking.  By attaching his lanyard to the suspension cable, claimant protected against the risk of falling but not the possibility of the cable breaking. While this action by claimant could go to comparative negligence (which is not available in a Labor Law § 240 [1] action), it was not the sole proximate cause of the accident and does not establish the recalcitrant worker defense … .

Similarly, the assertion that ladders were available and workers had been instructed to use them instead of walking across the suspension cables does not raise a triable issue under the circumstances of this claim.  This is not a case where claimant lost his balance and fell off the cable while using it instead of the safer way to access the scaffold via a ladder.  Here, the cable broke.  Hence, a device intended to support a worker at an elevated height failed, and that failure was a proximate cause of claimant’s injury.  “Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant’s] injury) to occupy the same ground as a [claimant’s] sole proximate cause for the injury” … . Accordingly, claimant was entitled to partial summary judgment on his Labor Law § 240 (1) claim.  Portes v New York State Thruway Authority, 516749, 3rd Dept 12-5-13

 

,

Five-Month Delay in Notifying Carrier Not Justified by Insured’s Belief Lawsuit Was Fraudulent

The Third Department determined, as a matter of law, that defendant’s failure to notify the insurance carrier of a personal injury lawsuit for nearly five months justified the carrier’s denial of coverage.  The court noted that defendant’s belief the lawsuit was fraudulent was not a “good-faith belief of nonliability;”

“Where a policy of liability insurance requires that notice of an occurrence be given ‘as soon as practicable,’ such notice must be accorded the carrier within a reasonable period of time. The insured’s failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract” … .  Although “there may be circumstances where the insured’s failure to give timely notice is excusable, . . . [t]he insured bears the burden of establishing the reasonableness of the proffered excuse” … .  In this regard, the reasonableness of the insured’s excuse – although generally presenting a question of fact for a jury … – “may be determined as a matter of law where the evidence, construing all inferences in favor of the insured, establishes that the belief was unreasonable or in bad faith” … .

Here, defendant made a prima facie showing of its entitlement to judgment as a matter of law based upon plaintiff’s nearly five-month delay (August 2008 to January 2009) in notifying defendant of the underlying personal injury action …, and plaintiff failed to tender sufficient proof to raise a question of fact as to the reasonableness of such delay.  Plaintiff’s personal belief that the guest’s lawsuit was fraudulent is not the equivalent of “a good-faith belief of nonliability” … . Vale…v Vermont Mutual Insurance Group, 515999, 3rd Dept 12-5-13

 

,

Commissioner of Labor Can Not Be Sued for Her Exercise of Discretionary Judgment Even Where Action Taken by Commissioner Resulted from a Mistaken Interpretation of Labor Law Statutes

The Third Department determined that the Commissioner of Labor was immune from a lawsuit stemming from her orders to seize and destroy fireworks.  At the time of the seizure and destruction, the Commissioner believed the fireworks were “explosives” within the meaning of Labor Law 451 and that the storage of the fireworks violated Labor Law 453.  It was subsequently determined by the Industrial Board of Appeals (IBA) that the fireworks were not “explosives” within the meaning of the Labor Law. In finding that the Commissioner could not be sued for her exercise of discretion (seizing and destroying the fireworks), the court wrote:

As relevant here, this statute authorizes the Commissioner “to seize and impound any explosives found within this state . . . which are in apparent violation” of Labor Law article 16, “where the [C]ommissioner has reason to believe that public safety is endangered by such explosives” (Labor Law § 460 [1] [emphases added]).  Further, “where, in the opinion of the [C]ommissioner, the . . . storage . . . or location of explosives . . . [represents] a danger to public safety, the [C]ommissioner may, without [a] hearing and without liability . . . to the owner . . . direct the seizure and destruction of such explosives” (Labor Law § 460 [5] [emphasis added]).

Under the … statutory authority, the Commissioner was empowered – in her discretion – to seize explosives that appeared to be in violation of Labor Law article 16 if she had reason to believe that they endangered public safety, and to order their destruction “without liability.”  Under settled law, “the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions” …  That is, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the [claimant]” … .  The Commissioner’s determination under Labor Law § 460 to order the seizure and, later, the destruction of the fireworks on the belief – albeit later determined by the IBA to be mistaken – that they constituted “explosives” within her jurisdiction under Labor Law former § 451 (1) was the epitome of a discretionary judgment call and an action taken in the performance of her official duties and governmental functions.  Esposito v State of New York, 515963, 3rd Dept 12-5-13

 

,

Hearsay Evidence from Confidential Informant Insufficiently Detailed to Allow Independent Assessment of Credibility and Reliability

The Third Department annulled certain charges against the petitioner because the hearsay evidence was inadequate:

Hearsay in the form of confidential information may provide substantial evidence to support a determination of guilt when it is sufficiently detailed and probative to permit the Hearing Officer to make an independent assessment of its credibility and reliability … .Here, however, the correction officer’s description of the sources’ statements did not indicate that they had been threatened or had personal knowledge of any threats, nor did the officer provide details regarding the basis of their knowledge or whether they personally witnessed any conduct or statements by petitioner.  The testimony was insufficiently detailed and specific to enable the Hearing Officer to independently assess the credibility or reliability of the confidential information, and it appears that he impermissibly relied on the correction officer’s assessment that the sources were truthful… .  Matter of Rosa v Fischer, 515981, 3rd Dept 12-5-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy