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April Page III

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)


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In an Appeal from an Order Made Upon Appellant's Default, Only Matters Contested Below Can Be Heard---Here the Only Matter Contested Below Was Appellants' Request for an Adjournment to Obtain New Counsel---Relevant Review Criteria Explained


The Second Department noted that in an appeal from an order made upon the appellant's default, the only issues which can be reviewed are those which were contested below.  Here only appellants' request for an adjournment to obtain new counsel was contested, therefore that was the only issue the appellate court could consider.  The court determined the denial of the adjournment request was not an abuse of discretion.  "In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding ... ." The court noted the appellants' lack of cooperation with their second counsel and their consent to second counsel's being relieved:


Where, as here, the order appealed from was made upon the appellants' default, "review is limited to matters which were the subject of contest below" ... . Accordingly, in this case, review is limited to the denial of the appellants' request for an adjournment ... .


The granting of an adjournment for any purpose rests within the sound discretion of the court ... , and its determination will not be disturbed absent an improvident exercise of that discretion ... . In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding ... .


Applying these principles here, the Supreme Court did not improvidently exercise its discretion in denying the appellants' request for an adjournment to obtain new counsel after their second counsel was relieved, as second counsel requested that the appellants permit it to be relieved of the obligation of representation, based on the appellants' lack of cooperation with second counsel, and the appellants thereupon voluntarily consented to second counsel's request ... . Hawes v Lewis, 2015 NY Slip Op 03127, 2nd Dept 4-15-15






Failed Attempt to Circumvent the Banking Law by Making a High-Cost Home Loan to a Limited Liability Company to which the Home Had Been Transferred


The Second Department determined summary judgment should have been granted on defendants' counterclaim alleging plaintiff's violation of the Banking Law which prohibits "high-cost home loans" (Banking Law 6-1).  Plaintiff had attempted to circumvent the law by making the loan to a limited liabilIty company to which the defendants-owners had transferred the home. The Second Department determined the provisions of the Banking Law relating to "high-cost home loans" which (1) prohibited "subterfuge" to circumvent the law, (2) prohibited the consolidation of loan payments made payable in advance, (3) required certain notices, and (4) prohibited excessive points and fees, applied to the transaction in issue:


The defendants established their prima facie entitlement to judgment as a matter of law on their first counterclaim, which was to recover damages and for declaratory relief for violations of Banking Law § 6-l, which imposes limitations and prohibits certain "practices for high-cost home loans" (Banking Law § 6-l[2]). The defendants established, prima facie, that the subject loan was a "high-cost home loan" (Banking Law § 6-l[1][d]; see Banking Law § 6-l[1][f][i]-[iii]; [g][ii]...). ...[U]nder the circumstances of this case, Banking Law § 6-l applies to the ... loan, even though it was made to a limited liability company, and not to "a natural person" (Banking Law § 6-l[1][e][ii]). The provisions of Banking Law § 6-l apply "to any person who in bad faith attempts to avoid the application of this section by any subterfuge" (Banking Law § 6-l[3]). Here, the defendants made a prima facie showing that a representative of [plaintiff] attempted, in bad faith, to avoid the application of the statute by "subterfuge," and that, thus, the statute applied to the Aries loan (Banking Law § 6-l[3]). Moreover, the defendants' submissions demonstrated, prima facie, that [plaintiff] violated the provisions of Banking Law § 6-l(2) by consolidating the first 12 payments and having them "paid in advance from the loan proceeds provided to the [defendants]" (Banking Law § 6-l[2][e]); engaging in "loan flipping" (Banking Law § 6-[2][i]); making the loan "without due regard to repayment ability" (Banking Law § 6-l[2][k]); failing to provide required notices (see Banking Law § 6-l[2][e]; [2-a][a]); and financing points and fees, as defined in Banking Law § 6-l(1)(f), "in an amount that exceeds three percent of the principal amount of the loan" (Banking Law § 6-l[2][m]).  Aries Fin., LLC v 12005 142nd St., LLC, 2015 NY Slip Op 03115, 2nd Dept 4-15-15






A Stay Which Was to Last "45 Days from the Service" of an Order Never Expired Because the Order Was Never Served/Argument that the Stay Never Started Because the Order Was Not Served Rejected


While defendant's motion for summary judgment was pending, plaintiff's counsel moved to withdraw. The motion was granted and the court ordered the case stayed "for 45 days from the service..." of the order dismissing plaintiff's attorney.  Plaintiff was not served with the order and defendant's summary judgment motion was subsequently granted in plaintiff's absence.  The First Department determined that the orders issued pursuant to the summary judgment motion were a nullity.  The 45 day stay never expired because the order granting the stay was never served on the plaintiff.  The defendant's argument that the stay never started because the order was not served was rejected:


After his former counsel was granted leave to withdraw, the action was stayed by court order and operation of CPLR 321(c). Because Plaintiff was never served with the order dismissing his attorney, the 45 day stay never expired. Defendant cannot avoid the stay by arguing that it did not go into effect until served on plaintiff, since the failure to serve the order cannot accrue to defendant's benefit.  Matos v City of New York, 2015 NY Slip Op 03074, 1st Dept 4-14-15






Although the Agreements at Issue Set Up an Investment Fund (Targeting Brazil) in the Cayman Islands, the Fact that the Agreements Were Negotiated, Drafted and Executed in New York Conferred Personal Jurisdiction Over the Defendant Fund


The First Department, in a full-fledged opinion by Justice Acosta, over a partial dissent, determined that the complaint should not have been dismissed for lack of personal jurisdiction over the defendant investment fund.  Although the agreements in question set up the investment fund in the Cayman Islands, targeting investments in Brazil, the agreements were negotiated, drawn up and executed in New York.  Because the claims arose "from defendants' transaction of business in New York, CPLR 302(a)(1) confer[red] personal jurisdiction over defendants." The court explained that "[d]etermining whether long-arm jurisdiction exists under the "transacts business" provision of CPLR 302(a)(1) ... is a two-pronged inquiry: "a court must decide (1) whether the defendant transacts any business in New York and, if so, (2) whether [the] cause of action aris[es] from such a business transaction" ... . [In addition] [t]he assertion of personal jurisdiction must ... be predicated on a defendant's "minimal contacts" with New York to comport with due process ... :"


Under New York's long-arm jurisdiction statute, "a court may exercise personal jurisdiction over any non-domiciliary . . . who . . . transacts any business within the state" (CPLR 302[a][1]). "By this single act statute . . . proof of one transaction in New York is sufficient to invoke jurisdiction . . . so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" ... . Determining whether long-arm jurisdiction exists under the "transacts business" provision of CPLR 302(a)(1), therefore, is a two-pronged inquiry: "a court must decide (1) whether the defendant transacts any business in New York and, if so, (2) whether [the] cause of action aris[es] from such a business transaction" ... . "In effect, the arise-from' prong limits the broader transaction-of-business' prong to confer jurisdiction only over those claims in some way arguably connected to the transaction" ... .


The assertion of personal jurisdiction must also be predicated on a defendant's "minimal contacts" with New York to comport with due process ... . This requires an examination of the "quality and the nature of the defendant's activity" and a finding of "some act by which the defendant purposefully avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protection of its laws" ... . * * *


... [P]laintiff alleges that Citibank's lawyers drafted the documents in New York. ... "[T]he nature and purpose of a solitary business meeting conducted for a single day in New York may supply the minimum contacts necessary to subject a nonresident participant to the jurisdiction of our courts" ... . [The drafting of the agreements] was not a "purely ministerial" act of merely executing a contract in New York that had been negotiated elsewhere, which would likely be insufficient to confer personal jurisdiction ... . * * *


Finding that New York courts have personal jurisdiction over defendants in this case also comports with due process. "So long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction . . . .... . Such is the case before us. Defendants had sufficient minimum contacts with New York by purposefully entering the state to negotiate and execute contracts ... . Wilson v Dantas, 2015 NY Slip Op 03088, 1st Dept 4-14-15





Parol Evidence (Email) Properly Admitted to Explain Ambiguous Term in Construction Contract with a Merger Clause---Relevant Law Succinctly Explained


The Second Department determined parol evidence was properly admitted to explain the meaning of an ambiguous phrase in a construction contract with a merger clause.  The court succinctly explained the relevant law:


A written agreement that is complete, clear, and unambiguous on its face must be enforced to give effect to the meaning of its terms and the reasonable expectations of the parties, and the court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities ... . A contract is considered to be clear and unambiguous where the language used has "a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" ... . Moreover, the parol evidence rule operates to preclude evidence of a prior or contemporaneous communication during negotiations of the agreement that contradicts, varies, or explains a written agreement which is clear and unambiguous in its terms and expresses the parties' entire agreement and intentions ... . Where a contract contains a merger clause, a court is obliged to require full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to vary or contradict the terms of the writing ... .


Here ... parol evidence was properly admitted into evidence to explain the ambiguous phrase "cost to Owner" in the change order provision of the construction contract, inasmuch as the term "cost" was not defined, and could have various meanings, including one limited to labor and material costs without an additional markup. Accordingly, parol evidence, such as the email ... stating that change orders would not include markups, which does not otherwise vary or contradict the construction contract, was permitted... . Vivir of L I, Inc. v Ehrenkranz, 2015 NY Slip Op 03152, 2nd Dept 4-15-15






A Party Alleging Fraudulent Inducement to Enter a Contract May Both Seek to Avoid Terms of the Contract (Here a Jury-Waiver Clause) and Rely on the Contract in Defense of Breach of Contract Allegations/Criteria for Negligent Misrepresentation Cause of Action Explained in Some Depth (Criteria Not Met Here)


The First Department, over a dissent, determined a party claiming it was fraudulently induced to enter a contract is entitled to a jury trial despite the jury-trial waiver in the contract. Because a party alleging fraudulent inducement can either seek rescission or stand on the contract and seek damages, the party may both seek to avoid terms in the contract (here the jury-waiver clause) and rely on the contract as a defense to breach of contract allegations. The court also found that the counterclaim for negligent misrepresentation was properly dismissed because the existence of a confidential or fiduciary or other special relationship (approaching privity), which would justify reliance on representations, was not demonstrated.  The criteria for negligent misrepresentation was described in some depth:


...[A]contractual jury waiver provision is inapplicable to a fraudulent inducement cause of action that challenges the validity of the underlying agreement ... . ...  In cases where the fraudulent inducement allegations, if proved, would void the agreement, including the jury waiver clause, the party is entitled to a jury trial on the claim ... .


..."[A] defrauded party to a contract may elect to either disaffirm the contract by a prompt rescission or stand on the contract and thereafter maintain an action at law for damages attributable to the fraud" ... . As a result, a party alleging fraudulent inducement that elects to bring an action for damages, as opposed to opting for rescission may, under certain circumstances, still challenge the validity of the agreement ... . 



"A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" ... . In commercial cases "a duty to speak with care exists when the relationship of the parties, arising out of contract or otherwise, [is] such than in morals and good conscience the one has the right to rely upon the other for information" ... . Reliance on the statements must be justifiable, and "not all representations made by a seller of goods or a provider of services will give rise to a duty to speak with care" (id.). "Rather, liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified" (id.). In order to impose tort liability in a commercial case, "there must be some identifiable source of a special duty of care" ... . ...[A] special duty will be found "if the record supports a relationship so close as to approach that of privity" ... . Generally, however, an arm's-length business relationship between sophisticated parties will not give rise to a confidential or fiduciary relationship that would support a cause of action for negligent misrepresentation ... . J.P. Morgan Sec. Inc. v Ader, 2015 NY Slip Op 03071, 1st Dept 4-14-15






The Facts that a Witness Had Given a Statement to the Police and Was on the People's Witness List Did Not Demonstrate the People Had Control Over the Witness---Request for Missing Witness Charge Properly Denied


The Second Department determined Supreme Court properly denied defendant's request for a missing witness charge for the defendant's roommate, who had witnessed the shooting and had given a statement to the police during the initial investigation.  The facts that the roommate had given a statement and was placed on the People's witness list did not demonstrate control over the witness. Without evidence of such control (for example, a material witness order) a missing witness charge is not appropriate: 


...[T]he roommate was not under the People's control at the time of trial by virtue of having provided a statement to the police during the initial investigation stage of the case. In addition, control cannot be found from the People's placement of the roommate on their witness list, as their wish for his testimony is not indicia of having control over him. There was no material witness order. Indeed, the record contains no evidence that the People's relationship with the defendant's roommate gave them any more control over him at trial than the defendant may have had himself.  People v Roseboro, 2015 NY Slip Op 03192, 2nd Dept 4-15-15





Although a "Fundamental" Error Requiring Reversal If Preserved, Failure to Administer the Oath of Truthfulness to Potential Jurors is Not a "Mode of Proceedings" Error


The Third Department determined that defendant was not entitled to reversal based on the trial judge's failure to administer the oath of truthfulness to potential jurors (Criminal Procedure Law 270.15(1)(a))  because the error, although fundamental, was not preserved for appeal by objection. It was not a "mode of proceedings" error (which would not need to be preserved by objection to require reversal). Had the error been preserved, reversal would have been mandatory. People v Chancey, 2015 NY Slip Op 03197, 3rd Dept 4-16-15





Defendant Who Objected to the Amount of Restitution at Sentencing Was Entitled to a Hearing Even Though the Restitution-Amount Was (Apparently) Specified in the Plea Agreement


The Second Department determined defendant, who objected at sentencing to the amount of restitution, was entitled to a hearing, even though the specific restitution-amount was (apparently) made part of the plea agreement.  The restitution was related to the "buy money" used by the police in a related drug deal.  The court explained the relevant law:


Under Penal Law § 60.27(9), a defendant may be ordered to pay restitution for funds used by law enforcement in the purchase of drugs, if certain prerequisites are met. Before a defendant may be directed to pay restitution, a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing (see Penal Law § 60.27[2]...). This procedure must be followed even if the plea agreement contains a provision for a specific amount of restitution ... . People v Morrishill, 2015 NY Slip Op 03187, 2nd Dept 4-15-15




Defendant Alleged a Possible Defense to His Failure to Comply with an Order that He Pay Temporary Maintenance and Child Support (Inability to Work Due to Medical Problems)---Hearing Was Required Before a Civil Contempt Finding Could Be Made


The Second Department determined Supreme Court should not have held defendant in civil contempt for his failure to comply with an order that he pay temporary maintenance and child support without first conducting a hearing. The defendant's opposition papers raised a factual dispute about whether there was a defense (inability to work due to medical problems).  In the context of a civil contempt proceeding, a question of fact about the existence a defense requires a hearing:


To prevail on a motion to hold a party in civil contempt, the movant is required to prove by clear and convincing evidence " (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'" ... . "Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" ... . A hearing is required "if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense" ... . Lundgren v Lundgren, 2015 NY Slip Op 03135, 2nd Dept 4-15-15





Statute Which Excludes Coverage for a Suit by an Injured Spouse (Passenger) Against Her Husband (Driver) Does Not Exclude Coverage for a Cross-Claim Against Husband (Driver) by the Defendant-Driver Sued by the Injured Spouse (Passenger)


Although the Insurance Law (section 3420 (g)) excludes coverage for an action by injured wife (passenger) against her husband (driver), it does not exclude coverage for a cross-claim against the husband (driver) by the defendant-driver sued by the injured wife (passenger):


Pursuant to Insurance Law § 3420(g), "[i]n the absence of an express provision in an insured's policy, a carrier is not required to provide insurance coverage for injuries sustained by an insured's spouse" ... . Insurance Law § 3420(g) "was enacted to prevent the possible fraud and collusion that might arise in actions wherein an injured spouse seeks to recover for injuries resulting from the negligence of an insured spouse" ... . The chance of fraud and collusion, however, "is slight where a passenger-spouse is suing a third-party who brings a claim for relative contribution against a driver-spouse [as] [t]he recovery of the injured spouse is not dependent upon proving the liability of the driver-spouse" ... . Thus, Insurance Law § 3420(g) does not "preclude liability insurance coverage on a third-party claim for contribution against an insured (joint tortfeasor) spouse of an injured [person]" ... . Metropolitan Group Prop. v Kim, 2015 NY Slip Op 03138, 2nd Dept 4-15-15





Insurer Not Estopped from Disclaiming Coverage Four Years After the Claim---No Prejudice to Insured and Disclaimer Supported by Policy Exclusion


The Second Department determined summary judgment was properly granted to the insurer, despite the passage of four years between the loss of business income claim and the disclaimer.  The policy excluded coverage for business income loss related to the "enforcement of any ordinance or law regulating the construction, use, or repair of any property."  Although the initial business interruption was caused by vandals damaging the business premises, the delay in reopening was related to the requirement that the insureds obtain a certificate of occupancy.  The lack of a certificate of occupancy was discovered when the building inspector was alerted to the damage caused by the vandalism and the insureds were told they could not reopen until a certificate of occupancy was issued. The Second Department explained that even an unreasonable delay in disclaiming coverage (four years here) will not invalidate the disclaimer unless the insured had been prejudiced.  No prejudice was demonstrated and the disclaimer was supported by the policy exclusion:


An insurer's delay in giving notice of disclaimer of coverage, even if unreasonable, will not estop the insurer from disclaiming unless the insured has suffered prejudice from the delay ... . Since the record reveals no such prejudice, nor is any such prejudice alleged by the plaintiffs, the Merchants defendants established, prima facie, that the disclaimer was effective ... . In opposition, the plaintiffs failed to raise a triable issue of fact.


Moreover, the policy of insurance here clearly and unambiguously excludes coverage for losses caused directly or indirectly by the enforcement of any ordinance or law regulating the construction, use, or repair of any property. This provision excludes coverage for losses, including business income losses, caused by the enforcement of the law and, here, it was the enforcement of the Building Code by the Town's Building Department which prevented the plaintiff from utilizing the premises to engage in their dental business without a proper certificate of occupancy ... . Accordingly, the [insurer] established, prima facie, that [it] properly disclaimed, as excluded under the terms of the policy, the loss of business income claim. In opposition, the plaintiffs failed to raise a triable issue of fact. Ira Stier, DDS, P.C. v Merchants Ins. Group, 2015 NY Slip Op 03128, 2nd Dept 4-15-15






"Head Waiter" with Substantial Managerial Duties and "Wine Steward" Whose Duties Did Not Include Serving Customers Were Not Entitled to Share in the Servers' and Bus Boys' Tip Pool


The Third Department affirmed the NYS Industrial Board of Appeals' determination that two senior restaurant employees were not entitled to share in the servers' and bus boys' tip pool based upon the nature of their duties---one, the "head waiter," had substantial managerial duties, and the other, the "wine steward," had computer-programming duties, assisted customers with the wine list, and had little to do with serving customers.  Labor Law 196-d, as interpreted by the Court of Appeals, looks at the actual duties of employees, as opposed to their titles.  Those who exercise substantial managerial responsibilities, and those who cannot be characterized as "food service workers," cannot participate in the tip pool:


The governing statute, Labor Law § 196-d, provides that "[n]o employer or his [or her] agent . . . shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. . . . Nothing in this subdivision shall be construed as affecting . . . the sharing of tips by a waiter with a busboy or similar employee." Recently, the Court of Appeals clarified that eligibility to participate in a tip pool "'shall be based upon duties and not titles'" (Barenboim v Starbucks Corp., 21 NY3d 460, 471 [2013], quoting 12 NYCRR 146-2.14 [e]), and the Court held that "employer-mandated tip splitting should be limited to employees who, like waiters and busboys, are ordinarily engaged in personal customer service, a rule that comports with the 'expectation[s] of the reasonable customer'" (Barenboim v Starbucks Corp., 21 NY3d at 471-472, quoting Samiento v World Yacht Inc., 10 NY3d 70, 79 [2008]; see 12 NYCRR 146-2.16 [b]; 146-3.4 [a]). Consistent with longstanding DOL policy, the Court further observed that "employees who regularly provide direct service to patrons remain tip-pool eligible even if they exercise a limited degree of supervisory responsibility" (Barenboim v Starbucks Corp., 21 NY3d at 472). The Court concluded, however, "that there comes a point at which the degree of managerial responsibility becomes so substantial that the individual can no longer fairly be characterized as an employee similar to general wait staff within the meaning of Labor Law § 196-d" (id. at 473). The Court determined that "the line should be drawn at meaningful or significant authority or control over subordinates" (id.). The Court explained that "[m]eaningful authority might include the ability to discipline subordinates, assist in performance evaluations or participate in the process of hiring or terminating employees, as well as having input in the creation of employee work schedules, thereby directly influencing the number and timing of hours worked by staff as well as their compensation" (id.). Matter of Marzovilla v New York State Indus. Bd. of Appeals, 2015 NY Slip Op 03219, 3rd Dept 4-16-15





Although the Doctor Was Employed by the Hospital, His Employment Did Not Encompass His Medical Practice---Therefore the Hospital Was Not Liable for the Doctor's Medical Malpractice Under the Doctrine of Respondeat Superior/$6.8 Million Verdict Against the Doctors Based Upon a Delay in Diagnosing Cancer Should Not Have Been Set Aside


The Second Department determined Supreme Court properly dismissed the complaint against the hospital in a medical malpractice case, but improperly set aside the $6.8 million verdict against the doctors.  Plaintiff alleged the doctors caused a 13-month delay in the diagnosis of cancer, which required her to have extensive surgery and reduced her chance of survival.  The suit against the hospital was based upon respondeat superior. However the employment contract between the doctor, Aloia, and the hospital related to duties other than Aloia's treatment of patients.  Therefore the complaint against the hospital was properly dismissed after trial pursuant to CPLR 4401. The Second Department determined there was sufficient evidence to support plaintiff's allegations and, therefore, the verdict against the doctors should stand.  "...[T]here was a valid line of reasoning and permissible inferences from which the jury could have rationally concluded that the physician defendants departed from good and accepted medical practice, and that the delay in diagnosing the injured plaintiff's cancer proximately caused her to have a worsened prognosis or decreased 10-year survival rate:"


To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational basis by which the jury could find for the plaintiff against the moving defendant" ... . "The doctrine of respondeat superior renders an employer vicariously liable for a tort committed by an employee while acting within the scope of employment. The general rule is that an employee acts within the scope of his employment when he is acting in furtherance of the duties owed to the employer and where the employer is or could be exercising some degree of control, directly or indirectly, over the employee's activities" ... . Although the issue is usually a factual issue for the jury, "[w]here the proof on the issue of control presents no conflict in evidence or is undisputed, the matter may properly be determined as a matter of law" ... .


Here, there was no real dispute as to the employment arrangement between Aloia and [the hospital] as set forth in the clear and unambiguous employment contract ... . Aloia's employment contract permitted him to maintain his private practice in endocrinology, as well as internal medicine and bone densitometry, outside of his employment with [the hospital]. * * *


"A motion for judgment as a matter of law pursuant to CPLR . . . 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party" ... . "In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'" ... . Luna v Spadafora, 2015 NY Slip Op 03134, 2nd Dept 4-15-15





Criteria for Common Carrier Liability for Injury Caused by a Sudden Stop Explained (Not Met Here)


In affirming the grant of summary judgment to the defendant transit authority, the Second Department explained the circumstances under which a common carrier may be liable for injuries to a passenger caused by a sudden stop:


To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of 'jerks and jolts commonly experienced in city bus travel'... . Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent ... . There must be 'objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant' ... . In seeking summary judgment dismissing the complaint, ... common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent ... .  Alandette v New York City Tr. Auth., 2015 NY Slip Op 03113, 2nd Dept 4-15-15






Village Not Liable for Failure to Place a Crossing Guard at a Particular Intersection---Placement of Crossing Guards Is a "Discretionary," Not "Ministerial," Government Action---No Liability Absent Special Relationship to Plaintiff


Infant plaintiff was struck by a car as he was crossing a street after leaving school.  There was no crossing guard at the intersection where infant plaintiff was struck, but there were crossing guards at nearby intersections.  The Second Department determined that the placement of crossing guards was a "discretionary," not a "ministerial" action.  "[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result ... ".  The municipality (village) was not liable absent a special relationship with the infant plaintiff apart from a duty to the general public:


"Government 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 plaintiff, apart from any duty to the public in general" ... . " [D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'" ... . The assignment of crossing guards to intersections falls within the definition of a discretionary function ... .


Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that its actions were discretionary. Although the Village had assigned crossing guards to certain intersections near the school, its decision not to post a crossing guard at the subject intersection does not give rise to liability on the part of the Village ... . McCants v Hempstead Union Free School Dist., 2015 NY Slip Op 03136, 2nd Dept 4-15-15






Failure to State in the Notice of Claim that Defendant Created the Icy Condition on the Sidewalk, or that the Condition Was the Result of Defendant's Negligence, Required Dismissal of the Complaint


The Second Department determined summary judgment dismissing the complaint in a slip and fall case was appropriate because the notice of claim did not set forth the legal theory upon which the suit was based:


A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim, and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality (see General Municipal Law § 50-e[1][a]...). While a claimant need not state "a precise cause of action in haec verba in a notice of claim" ..., the notice of claim must at least adequately apprise the defendant that the claimant would seek to impose liability under a cognizable theory of recovery ... . Moreover "a party may not add a new theory of liability which was not included in the notice of claim" ... . Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting proof that the notice of claim made no allegations that the ice patch on which the plaintiff slipped and fell was created by its snow removal operation, or existed by virtue of its negligence ... . Steins v Incorporated Vil. of Garden City, 2015 NY Slip Op 03149, 2nd Dept 4-15-15






Failure to Submit Lease to Show No Contractual Obligation to Remove Ice And Snow Precluded Summary Judgment to Defendant Out-of-Possession Landlord---Evidence First Submitted in Reply Papers Properly Not Considered


The Second Department determined defendant out-of-possession landlord was not entitled to summary judgment in a slip and fall case because it did not submit the lease and therefore did not demonstrate the absence of any obligation to remove ice and snow.  The court noted that it could not consider evidence presented for the first time in reply papers:


An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct" ... . Here, the plaintiff did not allege that the landlord's duty was statutory or based on a course of conduct. Thus, to prevail on its motion, [defendant] was required to demonstrate, prima facie, that it had not retained control over the premises, or that it had no contractual duty to remove snow and ice from the area where the plaintiff allegedly slipped and fell. [Defendant] failed to sustain this burden because it failed to submit a copy of the lease between it and the entity that was the tenant of the subject premises at the time of the accident ... .  Poole v MCPJF, Inc., 2015 NY Slip Op 03142, 2nd Dept 4-15-15






Criteria for Respondeat Superior (Scope of Employment) Liability Succinctly Explained


The Second Department determined summary judgment was properly denied to the defendant employer.  The employee was test driving a competitor's car in connection with his job at a Mercedes dealership when the employee was involved in an accident.  The Second Department determined the employer failed to demonstrate the employee was not acting within the scope of his employment at the time of the accident.  The court explained the relevant law:


Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment" ... . "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment" ... . "An employer, however, cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident ... . Zwibel v Midway Automotive Group, 2015 NY Slip Op 03154, 2nd Dept 4-15-15





Owners of Single Family Residence Not Liable for Defects in Abutting Sidewalk


In affirming the grant of summary judgment to the defendants who owned a single family residence abutting the allegedly defective sidewalk where plaintiff fell, the Second Department explained the relevant New York City law:


[Defendants] demonstrated that they were exempt from liability pursuant to Administrative Code of the City of New York § 7-210(b) for their alleged failure to maintain the sidewalk abutting their property by establishing that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes (see Administrative Code of City of N.Y. § 7-210[b]...).  Further, they established, prima facie, that they could not be held liable for the plaintiff's alleged injuries under common-law principles. 'Absent the liability imposed by statute or ordinance, an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in the sidewalk unless the landowner either created the defect or caused it to occur by special use'... . Shneider v City of New York, 2015 NY Slip Op 03148, 1st Dept 4-15-15





Premises Clause Prevails Over Habendum Clause in a Deed/Failure to Expressly Label Parties and Include the Parties' Addresses Does Not Invalidate a Deed


The Third Department determined that where there is a conflict between the premises clause and the habendum clause in a deed, the premises clause prevails.  Here the premises clause clearly indicated the creation of a life estate with the remainder interest going to decedent's only children.  The habendum clause indicated the decedent conveyed the property to "[defendant] and assigns forever."  The court also noted that the failure to label the parties and include the parties' addresses in a deed does not invalidate the deed, although it may preclude recording of the deed:


...[T]he rules of construction applicable to deeds provide that where there is a conflict between the provisions set forth in the premises clause and those in the habendum clause relative to the extent of the conveyance, the premises clause will control, absent a clear indication of a contrary intent elsewhere in the deed ... . Here, the premises clause provides that the remainder interest in the property is conveyed to plaintiffs, and nothing in the deed other than the habendum clause suggests that decedent had a contrary intent. ...


Contrary to defendant's assertion, Real Property Law § 258 did not require the deed to expressly label plaintiffs as parties or to include their addresses. The statute does not mandate the use of the deed formats that it sets forth, but instead provides that "this section does not prevent or invalidate the use of other forms" (Real Property Law § 258). Although the failure to include a party's address may prevent a deed from being recorded, it does not operate to invalidate the underlying conveyance ... . Basile v Rose, 2015 NY Slip Op 03213, 3rd Dept 4-16-15






Attesting Witnesses Did Not See Decedent's Signature on the Will and One Attesting Witness Did Not Know the Document Was a Will---The Will Was Not Duly Executed and the Petition for Probate Was Properly Dismissed


The Third Department determined the petition seeking probate of a will was properly dismissed because the attesting witnesses did not know whether the decedent had signed the will.  One attesting witness was approached by decedent in the hallway of the assisted living facility where the witness worked and saw only the page of the document which he signed.  Another attesting witness, also approached in the hallway by the decedent, was not aware she was signing a will and did not see decedent's signature on the document. The court explained that an attestation clause, standing alone, will not demonstrate due execution of a will. "...[T]he testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator's will (see EPTL 3-2.1 [a])." Here, two of the three attesting witnesses did not sign the will in conformity with the statutory requirements:


To be duly executed, a will must be subscribed by the testator in the presence of at least two attesting witnesses, or the testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator's will (see EPTL 3-2.1 [a]). Here, the subject will contains an attestation clause. However, Surrogate's Court must nonetheless examine the attendant circumstances to determine the validity of the will, and it is well established that the attestation clause standing alone will not suffice to meet the proponent's burden of demonstrating due execution by a preponderance of the evidence if affirmative proof reveals that the required elements were lacking ... . In this analysis, "the testimony of the attesting witnesses is entitled to great weight" ... . Matter of Yen, 2015 NY Slip Op 03228, 3rd Dept 4-16-15






Claimant Delivery Driver Was an Employee of Partsfleet Despite Fact that Claimant Was Paid by Another Company (SCI) With Which Partsfleet Had a Contract


The Third Department determined the employer, Partsfleet, exercised sufficient control over the claimant, a delivery driver, to support the finding that the driver was an employee, even though the employer had a contract with another company, SCI, which issued claimant's paycheck. SCI had no involvement with the duties performed by the claimant. "Claimant was retained as a delivery driver following a short interview with a Partsfleet representative and a check of his motor vehicle record. Partsfleet trained him on the operation of a scanner used to schedule and track customer deliveries, and briefed him on the requirements of the customers. The delivery schedule was set by Partsfleet based upon customer requests, and it monitored deliveries via the scanner. Claimant was paid based on the particular delivery route that he had completed at a rate that Partsfleet set with its customer, and claimant was paid if he completed the route regardless of whether the customer paid Partsfleet. Claimant worked out of a warehouse that belonged to one of Partfleet's customers and that is where he left his completed route sheets, which were then collected by a Partsfleet representative. Any problems with deliveries were generally handled by a Partsfleet representative. Although claimant could work for other companies and find replacements if he could not work a particular route, the replacements had to be approved by Partsfleet. The foregoing establishes that Partsfleet maintained control over important aspects of claimant's work as was necessary to insure that its customers' needs were satisfied..." Matter of Watson (Commissioner of Labor), 2015 NY Slip Op 03224, 3rd Dept 4-16-15

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