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August Page III

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


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Allegations of Fraud in the Inducement Did Not Invalidate the Arbitration Clause in the Agreement


The Second Department, over a dissent, determined that plaintiff's motion to stay arbitration was properly denied. Plaintiff alleged that an agreement to sell her business and related real property was induced by fraud and, therefore, the arbitration clause in the agreement was invalid and unenforceable. The court noted that the agreement was properly signed by plaintiff's attorney as her attorney-in-fact and plaintiff attended the closing where she signed the relevant documents. She was deemed, therefore, to have read and understood the documents. The court explained its limited role in determining whether a matter is arbitrable, and further explained that, absent fraud which permeated the entire agreement, the arbitration clause will still be enforced in the face of allegations of fraud in the inducement:


Arbitration is a favored method of dispute resolution in New York ... . "[T]he announced policy of this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties" ... . "New York courts interfere as little as possible with the freedom of consenting parties' to submit disputes to arbitration" ... . Parties to arbitration agreements should be prevented from using the courts as a vehicle to protract litigation ... . The threshold issue of whether there is a valid agreement to arbitrate is for the courts ... . Once it is determined that the parties have agreed to arbitrate the subject matter in dispute, the court's role has ended and it may not address the merits of the particular claims ... . * * *


... [T]he Court of Appeals ruled that an arbitration clause is generally separable from substantive provisions of a contract, so that an agreement to arbitrate is valid even if the substantive provisions of the contract are induced by fraud ... . However, if a party can demonstrate that "the alleged fraud was part of a grand scheme that permeated the entire contract, including the arbitration provision, the arbitration provision should fall with the rest of the contract" ... . "To demonstrate that fraud permeated the entire contract, it must be established that the agreement was not the result of an arm's length negotiation or the arbitration clause was inserted into the contract to accomplish a fraudulent scheme" ... . Here, the plaintiff failed to make such a showing. Ferrarella v Godt, 2015 NY Slip Op 06571, 2nd Dept 8-19-15







Arbitrator's Ruling that, Under the Terms of the Collective Bargaining Agreement, a Bus Driver Could Not Be Disciplined for Sexual Harassment While He Was On Union-Paid "Release Time," Violated the Public Policy Prohibiting Sexual Harassment in the Workplace


The First Department, in a full-fledged opinion by Justice Renwick, determined the facts of the case presented a rare instance when the arbitrator's resolution of a matter covered by the collective bargaining agreement (CBA) violated public policy. A bus driver, Aiken, was accused of sexual harassment by a co-worker. Shortly thereafter the union requested of the Transit Authority that Aiken be placed on union-paid "release time" and the Transit Authority did so. The Equal Employment Opportunity Commission (EEOC) found the bus driver had violated the Transit Authority's sexual harassment policy and recommended corrective action. Aiken did not participate in the disciplinary proceedings (which resulted in Aiken's termination) on the ground that, under the terms of the CBA, the Transit Authority did not have the authority to impose discipline while he was on union-paid "release time." An arbitrator ultimately agreed with Aiken and reinstated him. The First Department noted that the arbitrator's award was supported by the terms of the CBA, but held the award violated the strong public policy prohibiting sexual harassment in the workplace:


The scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow, and courts will only intervene in " cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator'" ... . In other words, under this analysis, we must focus on the result only, and can vacate the award if it intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this State. Moreover, "courts must be able to examine an arbitration ... award on its face, without engaging in extended fact finding or legal analysis, and conclude that public policy precludes its enforcement" ... . * * *


We ... find it nececessary to intervene ... because the arbitrator construed the CBA and fashioned a remedy in a manner that conflicts with a well-defined and dominant public policy. The public policy against sexual harassment in the workplace is well recognized. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex (42 USC § 2000e-2[a][1]). The Equal Employment Opportunity Commission (the EEOC), which administers and enforces this provision, has promulgated a guideline that states:


Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment (29 CFR 1604.11[a][3]).


Moreover, Title VII places upon an employer the responsibility to maintain a workplace environment free of sexual harassment. The EEOC Guidelines make employers liable for sexual harassment between fellow employees of which it knew or should have known, "unless it can show that it took immediate and appropriate corrective action" (29 CFR § 1604.11[d]). The EEOC Guidelines indicate that employers should take all reasonable steps to prevent harassment from occurring in the employment setting, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned (29 CFR § 1604.11[f]). The EEOC Compliance Manual further provides that employers should create a procedure for resolving sexual harassment complaints that encourages victims of sexual harassment to come forward ...  "It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation" ... .


New York has similar legislation and rules ... . Furthermore, the protections afforded employees under the New York City Human Rights Law (NYCHRL) are more expansive than those provided under analogous provisions of Title VII of the Civil Rights Act of 1964... . Matter of Phillips v Manhattan & Bronx Surface Tr. Operating Auth., 2015 NY Slip Op 06564, 1st Dept 8-18-15








Defendants Demonstrated They Were Entitled to Depose Nonparty Physician Whose Notations Expressed Skepticism About the Cause of Plaintiff's Injuries


The Second Department determined defendants were entitled to depose a nonparty doctor whose notations in medical records expressed skepticism about the plaintiff's claims re: the cause of her injuries. The court explained the applicable law:


Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The notice requirement of CPLR 3101(a)(4) "obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'" ... . After the subpoenaing party has established compliance with the CPLR 3101(a)(4) notice requirement, disclosure from a nonparty requires no more than a showing that the requested information is relevant to the prosecution or defense of the action ... . However, the party or nonparty moving to vacate the subpoena has the initial burden of establishing either that the requested deposition testimony "is utterly irrelevant'" to the action or that " the futility of the process to uncover anything legitimate is inevitable or obvious'" ... .


Here, contrary to the plaintiff's contention, the ... defendants satisfied the notice requirement. In a copy of the document entitled "Authorization to Permit the Interview of Treating Physician by Defense Counsel," which was attached to the nonparty witness subpoena, "the circumstances or reasons" requiring the deposition of the nonparty were properly provided (CPLR 3101[a][4]). Since the ... defendants met this minimal obligation, the burden shifted to the plaintiff to establish that the deposition testimony sought was irrelevant to this action, which she failed to do. Further, the ... defendants demonstrated that it was relevant to the defense of the action ... . Bianchi v Galster Mgt. Corp., 2015 NY Slip Op 06568, 2nd Dept 8-19-15









Elements of Tortious Interference with Contract and Tortious Interference With Prospective Business Relations Explained


The Second Department, over a dissent, determined that the counterclaims alleging tortious interference with contract and tortious interference with prospective business relations were properly dismissed. The counterclaims alleged that the plaintiffs-attorneys, who represented defendant, Landmark, improperly sought payment of attorney's fees for a negotiated stipulation of settlement directly from the party with whom Landmark settled, rather than from Landmark. In dismissing the counterclaims, the court explained the required elements of each:


A necessary element of [tortious interference with contract] is the intentional and improper procurement of a breach and damages ... . Here, Landmark failed to adequately plead facts that would establish that the plaintiffs, in communicating with the third party to secure their attorney's fees, intentionally procured that party's breach of the stipulation of settlement... . ...


A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a "more culpable conduct" standard ... . This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party ... . " Wrongful means' include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure" ... . As a general rule, the offending party's conduct must amount to a crime or an independent tort, as conduct that is neither criminal nor tortious will generally be "lawful" and thus insufficiently "culpable" to create liability for interference with prospective business relations ... . The mere violation of an attorney disciplinary rule will only create liability if actual damages are incurred as a result of the violating conduct  ... . In addition, where the offending party's actions are motivated by economic self-interest, they cannot be characterized as solely malicious ... . Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc., 2015 NY Slip Op 06575, 2nd Dept 8-19-15









Police-Monitored, Recorded Phone Conversation Between Minor Victim and Defendant Was Admissible


In affirming defendant's conviction, the Fourth Department determined a police-monitored, recorded phone conversation between the minor victim and the defendant was admissible. "Vicarious consent" to the recording was given by the victim's mother. The court rejected arguments that the conversation was inadmissible because the victim was acting as a police agent and because the conversation constituted an impermissibly deceptive tactic on the part of the police:


We reject defendant's further contention that the court erred in refusing to suppress statements that he made during a police-monitored telephone conversation with the victim. There is no merit to his contention that the statements were admitted in violation of CPLR 4506 (1). It is well established that one of the parties to a telephone conversation may consent to the wiretapping or recording of the conversation... , and here the victim gave her consent. Defendant failed to preserve for our review his contention that the victim, as a minor, could not consent to the recording of her own conversations ... . We note in any event that the victim's mother consented to the recording, and we conclude that the "vicarious consent" exemption applies under the circumstances presented such that the admission of the subject recording was not barred by CPLR 4506 ... . Also contrary to defendant's contention, his statements in the controlled telephone call were not inadmissible pursuant to CPL 60.45. Even assuming, arguendo, that the victim was acting as an agent of the police when she telephoned defendant, the calls were recorded with the victim's consent ..., and "the victim did not make a threat that would create a substantial risk that defendant might falsely incriminate himself" ... . We reject defendant's further contention that the controlled telephone call constituted an unconstitutionally deceptive police tactic. "Deceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession' " ... , and there was no such showing here. People v Bradberry, 2015 NY Slip Op 06609, 4th Dept 8-19-15








"Nailing" of Petition on Next to Last Day for Service, and Mailing on the Last Day, Was Sufficient---Respondent, Who Initially Declined Designation as a Candidate, Could Not Subsequently Accept Designation as a Substitute Candidate


The Fourth Department, over a two-justice dissent, determined that the petition seeking invalidation of respondent's designating petition was timely served by "nail and mail" because the nailing occurred on the day before the last possible date for service and the mailing occurred on the last possible day for service. The fact the petition could not have been "received" by mail by that date was not determinative. On the merits, the court determined respondent could not be the substitute candidate for a vacancy he himself had created by initially declining the designation. With respect to the service issue, the court wrote:


... [T]he petitioner must effectuate " actual delivery of the instrument of notice not later than the last day on which the proceeding may be commenced' " ... . In other words, the respondents must "receive delivery" of the order to show cause and the verified petition "within the [statute of limitations] period" ... . That requirement operates irrespective of the court's specific service directions under section 16-116 ... .


Contrary to the view of our dissenting colleagues, we conclude that petitioner effectuated "actual delivery" of the commencement papers when they were affixed to respondent's front door. It is well established that because "the [commencement] papers were timely affixed to the front door, the fact that the papers mailed were not received on [or before the statute of limitations date] was not a jurisdictional defect" ... . Matter of Angletti v Morreale, 2015 NY Slip Op 06616, 4th Dept 8-19-15





Address Errors Rendered Designating Petition Invalid---Petitioner Not Entitled to "Opportunity to Ballot"


The Third Department determined that errors in indicating the correct address of signatories invalidated the designating petition, Because such errors are not deemed merely "technical" errors under the Election Law, the petitioner's request for an "opportunity to ballot" was properly denied:


Pursuant to Election Law § 6-130, "[t]he sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed." Strict compliance with Election Law § 6-130 is mandated, as its requirements constitute "a matter of substance and not of form"... . * * *


... [T]he discretional remedy of an opportunity to ballot should be granted "only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters" ... . Here, we find that Supreme Court did not abuse its discretion in concluding that the opportunity to ballot remedy is not appropriate in light of the fact that the defects at issue have been held to be substantive and not technical in nature ... . Matter of Canary v New York State Bd. of Elections, 2015 NY Slip Op 06638, 3rd Dept 8-20-15







Candidate Designating Petition Deemed Invalid Due to Fraud (Unwitnessed Signatures)


The Second Department determined a candidate-designating petition was invalid because the subscribing witness did not in fact witness all of the signatures on the petition. The petition was invalid with respect to the candidate who was aware of the fraud, and the candidates who were not aware of the fraud (because there were not enough signatures after the invalid signatures were struck):


A candidate's designating petition will be invalidated on the ground of fraud where there is a showing that the entire designating petition is permeated with fraud ... , or where the candidate has participated in, or is chargeable with, knowledge of the fraud... , even if there are a sufficient number of valid signatures on the remainder of the designating petition ... .


Here, the Supreme Court determined that Shapiro, the subscribing witness with respect to 147 signatures, had fraudulently and knowingly signed and submitted false witness statements, and that Spring [one of the candidates] was a party to the fraud. * * * . Moreover, we agree with the court's determination that Shapiro fraudulently and knowingly signed and submitted false witness statements . Therefore, the court correctly determined that Spring participated in, and was chargeable with knowledge of, the fraud, and properly granted that branch of the petition which was to invalidate the designating petition as to him ... . 


However, since the Supreme Court determined that Shapiro's witness statements on the contested sheets were false, the court erred in denying those branches of the petition which were to invalidate the designating petition as to the other two candidates, Perillo and Milner ... .  Shapiro was the subscribing witness with respect to 147 of the 343 total signatures, and her false witness statements render those signatures invalid. Although Perillo and Milner did not engage in candidate fraud, the invalidation of 147 of the 343 collected signatures leaves them with an insufficient number of valid signatures. Thus, the designating petition should have been invalidated with respect to all three candidates ... . Matter of Sgammato v Perillo, 2015 NY Slip Op 06630, 2nd Dept 8-19-16








Fact that Notary Public Did Not Administer an Oath to the Signatories on the Designating Petition Did Not Invalidate the Petition


The Third Department determined the signatures on the candidate-designating petition were valid, despite the respondent's, Sira's, admission that no oath was administered to the signatories which Sira signed as a notary public. The court noted that, under the Election Law, Sira could have merely witnessed the signatures, without signing as a notary public. Because there was no evidence the signatures were fraudulent in any way, the petition was deemed valid:


"A designating petition will be invalidated if the challenger shows, by clear and convincing evidence, that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity" ... . Here, although Sira herself attested to 307 signatures on her designating petition as a notary public, which included an affirmation that the signatories had sworn that their statements were true, she admitted at the hearing that she had not administered an oath to the signatories or obtained a statement as to the truth of the matter to which they subscribed as required by Election Law § 6-132 (3) ... . Sira concedes that those 307 signatures are therefore invalid. However, we are unconvinced that Sira's actions amounted to fraud warranting invalidation of the entire designating petition. Notably, as a registered member of the Republican Party living in Fulton County, Sira was not required to attest to the signatures on her petition as a notary public; rather, Sira could have attested as a witness to the signatures, requiring only an affirmation that the signatories identified themselves as the individuals who signed the petition and that they signed the petition in the presence of the witness (see Election Law § 6-132 [2]). Significantly, there is no evidence that Sira did not witness the signatures she attested to or that the signatures were not authentic. Thus, in our view, it has not been established by clear and convincing evidence that, under these circumstances, invalidation of Sira's entire designating petition is warranted on this basis... . Matter of Vincent v Sira, 2015 NY Slip Op 06636, 3rd Dept 8-20-15





Fraud Does Not Require Proof of a "Nefarious Motive"---Fact that Respondent Knew that the Spouses of Three Signatories Signed the Petition on the Signatories' Behalf Invalidated the Petition, Despite the Fact that There Were a Sufficient Number of Valid Signatures


The Third Department invalidated the designating petition because the respondent, Hammond, admitted he witnessed the signatures of the three people who were the spouses of the person purportedly signing the petition.  The petition included 38 signatures, 30 more than the eight required to receive the party designation. Hammond thought having the three spouses sign was proper. The court noted that the signatures were fraudulent, despite the absence of an intent to defraud, and Hammond's knowledge of the fraud required invalidation:



A court will invalidate a designating petition where the challenger establishes, by clear and convincing evidence, "that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity" ... . Where a candidate is involved in the fraud, the challenger need not show that the fraud permeated the entire petition ..., and "the petition may be invalidated even if it contains a sufficient number of valid signatures independent of those fraudulently procured" ... . * * *


Fraud ... does not require proof of a "nefarious motive" ... . Inasmuch as Hammond participated in the fraud, and regardless of the fact that the designating petition contained a sufficient number of signatures independent of the three signatures that were fraudulently obtained, we invalidate respondents' designating petition and strike their names from the ballot ... . Matter of Mattice v Hammond, 2015 NY Slip Op 06637, 3rd Dept 8-20-15





Failure to Administer Oath to Two Signatories Invalidated Petition---When Oath Required Under the Election Law Explained


The Third Department determined that the failure to administer the oath required by the Election Law to two signatories invalidated the designating petition. The court explained when the oath is required under the Election Law, and when it is sufficient to merely witness a signature:


The Election Law provides a much simpler process for a local party member to obtain petition support for a potential candidate than for an individual of either another political party or from outside the relevant political subdivision. A local party member may obtain petition signatures and affirm with a simple statement that the signatories "subscribed the same in my presence on the dates above indicated and identified himself or herself to be the individual who signed this sheet" (Election Law § 6-132 [2]). Where the petition is obtained by an individual other than a statutorily authorized local party member, however, the petition may be approved by a notary public or commissioner of deeds, but it is further required that each individual signatory be "duly sworn" (Election Law § 6-132 [3]).


Here, [respondent] was gathering signatures on multiple party lines, and at issue are three lines in which she was not a duly registered party member. At the hearing, in addition to testimony from signatories that no oath or affirmation as to the truth of their statements was elicited prior to signing the petitions, [respondent] herself clearly acknowledged in her testimony that she had neither administered an oath to any signatory on the challenged petitions, nor had she asked any of them to swear or affirm to tell the truth before signing. This is contrary to her attestation as a commissioner of deeds, which appears on the face of each sheet of the challenged designating petitions, as required pursuant to Election Law § 6-132 (3). As respondent argues, case law has established that not all of the formalities of an oath need be observed ... . Nonetheless, we are constrained to find that the evidence did not support a finding of substantial compliance with the statutory requirements. Accordingly, the signatures collected by [respondent] are rendered invalid... . Matter of Mertz v Bradshaw, 2015 NY Slip Op 06639, 3rd Dept 8-20-15





Failure to Meet One-Year Residency Requirement Invalidated Designating Petition


The Third Department affirmed the invalidation of petitioner's designating petition because petitioner had not lived in the relevant district for one year, as required by the Albany County Charter. The court held the residency requirement did not violate due process:


... [B]y conceding that the address listed on his designating petition is outside the 9th Legislative District and that he did not, in fact, live in that district, petitioner failed to demonstrate that he satisfied the residency requirements and, consequently, did not meet his burden of demonstrating the validity of his designating petition ... . 


... [W]e find that the one-year durational residency requirement imposes a reasonable, nondiscriminatory restriction on prospective candidates and voters that is supported by a rational basis ... . Matter of Scavo v Albany County Bd. of Elections, 2015 NY Slip Op 06640, 3rd Dept 8-20-15







Building With One Retail Unit and Two Apartments, One of Which Was Owner-Occupied, Did Not Qualify for the Homeowner's Exemption from Liability Under the Labor Law


The Second Department determined defendant was not entitled to the homeowner's exemption from liability under the Labor Law. The exemption is afforded owners of one and two-family residences who do not control the work on the premises. Here defendant's building had a retail store on the ground level and two apartments above. One of the two apartments was occupied by the sole member of the defendant limited liability company which owned the building. The city had classified the building as within the "J-3" occupancy group, which includes one and two-family residential buildings. In finding the three-unit building did not trigger the exemption, the court explained the purpose behind the exemption, and the irrelevance of the "J-3" classification:


"In 1980, the Legislature amended Labor Law §§ 240 and 241 to exempt owners of one and two-family dwellings who contract for but do not direct or control the work' from the absolute liability imposed by these statutory provisions" ... . The homeowners' exemption "was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed" by Labor Law §§ 240 and 241 ... . The intent of the homeowner's exemption was to make the law fairer and more reflective of the "practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes" ... . The fact that title to an otherwise qualifying one- or two-family dwelling is held by a corporation rather than an individual homeowner does not, in and of itself, preclude application of the exemption ... .


Here, [defendant] failed to make a prima facie showing that the subject building qualified as a two-family dwelling entitled to the protection of the homeowner's exemption. Although [defendant] submitted evidence that the building's certificate of occupancy classified it within the J-3 occupancy group that includes one- and two-family residential dwellings (see Administrative Code of the City of New York, § 27-266), this classification is not dispositive because it is primarily intended to govern what building code safety standards are applicable to the building ... . Assevero v Hamilton & Church Props., LLC, 2015 NY Slip Op 06567, 2nd Dept 8-19-15







Under the Terms of the Lease and the Related Guaranty of Payment, the Guarantor Was Required to Pay Liquidated Damages in an Amount Equal to the Rent for the Unfinished Term of the Lease Even After the Tenant Was Evicted and the Landlord Had Regained Possession of the Property


The Second Department, over a dissent, determined that the terms of appellant's guaranty of payment of amounts owed under a lease obligated the appellant even after the tenant had left the premises and the landlord took possession. Although the tenant's obligation to pay rent had ended when the plaintiff-landlord took possession, the terms of the lease allowed the plaintiff to seek the amount of the rent for the remaining term of the lease as liquidated damages and did not require the plaintiff to mitigate those damages by renting to another: 


"Although an eviction terminates the landlord-tenant relationship, the parties to a lease are not foreclosed from contracting as they please" ... . Where a lease provides that a landlord is under no duty to mitigate damages after its reentry by virtue of its successful prosecution of a summary proceeding, and that the tenant remains liable for damages, "[the tenant] remain[s] liable for all monetary obligations arising under the lease" ... .


Here, the lease did not obligate the plaintiff to mitigate damages after reentry by virtue of its successful prosecution of a summary proceeding, and specifically provided that in the event of such reentry, "tenant shall also pay owner as liquidated damages . . . any deficiency between the rent hereby received and or covenanted to be paid and the net amount, if any, of the rent collected on account of the subsequent lease or leases of the demised premises for each month of the period which would otherwise have constituted the balance of the term of this lease." Thus, although the tenant no longer remained liable for rent after it vacated the premises, it was liable for liquidated damages, which could be as much as the balance of rent due under the original term of the lease, since the plaintiff was under no obligation to rent to a new tenant for the balance of the term. Moreover, the guaranty specifically stated that the appellant guaranteed "the full and prompt payment by Tenant of all amounts due under [the] lease." Accordingly, the plaintiff was entitled to seek from the appellant the liquidated damages for which the tenant was liable under the lease even after the termination of the landlord-tenant relationship... . H.L. Realty, LLC v Edwards, 2015 NY Slip Op 06572, 2nd Dept 8-19-15






Doctrine of Equitable Estoppel as Applied to Public Corporations Explained


In affirming the denial of the petition to file a late notice of claim against a public corporation, the Second Department explained the doctrine of equitable estoppel as it applies to public corporations:


Estoppel against a public corporation will lie only when the public corporation's conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party ... . Here, the petitioner failed to demonstrate that the respondents engaged in any misleading conduct that would support a finding of equitable estoppel ... . In addition, there was no evidence that the respondents made any settlement representations upon which the petitioner justifiably relied prior to the expiration of the statutory periods for serving a notice of claim or seeking leave to serve a late notice of claim and, therefore, the petitioner could not have relied on any conduct by the respondents in discouraging him from serving a notice of claim or seeking leave ... .  Attallah v Nassau Univ. Med. Ctr., 2015 NY Slip Op 06587, 2nd Dept 8-19-15


Plaintiff, a Monitor in a Golf Program, Assumed the Risk of Injury in a Golf-Cart Accident


The First Department determined that defendant was entitled to summary judgment dismissing the complaint on the ground that plaintiff had assumed the risk of riding in a golf cart driven by defendant. Both plaintiff and defendant were participating in a golf program. Defendant, 17-year-old Andrew Jiminez, was driving a golf cart with plaintiff as a passenger when he allegedly made a "full speed" sharp turn, throwing plaintiff out of the cart. Reversing Supreme Court, the First Department held that plaintiff had assumed the risk of injury from defendant's operation of the golf cart. The fact that plaintiff was not performing her golf-program duties at the time of the accident was deemed irrelevant:


A plaintiff who voluntarily participates in a sporting or recreational event generally is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, participation in the sport ... . "It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" ... . A nonparticipant may also be subject to a defense based on the doctrine of assumed risk ... . 


"[G]olfers .... must be held to a common appreciation of the fact that there is a risk of injury from improperly used carts on a fairway which is inherent in and aris[es] out of the nature of the sport generally and flow[s] from participation in it" ... . Here, plaintiff knowingly and voluntarily rode in a golf cart operated by Jimenez, a 17 year old participant in the AGY program, on a golf course, during a golf tournament in which she was assigned to monitor a par-three hole for any player that got a hole in one. While plaintiff contends that she did not know that Jimenez was an unlicensed driver, she knew that he was a minor yet made no attempt to determine whether he had a license or whether he should be operating a golf cart.


The fact that plaintiff was not actively performing her duties of monitoring the hole at the time of her injury does not render the doctrine inapplicable. "[T]he assumption [of risk] doctrine applies to any facet of the activity inherent in it" ... . The salient point is that the accident involved a sporting or recreational activity that "occurred in a designated athletic or recreational venue" ... . Valverde v Great Expectations, LLC, 2015 NY Slip Op 06561, 1st Dept 8-18-15





Defendant, In Its Summary Judgment Motion, Properly Addressed Only the Theory of "Tort Liability Arising from Contract" Which Was Alleged in the Pleadings


The Second Department determined defendant was entitled to summary judgment in an action based upon the allegation defendant had "launched an instrument of harm," thereby imposing liability in tort arising from a contract. Defendant demonstrated it did not launch and instrument of harm and plaintiff failed to raise a question of fact in response. The court explained the applicable law, noting that defendant need only address the specific theory of contract-based liability which was raised in the pleadings:


"Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party" ... . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely ... . Here, the only exception alleged in the pleadings with respect to the defendant Wiley Engineering, P.C. (hereinafter Wiley), was that Wiley launched a force or instrument of harm ... . Therefore, in moving for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, Wiley was only required to address this exception by demonstrating, prima facie, that it did not launch a force or instrument of harm creating or exacerbating any allegedly dangerous condition ... . Here, Wiley met its prima facie burden and, in opposition, the plaintiff failed to raise a triable issue of fact. Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06580, 2nd Dept 8-19-15




In a Case Consolidated with the Case Summarized Immediately Above, Defendant Was Entitled to Summary Judgment After Demonstrating None of the Three Theories of "Tort Liability Arising from Contract" Applied---Because the Facts Are Not Discussed, It Is Not Clear Why All Three Potential Theories Were Addressed in this Action But Only One Needed to Be Addressed in the Other (To Be Safe, Address All Three?)


In a case which was consolidated with the case summarized immediately above, the Second Department determined the defendant, J.D. Posillica, Inc., was entitled to summary judgment dismissing the complaint because it had demonstrated that none of the three theories of "tort liability arising from a contract" applied. It is not clear from the decision whether the defendant was required, by the nature of the pleadings, to address all three theories in order to be entitled to summary judgment (to be safe, address all three?):


"Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party" ... . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely ... . Here, the defendant J.D. Posillico, Inc. ... , met its initial burden of establishing its entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it by demonstrating, prima facie, that none of the exceptions were applicable as against it in this case... . Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06581, 2nd Dept 8-19-15






Plaintiff Entitled to Summary Judgment---Plaintiff Demonstrated Defendant's Negligence and Plaintiff's Freedom from Comparative Fault


The Second Department determined plaintiff-pedestrian, who was struck by defendant when in a crosswalk, was entitled to summary judgment.  The court explained plaintiff had demonstrated both required elements: (1) defendant was negligent; and (2) plaintiff was free from comparative negligence. Defendant's opposing affidavit, which contradicted his deposition testimony, raised only "feigned" issues and did not, therefore, raise a question of fact:


In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault ..., since there can be more than one proximate cause of an accident ... . Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault ... .


The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk at the southwest corner of 84th Street and 17th Avenue and during the course of crossing the street, he looked both ways for oncoming vehicles and that, as he was crossing 17th Avenue within the crosswalk, with the pedestrian control and traffic control devices in his favor, [defendant] failed to yield the right-of-way to him ... . The evidence submitted by the plaintiff demonstrated that [defendant] violated Vehicle and Traffic Law § 1111(a)(1) and that the plaintiff was not at comparative fault in the happening of the accident. In opposition, the defendants submitted [defendant-driver's] affidavit, which contradicted his earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat the plaintiff's motion... . Zhu v Natale, 2015 NY Slip Op 06586, 2nd Dept 8-19-15







Requirements for an Easement In Favor of Public Use Not Met


The Second Department determined the city had failed to demonstrate that an unmapped roadway used since the 1970's had become a public highway under the Highway Law, and the city failed to demonstrate an "easement in favor of public use" existed over the portion of the roadway which was on defendant's land. The "Highway Law" statute invoked by the city applied only to towns, not cities. And the requirements for an easement in favor of public use had not been demonstrated. The court explained the easement requirements:


The City argues ... that an easement in favor of the public was created over the defendant's property pursuant to the common-law doctrine of dedication. This doctrine requires evidence of the owner's intent to dedicate the property for public use and acceptance of the dedication by the public authorities ... . Here, however, the City's submissions in support of its motion for summary judgment failed to establish, prima facie, that the defendant's land had been dedicated to the use of public travel by any prior owner or the defendant. City of New York v Gounden, 2015 NY Slip Op 06569, 2nd Dept 8-19-15


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