JUST RELEASED

August Page I

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

 

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ATTORNEYS (DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))/BROKERS (ATTORNEYS, DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))

ATTORNEYS.

DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT).

The Second Department determined Supreme Court properly found the defendant attorney's retainer agreement unenforceable and properly ordered the attorney to disgorge the $65,000 fee which had been paid. The attorney had agreed to acted as both a broker and attorney in the sale of a business. The sale was not completed:

... [T]he plaintiffs established, prima facie, that the defendants acted as both attorney and broker in connection with the possible sale of the plaintiff company ... , and that the retainer agreement provided for a contingency fee to compensate them in the event a sale of the company was completed. In opposition, the defendants failed to raise a triable issue of fact ... . Accordingly, the Supreme Court properly determined that the retainer agreement is unenforceable because it created a nonconsentable conflict of interest under the Rules of Professional Conduct (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][2]; NY St Bar Assn Comm on Prof Ethics Op 1015 [2014] ... ). The fact that the defendants are seeking to recover under the hourly fee provision of the retainer agreement, instead of the contingency fee provision, does not alter this result. The conflict created by the contingent fee existed during the representation, regardless of whether a sale of the business was ultimately completed. Accordingly, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment dismissing the defendants' first counterclaim to recover fees under the retainer agreement.

 

An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to fees for any services rendered ... .Here, the plaintiffs discharged the defendants for cause based on their nonconsentable conflict of interest in violation of Rules of Professional Conduct (22 NYCRR 1200.0) 1.7 ... ). Thus, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment dismissing the defendants' second counterclaim to recover in quantum meruit. Further, although the first cause of action is styled as one to recover damages for breach of fiduciary duty, it does not seek damages allegedly caused by such a breach, but merely for disgorgement of fees already paid ... . Accordingly, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment on the first cause of action, in effect, to disgorge fees which had already been paid ... . Jay Deitz & Assoc. of Nassau County, Ltd. v Breslow & Walker, LLP, 2017 NY Slip Op 05940, Second Dept 8-2-17

CIVIL PROCEDURE (CPLR 2004, SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT'S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT))/CPLR 2004 (SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT'S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT))

CIVIL PROCEDURE.

SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT'S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have rejected plaintiff's request for more time to file opposition papers. On the return date for the motion to dismiss, plaintiff tried to file a stipulation signed by defendant's (NCAA's) counsel which allowed plaintiff to adjourn the motion and granted plaintiff more time in which to file the papers. The court rejected the stipulation and marked the motion unopposed. That same evening, plaintiff e-filed the opposing papers:

CPLR 2004 provides that, "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." In considering a motion for an extension of time, "the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit" ... .

 

Here, the plaintiff established good cause for an extension of his time to submit opposition papers to the NCAA's motion given the brief and unintentional delay, the lack of prejudice to the NCAA, the existence of potentially meritorious defenses to the NCAA's motion, and "the policy favoring the resolution of cases on their merits" ... . Calderone v Molloy Coll., 2017 NY Slip Op 05932, Second Dept 8-2-17

CIVIL PROCEDURE (UNKNOWN PARTIES, PLAINTIFF'S ATTEMPT TO AMEND THE COMPLAINT TO ADD A PARTY INITIALLY NAMED AS JOHN DOE TIME-BARRED (THIRD DEPT))/UNKNOWN PARTIES (CIVIL PROCEDURE, PLAINTIFF'S ATTEMPT TO AMEND THE COMPLAINT TO ADD A PARTY INITIALLY NAMED AS JOHN DOE TIME-BARRED (THIRD DEPT))/JOHN DOES (CIVIL PROCEDURE, PLAINTIFF'S ATTEMPT TO AMEND THE COMPLAINT TO ADD A PARTY INITIALLY NAMED AS JOHN DOE TIME-BARRED (THIRD DEPT))

 

CIVIL PROCEDURE.

PLAINTIFF'S ATTEMPT TO AMEND THE COMPLAINT TO ADD A PARTY INITIALLY NAMED AS JOHN DOE TIME-BARRED (THIRD DEPT).

The Third Department determined plaintiff's attempt to file an amended complaint naming a defendant (Rytec) which had been identified as John Doe was time-barred. The initial complaint was filed three days before the statute of limitations expired and the John Doe designation did not toll the statute:

The statutory provision allowing commencement of an action against unknown parties does not toll the statute of limitations (see CPLR 1024... ). As Supreme Court held, plaintiff was required to serve all parties within 120 days of filing, or seek leave to extend the time for service "upon good cause shown or in the interest of justice" (CPLR 306-b... ). Here, plaintiff failed to seek leave to extend the time for service prior to expiration of the statutory limitations period.

 

Further, a party seeking to apply the relation-back doctrine under CPLR 1024 carries the burden "of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations" ... .

 

Plaintiff's third amended complaint was filed nearly 10 months after the statute of limitations expired, with the delay essentially unexplained but for a statement that Rytec's identity could not be ascertained until the door was inspected in May 2015. There was no effort to explain any basis for the precommencement delay, and no discussion relative to any of the potential additional discovery efforts that might or could have been undertaken prior to the expiration of the limitations period... .

 

Accordingly, we find that Supreme Court properly granted Rytec's motion to dismiss the third amended complaint against it, as it was barred by the statute of limitations ... . Walker v Hormann Flexon, LLC, 2017 NY Slip Op 06023, Third Dept 8-3-17

CIVIL PROCEDURE (DEFAULT, ATTORNEY'S INACTION NOT IMPUTED TO THE CLIENT, DEFAULT ORDER AND JUDGMENT PROPERLY VACATED (THIRD DEPT))/ATTORNEYS (DEFAULT,  ATTORNEY'S INACTION NOT IMPUTED TO THE CLIENT, DEFAULT ORDER AND JUDGMENT PROPERLY VACATED (THIRD DEPT))

CIVIL PROCEDURE, ATTORNEYS.

ATTORNEY'S INACTION NOT IMPUTED TO THE CLIENT, DEFAULT ORDER AND JUDGMENT PROPERLY VACATED (THIRD DEPT).

The Third Department determined Supreme Court properly vacated the default order and judgment which were issued because of plaintiff's attorney's failure to meet discovery deadlines and attend scheduled conferences. Plaintiff, upon learning of the default, promptly hired new counsel and moved to vacate the default order and judgment. The Third Department noted that an attorney's misconduct is not necessarily to be imputed to the represented party:

"A motion to vacate a prior judgment or order is addressed to the court's sound discretion, subject to reversal only where there has been a clear abuse of that discretion"... . Further, "[c]ourts are not limited to vacating a judgment pursuant to the enumerated grounds set forth in CPLR 5015 . . ., as they retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice"... .

 

Here, even applying the arguably more exacting standard set forth in CPLR 5015 (a) (1), we do not find that Supreme Court abused its discretion in granting [plaintiff's] motion. While there indeed may be instances where counsel's inaction or dilatory conduct may be imputed to the client ... , a review of [plaintiff's] affidavit — together with the supporting documentation annexed thereto — reveals that she never intended to abandon either the pursuit of action No. 1 or the defense of action No. 2 ... but, rather, reasonably believed that [her attorney] was actively pursuing and properly defending [plaintiff's] interests in the context thereof ... . Inwald Enters., LLC v Aloha Energy, 2017 NY Slip Op 06031, Third Dept 8-3-17

 

CORPORATION LAW (DISSOLUTION, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/DISSOLUTION (CORPORATION LAW, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/FIDUCIARY DUTY (CORPORATION LAW, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/CLOSELY HELD CORPORATIONS (DISSOLUTION, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/STATUTE OF LIMITATIONS (DISSOLUTION OF CORPORATIONS, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))

CORPORATION LAW, CIVIL PROCEDURE.

ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined Supreme Court properly dissolved a closely-held corporation, finding that the respondent shareholders had "breached their fiduciary duties owed to petitioners by engaging in oppressive conduct aimed at 'freez[ing]' petitioners out of the corporation, as well as looting, wasting and/or diverting corporate assets for noncorporate purposes." The decision is detailed and fact-specific. The court noted that the shares of two of the petitioners were beneficial shares in that they were held in trust by their father, who was also a petitioner. Although the children did not have standing to bring an action to dissolve the corporation because the holders of beneficial shares cannot vote, their father, as trustee, could vote, which conferred standing. The court further noted that an action to dissolve a corporation based on a breach of a fiduciary duty is equitable in nature and therefore the six-year statute of limitations applies. The action was timely because the first overt repudiation of a fiduciary duty by the respondents occurred within six years of the action:

Here, the gravamen of the petition is that respondents, as the majority shareholders, breached their fiduciary duties owed to petitioners, as the minority shareholders. Although the petition alleges fraudulent acts in the form of looting, the allegation of fraud is not essential to the breach of fiduciary duty claim. In light of this, and the fact that the remedy of a judicial dissolution is equitable in nature, we find that "the six-year limitations period of CPLR 213 (1) applies" ... , and it does not commence "until there has been an open repudiation by the fiduciary or the relationship has otherwise been clearly terminated"... . In our view, respondents' attempt in 2009 to force petitioners to sell their shares is the earliest point at which respondents can be said to have openly repudiated the fiduciary relationship. Given that this proceeding was commenced within six years of the 2009 force-out attempt, we agree with Supreme Court that this proceeding is not time-barred. * * *

Business Corporation Law § 1104-a permits a court to dissolve a closely-held corporation where, as is relevant here, those in control of the corporation have engaged in "oppressive actions toward the complaining shareholders" or have "looted, wasted, or diverted" corporate assets for noncorporate purposes (Business Corporation Law § 1104-a [a] [1], [2] ...). "Although the term 'oppressive actions' is not statutorily defined, the Court of Appeals has held that 'oppression should be deemed to arise . . . when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the petitioner[s'] decision to join the venture'"... . Contrary to respondents' contention, this standard is equally applicable to passive shareholders, such as petitioners, inasmuch as the standard is not focused on the complaining shareholders' level of involvement with the corporation but, rather, their reasonable expectations and whether those expectations were defeated ... . Matter of Twin Bay Vil., Inc. v Kasian, 2017 NY Slip Op 06024, Third Dept 8-3-17

CRIMINAL LAW (GUILTY PLEA, ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))/PLEA AGREEMENT (ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))

CRIMINAL LAW.

ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT).

The First Department vacated defendant's guilty plea because, although the court told the defendant he could receive "jail time" if he violated the plea agreement, the defendant was not informed he could be sentenced to state prison:

The court improperly denied defendant's motion to withdraw his guilty pleas. The record, viewed as a whole, demonstrates that defendant lacked sufficient information about the potential scope of sentencing in the event he violated the plea agreement ... . Although the court clearly told defendant that he was pleading guilty to a class D felony, reckless endangerment in the first degree, its repeated statements, over the course of multiple court appearances, that defendant's sentence would involve "jail" time, and its failure to clearly apprise defendant that he could receive a state prison sentence, and the potential maximum term thereof, if he violated the plea agreement, taken together, rendered his pleas unknowing and involuntary ... . People v Renvill, 2017 NY Slip Op 05921, First Dept 8-1-17

 

CRIMINAL LAW (SPEEDY TRIAL, THE PEOPLE WERE AWARE OF THEIR WITNESS'S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS'S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT))/SPEEDY TRIAL (THE PEOPLE WERE AWARE OF THEIR WITNESS'S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS'S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT))

 

CRIMINAL LAW.

THE PEOPLE WERE AWARE OF THEIR WITNESS'S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS'S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT).

The First Department, reversing the motion court, over a two-justice dissent, determined the defendant's motion to dismiss the indictment because of a violation of the speedy trial statute should have been granted. The People were aware of a key witness's plan to vacation out of the country. Therefore, the witness's unavailability could not be considered an "exceptional circumstance" justifying the exclusion of time under the speedy trial statute:

... [T]he mere fact that a necessary witness plans to go on a vacation does not relieve them of their speedy trial obligation ... .

 

... The People knew that their cooperative witness was planning a vacation to the Dominican Republic, yet they failed to call him or to otherwise secure his presence before he left the country. The prosecutor admitted that although learning of the witness's proposed vacation plans on July 25, 2013, and being specifically asked by the witness to contact him the next day to discuss the trial schedule and his proposed vacation, no one from the District Attorney's office tried to contact the witness until July 30, 2013, at which time they learned he had already left on vacation. Although the witness indicated a willingness to work with the prosecutor on scheduling his vacation and had not yet bought his ticket to the Dominican Republic, the prosecutor never subpoenaed the witness, sought a material witness order, or even communicated with him prior to his departure. People v Ricart, 2017 NY Slip Op 05922, First Dept 8-1-17

 

CRIMINAL LAW (PROBATION VIOLATION, APPEALS, DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))/PROBATION VIOLATION (DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))/APPEALS (CRIMINAL LAW, PROBATION VIOLATION, DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))

CRIMINAL LAW, APPEALS.

DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was not given the opportunity to object to the procedure used in finding that he violated probation and did not freely waive his right to a hearing. Preservation of the error was not required for appellate review:

Under the circumstances of this case, the defendant's contention that the County Court erred in finding that he violated the conditions of his probation without holding a hearing is not subject to the preservation requirement ... . The transcript of the resentencing proceeding confirms that the defendant had no reasonable opportunity to object to the court's procedure before the finding of probation violation was made, and the defendant was resentenced immediately thereafter.

 

Contrary to the People's contention, the record contains no evidence that the defendant freely admitted to the violation of probation. Nor is there any evidence that the defendant waived his right to a revocation hearing pursuant to CPL 410.70. Rather, the County Court, without conducting any hearing, found "by a preponderance of the evidence" that the defendant had violated the conditions of his probation. This was error ... . People v Montenegro, 2017 NY Slip Op 05973, Second Dept 8-2-17

CRIMINAL LAW (EVIDENCE, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/BUSINESS RECORDS (CRIMINAL LAW, HEARSAY, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))

 

CRIMINAL LAW, EVIDENCE.

ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT).

The First Department, in a detailed decision describing all the evidence, determined the defendant's attempted murder conviction survived a weight of the evidence analysis, but the admission of documentary evidence was error which required reversal. The victim, Russo, had been shot in the head and could not remember who shot him. Before the grand jury, Russo testified that both the defendant (Bell) and a man named Diaz were in the apartment at the time of the shooting. At trial, however, Russo testified Diaz was not in the apartment. A detective testified Diaz had been interviewed in Florida and provided time sheets on his employer's corporate letterhead indicating he was in Florida at the time of the shooting. Those time sheets were erroneously admitted in evidence without meeting the criteria for the business records exception to the hearsay rule:

... [W]e find that the court committed reversible error in admitting Diaz's time sheets into evidence. The business records of Diaz's employer were admitted without a proper foundation, and the court failed to clearly instruct the jury that the time sheets could not be considered for the truth of their content. The jury was not told that the time sheets could not be relied upon to conclude that Diaz was not in the apartment at the time of the shootings. The business records exception to the hearsay rule is codified in CPLR 4518(a), and it also applies in criminal cases (CPL 60.10) ... . For a business record to be admissible, it must be made in the regular course of business, it must be the regular course of business to make the record, and "the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made" ... . Business records are customarily offered through a foundation witness, such as the custodian of the records or an employee who is familiar with the record-keeping procedures of the record maker ... . ...

The People argue that the time sheets were admitted not for the truth of their content, but only to rebut defense counsel's extensive challenges to the adequacy of the police investigation, and that the court's limiting instruction was adequate. The limiting instruction that the court gave was imprecise and confusing. The court only instructed the jury that the time sheets were "being received in evidence as documents which [Detective Hennessey] says reflect what efforts he did and what information he received on a very particular subject matter . . . ." The court did not clearly instruct the jurors that they were not to consider the time sheets in determining whether Diaz was in the apartment at the time of the shootings. This error was not harmless. There was a substantial disputed issue about whether Diaz was the additional person in the apartment, whom [a co-defendant] identified as the shooter. This conclusion was also supported by Russo's grand jury testimony, even though Russo later repudiated it. The time sheets established an alibi for Diaz, that he was in Florida on October 25, 2007. Bell's defense was that he did not shoot Russo, and someone else in the apartment did the shooting. Allowing the time sheets into evidence was not harmless error because there was "a significant probability . . . that the jury would have acquitted the defendant had it not been for the error" ... . People v Bell, 2017 NY Slip Op 05919, First Dept 8-1-17

 

 

CRIMINAL LAW (EVIDENCE, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT'S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT'S RESIDENCE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT'S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT'S RESIDENCE (FIRST DEPT))/SEARCH AND SEIZURE (INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT'S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT'S RESIDENCE (FIRST DEPT))/INDEPENDENT SOURCE RULE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT'S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT'S RESIDENCE (FIRST DEPT))

CRIMINAL LAW, EVIDENCE.

PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT'S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT'S RESIDENCE (FIRST DEPT).

The First Department, in a detailed decision, over a dissent, determined that the illegal search of defendant's belongings at the hospital did not taint the subsequent search of an area near defendant's residence (his uncle's apartment) which turned up a gun. Defendant, although charged with robbery, was convicted only of criminal possession of a weapon. The victim had been robbed by a masked man who fired a gun in the elevator where the robbery took place. Because the police could not find evidence a shot was fired in the elevator they believed the robber may have shot himself. The police found the defendant at a hospital, suffering from a gunshot wound in his leg. Defendant's belongings were searched at the hospital and items taken in the robbery were seized. The police spoke with the defendant and his girlfriend and eventually searched the apartment where defendant lived with his uncle, with the uncle's consent. The majority held that the investigation would have continued even if the illegal search at the hospital had not been conducted. The dissent argued the police would have had no reason to continue the investigation without the items found in the illegal search:

"[W]here the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct" ... . "[T]he independent source rule is applicable . . . [where] there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure. In cases where this causal nexus is lacking, the exclusionary rule simply does not apply" ... . A key consideration in determining whether this rule applies is whether "the prosecution has somehow exploited or benefitted from its illegal conduct, [whether] there is a connection between the violation of a constitutional right and the derivative evidence" ... .

 

Here, the challenged searches were attenuated from the illegal search of defendant's clothing bags. When the detective entered the hospital room, his theory of the crime was that it had been committed by a black male who had a gunshot wound to the leg. Defendant fit that description. Thus, we disagree with the dissent's statement that, even if the search of the clothing bags turned up no evidence, the police "would have had little cause to pursue the investigation, let alone . . . search defendant's vehicle and home." To the contrary, regardless of what the detective were to find in defendant's possession, he was likely to continue investigating defendant as a possible suspect. Such investigation would have included the routine and natural investigatory step of interviewing defendant and his girlfriend, which is what led him to learn about the car and the apartment. Further, none of the items recovered during the illegal search was used to procure defendant's uncle's consent to search the apartment, so the police did not engage in "exploitation of [the] illegality" as charged by the defense. People v Hill, 2017 NY Slip Op 0592, First Dept 8-1-17

 

CRIMINAL LAW (DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/DNA (CRIMINAL LAW, CONFRONTATION CLAUSE, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/CONFRONTATION CLAUSE (DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))

 

CRIMINAL LAW, EVIDENCE.

ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT).

The Second Department, although finding the error harmless, determined the introduction of DNA evidence without testimony by the analysts violated the Confrontation Clause:

The defendant's rights under the Confrontation Clause (see US Const Sixth Amend) were violated when the Supreme Court admitted into evidence lab reports from a nontestifying DNA analyst which directly linked the defendant to the crime ... .

 

"Confrontation Clause violations are subject to a constitutional harmless error analysis" ... . "Constitutional error requires reversal unless the error's impact was harmless beyond a reasonable doubt'" ... . This determination is based on a review of the " entire record'"... . In order for the error to be harmless beyond a reasonable doubt, the evidence of the defendant's guilt must be overwhelming, and there must be "no reasonable possibility that the error might have contributed to the defendant's conviction" ... .

Here, apart from the erroneously admitted evidence, the evidence of the defendant's guilt was overwhelming. People v Tsintzelis, 2017 NY Slip Op 05980, Second Dept 8-2-17

FORECLOSURE (PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, BUSINESS RECORDS, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, STANDING, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS, STANDING, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

 

FORECLOSURE, EVIDENCE.

PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiff, a mortgage loan servicer for Wilmington (bank), did not demonstrate standing to foreclose and did not demonstrate it had been delegated the authority to foreclose by Wilmington. Therefore, plaintiff's motion for summary judgment was properly denied:

... [I]n support of its motion, the plaintiff relied on the affidavit of Jessica Lancaster, its "Legal Coordinator." Lancaster averred that the subject "loan" was part of a portfolio of assets purchased by Berkshire Hathaway, Inc., and deposited into Wilmington. Lancaster further averred that on February 1, 2013, "the notes and mortgages relating to the Purchased Assets were physically delivered to the offices of [the plaintiff]." The affidavit, which was based upon Lancaster's review of and familiarity with the plaintiff's records, was sufficient to establish, prima facie, that "the notes and mortgages relating to the Purchased Assets" were physically delivered to the plaintiff. However, Lancaster's averment that the subject "loan" was among those purchased assets was hearsay for which she failed to lay a proper foundation under the business records exception to the hearsay rule (see CPLR 4518[a]...). Moreover, no further evidence was submitted to establish that the subject note and mortgage were among the purchased assets. Accordingly, the plaintiff failed to establish, prima facie, its standing to commence this action.

 

In addition, the plaintiff failed to establish, prima facie, its capacity to commence this action. In that respect, the plaintiff did not demonstrate, prima facie, that it had been delegated the authority by Wilmington to act on its behalf with respect to the subject mortgage since it failed to submit any agreement, power of attorney, or similar documentation of such alleged authority ... . 21st Mtge. Corp. v Adames, 2017 NY Slip Op 05925, Second Dept 8-2-17

 

 

 

 

 

 

 

 

FORECLOSURE (PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BUSINESS RECORDS, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/HEARSAY (BUSINESS RECORDS, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))

FORECLOSURE, EVIDENCE.

PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to foreclose because the criteria for the business records exception to the hearsay rule were not met. The court noted that the bank's failure to demonstrate standing did not require granting defendant's motion for summary judgment on that ground. Defendant failed to affirmatively demonstrate plaintiff did not have standing:

... [T]he plaintiff failed to meet its prima facie burden of establishing its standing ... . In support of its motion, the plaintiff submitted the affidavit of Selena Mitcherson, a vice president of the plaintiff's loan servicer. Mitcherson averred, based upon her review of the loan servicer's business records, that "prior [to] commencement and at all times thereafter," the plaintiff remained in possession of the original promissory note, which bears an indorsement payable to the plaintiff's order and was "delivered to it, or its agent, on or about March 31, 2010." However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Mitcherson under the business records exception to the hearsay rule (see CPLR 4518[a]), since Mitcherson did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff ... . The plaintiff also failed to establish standing based upon the purported assignment of the note and mortgage ... . ...

 

Nevertheless, the Supreme Court properly denied that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against him for lack of standing. "[T]he burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied. To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law" ... . Here, on his cross motion, the defendant failed to make a prima facie showing that the plaintiff lacked standing ... . Wells Fargo Bank, N.A. v Talley, 2017 NY Slip Op 05996, Second Dept 8-2-17

 

INSURANCE LAW (DISCOVERY, ATTORNEYS, PRE-LITIGATION INVESTIGATION BY THE INSURER'S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))/CIVIL PROCEDURE (INSURANCE LAW, ATTORNEYS, PRE-LITIGATION INVESTIGATION BY THE INSURER'S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))/ATTORNEYS (INSURANCE LAW, PRE-LITIGATION INVESTIGATION BY THE INSURER'S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))

 

INSURANCE LAW, CIVIL PROCEDURE, ATTORNEYS.

PRE-LITIGATION INVESTIGATION BY THE INSURER'S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT).

The Second Department determined the file for a pre-litigation investigation of a fire insurance claim done by a law firm hired by the insurer was discoverable.  The court further found the attorney who conducted the investigation was properly disqualified because she may be a fact witness in the underlying litigation, but her law firm should not have been disqualified because her testimony would not be prejudicial to the client's case: 

CPLR 3101(a) entitles parties to "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Discovery determinations should be evaluated on a case-by-case basis "with due regard for the strong policy supporting open disclosure" ... .

 

"[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding [whether to pay or reject a claim] are made in the regular course of its business" ... . Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are not privileged and are discoverable, even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured ... .

 

Here, the Supreme Court properly compelled disclosure, as the material ... was prepared by [the law firm] as part of [the insurer's] investigation into the claim, and was not primarily and predominantly of a legal character ... . ...

The Supreme Court providently exercised its discretion in disqualifying ... the attorney who conducted the investigation ... since she was likely to be a witness on a significant issue of fact ... . However, it improvidently exercised its discretion in disqualifying [the law firm] itself .... Pursuant to Rule 3.7(b)(1) of the Rules of Professional Conduct, "[a] lawyer may not act as [an] advocate before a tribunal in a matter if . . . another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client"... . Here, there was no showing that [the attorney's] testimony may be prejudicial to [the client's] case ... . Advanced Chimney, Inc. v Graziano, 2017 NY Slip Op 05927, Second Dept 8-2-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF'S WORK (SECOND DEPT))/MEANS AND METHODS OF WORK (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF'S WORK (SECOND DEPT))

LABOR LAW-CONSTRUCTION LAW.

LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF'S WORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff's Labor Law 200 cause of action should not have been dismissed as there was a question of fact whether defendant (Plaza) had the authority to control the means and methods of plaintiff's work at the site. The scaffold on which plaintiff was standing tipped when a wheel went into a space in the floor created by the removal of a tile by an electrical contractor who was installing wiring beneath the floor:

Where, as here, a claim arises out of the means and methods of the work, a defendant may be held liable for common-law negligence or a violation of Labor Law § 200 "only if he or she had the authority to supervise or control the performance of the work'" ... . "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" ... .

 

Here, the defendants failed to establish, prima facie, that Plaza did not have the authority to exercise supervision and control over the subject work. The defendants' submissions demonstrated that Plaza, as the construction manager, had a project superintendent at the work site on a daily basis who was responsible for job coordination and safety supervision. Plaza had the authority to stop work if a particular activity or condition was unsafe, and to regulate which workers and equipment were allowed in particular areas of the work site. Moreover, Plaza's project superintendent held weekly meetings with every subcontractor. Although the superintendent testified at his deposition that he gave directions to the subcontractors' supervisors, rather than to the workers themselves, he could tell a supervisor to immediately relay a safety-related instruction to a worker at any given time. Under these circumstances, the defendants' submissions failed to eliminate all triable issues of fact as to whether Plaza was acting as the general contractor and had the authority to supervise and control the manner in which the plaintiff performed his work ... . Caban v Plaza Constr. Corp., 2017 NY Slip Op 05931, Second Dept 8-2-17

 

 

LABOR LAW-CONSTRUCTION LAW (ONE DEFENDANT ENTITLED TO HOMEOWNER'S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/HOMEOWNER'S EXEMPTION (LABOR LAW-CONSTRUCTION LAW, ONE DEFENDANT ENTITLED TO HOMEOWNER'S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

 

LABOR LAW-CONSTRUCTION LAW.

ONE DEFENDANT ENTITLED TO HOMEOWNER'S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the defendants' motion for summary judgment in this Labor Law 240(1), 241 (6) and 200 action should have been granted. The defendants are husband (Joel Mendlovits) and wife (Malka Mendloits). Malka owns the house where plaintiff was injured and was entitled to the homeowner's exemption from liability under the Labor Law. Joel, who did not own the house, hired the company for which the injured plaintiff worked. Joel was entitled to summary judgment because he was not a contractor or agent within the meaning of the Labor Law, nor did he exercise and control over plaintiff's work:

Joel established that he did not possess the requisite authority to supervise or control the work being done to support liability under Labor Law §§ 240(1) and 241(6). He hired All Care to perform stucco work on the home, but did not instruct All Care or the plaintiff how or when to do the work and did not provide them with any tools, materials, or safety equipment. The plaintiff received instructions on when, where, and how to perform the work from All Care and never spoke to Joel, who supervised the progress of the work only to the extent of making sure it was getting done. Such general supervision is insufficient to impose liability under Labor Law §§ 240(1) or 241(6) ... . ...

To be held liable pursuant to Labor Law § 200 or for common-law negligence where, as here, the plaintiff's claim arises out of the methods or means of the work, "recovery against the owner or general contractor cannot be had . . . unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" ... . Rodriguez v Mendlovits, 2017 NY Slip Op 05988, Second Dept 8-2-17

MUNICIPAL LAW (HEALTH INSURANCE, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, HEALTH INSURANCE, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))/HEALTH INSURANCE (MUNICIPAL LAW, EMPLOYMENT LAW, MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT))

MUNICIPAL LAW, EMPLOYMENT LAW.

MUNICIPAL RESOLUTION DID NOT CREATE A VESTED CONTRACTUAL RIGHT TO HEALTH INSURANCE BENEFITS FOR RETIRED TOWN EMPLOYEES (SECOND DEPT).

The Second Department determined a 1983 municipal resolution health insurance for non-union town employees did not create a vested contractual right for continued benefits. Therefore the 2012 reduction of the town's contributions to the retirees health insurance was valid, although the contributions could not be reduced below the levels mandated by the Civil Service Law:

"A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, does not create any vested contractual rights" ... . Nothing in the language of the October 13, 1983, resolution indicates that the Town intended to create a contractual or vested right ... . Moreover, the appellants failed to submit any evidence, beyond the resolution, of a right to retirement health insurance benefits ... .

 

Additionally, the Supreme Court properly found that the Town was not barred by the doctrine of promissory estoppel from reducing the appellants' retirement health insurance benefits ... . To establish promissory estoppel, a party must prove a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise ... . Here, even assuming the appellants proved a clear and unambiguous promise, they failed to establish reliance thereon ... .

 

However, the Supreme Court erred in determining that the Town was not required to contribute any amount for the retirement health insurance benefits of former Board members who retired prior to July 1, 2012. Civil Service Law § 167(2) provides, in relevant part, that participating employers, such as the Town, are required to contribute 50% of the cost of premiums for retired employees, and 35% of the cost of coverage for their dependents. ... [T]he Town may not reduce its contribution rates below the legally mandated minimums ... . Matter of Weaver v Town of N. Castle, 2017 NY Slip Op 05960, Second Dept 8-2-17

MUNICIPAL LAW (DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NEGLIGENCE (MUNICIPALITY, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/DRAINAGE SYSTEM (MUNICIPAL LAW, NEGLIGENCE, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NUISANCE (MUNICIPAL LAW, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))

 

MUNICIPAL LAW, NEGLIGENCE.

MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff's action for negligent maintenance of a drainage system, causing flooding, properly survived summary judgment. The court noted that no cause of action lies against a municipality for negligent design of a drainage system. The court further noted that a nuisance cause of action should have been dismissed as duplicative of the negligent maintenance cause of action:

To the extent the plaintiff contends that the Village was negligent in failing to improve or renovate the drainage system, dismissal of that cause of action was properly directed. Evidence as to the Village's alleged failure to undertake improvements or renovations to the facilities related only to the design of the system, for which the Village may not be held liable ... .

 

However, the Village failed to satisfy its prima facie burden of eliminating all triable issues of fact as to whether it negligently maintained the culvert and drainage system. * * *

A defendant is subject to liability for a private nuisance if the defendant's conduct is a legal cause of the invasion of an interest in the private use and enjoyment of land, and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities ... . ... A nuisance based on negligence is but a single wrong, whether characterized as negligence or nuisance ... , and the plaintiff may recover only once for harm suffered, regardless of how the causes of action are denominated ... . Since the complaint alleges a cause of action for negligent maintenance, the Supreme Court should have granted that branch of the Village's motion which was for summary judgment dismissing the cause of action alleging nuisance as duplicative of the cause of action alleging negligent maintenance ... . Trulio v Village of Ossining, 2017 NY Slip Op 05993, Second Dept 8-2-17

 

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT)

 

NEGLIGENCE, EDUCATION-SCHOOL LAW.

QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the school's motion for summary judgment in this parking lot slip and fall case was properly denied. Although the school alleged the parking lot had been sanded and salted, plaintiff testified the area near her car was a sheet of ice and she saw no evidence the area had been sanded or salted:

Contrary to the School District's contention, it failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the ground that the plaintiff could not identify the cause of her fall.... A fair reading of the transcripts of the plaintiff's testimony at a hearing pursuant to General Municipal Law § 50-h and at her deposition, both of which were submitted in support of the School District's motion, showed that she slipped on a sheet of ice just outside her vehicle in the subject parking lot.

 

The plaintiff testified at the § 50-h hearing and at her deposition that there was no evidence of any salt or sand in the parking lot when she fell, while a representative for the School District averred in his affidavit in support of the motion that the School District salted and sanded the subject parking lot around 6:00 a.m. on the morning of the accident. Since the plaintiff testified that there was no evidence of any salt or sand in the parking lot when she fell, the School District failed to eliminate triable issues of fact as to whether it created or exacerbated a hazardous condition in the parking lot or whether it lacked constructive notice of the condition. Scott v North Bellmore Pub. Sch. Dist., 2017 NY Slip Op 05989, Second Dept 8-2-17

 

NEGLIGENCE (ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/ASSUMPTION OF RISK (BASEBALL, EDUCATION-SCHOOL LAW, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))/BASEBALL (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT))

NEGLIGENCE, EDUCATION-SCHOOL LAW.

SUMMARY JUDGMENT BASED ON THE ASSUMPTION OF RISK DOCTRINE PROPERLY GRANTED TO THE SCHOOL IN THIS BASEBALL-RELATED SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the assumption of the risk doctrine supported summary judgment in favor of the school. Plaintiff, a volunteer assisting the baseball coaching staff of his son's team, slipped and fell on a tile covering a grate on the field while attempting to retrieve a ball. The baseball field is on school grounds:

According to the doctrine of primary assumption of the risk, "when an individual voluntarily participates in a sport or recreational activity, he or she consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from participation therein" ... . "This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it"... . "If the risks are known by or perfectly obvious to the participant, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be"... .. " It is not necessary . . . 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'" ... . Moreover, "[t]he participant's awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff" ... .

 

Here, the school defendants ... established their prima facie entitlement to judgment as a matter of law. The plaintiff's deposition testimony established that, on the date of his accident, he volunteered to assist the coaching staff at his son's baseball practice. Not only had he visited this particular baseball field at least three prior times, he had also sat along the third-base foul line, which was close to the area where his accident occurred. The plaintiff had also served as an assistant baseball coach for his son's baseball teams for five or six years. Although the plaintiff testified at his deposition that he had never observed the tile before slipping on it, the photographs that he took the day following his accident, which he contended accurately depicted the tile and the field the way they had looked on the day at issue, demonstrate that the approximately 12-inch by 12-inch white or creamish color tile, which contrasted starkly with the color of the grass, was an open and obvious condition. There was no evidence that the tile was defective ... . Siegel v Albertus Magnus High Sch., 2017 NY Slip Op 05991, Second Depty 8-2-17

NEGLIGENCE (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/REAR-END COLLISIONS (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, VICARIOUS LIABILITY, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

 

NEGLIGENCE, EMPLOYMENT LAW.

EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined that plaintiff motorcyclist was not entitled to summary judgment in this rear-end collision case. Although defendant did move into the plaintiff's lane ahead of plaintiff in violation of the Vehicle and Traffic Law, conflicting deposition testimony about whether plaintiff was comparatively negligent (i.e., whether plaintiff had time to react) raised a question of fact. Defendant's employer was entitled to summary judgment because defendant was driving to work in his own vehicle, and was not acting within the scope of his employment at the time of the accident:

A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield ... . However, a driver with the right-of-way also has a duty to use reasonable care to avoid a collision ... , and "[t]here can be more than one proximate cause of an accident" ... . As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, a plaintiff moving for summary judgment has the burden of establishing freedom from comparative fault ... . ...

The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of 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'"... . Generally, "[a]n employee driving to and from work is not acting within the scope of his employment because the element of control is lacking" ... .

 

[Defendant's] deposition testimony demonstrated that, at the time of the accident, he was commuting to work from his home in his personal vehicle, he was not required to drive to work as part of his job, and he was not acting in furtherance of his employer's business at the time .... . Beres v Terranera, 2017 NY Slip Op 05929, Second Dept 8-2-17

 

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))/MEDICAL MALPRACTICE (CAUSATION, CANCER, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))/CANCER (MEDICAL MALPRACTICE, CAUSATION, PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT))

 

NEGLIGENCE, MEDICAL MALPRACTICE.

PLAINTIFF RAISED A QUESTION OF FACT ON CAUSATION WITH PROOF AN ACT OR OMISSION DECREASED THE CHANCE OF A BETTER OUTCOME IN THIS MEDICAL MALPRACTICE ACTION ALLEGING THE FAILURE TO TIMELY DETECT THE PRESENCE OF CANCER (SECOND DEPT).

The Second Department, reversing Supreme Court, in a detailed, fact-based decision, determined plaintiff had raised a question of fact in this medical malpractice action alleging the failure to timely diagnose the presence of cancer. The court noted that the proximate cause element can be satisfied by evidence early detection could have extended plaintiff's decedent's life, even if a total cure was not possible:

"In a medical malpractice action, where causation is often a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant" ... . "As to causation, the plaintiff's evidence may be deemed legally sufficient even if its expert cannot quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased his injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased his injury"   * * * To raise a triable issue of fact, a plaintiff need not establish that, but for a defendant doctor's failure to diagnose, the patient would have been cured. "Curing cancer, while an ultimate and worthy aspiration, is not the only positive treatment outcome. Whether a diagnostic delay affected a patient's prognosis is typically an issue that should be presented to a jury" ... . Neyman v Doshi Diagnostic Imaging Servs., P.C., 2017 NY Slip Op 05962, Second Dept 8-2-17

NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF'S ACTION IS TIME-BARRED (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF'S ACTION IS TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF'S ACTION IS TIME-BARRED (SECOND DEPT))

NEGLIGENCE, MEDICAL MALPRACTICE, CIVIL PROCEDURE.

INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF'S ACTION IS TIME-BARRED (SECOND DEPT).

The Second Department determined the medical malpractice (2 1/2 year) rather than the negligence (3 year) statute of limitations applied to this action stemming from the alleged failure to restrain a patient (plaintiff's decedent) with dementia. The patient was injured when she fell. The court held the action was governed by the medical malpractice limitations period and was therefore untimely:

"The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" ... . Generally, a claim will be deemed to sound in medical malpractice "when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'" ... . Thus, when the complaint challenges a medical facility's performance of functions that are "an integral part of the process of rendering medical treatment" and diagnosis to a patient, such as taking a medical history and determining the need for restraints, the action sounds in medical malpractice... .

 

... The defendants' evidence showed that on April 12, 2009, the plaintiff's decedent, Ruby Bell (hereinafter the decedent), was admitted to New Island Hospital with a history of dementia, and placed on "Fall Prevention Protocol." After the decedent was found standing at her bedside trying to remove her foley catheter, a physician ordered that she be restrained with a vest and wrist restraints. On the morning of April 18, 2009, the decedent was discovered sitting on the floor next to her bed. The bed's side rails were up and the decedent was not aware of how she came to be on the floor. She had apparently fallen while trying to climb out of her bed. Thereafter, the decedent was diagnosed with a distal radius fracture of the right forearm. The plaintiff alleged that this incident arose out of the failure of the defendants' staff to follow the physician's order to restrain her ... .

 

In opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contentions, the allegations at issue essentially challenged the defendants' assessment of the decedent's supervisory and treatment needs ... . Bell v WSNCHS N., Inc., 2017 NY Slip Op 05937, 2nd Dept 8-2-17

NEGLIGENCE (MUNICIPAL LAW, TRAFFIC ACCIDENTS, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY'S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY'S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW,  PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY'S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/PEDESTRIANS (MUNICIPAL LAW, TRAFFIC ACCIDENTS,  PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY'S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))/SIDEWALKS (NEGLIGENCE, MUNICIPAL LAW, PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY'S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT))

NEGLIGENCE, MUNICIPAL LAW.

PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY'S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county did not demonstrate it did not create the obstruction of the sidewalk with snow and further did not demonstrate the obstruction was not the proximate cause of plaintiff's injury. Plaintiff alleged the snow in the sidewalk forced her to walk in the street, where she was struck by a car:

" Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies'" ... . As relevant here, an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence ... . " The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bill of particulars'" ... . Here, the plaintiffs alleged that the County affirmatively caused or contributed to the dangerous condition through its snow plowing operations on Old Country Road that caused snow to be deposited onto the sidewalk. Therefore, to demonstrate its entitlement to judgment as a matter of law, the County was required to establish, prima facie, that it did not receive prior written notice of the dangerous condition and that it did not create the alleged dangerous condition ... . Although the County demonstrated, prima facie, that it did not receive prior written notice, the County's submissions failed to establish, prima facie, that its snow removal operations did not create or exacerbate a dangerous condition ... . 

The County also failed to make a prima facie showing that its alleged negligence was not a proximate cause of the accident. "Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed" ... . "An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct'" ... . Where, however, "the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, the causal nexus is not severed and liability will subsist" ... . The issue of whether an act is foreseeable is generally for the trier of fact ... . Here, the County's alleged negligent snow plowing operations contributed to the obstruction of the sidewalk, which prevented Piazza [plaintiff] from continuing to walk on the sidewalk, and caused her to walk in the roadway where she was hit by a vehicle driven by Volpe. Under these circumstances, there is a triable issue of fact as to whether Volpe's act in hitting Piazza with her vehicle was a natural and foreseeable consequence of the County's alleged negligence. Piazza v Volpe, 2017 NY Slip Op 05986, Second Dept 8-2-17

 

 

SECURITIES (ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/TRUSTS AND ESTATES (REAL ESTATE MORTGAGE INVESTMENT CONDUIT TRUSTS, ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/REAL ESTATE MORTGAGE INVESTMENT CONDUIT TRUSTS (ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/CONTRACT LAW (REAL ESTATE MORTGAGE INVESTMENT CONDUIT TRUSTS, ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

 

SECURITIES, TRUSTS AND ESTATES, CONTRACT LAW.

 

ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Gische, determined that defendant'-trustee's motion to dismiss the breach of contract cause of action should not have been granted. Although the defendant indenture trustee did not owe the plaintiffs a fiduciary duty with regard to the sale of securities, the trustee still owed plaintiffs a duty of care as described in the trust agreement, including a duty to avoid conflicts of interest. Here the plaintiffs alleged the trustee sold the securities below market price and then sold them for a profit, thereby depriving plaintiffs of the equity in the securities:

This appeal concerns the rights and obligations of the parties with respect to the termination of certain REMIC (real estate mortgage investment conduit) trusts. The assets held by the trusts were mortgage loans. The trusts originally sold securities to outside investors, representing two classes of holders, i.e., regular security holders and residual security holders. Plaintiffs ... are holders of the residual security interests in those trusts. While the holders of regular securities were entitled to receive regular payments on distribution dates, the residual security holders had no such right. Instead, they were entitled to receive the proceeds of the disposition of any asset remaining in the trust REMICs upon their termination, but only after each class of regular security holder had been paid. Plaintiffs' interest is referred to as the trust "equity." The residual holder interest was the riskiest tranche of ownership and any right to payment was subordinate to payment in full of amounts due to the regular interest holders.

 

... The trustee argues that under the trust documents, it had the right to purchase trust assets at below market, even though it could resell them within days of acquiring them, allowing the trustee to realize millions of dollars in personal profit. The trustee is alleged to have kept for itself the profit it realized on the forward sale, which was in excess of $3,000,000.

 

... Even if the sale of assets to the trustee had been conclusively established by documentary evidence, there is still a valid claim that the trustee's actions create a conflict of interest prohibited under the operative trust agreements and in violation of the trustee's contractual obligations. The trust documents do not give the trustee the express right to purchase the trust assets for its own financial benefit at less than market value and to thereby diminish, let alone extinguish, plaintiffs' interest as residual security holders. NMC Residual Ownership L.L.C. v U.S. Bank N.A., 2017 NY Slip Op 05923, First Dept 8-1-17

Similar issues and result in Cece & Co. Ltd. v U.S. Bank N.A., 2017 NY Slip Op 05924, First Dept 8-1-17 (Gische, J)

WORKERS' COMPENSATION LAW (PROOF THAT CLAIMANT'S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT))/CANCER (WORKERS' COMPENSATION LAW, PROOF THAT CLAIMANT'S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT))

WORKERS' COMPENSATION LAW.

PROOF THAT CLAIMANT'S PROSTATE CANCER WAS CAUSED BY TOXINS TO WHICH CLAIMANT WAS EXPOSED AS A FIREFIGHTER WAS SPECULATIVE, CLAIM PROPERLY DENIED (THIRD DEPT).

The Third Department, over a dissent, determined the evidence linking claimant's prostate cancer to exposure to toxins as a firefighter was properly rejected as speculative:

Lawrence Garbo, an oncologist appointed as the impartial specialist by the full Board, reported, based upon his review of the relevant record evidence, that claimant did not present with any elevated risk factors typically associated with prostate cancer and that the incidence of new cases of prostate cancer in claimant's "age group is well under 0.5%." Garbo stated that although claimant had been exposed to inhalant toxins, polycyclic aromatic hydrocarbons and diesel exhaust, he could not accurately quantify, or describe the extent of, that exposure. Nevertheless, Garbo concluded that it was "reasonable to assume that [claimant's] employment as a firefighter for 24 years may have [had] a causal relationship to the development of prostate cancer." In his testimony, however, Garbo conceded that he was unaware of claimant's other previous employment consisting of cleaning furnaces and delivering kerosene or of the minimal number of exposure reports submitted by claimant during his 24-year career as a firefighter and that, upon being apprised of this information, he could not assign a causal relationship ... . In view of the foregoing conflicting evidence, including the prevalence of prostate cancer and the other possible explanations for claimant contracting the condition ... , we find that the full Board acted within its discretion in characterizing as speculative and ultimately rejecting the reports ... with regard to the existence of a causal relationship ... . Matter of Tucker v City of Plattsburgh Fire Dept., 2017 NY Slip Op 06013, Third Dept 8-2-17

ZONING (TOWN RESIDENTS CANNOT COMPEL TOWN TO ISSUE A FORMAL DETERMINATION OF THEIR ZONING COMPLAINT AND CANNOT COMPEL THE ZONING BOARD OF APPEALS TO REVIEW THE FAILURE TO ISSUE SUCH A DETERMINATION (SECOND DEPT))

ZONING.

TOWN RESIDENTS CANNOT COMPEL TOWN TO ISSUE A FORMAL DETERMINATION OF THEIR ZONING COMPLAINT AND CANNOT COMPEL THE ZONING BOARD OF APPEALS TO REVIEW THE FAILURE TO ISSUE SUCH A DETERMINATION (SECOND DEPT).

The Second Department determined petitioners' Article 78 proceeding seeking to compel the town to issue a formal determination of their complaint about an alleged zoning violation, and further seeking to compel the zoning board of appeals (ZBA) rule on the building inspector's failure to formally address petitioners' complaint, was properly dismissed:

... [T]he first cause of action alleged that the Town Code required the Town and the Building Inspector to issue a formal determination of the allegations contained in the letter they sent to the Building Inspector. Contrary to the allegations in the petition, there is nothing in the plain language of the Town Code which imposes a duty on the Building Inspector or the Town to issue a formal determination in response to every allegation or complaint received by his office ... . Even assuming the Town Code imposes a non-discretionary duty on the Building Inspector to "review and investigate complaints" ... , the petitioners have failed to cite any provision of law that would require the Building Inspector to issue a formal determination of the merits of every allegation that he received. Rather, the decision of how to respond to alleged violations of the Town's building code is effectively left to the discretion of the Building Inspector ... . * * *

The portion of the second cause of action which is at issue on this appeal sought to compel the ZBA to "hear and determine" the petitioners' application for review of the Building Inspector's failure to issue a formal determination of their allegations. In this regard, the petitioners have failed to adequately allege that the ZBA had a non-discretionary duty to determine the merits of their application to review the failure of the Building Inspector to issue a formal determination in response to their allegations. To the contrary, the ZBA's appellate jurisdiction is limited to reviewing an "order, requirement, decision, interpretation, or determination" ... . Matter of Willows Condominium Assn. v Town of Greenburgh, 2017 NY Slip Op 05961, Second Dept 8-2-17