JUST RELEASED

August Page IV

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

 

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CIVIL PROCEDURE (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))/PRELIMINARY INJUNCTION (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))/UNDERTAKING (WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT))

CIVIL PROCEDURE.

WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING (SECOND DEPT).

The Second Department noted that when a court grants a preliminary injunction the plaintiff must give an undertaking:

A party seeking the drastic remedy of a preliminary injunction has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of ultimate success on the merits, (2) the prospect of irreparable injury if the provisional relief is withheld, and (3) a balancing of the equities in the movant's favor ... . The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court ... . Here, where the plaintiff established a likelihood of success on the merits and the irreparable harm it would suffer should the preliminary injunction not be granted, the equities tip in favor of the plaintiff and the court properly granted that branch of the plaintiff's motion which sought a preliminary injunction ... .

 

However, upon the granting of a preliminary injunction, a plaintiff "shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction" (CPLR 6312[b] ... ). Mobstub, Inc. v www.staytrendy.com, 2017 NY Slip Op 06265, Second Dept 8-23-17

 

 

CIVIL PROCEDURE (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/CHOICE OF LAW ( CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/STATUTE OF LIMITATIONS  (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/STATUTE OF REPOSE (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))

 

CIVIL PROCEDURE.

CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT).

The Second Department determined a California statute was a statute of limitations, not a statute of repose. A statute of limitations, unlike a statute of repose, is considered procedural in New York. Therefore the California statute would not be applied in a New York action. Because the California statute of limitations would not apply to the underlying New York action, the defendant-attorneys' failure to raise the statute of limitations as a defense did not constitute malpractice:

"In New York, Statutes of Limitation are generally considered procedural because they are [v]iewed as pertaining to the remedy rather than the right" ... . A statute of limitations "does not begin to run until a cause of action accrues" ... . In contrast, "a statute of repose begins to run when the specified event or events takes place, regardless of whether a potential claim has accrued or, indeed, whether any injury has occurred" ... . "The repose period serves as an absolute barrier that prevents a plaintiff's right of action" ... . "In other words, the period of repose has the effect of preventing what might otherwise have been a cause of action from ever arising" ... . Statutes of repose "exhibit a substantive texture, nature and consequence that distinguishes them from ordinary limitation provisions" ... . ... [I]f a statute creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause" ... . In contrast, when a cause of action "was cognizable at common law or by other statute law, a statutory time limit is commonly taken as one of limitations and must be asserted by way of defense" ... . ...

... California Code of Civil Procedure § 366.3 is a statute of limitations, not a statute of repose. Unlike a statute of repose, section 366.3 begins to run at the time the cause of action to recover on the promise to make a testamentary disposition accrues, namely, the date of the promisor's death ... . Nestor v Putney Twombly Hall & Hirson, LLP, 2017 NY Slip Op 06284, Second Dept 8-23-17

CIVIL PROCEDURE (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))/CERTIFICATE OF READINESS (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))/NOTE OF ISSUE  (CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT))

CIVIL PROCEDURE.

CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED THE FILING OF THE NOTE OF ISSUE A NULLITY (SECOND DEPT).

The Second Department determined that the filing of note of issue accompanied by a certificate of readiness which indicated more discovery was required was a nullity:

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial ... .

 

Here, the plaintiffs' certificate of readiness stated, among other things, that discovery proceedings had not been completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity ... . Rizzo v Balish & Friedman, 2017 NY Slip Op 06307, Second Dept 8-23-17

CONTRACT LAW (HEALTH SERVICES PROVIDERS' COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))/COVENANT OF GOOD FAITH AND FAIR DEALING (CONTRACT LAW, HEALTH SERVICES PROVIDERS' COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))/PUBLIC HEALTH LAW (HEALTH SERVICES PROVIDERS' COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT))

 

CONTRACT LAW, PUBLIC HEALTH LAW.

HEALTH SERVICES PROVIDERS' COMPLAINT AGAINST HEALTH PLAN STATED CAUSES OF ACTION FOR BREACH OF AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING AND VIOLATION OF PUBLIC HEALTH LAW 4406-D (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging breach of an implied covenant of good faith and fair dealing should not have been dismissed.  Plaintiffs (heath services providers, hereinafter "the PC") sued defendant health plan (Fidelis) alleging the health plan did not have grounds for terminating the PC's contract. The court held the complaint stated a cause of action for breach of the implied covenant of fair dealing, as well as a cause of action alleging a violation of Public Health Law 4406-d:

Even if a party is not in breach of its express contractual obligations, it may be in breach of the implied covenant of good faith and fair dealing when it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain ... . Technically complying with the terms of a contract while depriving the plaintiff of the benefit of the bargain may constitute a breach of the covenant of good faith and fair dealing ... . Further, "[w]here the contract contemplates the exercise of discretion, this pledge includes a promise not to act arbitrarily or irrationally in exercising that discretion"... .

 

... The allegations in the complaint that the defendants acted in bad faith by terminating the agreement without justification and by fabricating information to try to justify the termination because the plaintiffs "were determined to be outliers' with regard to the number and cost of those medical services provided by Plaintiffs to Defendants' members" were sufficient to state a cause of action to recover damages for breach of contract based upon the alleged breach of the implied covenant of good faith and fair dealing. * * *

... [T]he PC stated a cause of action to recover damages for violation of Public Health Law § 4406-d. The PC is a health care professional that contracted with a health care plan and, therefore, falls within the purview of Public Health Law § 4406-d(2)(a). In addition, the PC is a member of the class for whose particular benefit the statute was enacted. The statute provides for enhanced health care provider protections ... . Moreover, a private right of action would be consistent with the legislative scheme, since the statute offers no other practical means of enforcement such that a private right of action is necessary to trigger the protections intended to be afforded to health care providers ... . Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 2017 NY Slip Op 06242, Second Dept 8-23-17

CRIMINAL LAW (JURORS, BATSON CHALLENGE, PROSECUTOR'S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))/JURORS (CRIMINAL LAW, BATSON CHALLENGE, PROSECUTOR'S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))/BATSON CHALLENGE (PROSECUTOR'S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))

CRIMINAL LAW.

PROSECUTOR'S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the prosecutor's reasons for striking two black prospective jurors were pretextual:

... [T]he record demonstrates that the race-neutral reasons for challenging prospective jurors Nos. 2 and 8 were not applied equally to exclude other prospective jurors who were not black, even though those other jurors had answered the subject hypothetical questions in the same way that prospective jurors Nos. 2 and 8 had answered. Although the uneven application of race-neutral factors does not always indicate pretext where the prosecution can articulate other legitimate reasons to justify the uneven use of its challenges... , the prosecution here failed to do so. Under the circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging prospective jurors Nos. 2 and 8 were pretextual ... . Accordingly, the defendant is entitled to a new trial .... . People v Brown, 2017 NY Slip Op 06289, Second Dept 8-23-17

ELECTION LAW (DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT))/DESIGNATING PETITION (ELECTION LAW, DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT))

ELECTION LAW.

DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED, OFFICE SOUGHT NOT SUFFICIENTLY DESCRIBED (SECOND DEPT).

The Second Department determined Supreme Court should have invalidated a designating petition because the office which was sought by the candidate was not sufficiently described:

Supreme Court erred in finding that the designating petition sufficiently described the office Larsen sought. "Election Law § 6-132(1) requires that each sheet of a designating petition state the public office or party position sought by the candidate'" ... . Since many public offices and party positions are susceptible to a variety of descriptions, the "description will be deemed adequate so long as the petition, read as a whole, is sufficiently informative . . . so as to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections'" ... .

 

Here, the candidates' designating petition described the public office Larsen sought as "Town Board, Town of East Hampton," but failed to specify the position Larsen sought to fill. Pursuant to Town Law § 60(1), every town board consists of "the supervisor" and "the town councilmen." These are different public offices, and the candidates elected to each office serve terms of different lengths. By failing to specify the position Larsen sought, the candidates' designating petition was not sufficiently informative so as to preclude the possibility of confusion ... . Accordingly, the Supreme Court should have granted that branch of the petition which was to invalidate so much of the designating petition as pertained to Larsen. Matter of Bragman v Larsen, 2017 NY Slip Op 06267, Second Dept 8-23-17

ELECTION LAW (PROCEEDING TO VALIDATE A DESIGNATING PETITION SHOULD HAVE BEEN DISMISSED AS UNTIMELY (SECOND DEPT))/DESIGNATING PETITION (ELECTION LAW, PROCEEDING TO VALIDATE A DESIGNATING PETITION SHOULD HAVE BEEN DISMISSED AS UNTIMELY (SECOND DEPT))

ELECTION LAW.

PROCEEDING TO VALIDATE A DESIGNATING PETITION SHOULD HAVE BEEN DISMISSED AS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proceeding to validate a designating petition should have been dismissed as untimely:

"A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later" (Election Law § 16-102[2]). " A petitioner raising a challenge under Election Law § 16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102(2)'" ... . A petitioner in a special proceeding under Election Law article 16 is required to provide notice of the proceeding "as the court or justice shall direct" (Election Law § 16-116). The Court of Appeals has repeatedly interpreted the notice requirement of Election Law § 16-116 to " call[ ] for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced'" ... . Here, the parties agree that the last day to commence a proceeding to validate the subject designating petition was July 31, 2017. Thus, contrary to the court's finding, the petitioner was required both to file the petition to validate the designating petition and to serve all necessary parties on or before that date... . Since the petitioner failed to effect service on or before July 31, 2017, this proceeding was not timely commenced ... . Matter of DeStefano v Borkowski, 2017 NY Slip Op 06269, Second Dept 8-23-17

 

ELECTION LAW (USE OF SIGNERS' POST OFFICE BOX ADDRESSES ON THE DESIGNATING PETITION WAS PROPER (SECOND DEPT))/DESIGNATING PETITIONS (ELECTION LAW, USE OF SIGNERS' POST OFFICE BOX ADDRESSES ON THE DESIGNATING PETITION WAS PROPER (SECOND DEPT))

 

ELECTION LAW.

USE OF SIGNERS' POST OFFICE BOX ADDRESSES ON THE DESIGNATING PETITION WAS PROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the use of the signers' post office box addresses on the designating petition was proper and did not warrant invalidation:

A candidate's designating petition must set forth "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" (Election Law § 6-130 ... ; see Election Law § 6-140[1][a]). Pursuant to the Election Law, "residence" shall be deemed to mean "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return," but does not specify the manner in which such address shall be recorded, except that customary abbreviations may be used (Election Law § 1-104[22]; see Election Law § 6-134[5]). However, the Election Law also provides that "[a] signature on a petition sheet shall not be deemed invalid solely because the address provided is the post office address of the signer provided that proof that such address is the accepted address of such signer is provided to the board of elections no later than three days following the receipt of specific objections to such signature" (Election Law § 6-134[12]). In addition, the Election Law specifies that a voter's registration record shall include, inter alia, both "[t]he residence address at which the voter claims to reside and post office address, if not the same" and "[t]he assembly district or ward and the election district in which such residence address is located" (Election Law § 5-500[4][d], [e]).

 

Here, the signers listed their post office addresses, which are the same addresses utilized by the BOE [Board of Elections] for mailing purposes. Further, the "walk lists" provided for the candidates' use in canvassing contain those address designations. The BOE asserts that its records also contain a five-digit code identifying the town, ward, and district for each address and that the codes for the addresses in question indicate that, for polling purposes, the addresses at issue lie within the Town of Harrison. The designating petition sets forth "the signer['s]" residence addresses, within the geographical boundaries of the Town of Harrison. Thus, under the particular circumstances of this case, the BOE should not have sustained the objections to the signatures at issue ... . Matter of Giordano v Westchester County Bd. of Elections, 2017 NY Slip Op 06272, Second Dept 8-23-17

ELECTION LAW (AGGRIEVED CANDIDATE NOT BOUND BY STATUTORY DEADLINES FOR FILING OF OBJECTIONS TO DESIGNATING PETITIONS, RESPONDENT HAD ADEQUATE NOTICE OF THE OBJECTIONS, SUPREME COURT SHOULD NOT HAVE DEEMED THE OBJECTIONS UNTIMELY (SECOND DEPT))/DESIGNATING PETITIONS  (AGGRIEVED CANDIDATE NOT BOUND BY STATUTORY DEADLINES FOR FILING OF OBJECTIONS TO DESIGNATING PETITIONS, RESPONDENT HAD ADEQUATE NOTICE OF THE OBJECTIONS, SUPREME COURT SHOULD NOT HAVE DEEMED THE OBJECTIONS UNTIMELY (SECOND DEPT))/OBJECTIONS (ELECTION LAW, DESIGNATING PETITIONS, AGGRIEVED CANDIDATE NOT BOUND BY STATUTORY DEADLINES FOR FILING OF OBJECTIONS TO DESIGNATING PETITIONS, RESPONDENT HAD ADEQUATE NOTICE OF THE OBJECTIONS, SUPREME COURT SHOULD NOT HAVE DEEMED THE OBJECTIONS UNTIMELY (SECOND DEPT))

ELECTION LAW.

AGGRIEVED CANDIDATE NOT BOUND BY STATUTORY DEADLINES FOR FILING OF OBJECTIONS TO DESIGNATING PETITIONS, RESPONDENT HAD ADEQUATE NOTICE OF THE OBJECTIONS, SUPREME COURT SHOULD NOT HAVE DEEMED THE OBJECTIONS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, found that the objection to a designating petition on the ground that 135 of the signers could not vote in the relevant district was not untimely. Because the designating petition did not have enough signers, it was invalid:

The Supreme Court denied the petition, inter alia, to invalidate the designating petition and dismissed the proceeding on the ground that the specifications of objections of the aggrieved candidate were served six days beyond the statutory deadline. The petitioners appeal.

 

The Supreme Court may entertain specific objections to signatures on a designating petition that were not asserted before a board of elections to the extent the respondent was given adequate notice of which signatures on his or her designating petition are being challenged and the grounds thereof ... . Here, the court erred in concluding that the specifications of objections of the aggrieved candidate were untimely due to their being served six days beyond the statutory deadline. An aggrieved candidate is not bound by the strict time constraints governing the filing of objections set forth in Election Law § 6-154(2) ... . The petition to invalidate the designating petition incorporated the objections and specifications of objections filed with the Board, and the respondent was served with the aggrieved candidate's specifications of objections on the distinct ground she raised as to the signatures at issue several days before the matter was briefed and heard. As such, the respondent had adequate notice of the grounds for objecting to the signatures at issue to enable him to prepare his defense .... . Matter of Lancaster v Nicolas, 2017 NY Slip Op 06275, Second Dept 8-23-17

 

ELECTION LAW (PETITIONERS HAD CAPACITY AND STANDING TO BRING AN ACTION SEEKING A DECLARATION RESPONDENTS' VIOLATED THE ELECTION LAW AND COMPELLING REMEDIAL ACTION (THIRD DEPT))

 

ELECTION LAW.

PETITIONERS HAD CAPACITY AND STANDING TO BRING AN ACTION SEEKING A DECLARATION RESPONDENTS VIOLATED THE ELECTION LAW AND COMPELLING REMEDIAL ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined petitioners did not have the authority under the Election Law to force a respondent to refund a $200,000 contribution to an election committee, but did have capacity and standing to bring an action seeking a declaration respondents violated the Election Law and compelling a respondent to amend its registration documents:

Contrary to Supreme Court's conclusion, petitioners do not wholly lack the authority to commence this proceeding/action. A party lacks the authority to sue where he or she is without both capacity and standing to sue ... . "Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing" ...  Capacity "concerns a litigant's power to appear and bring its grievance before the court" ...  and may, in some circumstances, be granted by statute ... . In contrast, "[s]tanding involves a determination of whether the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast . . . the dispute in a form traditionally capable of judicial resolution" ... . The concept of standing "is, at its foundation, aimed at advancing the judiciary's self-imposed policy of restraint, which precludes the issuance of advisory opinions" ... .

 

... [P]etitioners — five qualified voters who reside within ... the 9th Assembly District — have been statutorily afforded a private right of action to seek a declaration that [responent] violated the Election Law and to compel [responents] to comply with the Election Law . Thus, petitioners have both capacity and standing to seek such relief. * * *

... Election Law § 14-126 (2) [does not] completely extinguish[] the private right of action granted in Election Law § 16-114 (3) so as to deprive petitioners of the authority to seek an order declaring that [respondent] violated Election Law § 14-107-a and compelling [respondent] to amend its registration documents. Matter of Lauder v Pellegrino, 2017 NY Slip Op 06337, Third Dept 8-24-17

ELECTION LAW (PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))/SIGNATURES (ELECTION LAW, PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))/CERTIFICATES OF SUBSTITUTION (ELECTION LAW, PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))

ELECTION LAW.

PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT).

The Third Department determined the certificates of substitution designating candidates in a primary election were invalid. The problem was with the section which begins "We, the undersigned, hereby affirm that we constituted a majority of the vacancy committee referred to in the above certificate and that the statements in such certificate are true." "Below this statement, the majority of the Committee members were required to sign their names before a notary public, but their names were instead printed ... , followed by the signature and stamp of the notary public next to the jurat:"

The printed names of the Committee members here were not the equivalent of signatures establishing that they were attesting to the truth of the information contained in the certificates or that they constituted a majority of the Committee. Such deficiency was not a mere error in form ... ; indeed, its practical effect was as though the affidavit explicitly required by statute was never filed. Moreover, the deficiency was not cured by the other sections of the certificates because even though the members' signatures appeared in the first section, their signatures were not notarized and they did not attest to the accuracy of the information contained therein or represent that they constituted a majority of the Committee ... . Notwithstanding respondents' contention that the preprinted form provided by the Board is confusing, this does not relieve the Committee of its obligation to comply with the statutory requirements ... . Accordingly, we conclude that Supreme Court properly invalidated the certificates of substitution for failure to comply with the requirements of Election Law § 6-148 (4). Matter of Harder v Kuhn, 2017 NY Slip Op 06338, Third Dept 8-23-17

 

ELECTION LAW (FAILURE TO IDENTIFY A SPECIFIC VIOLATION OF THE ELECTION LAW OR PARTY RULE REQUIRED THE DISMISSAL OF THE PETITION, JUDICIAL INTERVENTION NOT WARRANTED (FOURTH DEPT))/JUDICIAL INTERVENTION (ELECTION LAW, FAILURE TO IDENTIFY A SPECIFIC VIOLATION OF THE ELECTION LAW OR PARTY RULE REQUIRED THE DISMISSAL OF THE PETITION, JUDICIAL INTERVENTION NOT WARRANTED (FOURTH DEPT))

 

ELECTION LAW.

FAILURE TO IDENTIFY A SPECIFIC VIOLATION OF THE ELECTION LAW OR PARTY RULE REQUIRED THE DISMISSAL OF THE PETITION, JUDICIAL INTERVENTION NOT WARRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that petitioner, who sought to have the designating petition of a candidate for town justice declared invalid, did not allege the violation of the Election Law or a party rule. Therefore petitioner was not entitled to judicial intervention:

... [P]etitioner alleges that, at a meeting in April 2017, respondent Town of Greece Republican Committee (Town Committee) endorsed him to be a candidate for the office of Town of Greece Justice, but [*2]a designating petition was prepared that named Granville in place of him, despite the fact that Granville had not been endorsed or even nominated for that office at that meeting. Petitioner alleges that the Town Committee violated its own rules and the rules of respondent Monroe County Republican Committee in failing to circulate a designating petition naming him for the office.... 

... Petitioner, a member of the Republican Party, "had a bona fide claim" to be the Republican Party's candidate for the office in question and has standing to challenge the Party's compliance with its own rules ... .

 

... Judicial intervention is warranted only upon " a clear showing that a party or its leaders have violated th[e] [Election Law] or the party's own rules adopted in accordance with law, or otherwise violat[ed] the rights of party members or the electorate' " ... . Here, petitioner failed to identify any specific provision of the Election Law or rule of the Republican Party that was allegedly violated. Matter of Nitti v Reilich, 2017 NY Slip Op 06327, Fourth Dept 8-23-17

EMPLOYMENT LAW (HUMAN RIGHTS LAW, ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER'S WIFE'S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT))/HUMAN RIGHTS LAW (GENDER DISCRIMINATION,  ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER'S WIFE'S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT))/GENDER DISCRIMINATION ( ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER'S WIFE'S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT))/SEX DISCRIMINATION  (HUMAN RIGHTS LAW, ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER'S WIFE'S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT)

EMPLOYMENT LAW, HUMAN RIGHTS LAW.

ALLEGATIONS THAT PLAINTIFF WAS FIRED BECAUSE OF EMPLOYER'S WIFE'S UNFOUNDED JEALOUSY STATED CAUSES OF ACTION FOR GENDER DISCRIMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-employers' motion to dismiss the NYC and NYS Human Rights Law (NYCHRL, NYSHRL) gender discrimination causes of action should not have been granted. The employers were husband (Nicolai) and wife (Adams). The complaint alleged plaintiff-employee had nothing but a professional relationship with Nicolai. Adams allegedly sent an email to plaintiff telling her to stay away from her husband and family. Nicolai then allegedly sent an email to plaintiff telling her she was fired. The complaint further alleged defendants filed a complaint with the police falsely stating plaintiff had threatened them. Supreme Court allowed the defamation cause of action to stand, but dismissed the gender discrimination causes of action:

It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination ... . Here, while plaintiff does not allege that she was ever subjected to sexual harassment at [the workplace]. she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife's unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant's motivation to terminate plaintiff's employment was sexual in nature.

 

Defendants' reliance on certain cases in the "spousal jealousy" context is misplaced. ... [A]ssuming the truth of the allegations of the amended complaint, as we are required to do upon a motion to dismiss, plaintiff had always behaved appropriately in interacting with Nicolai, and was fired for no reason other than Adams's belief that Nicolai was sexually attracted to plaintiff. This states a cause of action for gender discrimination under the NYSHRL and the NYCHRL ... . Edwards v Nicolai, 2017 NY Slip Op 06235, First Dept 8-22-17

 

 

 

 

 

 

 

EMPLOYMENT LAW (HUMAN RIGHTS LAW, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))/HUMAN RIGHTS LAW (GENDER AND SEXUAL ORIENTATION DISCRIMINATION, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))/GENDER DISCRIMINATION  (HUMAN RIGHTS LAW, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))/SEXUAL ORIENTATION DISCRIMINATION (HUMAN RIGHTS LAW, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))/SEX DISCRIMINATION (HUMAN RIGHTS LAW, SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT))

EMPLOYMENT LAW, HUMAN RIGHTS LAW, CIVIL PROCEDURE.

SEX AND DISABILITY EMPLOYMENT DISCRIMINATION COMPLAINT PROPERLY AMENDED UNDER THE RELATION BACK STATUTE WITH OTHERWISE UNTIMELY CAUSES OF ACTION ALLEGING SEXUAL ORIENTATION DISCRIMINATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, over an extensive two-justice dissent, determined the relation-back statute (CPLR 203 (f)) allowed the amendment of a sex-and-disability-discrimination complaint to allege otherwise untimely employment discrimination causes of action based upon plaintiff's sexual orientation. The original sex-and-disability-discrimination complaint did not mention plaintiff was a lesbian and had suffered discrimination because of her sexual orientation. The First Department held that the wording of the relation-back statute, which refers to "transactions" or "occurrences," not "claims," allowed the amendment in the absence of prejudice:

All of plaintiff's claims are based on the same occurrences — namely the underlying employment actions taken against her - and the original complaint put defendants on notice of those occurrences. To be sure, plaintiff's original complaint did not allege the specific facts that she is a lesbian, that defendants were aware of her sexual orientation, that defendants discriminated against her on that basis, or that another lesbian colleague was demoted for supporting her internal dispute ... . Nevertheless, the motion court correctly determined that the new claims are based on "the same subject matter alleged in the original complaint." Defendants need not have been put on notice of every factual allegation on which the subsequent claims depend, because the original complaint put them on notice of the occurrences that underlie those claims ... . 

 

Viewing "transactions [or] occurrences" through this broad lens for the purposes of relation back under CPLR 203(f) is especially important in the context of anti-discrimination actions - particularly those actions brought under the City HRL [Human Rights Law] - in which it is frequently difficult for plaintiffs to articulate their employers' motivations for treating them less well than other employees ... . O'Halloran v Metropolitan Transp. Auth., 2017 NY Slip Op 06237, First Dept 8-22-17

ENVIRONMENTAL LAW (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD'S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD'S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD'S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD'S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD'S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD'S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/STANDING, ENVIRONMENTAL LAW, (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD'S SEQRA RULING APPROVING CONSTRUCTION (SECOND DEPT))

ENVIRONMENTAL LAW, MUNICIPAL LAW.

PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE BOARD'S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE BOARD'S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT).

The Second Department determined one of the petitioners did not have standing to contest the board's State Environmental Quality Review Act (SEQRA) ruling because he lived more that 2000 feet from the proposed gas station. The other petitioners, whose businesses were across the street from the proposed gas station, had standing. The Second Department held that the board had not taken the required "hard look" at the proposal to add a gas station with 16 pumps to the project which had been approved:

... [T]he Supreme Court properly concluded that the Planning Board failed to comply with the substantive requirements of SEQRA in determining that a second SEIS (Supplemental Environmental Impact Statement] was not required prior to its approval of the site plan. As is relevant to this appeal, a lead agency may require a SEIS, "limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from . . . changes proposed for the project" (6 NYCRR 617.9[a][7][i]). "In making this fact-intensive determination, the lead agency has discretion to weigh and evaluate the credibility of reports and comments submitted to it and must assess environmental concerns in conjunction with other economic and social planning goals"... .

 

Although a lead agency's determination whether to require a SEIS, or a second SEIS, is discretionary ... , the lead agency must "consider[ ] the environmental issues requiring permits" and must make "an independent judgment that they would not create significant environmental impact" ... . Here, the changes proposed for the project after the issuance of the 2009 findings statement included the construction of a large convenience store with 16 gas pumps. ...

 

Under these circumstances, the Planning Board failed to take the requisite hard look at the project change adding the gas station, and did not make a reasoned elaboration of its basis for determining that a second SEIS was not necessary to address that change ... . Matter of Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Bd., 2017 NY Slip Op 06273, Second Dept 8-23-17

FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE PROCEEDING (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE PROCEEDING (SECOND DEPT))

 

FORECLOSURE.

BANK DID NOT DEMONSTRATE COMPLIANCE WITH REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank's motion for summary judgment in this foreclosure action should not have been granted. The bank did not demonstrate compliance with statutory notice requirements:

... [T]he plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304 ... . In support of its motion, the plaintiff submitted, inter alia, the affidavit of Rodolfo Arias, its vice president of loan documentation, along with a copy of a 90-day notice to the defendants dated May 9, 2010, and Proof of Filing Statements from the New York State Department of Financial Services, demonstrating that the plaintiff filed the information required by RPAPL 1306. Arias stated in his affidavit that the letter dated May 9, 2010, was forwarded to the defendants "by regular and certified mail," and annexed to his affidavit a copy of the letter. The letter contained a bar code with a 20-digit number below it, but no language indicating that a mailing was done by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service... . While mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay, Arias did not make the requisite showing that he was "familiar with the plaintiff's mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed" ... . The plaintiff's submission of the Proof of Filing Statements pursuant to RPAPL 1306 was also unavailing. While the statements constituted some proof that a mailing was done, they contained no information indicating that the mailing was done by both registered or certified mail and first-class mail in accordance with RPAPL 1304 ... . Wells Fargo Bank, N.A. v Lewczuk, 2017 NY Slip Op 06318, Second Dept 8-23-17

LANDLORD-TENANT (LEASE, MISTAKEN COMMENCEMENT DATE IN A LEASE IS A SUFFICIENT GROUND FOR RESCISSION (SECOND DEPT))/LEASE (MISTAKEN COMMENCEMENT DATE IN A LEASE IS A SUFFICIENT GROUND FOR RESCISSION (SECOND DEPT))/RESCISSION (LEASE, MISTAKEN COMMENCEMENT DATE IN A LEASE IS A SUFFICIENT GROUND FOR RESCISSION (SECOND DEPT))

LANDLORD-TENANT, CONTRACT LAW.

MISTAKEN COMMENCEMENT DATE IN A LEASE IS A SUFFICIENT GROUND FOR RESCISSION (SECOND DEPT).

The Second Department determined a mistaken start-date in the lease was a sufficient ground for rescission:

Rescission "rests upon the equitable principle that a person shall not be allowed to enrich himself [or herself] unjustly at the expense of another" ... , and is invoked "where the parties can be substantially restored to their status quo ante positions" ... . The remedy of rescission may be granted where, as here, a mistake existed at the time the contract was entered into if "the mistake is so material that . . . it goes to the foundation of the agreement"... . 

 

Here, the landlord's principal admitted at trial that a mistake was made regarding the commencement date of the parties' lease. Contrary to the landlord's contention, however, the mistake as to the commencement date related to a material term of the lease ... , and substantially defeated the purpose of the lease. K.A.M.M. Group, LLC v 161 Lafayette Realty, Inc., 2017 NY Slip Op 06260, Second Dept 8-23-17

LIEN LAW (MECHANIC'S LIEN, SECOND MECHANIC'S LIEN MAY BE FILED TO CORRECT THE NAMING OF THE WRONG CONTRACTOR IN THE FIRST LIEN (SECOND DEPT))/MECHANIC'S LIEN ( SECOND MECHANIC'S LIEN MAY BE FILED TO CORRECT THE NAMING OF THE WRONG CONTRACTOR IN THE FIRST LIEN (SECOND DEPT))

LIEN LAW.

SECOND MECHANIC'S LIEN MAY BE FILED TO CORRECT THE NAMING OF THE WRONG CONTRACTOR IN THE FIRST LIEN (SECOND DEPT).

The Second Department, reversing Supreme Court's discharge of a mechanic's lien, noted that the filing of a second mechanic's lien to correct a mistake (i.e., naming the wrong party) would be timely as long as the statute of limitations had not run at the time the second lien was filed. In this case, the general contractor's motion for summary judgment should have been denied because ITS motion papers did not indicate when the statute of limitations began to run:

A public improvement mechanic's lien may be filed "[a]t any time before the construction or demolition of a public improvement is completed and accepted by the . . . public corporation, and within thirty days after such completion and acceptance" (Lien Law § 12). "Such authority would seem to include the right to file a second lien within the time so provided, at least to cure an irregularity in a lien first filed, or to reassert a lien when the prior one has been lost by delay in its enforcement" ... . " The significant date in section 12 of the Lien Law is the completion and acceptance by the public corporation. The requirement is in the conjunctive and both branches must be met . . . before the time starts running'" ... . "Both these requirements, completion and acceptance, are usually questions of fact" ... . Munoz Trucking Corp. v Darcon Constr., Inc., 2017 NY Slip Op 06283, Second Dept 8-23-17

 

NEGLIGENCE (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/SLIP AND FALL (SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))/WARN, DUTY TO (SLIP AND FALL, SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT))

 

NEGLIGENCE.

SNOW AND ICE ON FRONT STEPS WAS AN OPEN AND OBVIOUS CONDITION, NO DUTY TO WARN (SECOND DEPT).

The Second Department determined defendant homeowners' motion for summary judgment in this slip and fall case was properly granted. Plaintiff slipped and fell on ice and snow which was on defendants' front steps. The defendants demonstrated the storm in progress rule applied and the condition was open and obvious:

... [T]he defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including climatological data, demonstrating that they did not have a reasonable opportunity to remedy the condition under the storm in progress rule ... . Similarly, the defendants did not have a duty to warn the plaintiff of the open and obvious condition on the front step ... . De Chica v Saldana, 2017 NY Slip Op 06251, Second Dept 8-23-17

 

 

 

NEGLIGENCE (INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT))

 

NEGLIGENCE.

INSUFFICIENT WEIGHT BEARING CAPACITY OF SHEETROCK FORMING THE ATTIC FLOOR WAS NOT AN OPEN AND OBVIOUS CONDITION (SECOND DEPT).

The Second Department. reversing Supreme Court, determined defendant homeowners' motion for summary judgment should not have been granted. Plaintiff, who was hired to clean defendants' attic, was injured when she stepped on sheetrock and fell through:

Landowners have a duty to maintain their premises in a reasonably safe condition ... ' However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous ... . "While the issue of whether a hazard is . . . open and obvious is generally fact-specific and thus a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence" ... .

 

Here, the homeowners failed to establish their prima facie entitlement to judgment a matter of law, as they failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open and obvious and not inherently dangerous as a matter of law ... . Gallardo v Gilbert, 2017 NY Slip Op 06256, Second Dept 8-23-17

NEGLIGENCE (SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/COURT OF CLAIMS (STATE BEACHES, SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/SWIMMERS (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/STATE PARKS  (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))

NEGLIGENCE, COURT OF CLAIMS.

STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT).

The Second Department determined the state's motion for summary judgment in this personal injury action was properly granted. Claimant alleged he suffered a head injury when diving into waves at a state park beach. Apparently claimant's head hit the ocean floor:

Governmental entities owe a duty to " act as a reasonable [person] in maintaining [their] property in a reasonably safe condition'" ... . "The duty goes beyond the mere maintenance of the physical condition of the park" ... , as there is also a "recognized duty of general supervision" ... . The degree of general supervision must be "adequate" ... .

 

Here, in support of its cross motion for summary judgment dismissing the claim, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure ... . Furthermore, the defendant had no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor ... . Courtney v State of New York, 2017 NY Slip Op 06250, Second Dept 8-23-17

 

 

NEGLIGENCE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/DENTAL MALPRACTICE (SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EXPERT OPINION  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/CIVIL PROCEDURE (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/SUMMARY JUDGMENT  (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EVIDENCE  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))

 

NEGLIGENCE, MEDICAL (DENTAL) MALPRACTICE, CIVIL PROCEDURE, EVIDENCE.

SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF'S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dentist who provided an affidavit for plaintiff was an expert, the expert raised a question of fact whether defendant departed from the accepted standard of care, and a question of fact was raised about whether plaintiff gave informed consent to the procedure. The court noted that plaintiff's expert's qualifications were not questioned in defendant's reply papers. Therefore, the court should not have raised the issue on its own and used the issue to support granting  summary judgment to the defendant. With regard to informed consent, the court wrote:

"A cause of action predicated on a lack of informed consent is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation"... .. To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury ... .

 

Here, the defendant failed to submit proof sufficient to establish, prima facie, that he had informed the plaintiff of the reasonably foreseeable risks associated with the treatment, and, in any event, that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed ... . Dyckes v Stabile, 2017 NY Slip Op 06252, Second Dept 8-23-17

 

NEGLIGENCE (ASSAULT, NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF'S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))/LANDLORD-TENANT (ASSAULT, NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF'S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))/ASSAULT (NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF'S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT))

 

NEGLIGENCE, LANDLORD-TENANT.

NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF'S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the landlord's (NYC Housing Authority's, NYCHA's) motion for summary judgment was properly granted. Plaintiff was shot by an unknown assailant in the hallway of his apartment building. Plaintiff alleged the assailant gained access to the building by virtue of a broken lock:

"Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person"... . Recovery against a landlord for an assault committed by a third party requires a showing that the landlord's negligent failure to provide adequate security was a proximate cause of the injury ... . "In premises security cases particularly, the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder" ... .

 

Here, NYCHA met its prima facie burden by submitting evidence that the rear door lock was operable and not broken on the day of the incident, and, in any event, by demonstrating that the assailant's identity remains unknown and that it could not be established that the assailant was an intruder ... . In opposition thereto, the plaintiff failed to raise a triable issue of fact. "Mere conjecture, suspicion, or speculation is insufficient to defeat a motion for summary judgment" ... . Martinez v City of New York, 2017 NY Slip Op 06263, Second Dept 8-23-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))/MEDICAL MALPRACTICE (PROXIMATE CAUSE, FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))/EVIDENCE (MEDICAL MALPRACTICE, FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))/PROXIMATE CAUSE (MEDICAL MALPRACTICE, FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))/COLONOSCOPY (MEDICAL MALPRACTICE, FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))

 

NEGLIGENCE, MEDICAL MALPRACTICE, EVIDENCE.

FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department determined defendant doctor's (Aronoff's) motion to set aside the verdict in this medical malpractice action was properly denied. Aronoff's failure to provide plaintiff (Raymond) with written instructions and warning after the colonoscopy, and his failure to notify plaintiff after a colon perforation was discovered constituted sufficient evidence of proximate cause:

Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury ... . "Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause" ... . " A plaintiff's evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased the 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 [the] injury'" ... .

 

Here, there was legally sufficient evidence to support the jury's findings that Aronoff departed from accepted standards of medical practice in failing to provide Raymond with written post-colonoscopy instructions and failing to warn him as to the signs or symptoms of which he should be aware. Aronoff also failed to contact Raymond and instruct him to go to the hospital after Aronoff had reviewed CT scan results that revealed a colon perforation. The evidence was legally sufficient to support the jury's findings that these deviations proximately caused Raymond's injuries ... . Gaspard v Aronoff, 2017 NY Slip Op 06258, Second Dept 8-23-17

PRODUCTS LIABILITY (COMPANY WHICH PURCHASED MANUFACTURER OF ALLEGEDLY DEFECTIVE LADDER NOT LIABLE, COMPANY DID NOT CONTINUE MANUFACTURER'S BUSINESS (SECOND DEPT))/CORPORATION LAW (PRODUCTS LIABILITY, COMPANY WHICH PURCHASED MANUFACTURER OF ALLEGEDLY DEFECTIVE LADDER NOT LIABLE, COMPANY DID NOT CONTINUE MANUFACTURER'S BUSINESS (SECOND DEPT))

PRODUCTS LIABILITY, CORPORATION LAW.

COMPANY WHICH PURCHASED MANUFACTURER OF ALLEGEDLY DEFECTIVE LADDER NOT LIABLE, COMPANY DID NOT CONTINUE MANUFACTURER'S BUSINESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Bauer defendants' motion for summary judgment in this products liability action should have granted. The Bauer defendants were successors in interest to the company (Babcock) which manufactured the allegedly defective ladder. However. the Bauer defendants demonstrated they did not continue the manufacturer's business:

... [A]s a general rule, a corporation which acquires the assets of another corporation is not liable for the predecessor's tortious conduct, including a defective and dangerous product manufactured by the predecessor ... . There are four exceptions to this general rule against successor liability. A corporation may be held liable for the torts of its predecessors if (1) the successor corporation expressly or impliedly assumed the predecessor's tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction was entered into fraudulently to escape such obligations ... .

 

Here, the Bauer defendants established their prima facie entitlement to summary judgment with evidence that they did not make or sell the subject ladder, that they were not liable pursuant to the general rule against successor liability, and that none of the exceptions to the general rule applied here. In opposition, the plaintiffs failed to raise a triable issue of fact with respect to any of the exceptions to the general rule, including the two they contested: that Babcock Co., the purchasing corporation, was allegedly a mere continuation of Old Babcock, and that the Bauer defendants impliedly assumed Old Babcock's tort liability.

 

With respect to the mere continuation exception, the underlying theory is that, if a corporation goes through "a mere change in form without a significant change in substance, it should not be allowed to escape liability" ... . Thus, this exception applies where "it is not simply the business of the original corporation which continues, but the corporate entity itself"... . A continuation envisions something akin to a corporate reorganization, rather than a mere sale, with "a common identity of directors, stockholders and the existence of only one corporation at the completion of the transfer"... .

 

* * * The mere fact that some ... former employees worked for [defendant]. was insufficient to raise a triable issue of fact ... . Wass v County of Nassau, 2017 NY Slip Op 06317, Second Dept 8-23-17

REAL PROPERTY (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/EASEMENTS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/AIR LIGHT AND ACCESS  (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/ENVIRONMENTAL LAW (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STANDING (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/HIGHWAYS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY (SECOND DEPT).

REAL PROPERTY, ENVIRONMENTAL LAW, MUNICIPAL LAW.

AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS (SECOND DEPT).

The Second Department determined that residents of a condominium across the street from the proposed construction of beach-front comfort stations did not have standing to contest the construction under the State Environmental Quality Review Act (SEQRA). The court further found that the petitioners' air, light and access easements could not be asserted against the state, which owns the public road where the construction will be located:

"To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA" ... . The alleged harm cannot be "too speculative and conjectural to demonstrate an actual and specific injury-in-fact" ... . Close proximity alone is insufficient to confer standing where there are no zoning issues involved, and general environmental concerns will not suffice ... . Moreover, "[t]o qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature" ... . Here, the petitioners' alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact ... .

 

"When lands adjoin private property an easement of light, air and access over such property does not exist, under ordinary circumstances, merely because of the proximity of the lands to the private property" ... .. However, an owner of land abutting a highway or street possesses, as incident to his or her ownership, easements of light, air, and access, irrespective of whether the owner owns the fee of the highway or the street itself ... . Nevertheless, "[w]hen the fee of the highway has been transferred to the State, the State may use the highway for any public purpose not inconsistent with or prejudicial to its use for highway purposes . . . [and] [t]he mere disturbance of the rights of light, air and access of abutting owners on such a highway by the imposition of a new use, consistent with its use as an open public street, must be tolerated by them and no right of action arises therefrom, although such use interferes with the enjoyment of the premises"... . For example, the maintenance of trees on a street for the purposes of ornament and shade has been determined to be a proper street use ... .

 

Here, the proposed construction will not completely block the petitioners' ocean view nor prevent the petitioners from using the public street. Rather, the length of the dead-end street will be shortened and several public parking spaces will be removed. The turnaround will still be intact, although moved 23 feet to the north, and access to the petitioners' driveway and building's entrance will not be impeded ... . In addition, the disputed comfort station will be open to, and for the purpose of, serving the public ... . Matter of Shapiro v Torres, 2017 NY Slip Op 06281, Second Dept 8-23-17

 

REAL PROPERTY (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF'S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/ADVERSE POSSESSION (CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF'S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/MUNICIPAL LAW (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF'S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))

 

REAL PROPERTY, MUNICIPAL LAW.

CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF'S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city had acquired title by adverse possession to a parcel purchased by plaintiff's predecessors in 1948. The fact that plaintiff had continuously paid taxes on the property did not negate the proof of adverse possession:

In 1948, the plaintiff's predecessors in interest purchased real property in Brooklyn. For at least 30 years, the subject property, which is in the middle of other lots owned by the defendant, City of New York, has been used by the New York City Department of Sanitation (hereinafter the DSNY) as a truck parking lot. During this time, the DSNY has paved the property, fenced it in, and installed lighting. * * *

Under the law before the 2008 amendments, in order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period ... .

 

The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the "unequivocal acts of the usurper"... . A rebuttable presumption of hostility arises from possession accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another ... . "Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity" ... .

 

... We conclude that the mere payment of taxes on the subject property is insufficient to rebut the presumption. Even assuming that knowledge of the true ownership of the property can be imputed to another municipal department in the City, such knowledge is not sufficient to defeat a claim of adverse possession ... . Estate of Vertley Clanton v City of New York, 2017 NY Slip Op 06254, Second Dept 8-23-17