JUST RELEASED

October Page V, November Page I

I

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

 

Click on the Case Name to View Full Decision

ADMINISTRATIVE LAW, UTILITIES.

NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES' ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined the respondent NYS Public Service Commission did not exceed its rule-making authority when it imposed a moratorium on energy service companies' (ESCOs') enrollments and renewals of customers who participate in utility low-income assistance programs (APPs):

Whether agency rulemaking infringes upon the Legislature's policy-making powers is governed by the "four coalescing circumstances" set forth in Boreali v Axelrod (71 NY2d 1 [1987]): "whether (1) the regulatory agency balanced costs and benefits according to preexisting guidelines, or instead made value judgments entailing difficult and complex choices between broad policy goals to resolve social problems; (2) the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance; (3) the [L]egislature had unsuccessfully attempted to enact laws pertaining to the issue; and (4) the agency used special technical expertise in the applicable field" ... . ...

This Court recently observed that respondent had the statutory authority to require that, in all new and renewal contracts between an ESCO and a residential customer or small nonresidential customer, the ESCO must guarantee "savings in comparison to what the customer would have paid as a full service utility customer or provide at least 30% renewable electricity" ... . Citing respondent's "broad" statutory authority "to set just and reasonable tariff rates for gas and electric corporations pursuant to Public Service Law articles 1 and 4" and that the same discretion allowed respondent to open the state's energy markets to ESCOs in the first instance, we observed that respondent may "impose limitations on ESCO rates as a condition to continued access" ... . The moratorium at issue on this appeal is directly responsive to concerns that ESCOs were costing customers, particularly APPs, more money than if they had just used a utility, a result in direct conflict with the original purpose of opening the energy markets to ESCOs ... . ​Matter of National Energy Marketers Assn. v New York State Pub. Serv. Commn., 2018 NY Slip Op 07378, Third Dept 11-1-18

ADMINISTRATIVE LAW (NYS PUBLIC SERVICE COMMISSION, UTILITIES, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES' ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/NYS PUBLIC SERVICE COMMISSION (ADMINISTRATIVE LAW, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES' ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/UTILITIES (LOW INCOME ASSISTANCE, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES' ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/LOW INCOME ASSISTANCE (UTILITIES, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES' ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))

CIVIL PROCEDURE.

MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the denial of a cross motion as untimely was improper because plaintiff did not mail the motion papers 21 days before the return date:

The plaintiff served its motion by regular mail on March 17, 2016, with a return date of April 6, 2016. In order to make effective its demand for seven days' notice of answering papers or a cross motion (see CPLR 2214[b]; CPLR 2215), the plaintiff was required to have mailed its motion papers at least 21 days prior to the return date (seeCPLR 2103[b][2]; CPLR 2214[b]... ). The plaintiff mailed its motion papers only 20 days before the return date. Thus, the cross motion, which was served six days before the return date, was timely (see CPLR 2215). Zisholtz & Zisholtz, LLP v Mandel, 2018 NY Slip Op 07349, Second Dept 10-31-18

CIVIL PROCEDURE (MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT))/CROSS MOTIONS (MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT))/CPLR 2013, 2014, 2015 (MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT))

CIVIL PROCEDURE.

THE PHRASE 'WITHIN FIVE DAYS' IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT),

The Third Department, over a partial dissent, determined that the phrase "within five days" in a change of venue statute (CPLR 511) did not impose a five day waiting period:

Asserting that Ulster County was an improper venue for the proceeding, the Steeles served a timely written demand that the proceeding be tried in Oswego County (see CPLR 511 [b]). Four days later, the Steeles moved, in Ulster County, to change venue of the proceeding to Oswego County. The Aarons argue that the Steeles, by failing to wait five days after their demand to allow the Aarons an opportunity to provide a written consent to change venue, failed to comply with the statutory procedure and thereby were not entitled to a change of venue as of right. This argument is based on an interpretation that the language "unless within five days" places a hold on the defendant's obligation to make a motion, during which time the defendant must simply wait for the plaintiff to respond to the demand (CPLR 511 [b]). We disagree with that interpretation of the statute.

 

The Aarons' argument appears to focus exclusively on the phrase "unless within five days." However, a plaintiff can choose not to respond to the demand, so the defendant may be sitting and waiting for nothing. In our view, the five-day window is a time limit on the plaintiff only, and the defendant is not required to refrain from doing anything during that period. Instead, the limits placed on a defendant under CPLR 511 (b) — other than the 15-day limit to move for change of venue — are contingent on whatever response the plaintiff may provide, rather than a five-day time period. While the five days are a limit on the plaintiff's ability to respond to the demand, the defendant retains the ability to make the venue motion "unless . . . [the] plaintiff serves a written consent" agreeing to the venue selected by the defendant (CPLR 511 [b]). In other words, the important occurrence for the defendant is the plaintiff granting consent, not the passage of days. If the plaintiff consents to the demanded change in venue, the defendant may not move for such relief. In a situation where the defendant made a motion before the end of the plaintiff's five-day response window and the plaintiff thereafter consented, the defendant would have to withdraw the motion (which would be unnecessary at that point anyway). Matter of Aaron v Steele, 2018 NY Slip Op 07393, Third Dept 11-1-18

CIVIL PROCEDURE (VENUE, THE PHRASE 'WITHIN FIVE DAYS' IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))/CPLR 511 (VENUE, THE PHRASE 'WITHIN FIVE DAYS' IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))/VENUE (THE PHRASE 'WITHIN FIVE DAYS' IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))

CIVIL PROCEDURE, CONTRACT LAW, ATTORNEYS.

STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF'S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT).

The Second Department determined a stipulation of settlement entered by plaintiff's attorney was a binding contract. The fact that plaintiff changed her mind before the stipulation was filed was of no consequence. Plaintiff made no effort to demonstrate the contract was invalid due to duress, fraud, mistake or overreaching:

We agree with the Supreme Court's determination to deny the plaintiff's motion, inter alia, to vacate the stipulation of discontinuance. CPLR 2104 provides that, "[a]n agreement between parties or their attorneys relating to any matter in an action, other than one between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered." Here, there is no dispute that on October 30, 2015, the plaintiff's former counsel had actual authority from his client to enter into the stipulation discontinuing the action on her behalf ... . Contrary to the plaintiff's contention, the stipulation of discontinuance clearly evidenced the plaintiff's intent to discontinue the action as of October 30, 2015, notwithstanding that she changed her mind prior to the filing of the stipulation on November 2, 2015 ... , even though it did not effect a discontinuance until it was filed with the clerk of the court on November 2, 2015 (CPLR 3217[a][2]). In seeking to vacate the stipulation, the plaintiff failed to meet her burden to establish good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, mistake, or overreaching, or that the terms of the stipulation were unconscionable ... . Demetriou v Wolfer, 2018 NY Slip Op 07288, Second Dept 10-31-18

CIVIL PROCEDURE (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF'S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/DISCONTINUANCE (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF'S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/STIPULATIONS (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF'S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/CONTRACT LAW (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF'S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/CPLR 2103, CPLR 3217 (STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF'S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))/ATTORNEYS STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF'S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT))

CIVIL PROCEDURE, CONTRACT LAW, LIEN LAW, MUNICIPAL LAW.

PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant general contractor's motion to dismiss the complaint brought by plaintiff subcontractor, based upon the subcontractor's failure to allege it was licensed to do home improvement work, should have been granted:

"Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal under CPLR 3211(a)(7) if it does not allege compliance with the licensing requirement" ... . Moreover, a home improvement contractor who fails to possess and plead possession of a valid license as required by relevant laws may not commence an action to foreclose a mechanic's lien ... .

Here, the complaint did not allege that the plaintiff was duly licensed in the Town of East Hampton at the time the services were rendered ... . Moreover, in opposition to the defendants' motion, the plaintiff did not dispute that it did not possess the necessary license. The plaintiff's contention that the work it performed was not for home improvement but, rather, was for the construction of a new home for which a home improvement contracting license was not necessary, is without merit. The Town Code defines "home improvement" as including, inter alia, "[n]ew home construction" ... . Moreover, contrary to the plaintiff's contention, the defendants are entitled to the protection of CPLR 3015(e) and the applicable licensing requirements ... . Kristeel, Inc. v Seaview Dev. Corp., 2018 NY Slip Op 07296, Second Dept 10-31-18

CIVIL PROCEDURE (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 3015 (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/HOME IMPROVEMENT CONTRACTS (PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CONTRACT LAW (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LIEN LAW (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/MECHANIC'S LIENS (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/MUNICIPAL LAW (LICENSES, HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LICENSES  (HOME IMPROVEMENT CONTRACTS, PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC'S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

CONTRACT LAW, EVIDENCE, FRAUD, ATTORNEYS.

DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT).

The Second Department determined plaintiff did not submit sufficient proof of damages stemming from the alleged breach of a home improvement contract, and the restitution and punitive damages awards were improper. The statutory General Business Law awards, including attorney's fees, were applicable:

... [T]he plaintiff failed to meet her burden of proving damages for breach of contract. The appropriate measure of damages for breach of a home improvement contract by the contractor for defective construction is the cost to repair the defects ... , as of the date the cause of action accrued ... . Here, the plaintiff did not proffer competent evidence to establish her costs to repair the defendants' defective work as of the date the cause of action accrued ... . Accordingly, the damages award in the sum of $9,358.96 for breach of contract must be set aside.

We also agree with the defendants that the jury improperly awarded the sum of $17,730 as restitution damages pursuant to General Business Law § 772, representing the total sum paid by the plaintiff under the home improvement contract before the defendants abandoned the project, since restitution damages are not provided for under that statute ... .

 

Further, we agree with the defendants that the plaintiff is not entitled to recover punitive damages. Although the jury found that the defendants were liable for breach of contract, the plaintiff failed to establish that the defendants' conduct was egregious, directed toward the plaintiff, and part of a pattern directed at the public ... . Moreover, to the extent that the plaintiff's case rested on allegations of fraud, she failed to establish that the defendants' conduct was so gross, wanton, or willful, or of such high moral culpability, as to justify an award of punitive damages ... . Crippen v Adamao2018 NY Slip Op 07287, Second Dept 10-31-18

CONTRACT LAW (DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT))/EVIDENCE (BREACH OF CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT))/DAMAGES (BREACH OF CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT))/FRAUD (HOME IMPROVEMENT CONTRACT, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT))/HOME IMPROVEMENT CONTRACT DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT))/GENERAL BUSINESS LAW (HOME IMPROVEMENT CONTRACTS, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT))/LICENSES (HOME IMPROVEMENT CONTRACTORS, (DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT))/PUNITIVE DAMAGES (BREACH OF CONTRACT, FRAUD, DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY'S FEES, APPLICABLE (SECOND DEPT))

CRIMINAL LAW.

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the for cause challenge to a juror should have been granted:

The court improvidently exercised its discretion in denying defendant's challenge for cause to a prospective juror who repeatedly expressed a predisposition to credit police testimony, and a belief that innocent defendants would testify on their own behalf, since the totality of his responses established that he would be unable to put aside his inclinations and be fair and impartial ... . At no point did the panelist give an unequivocal assurance that he would put aside his beliefs and concerns and render an impartial verdict ... . People v Brith, 2018 NY Slip Op 07250, First Dept 10-30-18

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))/JURORS (CRIMINAL LAW, (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))/FOR CAUSE CHALLENGE (CRIMINAL LAW, (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT))

CRIMINAL LAW, APPEALS.

GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT).

The Third Department, vacating defendant's guilty plea, considering the validity of the plea in the interest of justice because the error was not preserved, determined there was no showing defendant understood the rights he was waiving by pleading guilty:

Defendant's contention on appeal, however, is unpreserved for our review because, although defendant made a postplea motion to withdraw his guilty plea (see CPL 220.60 [3]), his motion was not premised upon the grounds now asserted — to wit, County Court's alleged failure to adequately inform him of the constitutional rights that he was forfeiting by pleading guilty ...  We nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment (see CPL 470.15 [3] [c]...).

 

"When a defendant opts to plead guilty, he [or she] must waive certain constitutional rights — the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses"... . "While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights" ... . During the plea proceedings, County Court engaged in an abbreviated colloquy during which it made only a passing reference to certain rights that defendant was forfeiting by pleading guilty. Although defendant was advised of his right to a jury trial, the court did not mention the privilege against self-incrimination or the right to be confronted by witnesses... . The court also failed to establish adequately that defendant had consulted with his counsel specifically about his relinquishment of trial-related rights or the consequences of his guilty plea, "instead making a vague inquiry into whether defendant had spoken to defense counsel" ...  about "the indictment, . . . the drug charge, and anything else that [was] important to [him]" ... . With no affirmative showing on the record before us that defendant understood and voluntarily waived his constitutional rights at the time he entered his guilty plea, the plea was invalid and must be vacated ... . People v Simon, 2018 NY Slip Op 07370, Third Dept 11-1-18

CRIMINAL LAW (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))/APPEALS (CRIMINAL LAW, (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))/GUILTY PLEA (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))

CRIMINAL LAW, EVIDENCE.

FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, INDICTMENTS SHOULD NOT HAVE BEEN CONSOLIDATED BECAUSE OF A DISPARITY IN THE AMOUNT OF EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined a for cause challenge to a juror should have been granted and the two indictments should not have been consolidated for trial because of the disparity in the amount of evidence:

"[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial" ... . Here, the prospective juror indicated that, given his experience in an area prone to crime, it was a "legitimate question" whether he could be fair to the defendant and the prospective juror was not sure whether he could be fair. The prospective juror's initial response was not rehabilitated by his collective response with the rest of the prospective jurors that he could be open, fair, and impartial ... . "[N]othing less than a personal, unequivocal assurance of impartiality can cure a juror's prior indication" of predisposition against a defendant ... . ...

The offenses were properly joinable, as they were defined by the same or similar statutory provisions (seeCPL 200.20[2][c]). Where, as here, the offenses were not part of the same criminal transaction, the determination of a consolidation application is discretionary, with the court weighing "the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's interest in being protected from unfair disadvantage" ... . " [I]n all cases a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses'"... . However, "compromise of a defendant's fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated" ... .

 

Here, there was a substantial disparity in the evidence tying the defendant to the offenses contained in the separate indictments, which presented a strong possibility that the jury convicted the defendant of the offenses charged in Indictment No. 8114/13 by reason of the cumulative effect of the evidence ... . Furthermore, separate trials would not have resulted in the duplication of evidence ... . People v Martinez, 2018 NY Slip Op 07329, Second Dept 10-31-18

CRIMINAL LAW (FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, INDICTMENTS SHOULD NOT HAVE BEEN CONSOLIDATED BECAUSE OF A DISPARITY IN THE AMOUNT OF EVIDENCE, CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CONSOLIDATION OF INDICTMENTS, FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, INDICTMENTS SHOULD NOT HAVE BEEN CONSOLIDATED BECAUSE OF A DISPARITY IN THE AMOUNT OF EVIDENCE, CONVICTION REVERSED (SECOND DEPT))/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, INDICTMENTS SHOULD NOT HAVE BEEN CONSOLIDATED BECAUSE OF A DISPARITY IN THE AMOUNT OF EVIDENCE, CONVICTION REVERSED (SECOND DEPT))/FOR CAUSE CHALLENGE (CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, INDICTMENTS SHOULD NOT HAVE BEEN CONSOLIDATED BECAUSE OF A DISPARITY IN THE AMOUNT OF EVIDENCE, CONVICTION REVERSED (SECOND DEPT))/INDICTMENTS (CONSOLIDATION, FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, INDICTMENTS SHOULD NOT HAVE BEEN CONSOLIDATED BECAUSE OF A DISPARITY IN THE AMOUNT OF EVIDENCE, CONVICTION REVERSED (SECOND DEPT))/CONSOLIDATION (CRIMINAL LAW, INDICTMENTS, FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, INDICTMENTS SHOULD NOT HAVE BEEN CONSOLIDATED BECAUSE OF A DISPARITY IN THE AMOUNT OF EVIDENCE, CONVICTION REVERSED (SECOND DEPT))/JOINDER (INDICTMENTS, FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, INDICTMENTS SHOULD NOT HAVE BEEN CONSOLIDATED BECAUSE OF A DISPARITY IN THE AMOUNT OF EVIDENCE, CONVICTION REVERSED (SECOND DEPT))

CRIMINAL LAW, EVIDENCE.

TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT).

The Second Department dismissed the counts of the sexual-offense indictment which were rendered duplicitous by the trial evidence. The counts alleging sexual intercourse with the complainant when she was 13 were not duplicitous on the face of the indictment, but the complainant testified sexual intercourse occurred at least 20 times during each month alleged in the relevant counts. The convictions for the counts where the complainant testified only one act occurred were upheld:

Counts 28 through 47 and counts 49 through 58 of the indictment are valid on their face. However, at trial, the complainant testified that when she was 13 years old, the then 26-year-old defendant had sexual intercourse with her and engaged in oral sex with her at least 20 times per month, i.e., at least 20 times during the one-month period encompassed by each of those counts. Thus, the complainant's testimony demonstrated that each of those counts was premised upon multiple acts of rape and criminal sexual act, and they are, therefore, void for duplicitousness ... . Accordingly, we vacate the convictions of rape in the second degree under counts 28 through 47 of the indictment and criminal sexual act in the second degree under counts 49 through 58 of the indictment, vacate the sentences imposed thereon, and dismiss those counts in the indictment.

 

The defendant was also charged under count 27 of the indictment with committing rape in the second degree (Penal Law § 130.30[1]) by, being 18 years old or more, engaging in an act of sexual intercourse with a person less than 15 years old between March 11, 2011, and March 31, 2011. Count 48 of the indictment charged the defendant with committing criminal sexual act in the second degree ...  by, being 18 years old or more, engaging in oral sexual conduct with a person less than 15 years old between March 11, 2011, and March 31, 2011.

 

Where a crime, such as rape or criminal sexual act, "is made out by the commission of one act, that act must be the only offense alleged in the count" ... . Contrary to the defendant's contention, counts 27 and 48 of the indictment were not duplicitous on their face, since they each charged the defendant with a single act ... . Further, since the complainant testified at trial that a single act of rape and a single oral sexual act occurred during the period of March 11, 2011, to March 31, 2011, acts which formed the basis of counts 27 and 48 of the indictment, these counts are not duplicitous ... . People v Gerardi, 2018 NY Slip Op 07325, Second Dept 10-31-18

CRIMINAL LAW (EVIDENCE, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/INDICTMENTS (DUPLICITOUS,  TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/DUPLICITOUS INDICTMENTS (EVIDENCE, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/RAPE (DUPLICITOUS INDICTMENT, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))

CRIMINAL LAW, EVIDENCE, APPEALS.

EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT).

The First Department, reversing defendant's conviction, determined (1) defendant should have been allowed to present expert evidence of the cross-race effect on the ability of a witness to identify a defendant, and (2) the request to instruct the jury on the cross-race effect should have been granted. The First Department further held that the new (2017) cross-racial identification rule should be applied cases like this one, where the rule was announced while the direct appeal was pending:

The court should have permitted defendant to introduce expert testimony to the effect that witnesses are less likely to accurately identify persons of other racial groups than persons of their own race ... . The case turned on the accuracy of the victim's cross-racial identification of defendant, and there was no corroborating evidence connecting defendant to the crime. Furthermore, the circumstances surrounding the identification did not render it so reliable as to justify precluding expert testimony. The expert testimony produced during the Frye hearing sufficiently established that the cross-race effect has been generally accepted in the relevant scientific community. The People do not dispute that this phenomenon applies to identifications of certain racial groups. Moreover it can be deduced from the expert testimony that the cross-race effect applies to all racial groups.

 

The court should also have granted defendant's explicit request for a jury instruction on cross-racial identification. Initially, we reject the People's argument that defendant failed to preserve this issue.

 

People v Boone (30 NY3d 521, 535-536 [2017]), which requires that a jury charge on the cross-race effect be given on request, should be applied retroactively to cases pending on direct appeal. Boone plainly announces a new rule, and that rule is plainly based on state rather than federal law. Accordingly, its application to cases pending on appeal is not automatic, but depends on a balancing of the three factors set forth in the Mitchell-Pepper test ... .

 

As to the first factor (the purpose of the rule), "standards that go to the heart of a reliable determination of guilt or innocence will be applied retroactively, but decisions which are only collateral to or relatively far removed from the fact-finding process at trial apply prospectively only" ... . Here, cross-racial identification instructions go to the fact-finding process, and are essential to a reliable determination of guilt or innocence... . Thus, the first factor favors retroactive application.

 

As to the second factor (extent of reliance on the old rule), the People cite a number of cases showing that courts have relied on the pre-Boone rule in declining to give a charge on cross-racial identification, in the exercise of discretion. This favors prospective application of the rule, but we do not find that it outweighs the other factors.

 

As to the third factor (effect on the administration of justice of retroactive application), retroactive application of Boone would not significantly affect the administration of justice. A limited number of cases turn on the accuracy of single-witness, cross-racial identifications, and the particular evidence could render a failure to give a cross-racial identification charge harmless. Moreover, the rule in Boone is expressly limited to cases where the charge has been requested ... , and the fact that Boone had not yet been decided at the time of a particular trial would not provide an exemption from the requirement of a timely request ... . Thus, contrary to the People's contention, it is unlikely that retroactive application of Boone would result in wholesale reversals and burden trial courts with unnecessary retrials ... . People v Crovador, 2018 NY Slip Op 07273, First Dept 10-30-18

CRIMINAL LAW (EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, IDENTIFICATION, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/EXPERT EVIDENCE (CRIMINAL LAW, IDENTIFICATION, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/IDENTIFICATION (CRIMINAL LAW, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/APPEALS (CRIMINAL LAW, RETROACTIVE APPLICATION OF NEW RULING, (EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))/RETROACTIVE APPLICATION (CRIMINAL LAW, APPEALS, EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT))

DISCIPLINARY HEARINGS (INMATES), EVIDENCE.

INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the disciplinary determination, found that the misbehavior determination was not supported by substantial evidence. Petitioner was charged with attempting to mail gang related information. But there was no evidence connecting petitioner to the relevant documents:

... [T]he documentary evidence attached to the misbehavior report and submitted to this Court for in camera review consisted solely of three typewritten pages, which did not have any features or content that could identify petitioner as the author or sender, and did not include the envelope in which the pages were allegedly discovered ... . The testimony given by the investigating correction officer, together with the statements that he made in the misbehavior report, established only that the three typewritten pages were forwarded to him from the mail room as mail that petitioner had attempted to send. The investigating correction officer did not testify to having any personal knowledge that petitioner was the sender of those pages. A mail room supervisor testified that, although she was aware that petitioner was the subject of a mail watch at one time, she could not recall the actual incident, and she did not offer any testimony that linked petitioner to the pages at issue... . Further, petitioner did not admit ownership of the documents or otherwise connect himself to them ... . To the contrary, petitioner maintained his innocence throughout the administrative proceeding and asserted that he was being retaliated against for having lodged grievances against the mail room staff. In the absence of evidence connecting petitioner to the three typewritten pages, the underlying determination of guilt is not supported by substantial evidence ... . Matter of Telesford v Annucci, 2018 NY Slip Op 07397, Third Dept 11-1-18

DISCIPLINARY HEARINGS (INMATES) (INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT))

LABOR LAW-CONSTRUCTION LAW.

COMPANY WHICH HIRED PLAINTIFF'S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF'S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF'S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the company which hired plaintiff's employer, New York Plumbing, and the property owner,, Park Plaza, were liable for plaintiff's fall, pursuant to Labor Law 240 (1) and 241 (6). New York Plumbing was liable because it had the authority to supervise plaintiff's work, even if it did not exercise that authority. Park Plaza was not entitled to summary judgment on its indemnification action against New York Plumbing because it did not demonstrated New York Plumbing exercised actual supervision over plaintiff's work. Plaintiff fell from the top of a temporary oil storage tank which was being emptied and cleaned:

Contrary to New York Plumbing's contention, the plaintiff demonstrated, prima facie, that New York Plumbing had the authority to exercise control over the plaintiff's work, even if it did not actually do so, and that New York Plumbing was therefore a proper defendant under the Labor Law ... . ...

Moreover, the plaintiff demonstrated that he was engaged in a protected activity under Labor Law §§ 240(1) and 241(6) when he was injured ... .

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action insofar as asserted against the Park Plaza defendants [the property owner] and New York Plumbing. The plaintiff submitted evidence that he fell from a 12-to 16-foot high surface, and that he had not been provided with safety devices to protect him from such a fall ... . ...

The plaintiff's Labor Law § 241(6) cause of action was predicated on an alleged violation of 12 NYCRR 23-1.7(d) ... . The Park Plaza defendants and New York Plumbing failed to establish, prima facie, that a slippery condition on the oil tank was not a proximate cause of the plaintiff's fall ... .

 

Finally, the Park Plaza defendants did not demonstrate their prima facie entitlement to judgment as a matter of law on their cross claim for common-law indemnification against New York Plumbing, as their submissions did not establish, prima facie, that New York Plumbing exercised actual supervision over the plaintiff's work ... . Padilla v Park Plaza Owners Corp., 2018 NY Slip Op 07317, Second Dept 10-31-18

LABOR LAW-CONSTRUCTION LAW (COMPANY WHICH HIRED PLAINTIFF'S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF'S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF'S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT))/INDEMNIFICATION (LABOR LAW-CONSTRUCTION LAW, COMPANY WHICH HIRED PLAINTIFF'S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF'S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF'S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT))

LABOR LAW-CONSTRUCTION LAW.

STACKED SHEETROCK DID NOT PRESENT AN ELEVATION RELATED HAZARD AND DID NOT BLOCK A PASSAGEWAY, DEFENDANTS DID NOT EXERCISE CONTROL OVER THE STACKING OF THE SHEETROCK, LABOR LAW 240 (1), 241 (6), 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the Labor Law 240 (1), 246 )1) and 200 causes of action were properly dismissed. The sheetrock which allegedly fell and struck plaintiff's ankle was not an elevation-related hazard, did not block a passageway, and the defendants had not unloaded or stacked the sheetrock and did not exercise sufficient supervisory control to be liable in negligence:

The mere fact that a plaintiff was struck by an object that fell does not, by itself, give rise to liability under the statute ... . Rather, a plaintiff must establish that "the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ... . That said, "where a plaintiff was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1), the plaintiff cannot recover under the statute" ... . ...

The record indicates ... that the sheetrock was stacked on its long side on the ground before it fell and that plaintiff was on the same level as the sheetrock. ...

Regarding plaintiff's cause of action under Labor Law § 241 (6), it was incumbent upon plaintiff to show that defendants violated an Industrial Code provision that imposed a specific standard of conduct ... . Plaintiff failed in that regard. The record discloses that the sheetrock was stored in the corner of a second-floor room and did not "obstruct any passageway, walkway, stairway or other thoroughfare" ... .

Turning to plaintiff's remaining claims, "Labor Law § 200 codifies the common-law duty imposed upon . . . general contractors to maintain a safe work site" ... . Where the injury stemmed from the methods and means in which a subcontractor performed its work, "there must be a showing of supervisory control and actual or constructive notice of the unsafe manner of performance" ... . "Where a subcontractor creates a condition on the premises that results in an unreasonable risk of harm and that condition is a proximate cause of a worker's injuries, then common-law negligence may be implicated" ... . Wiley v Marjam Supply Co., Inc., 2018 NY Slip Op 07381, Third Dept 11-1-18

LABOR LAW-CONSTRUCTION LAW (STACKED SHEETROCK DID NOT PRESENT AN ELEVATION RELATED HAZARD AND DID NOT BLOCK A PASSAGEWAY, DEFENDANTS DID NOT EXERCISE CONTROL OVER THE STACKING OF THE SHEETROCK, LABOR LAW 240 (1), 241 (6), 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT))

LABOR LAW-CONSTRUCTION LAW.

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT).

The Third Department determined plaintiff was entitled to summary judgment in his Labor Law 240 (1) action result from a fall from an unsafe makeshift platform made by the plaintiff. Plaintiff alleged the lift with which he was provided could not be used and no other safety equipment was provided:

Defendant is a property owner subject to the statute and he provided no equipment to plaintiff aside from agreeing to rent a lift for plaintiff's use. Plaintiff, at the time of his injury, was installing siding above a staircase running along the side of the building. He averred that the lift would not fit in the area, he was not provided with a traditional scaffold and he could not have used a "ladder jack" scaffold in the area due to both the equipment being in use elsewhere and the location of the staircase. Plaintiff accordingly fashioned a work platform from his A-frame ladder and a scaffolding plank known as a pick, running the pick between a rung of the ladder and the top landing of the staircase. The pick and ladder were not anchored to the ground or the wall, and plaintiff gave deposition testimony stating that he fell several feet when the contraption slid out from beneath him as he was pushing the new siding into place. An engineer retained by plaintiff opined that the unsecured makeshift platform was unsafe and that defendant violated Labor Law § 240 (1) by failing to furnish adequate safety equipment, such as a proper scaffold and a safety harness, that would have shielded plaintiff from injury. The foregoing was sufficient to "establish[] a prima facie showing of a statutory violation which was a proximate cause of plaintiff's injuries, [shifting the burden] to defendant to submit evidentiary facts which would raise a factual issue on liability" ... . ...

Defendant responded by arguing that inconsistencies in plaintiff's account over time raised a material question of fact as to how the accident occurred. * * * [The] variations did not suggest "that plaintiff's fall and injuries were caused by anything other than the unsecured [pick and] ladder or that plaintiff's own conduct was the sole proximate cause of the accident[.]" Cooper v Delliveneri, 2018 NY Slip Op 07396, Third Dept 11-1-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT))

NEGLIGENCE.

DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department determined defendant's motion for summary judgment on the Dram Shop Act cause of action was properly granted, but the negligence cause of action in this third-party assault case should not have been granted. There was uncontested evidence the assailant did not appear to be drunk when served. But there was a question of fact whether the defendant restaurant took adequate measures to protect plaintiff from a second attack by the assailant:

Defendant was entitled to summary judgment dismissing plaintiff's cause of action under the Dram Shop Act (General Obligations Law § 11-101; see also Alcohol Beverage Control Law § 65). A witness testified that plaintiff's assailant did not appear visibly intoxicated at the time he was served two drinks by defendant. This evidence was sufficient to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that point in time until he attacked plaintiff ... . ...

While the first assault was sudden and unforseeable, and therefore not actionable, defendant failed to demonstrate as a matter of law that it took reasonable actions to protect plaintiff from the assailant on the second assault and that it was not foreseeable. It is true that the husband of defendant's owner averred that he was escorting the assailant, who appeared to have calmed down "somewhat," from the premises, when he suddenly lunged two or three feet to where plaintiff was standing, and struck him. However, another witness testified that immediately prior to assailant's attack on plaintiff, he did not see anyone accompanying or escorting the assailant while the assailant exited defendant's establishment. Ricaurte v Inwood Beer Garden & Bistro Inc., 2018 NY Slip Op 07242, First Dept 10-30-18

NEGLIGENCE (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/DRAM SHOP ACT (THIRD PARTY ASSAULT, (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/ASSAULT, THIRD PARTY  (DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

NEGLIGENCE.

DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant town did not demonstrate the hump over which plaintiff allegedly tripped and fell was open and obvious. Therefore the town's motion for summary judgment should not have been granted:

The Town had installed a drain to keep water off this particular ballfield and covered the drain with asphalt, creating a hump. This hump extended to the area between the players' benches and the entrance to the ballfield on the third base side. The injured plaintiff was attempting to move through the entrance on the third base side when he tripped and fell over the hump. ...

 

A landowner has a duty to maintain its premises in a reasonably safe condition ... . There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous ... . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury ... . "A condition that is ordinarily apparent to a person making reasonable use of [his or her] senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" ... .

 

Here, the Town failed to establish, prima facie, that the condition of the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident ... . In support of the motion, the Town submitted, inter alia, transcripts of the testimony of the injured plaintiff at his hearing pursuant to General Municipal Law § 50-h and at his deposition. The injured plaintiff testified that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump. Since the Town failed to meet its initial burden as the movant, the burden never shifted to the plaintiffs to submit evidence sufficient to raise triable issues of fact ... . Dillon v Town of Smithtown, 2018 NY Slip Op 07289, Second Dept 10-31-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

NEGLIGENCE, BATTERY. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.

ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the negligence and negligent infliction of emotional distress causes of action were property dismissed. Although defendant (Domnitser) may not have intended to strike plaintiff in an altercation with others, the complaint alleged only intentional conduct by the defendant:

Although "the same act may constitute battery or negligence depending on whether or not it was intentional, . . . there cannot be recovery for both"... . As such, "if the only inference that may be drawn from plaintiff's evidence is that defendant's contact with plaintiff was intentional, plaintiff may recover only in battery and the issue of negligence should not be submitted to the jury". Accordingly, "[o]nce intentional offensive contact has been established, the actor is liable for battery, not negligence" ... .

 

Here, the plaintiff alleged that he was injured as a result of Domnitser's intentional acts which were directed toward third parties during the physical altercation. Contrary to the plaintiff's contention, even if Domnitser lacked any intent to make physical contact with, or otherwise injure, the plaintiff, the conduct attributed to Domnitser in the amended complaint, even as amplified by the plaintiff's affidavit, constituted intentional, rather than negligent, conduct ... . ...

"A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him [or her] which unreasonably endangered his [or her] physical safety, or caused him [or her] to fear for his [or her] own safety" ... . A negligent infliction of emotional distress cause of action "must fail where, as here, [n]o allegations of negligence appear in the pleadings'" ... . Borrerro v Haks Group, Inc., 2018 NY Slip Op 07282, Second Dept 10-31-18

NEGLIGENCE (BATTERY, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (BATTERY, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))/BATTERY (NEGLIGENCE, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))

NEGLIGENCE, EDUCATION-SCHOOL LAW.

SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant school district's motion for summary judgment in this third party assault case should have been granted. Infant plaintiff, Deb B, a special education student, alleged she was sexually assaulted by another special education student outside the school building before classes started. Deb B.'s education plan did not provide for a school aide to escort her to school from the bus or between classes:

After arriving at school one morning, she entered the building in the company of JG, another special education student who had been a passenger with her on the same school bus. After stopping by the school's cafeteria, and before the first-period class, JG asked Deb B. to accompany him outside the school building to the bleachers near the athletic field, and Deb B. agreed to do so. Deb B. alleges that JG then sexually assaulted her while they were on the bleachers. ... 

"Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a special duty' to the students themselves" ... . Thus, schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision ... . "Schools are not, however, insurers of students' safety and cannot reasonably be expected to continuously supervise and control all movements and activities of students'" ... . "The standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information" ... . ...

Here, in support of their motion for summary judgment, the defendants submitted evidence that Deb B.'s individualized education plan did not provide for a school aide to escort her from the school bus to the school building or to escort her throughout the building as she moved between classes. Deb B.'s mother testified that she was aware that Deb B. was not so escorted, and that she had no expectation that this would be done. The evidence submitted by the defendants also indicated that Deb B. had no history of leaving the school building improperly. Finally, neither the complaint nor the bill of particulars alleged that JG had a propensity to engage in dangerous conduct, or that the defendants knew or should have known of any such propensity ... . Deb B. v Longwood Cent. Sch. Dist., 2018 NY Slip Op 07280, Second Dept 10-31-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, THIRD PARTY ASSAULT, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/ASSAULT, THIRD PARTY (NEGLIGENCE, EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/THIRD PARTY ASSAULT (EDUCATION-SCHOOL LAW, NEGLIGENCE, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))

NEGLIGENCE, MUNICIPAL LAW, VEHICLE AND TRAFFIC LAW.

EMERGENCY EXEMPTION IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY TO THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff's motion for summary judgment in this police-vehicle traffic accident case should have been granted. The police vehicle backed into plaintiff's stopped care. The defendant's papers did not demonstrate that the emergency-vehicle exemption in the Vehicle and Traffic Law applied:

Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of emergency vehicles from certain traffic laws when they are involved in an emergency operation... . The "emergency operation" of a police vehicle includes "pursuing an actual or suspected violator of the law" (Vehicle and Traffic Law § 114-b...). Vehicle and Traffic Law § 1104(e) establishes a reckless disregard standard of care for determining civil liability for damages resulting from the privileged operation of an emergency vehicle... . Otherwise, the standard of care for determining civil liability is ordinary negligence ... .

 

In support of her motion for summary judgment on the issue of liability, the plaintiff submitted, inter alia, a police accident report which included Officer Sforza's statement that, at the time of the accident, he was observing "what appeared to be suspicious activity" at a nearby address. Thus, the plaintiff established, prima facie, that the police officer was not engaged in an emergency operation when the accident occurred... . In opposition, the defendants submitted the affidavit of Officer Sforza, who clarified that, at the time of the accident, he had merely noticed an individual at a nearby address with what he believed to be an open alcoholic container. The defendants' submissions failed to raise a triable issue of fact as to whether the police vehicle was engaged in an emergency operation. Portalatin v City of New York, 2018 NY Slip Op 07341, Second Dept 10-31-18

NEGLIGENCE (TRAFFIC ACCIDENTS, EMERGENCY EXEMPTION IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY TO THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, POLICE VEHICLES, EMERGENCY EXEMPTION IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY TO THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/POLICE VEHICLES (TRAFFIC ACCIDENTS, EMERGENCY EXEMPTION IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY TO THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS ( POLICE VEHICLES, EMERGENCY EXEMPTION IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY TO THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMERGENCY EXEMPTION (VEHICLE AND TRAFFIC LAW, MUNICIPAL LAW, POLICE VEHICLES, EMERGENCY EXEMPTION IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY TO THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, POLICE VEHICLES, EMERGENCY EXEMPTION IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY TO THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

NEGLIGENCE, VEHICLE AND TRAFFIC LAW, EVIDENCE.

DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF'S PATH, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF'S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. Defendant Lucia Wager made a left turn into plaintiff's path in violation of Vehicle and Traffic Law 1141. The unsourced statement in the medical record concerning plaintiff's speed was not related to his diagnosis or treatment and should not have been admitted:

... [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that Lucia Wager violated Vehicle and Traffic Law § 1141 when she made a left turn directly into the path of the injured plaintiff's motorcycle. Lucia Wager was negligent in failing to see what was there to be seen, and in attempting to make a left turn when it was hazardous to do so ... . Regardless of who entered the intersection first, the injured plaintiff, as the driver with the right-of-way, was entitled to anticipate that Lucia Wager would obey traffic laws which required her to yield ... . In opposition, the defendants failed to submit evidence sufficient to raise a triable issue of fact as to whether Lucia Wager had a nonnegligent explanation for colliding with the injured plaintiff's motorcycle  ... . Contrary to the defendants' contention, the statement contained in the injured plaintiff's medical record as to how fast his motorcycle was traveling at the time of the collision was not admissible as an admission, since the source of the information was not identified and it did not contain information that was germane to his diagnosis or treatment ... . Ming-Fai Jon v Wager, 2018 NY Slip Op 07304, Second Dept 10-31-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF'S PATH, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF'S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/TRAFFIC ACCIDENTS ( DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF'S PATH, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF'S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (INTERSECTION ACCIDENT, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF'S PATH, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF'S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/EVIDENCE (MEDICAL RECORDS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF'S PATH, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF'S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/MEDICAL RECORDS (NEGLIGENCE, STATEMENTS , DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF'S PATH, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF'S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/ADMISSIONS (NEGLIGENCE, MEDICAL RECORDS, TRAFFIC ACCIDENTS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF'S PATH, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF'S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))

 

TRUSTS AND ESTATES.

UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT'S IRA (FIRST DEPT).

The First Department determined an unsigned form purporting to make respondent (Cunney) the beneficiary of decedent's IRA was insufficient and did not constitute substantial compliance:

The Surrogate correctly determined that, despite the decedent's clear intent to designate respondent Cunney as the beneficiary of her IRAs, Cunney is not entitled to the proceeds of the IRAs in the absence of a signed change of beneficiary form (see EPTL 13-3.2[e][1] ["A designation of a beneficiary or payee to receive payment upon death of the person making the designation . . . must be made in writing and signed by the person making the designation"] ...).

 

Citing the doctrine of substantial compliance, Cunney argues that Morgan Stanley's Client Data Form for New Personal Accounts filled out in the decedent's handwriting is sufficient to satisfy the requirement of a signed writing, as that document did not require a signature. However, she cites no authority for excusing the signed writing requirement in the context of a retirement account. Indeed, as the Surrogate noted, even in the insurance context, where strict compliance is not always required ... , this Court has rejected the contention that an insured's specific testamentary disposition of an insurance policy in a will constitutes substantial compliance with the policy's requirements for effecting a change in the beneficiary of the policy ... . Matter of Durcan, 2018 NY Slip Op 07241, First Dept 10-30-18

 

TRUSTS AND ESTATES (UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT'S IRA (FIRST DEPT))/ESTATES POWERS AND TRUSTS LAW (EPTL) 13-3.2 (UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT'S IRA (FIRST DEPT))/IRA (TRUSTS AND ESTATES, UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT'S IRA (FIRST DEPT))/BENEFICIARIES (IRA, UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT'S IRA (FIRST DEPT))