Chapter Twenty-Three
Rochester, New York
Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)
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ADMINISTRATIVE LAW/CIVIL PROCEDURE
Ambiguity About the Timing of a Final Decision from an Administrative Agency Precluded Dismissal Based Upon the Statute of Limitations Defense
In the course of a decision finding the Commissioner of Health had properly determined Medicaid reimbursement rates for residential health care facilities, the Third Department determined ambiguity about when a final decision had been made precluded dismissal based on the statute of limitations defense:
"[W]hen an administrative body itself creates ambiguity and uncertainty" concerning the finality of a determination, however, "affected [parties] should not have to risk dismissal for prematurity or untimeliness by necessarily guessing when a final and binding determination has or has not been made. Under these circumstances, 'the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his [or her] day in court'"... . Matter of Adirondack Med Center-Uihlein v Daines, 2014 NY Slip Op 05386, 2nd Dept 7-16-14
ANIMAL LAW/CIVIL PROCEDURE
No Standing to Bring an Action Contending Foie Gras Produced by Forced Feeding Is an Adulterated Food
The Third Department determined petitioner [Stahlie] did not have standing to bring an action contending that foie gras produced by force feeding ducks or geese was an adulterated food which causes secondary amyloidosis:
Standing "requir[es] that the litigant have something truly at stake in a genuine controversy" ... . Petitioners have "the burden of establishing both an injury in fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated" ... . The injury in fact element must be based on more than conjecture or speculation ... . * * *
Here, the risk of exposure is minimal and the indication of harm uncertain. Although petitioners included expert opinion indicating a possible risk of secondary amyloidosis from foie gras for some individuals with certain medical conditions, they cite no situation of any person ever suffering secondary amyloidosis that was linked to foie gras. Stahlie does not contend that he has any of the underlying medical conditions that may be related to an increased risk of secondary amyloidosis. His exposure to foie gras is infrequent. There are no studies, statements or warnings by the regulating agency or other pertinent governmental entity regarding a relevant risk related to the occasional consumption of foie gras. Stahlie has, at best, occasional exposure to a product that has not yet been connected by any actual case to the purported risk of harm alleged by petitioners. We agree with Supreme Court that, even affording petitioners the benefit of every favorable inference, their allegations regarding an injury in fact to Stahlie are speculative and rest upon conjecture. Matter of Animal Defense Fund Inc v Aubertine, 2014 NY Slip Op 05395, 3rd Dept 7-17-14
ARBITRATION/CIVIL PROCEDURE/EMPLOYMENT LAW
Arbitration Award Based Upon Collective Bargaining Agreement Does Not Have a Preclusive Effect Upon a Subsequent Employment Discrimination Action Based on the Same Facts
The Second Department noted that an arbitration award based upon the terms of a collective bargaining agreement does not bar a subsequent employment discrimination action under the doctrine of collateral estoppel. Here the employee was terminated based upon excessive absences. He subsequently brought a discrimination action alleging the employee failed to accommodate his disability. (The Second Department determined the "disability" alleged by the employee did not require accommodation):
An arbitrator's award may be given preclusive effect in a subsequent judicial proceeding ... . However, arbitration is an inappropriate forum for the disposition of an employment discrimination claim where "the arbitrator's sole task is to effectuate the intent of the parties in connection with the collective-bargaining agreement, and not to consider a statutory claim of discrimination . . . The violation of these contractual and statutory rights by the same factual occurrence does not vitiate their separate nature" ... . Thus, the arbitrator's decision did not have preclusive effect on the plaintiff's separate action based on unlawful discrimination in employment ..., and the complaint is not barred by the doctrine of collateral estoppel. Caban v New York Methodist Hosp, 2014 NY Slip Op 05292, 2nd Dept 7-16-14
ATTORNEYS
No Showing Attorney Had Acquired Any Client Confidences Before Changing Firms
The Second Department determined there was no basis for disqualifying a law firm which represented the plaintiffs in a personal injury case based upon the firm's hiring of an attorney who had represented the defendant in the same case. It was sufficiently demonstrated that the attorney had not acquired any client confidences during his representation of the defendant:
While generally, a party seeking to disqualify an opponent's attorney "must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse" ..., "no presumption of disqualification will arise if either the moving party fails to make any showing of a risk that the attorney changing firms acquired any client confidences in [his or her] prior employment ... or the nonmoving party disproves that the attorney had any opportunity to acquire confidential information in the former employment" ... . Sharifi-Nistanak v Coccia, 2014 NY Slip Op 05318, 2nd Dept 7-16-14
CIVIL PROCEDURE
Untimely Summary Judgment Motion Which Is Nearly Identical to a Summary Judgment Motion Already Before the Court Should Be Considered
The Second Department explained when an untimely summary judgment motion, which is nearly identical to a timely summary judgment motion already before the court, should be considered:
While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was facially untimely ..., an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds ... . "In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212 [a]) to review the merits of the untimely cross motion. Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party" (...see CPLR 3212 [b]). Therefore, the Supreme Court should have entertained the plaintiff's cross motion for summary judgment. Wernicki v Knipper, 2014 NY Slip Op 05324, 2nd Dept 7-16-14
CIVIL PROCEDURE/IMMUNITY/ENVIRONMENTAL LAW
Equitable Estoppel Against NYS Department of Environmental Conservation (DEC) Not Available Under the Facts
The Third Department determined the doctrine of equitable estoppel could not be applied to a statute of limitations defense raised by the Department of Environmental Conservation (DEC). The petitioner's president [Sage] alleged he was told by an employee of the DEC [Lynch] that he need not comply with the 30 day time limit for challenging the DEC's approval of a Freshwater Wetlands permit:
It is axiomatic that the doctrine of equitable estoppel cannot generally be invoked against governmental agencies in the exercise of their governmental function ... . However, estoppel may apply in certain "exceptional cases in which there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon" ... .
Here, less than 30 days after the permit was issued, Sage spoke with Lynch regarding petitioner's plans to challenge the permit. According to Sage, Lynch explained that he was not adequately familiar with the permit and needed to review the matter. Sage "believe[d]" that it was during this conversation that Lynch told him that petitioner did not need to commence a CPLR article 78 proceeding within 30 days of the issuance of the permit because petitioner had four months to bring a challenge, which would give Lynch time to review it. Although Lynch acknowledged having spoken to Sage about the permit, he denied telling Sage that the applicable statute of limitations was four months or that the limitations period would be extended. Indeed, Lynch averred that he had no authority to waive or extend the applicable statute of limitations on behalf of DEC, and the statement that petitioner attributes to Lynch was, at best, akin to erroneous advice that does not rise to the level necessary to implicate the exception where estoppel may be invoked against a governmental agency... . Matter of Atlantic States Legal Found Inc v NYS Dept of Envtl Conservation, 2014 NY Slip Op 05384, 3rd Dept 7-17-14
CIVIL PROCEDURE
Transactional Res Judicata Analysis Explained
In determining a motion to amend the answer was precluded by the doctrine of res judicata, the Second Department wrote:
"[U]nder New York's transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'" ... . "In determining whether a factual grouping constitutes a transaction for res judicata purposes, a court must apply a pragmatic test and analyze how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit, and whether treating them as a unit conforms to the parties' expectations or business understanding" ... . Matter of Haberman v Zoning Bd of Appeals of the City of Long Beach, 2014 NY Slip Op 05335, 2nd Dept 7-16-14
CRIMINAL LAW
Dissenter Would Have Reduced Defendant's Sentence Because of His Age (15), the Factual Background of the Offense and Defendant's "Sad Life"
The First Department affirmed the conviction and sentence of a defendant who was 15 years old at the time he pled guilty. The court determined the sentencing court properly refused to grant the defendant youthful offender status. The decision is notable for the extensive dissent of Justice Freedman who would have reduced the defendant's sentence because of his age, the facts of the offense and the defendant's background. From the dissent:
I write separately because I believe the current law that allows 15 year olds to be tried as adult criminals, even though they are sentenced as juvenile offenders, belies everything science has taught us about the functioning of the juvenile brain (People v Rudolph, 21 NY3d 497 [Graffeo, J., concurring at 506] [2013]). For that reason, I would reduce the sentence to 2 to 6 years to be served concurrently with the five-year term of defendant's Kings County sentence, but would not accord defendant the youthful offender treatment that he seeks. * * *
In the 2010 presentence report in the instant matter, the probation department stated that defendant "would benefit from a mental health evaluation and a residential mental health treatment program." However, the court sentenced him to three to nine and denied youthful offender treatment. In pronouncing sentence here, the court noted that defendant had "a very sad life," but since he "violated every condition" a sentence near the maximum without youthful offender treatment was warranted. The differences between juvenile and adult criminals were highlighted by the United State Supreme Court in Graham v Florida (560 US 48, 68 [2010] ["(a)s petitioner(s) point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence" and "(a)s compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility. . . . Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of irretrievably depraved character' than are the actions of adults," quoting Roper v Simmons, 543 US 551, 569, 570 (2005); see also People v Rudolph, 21 NY3d 506]). People v Crawford, 2014 NY Slip Op 05364, 1st Dept 7-17-14
CRIMINAL LAW/VEHICLE AND TRAFFIC LAW/EVIDENCE
Defendant's Actions In Driving Under the Influence and Causing a Collision Did Not Support Convictions for Offenses Requiring Proof of a Depraved Indifference to Human Life
The Second Department determined that there was insufficient proof of "depraved indifference" to support defendant's convictions for first degree assault and reckless endangerment stemming from a collision with a vehicle driven by Petrone:
Depraved indifference is " best understood as an utter disregard for the value of human lifea willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not'" ... . It is embodied in conduct that is " so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes [serious physical injury to] another'" ... .
The issue of whether a defendant possessed a state of mind evincing depraved indifference to human life is highly fact-sensitive, requiring a case-by-case analysis ... . Here, the prosecution's witnesses established that the defendant's vehicle, without braking, collided into the back of Petrone's vehicle while both were traveling eastbound in the left lane on Northern Boulevard. The collision was of such force that both vehicles left the roadway and flipped over. Moreover, the testimony of the forensic toxicologist demonstrated that, at the time of the accident, the defendant was significantly impaired due to his ingestion of six different drugs, including methadone. Nevertheless, the evidence of the defendant's conduct did not support a finding of depraved indifference. The defendant was not driving well in excess of the speed limit, he was not driving the wrong way into oncoming traffic, he had not failed to obey traffic signals, and there was no evidence that he was driving erratically prior to the collision ... . Under these factual circumstances, the prosecution failed to establish that the defendant possessed an "utter disregard for the value of human life" or that he "simply [did not] care whether grievous harm result[ed] or not" from his actions ... . Consequently, there is simply no "valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion" ... that the defendant acted with depraved indifference to human life when he caused the injuries to Petrone... . People v Jakobson, 2014 NY Slip Op 05354. 2nd Dept 7-16-14
DEFAMATION
Defamation Action Brought by Judge Against a Reporter Properly Dismissed---Although the Reporter Made Defamatory Statements Which Were Not Privileged, the Judge Failed to Raise a Question of Fact About Malice as a Motivation
In a full-fledged opinion by Justice Saxe, the First Department affirmed the dismissal of a defamation action brought by a judge against a reporter. The court determined that the reporter had made inaccurate statements which were defamatory and which were not privileged under the Civil Rights Law. However, because the judge was a public figure, the New York Times v Sullivan "malice" standard applied and, the court determined, the judge was unable to raise a question of fact about malice as a motivation for the reporting:
Although we agree with Justice Martin that the published columns were susceptible of a defamatory interpretation, were not protected opinion, and were not privileged under Civil Rights Law § 74, that is not the end of the inquiry; Justice Martin had to also clear the demanding hurdle presented by the standard set in New York Times Co. v Sullivan (376 US 254, 279-280 [1964]). Since he is a public figure, he had the burden of showing, with convincing clarity, actual malice that is, that the author and publisher of the columns acted with reckless disregard for the truth ... . "The standard is a subjective one, focusing on the speaker's state of mind" ... . This standard of "convincing clarity" applies even on a motion for summary judgment ... .
"[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication" ... . "[I]t is essential that the First Amendment protect some erroneous publications as well as true ones" ... . Therefore, to prevail, Justice Martin was required to offer a showing tending to establish that Louis " in fact entertained serious doubts as to the truth of his publication,' or acted with a high degree of awareness of [its] probable falsity'" ... . Martin v Daily News LP, 2014 NY Slip Op 05369, 1st Dept 7-17-14
FAMILY LAW
Deposit of Separate Funds in a Joint Account for One Month Converted the Separate Funds to Marital Property
The First Department interpreted a prenuptial agreement using standard contract-interpretation rules. The court determined that the terms of the agreement allowed the husband a separate property credit for each property to which he contributed $1 million of his separate funds. The court noted that the husband was not entitled to a separate property credit for $8.5 million paid for a Park Avenue apartment because the funds were first deposited in a joint account, converting them to marital property:
The husband is not entitled to a credit for the $8.5 million paid from the parties' joint account at closing on the Park Avenue apartment. Although those funds were previously his separate property, they became marital property when he transferred them into the joint account. Since the husband's transfer of separate funds into a joint account transformed those funds into marital property for all purposes, when funds from that joint account were then used for the purchase of the parties' apartment, there was no use of separate property for the acquisition of the apartment. In any event, there is no evidence that the joint account was established only for convenience, or that the fund transfer was merely transitory, since the funds remained in the joint account for a month ... . Babbio v Babbio, 2014 NY Slip Op 05365, 1st Dept 7-17-14
FAMILY LAW
Failure to Trace the Allegedly Separate Funds Used for the Purchase of Property During the Marriage Allows the Court to Treat the Property as Marital
The Second Department found a lot of mistakes in the division of property and the support awards made by Supreme Court. The discussion of each category of mistake is substantive enough to be instructive. With respect to an improperly awarded separate property credit, the court explained that a party's failure to trace the source of the funds for a purchase made during the marriage allows the court to treat the property as marital:
"Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property" ... . Here, BSH was formed and the building was acquired during the marriage, and the plaintiff failed to meet his burden of tracing the use of claimed separate funds to establish that they were used for the purchase of his portion of the property's acquisition costs ... . Marital property is to be viewed broadly, while separate property is to be viewed narrowly ... . Where, as here, a party fails to trace sources of money claimed to be separate property, a court may treat it as marital property... . Hymowitz v Hymowitz, 2014 NY Slip Op 05306, 2nd Dept 7-16-14
FAMILY LAW/CRIMINAL LAW
Police Did Not Have Sufficient Information to Justify Request that 12-Year-Old Lift His Shirt--Weapon Recovered After Juvenile's Refusal (and a Police Pursuit) Should Have Been Suppressed
The Second Department determined the police did not have sufficient information to justify a request that appellant, who was 12 years old, to lift his shirt. The weapon found on the appellant's person should have been suppressed:
At issue here is whether the officers could ask the appellant to lift his shirt, even after he refused, and then pursue him as he fled the scene. Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification ..., may be asked whether he has weapons, and may be asked to remove his hands from his pockets ... . However, asking a person to open his or her coat is an "intrusive step" which requires sufficient evidence of criminal activity to permit more than an inquiry by the police ... . Here, the police acknowledge they did not see an object until they took their "intrusive step" of demanding that the appellant lift up the front of his shirt after he refused to do so, whereupon a police officer pursued him with his gun drawn.
The appellant had the "right to be let alone" ... . The police may lawfully pursue an individual if they have a reasonable suspicion that he or she has committed or is about to commit a crime ... . However, in this case, the police only acquired a basis to pursue the appellant after they took the intrusive step of demanding that he raise the front of his shirt and saw the butt of a gun. Since the pursuit of the appellant was unlawful, the gun which he abandoned in response to the pursuit should have been suppressed... . Matter of Shakir J, 2014 NY Slip Op 05336, 2nd Dept 7-16-14
INSURANCE LAW/WORKERS' COMPENSATION
Action Against Broker for Failure to Procure Correct Coverage Should Not Have Been Dismissed/Question of Injured Worker's Employment Status Must First Be Determined by the Workers' Compensation Board
The Second Department determined that a cause of action alleging the insurance broker (Crystal) failed to purchase adequate insurance in response to a request from the insured (Mariani) should not have been dismissed. The insured's worker was injured on the job and the insurer disclaimed coverage because the policy did not cover subcontractors. The Second Department also determined that it was up to the Workers' Compensation Board to first determine the injured worker's employment status and Supreme Court should not inject itself into that question until the Board acts:
"An insurance agent or broker . . . may be held liable under theories of breach of contract or negligence for failing to procure insurance . . . An insured must show that the agent or broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction" ... . Crystal was not entitled to judgment as a matter of law because it failed to establish, prima facie, that it procured the adequate coverage that Mariani had engaged it to procure ... . Siekkeli v Mark Mariani Inc, 2014 Slip Op 05319, 2nd Dept 7-16-14
LANDLORD-TENANT/CONTRACT LAW
Question of Fact Whether Tenants Entitled to Equitable Renewal of Lease
The Second Department determined issues of fact were raised concerning whether the tenants should be allowed to remain in the leased premises. Although the written option to renew the lease was never executed. the tenants alleged that oral assurances the tenants could remain were made by the landlord:
Although the documentary evidence conclusively established that the [tenants] failed to exercise the option to renew in accordance with the express terms of the lease ...., contrary to [the landlord's] contention, that evidence failed to conclusively establish that the [tenants] were not entitled to equitable renewal of the lease. Equity will intervene to relieve a commercial tenant's failure to timely exercise an option to renew in accordance with the terms of the lease where "(1) the tenant's failure to exercise the option in a timely fashion resulted from an honest mistake or inadvertence, (2) the nonrenewal of the lease would result in a substantial forfeiture by the tenant, and (3) the landlord would not be prejudiced by the renewal" ... .
Here, the record reveals the existence of issues of fact as to whether the [tenants'] failure to exercise the option in accordance with the terms of the lease resulted from their mistaken belief that alleged discussions with [tenant's agent] were sufficient to exercise the option, whether nonrenewal of the lease would result in the [tenants'] substantial forfeiture of a benefit as a result of the loss of valuable goodwill that they established at the present location, and whether [the landlord] would suffer prejudice if the lease were renewed... . Waterfalls Italian Cuisine Inc v Tamarin, 2014 NY Slip Op 05323, 2nd Dept 7-16-14
DEBTOR-CREDITOR
Purchaser of Mortgage Was Not a "Bona Fide Encumbrancer"---Another Previously Filed Mortgage Was the Operative Mortgage
The Second Department determined Deutsche Bank did not "win the race" to the recording office (so as to cut off another filed mortgage) and was not a "bona fide encumbrancer" because the person living in the mortgaged premises and paying taxes on the property was not consistent with Deutsche Bank's mortgage:
"[T]o cut off a prior lien, such as a mortgage, the purchaser must have no knowledge of the outstanding lien and win the race to the recording office" ... . * * *
" [W]here a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with [what] he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser'" ... . "Similarly, a mortgagee is under a duty to make an inquiry where it is aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue'" ... . " Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world of the existence of any right which the person in possession is able to establish'" ... . Mortgage Elec Registration Sys Inc v Pagan, 2014 NY Slip Op 05309, 2nd Dept 7-16-14
NEGLIGENCE
Riser In Church Was Not an Actionable Condition
The Second Department determined a riser, upon which plaintiff allegedly tripped, was an open and obvious and not inherently dangerous:
The injured plaintiff allegedly tripped and fell over a 5½-inch-high, single-step riser while exiting a church pew. * * *
While a landowner has a duty to maintain its premises in a reasonably safe manner ..., a landowner has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous ... . Here, the defendant established its entitlement to judgment as a matter of law by submitting evidence that the subject riser was open and obvious and not inherently dangerous ... . The evidence presented by the plaintiffs in opposition, including the affidavit of their expert, failed to raise a triable issue of fact ... . Coppola v Cure of Ars RC Church, 2014 NY Slip Op 05297, 2nd Dept 7-16-17
NEGLIGENCE
Triable Issues of Fact Re: Whether Property Owner Liable for Allowing Third Parties to Operate Remote Control Cars On Its Parking Lot---Motorcyclist Injured When Attempting to Avoid a Remote Controlled Car
The Second Department determined summary judgment was properly denied to the property owner (Farmingdale) which was aware its parking lot was being used for radio remote control cars. Plaintiff alleged he was injured when he tried to avoid a remote control car while riding his motorcycle:
"A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" ... . However, "[t]his duty [only] arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so" ... . A property owner cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience " that there is a likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor'" ... .
Under the circumstances here, Farmingdale failed to eliminate all triable issues of fact as to whether it had the knowledge, authority, or opportunity to control the conduct of the third parties operating the radio remote control cars in the subject parking lot, and as to whether the conduct of the third parties in the parking lot posed a reasonably foreseeable risk of harm to others ... . Tiranno v Warthog Inc, 2014 NY Slip Op 05322, 2nd Dept 7-16-14
NEGLIGENCE
Questions of Fact Whether Picnic Table Near the Edge of a Porch Was a Dangerous Condition and Whether the Condition Was Open and Obvious
The Third Department determined questions of fact had been raised about whether defendant created a dangerous condition in placing a picnic table near the edge of a porch that had no railing and whether the condition was open and obvious. Plaintiff got up from the picnic table and fell off the edge of the porch, which was less than 29 inches from the ground (it was alleged no railing was required by the applicable codes):
...[The]evidence is sufficient to raise issues of fact as to whether defendant created a dangerous condition by negligently placing the picnic table close to the porch's edge and failing to demarcate or guard this ledge ... . Factual issues also exist as to whether defendant's negligence, if any, was the proximate cause of Hannah's injury, as this is not a case "'where only one conclusion may be drawn from the established facts'" ... .
Defendant also claims that it had no duty to warn of the alleged dangerous condition created by the unguarded drop-off at the porch's edge, as any such hazard was open and obvious as a matter of law. "It is axiomatic that a landowner has no duty to warn of an open and obvious condition that is readily observable by the normal use of one's senses, and this postulate applies to adults and minors alike" ... . However, a landowner [*3]has a duty to warn against even known or obvious dangers where he or she "has reason to expect or anticipate that a person's attention may be distracted, so that he or she will not discover what is obvious, or will forget what he or she has discovered, or fail to protect himself or herself against it" ... . Here, upon considering all of the surrounding circumstances, including the nature and layout of the event being hosted by defendant ..., we find that triable issues of fact exist as to whether the drop-off constituted an open and obvious hazard such that defendant was relieved of its duty to warn ... . Jankite v Scoresby Hose Co, 2014 NY Slip Op 05390, 3rd Dept 7-17-14
NEGLIGENCE
Plaintiff's Decedent Fell to His Death in a Gorge on Property Owned by Cornell University---Questions of Fact Re: Whether Plaintiff's Decedent Was "Hiking" within the Meaning of the General Obligations Law (which Would Relieve the University of Liability) and Whether the Dangerous Condition Was Open and Obvious
The Third Department determined questions of fact had been raised about whether plaintiff's decedent was "hiking" within the meaning of the General Obligations Law when he fell into a gorge to his death on property owned by defendant Cornell University in Ithaca. The court also determined there was a question of fact whether the dangerous condition was open and obvious:
Defendant maintains that it is shielded from liability by General Obligations Law § 9-103 (1) (a), which, as pertinent here, "grants a special immunity to owners . . . from the usual duty to keep places safe" when individuals use their property for specified recreational activities, including hiking ... . The enumerated activities covered under the statute "are essentially self-explanatory" .... "Hiking" has been described as "traveling through the woods on foot" ... and as "traversing land 'by foot or snowshoe for the purpose of pleasure or exercise'" ... . Comparatively, this Court recently determined that a person walking her dogs on a paved walkway was not engaged in "hiking" under the statute .... With one exception not applicable here, a person engaged in one of the enumerated activities is "presumed to be doing so for recreational purposes" without regard to his or her subjective intent ....
The critical determination is whether decedent's activity constituted "hiking" under the statute. As described, he ran down the gorge trail and, in that literal sense, was "traveling through the woods on foot," or "hiking," as defined in Sega v State of New York ... . The statute, however, speaks to specified recreational categories reflecting the intent of the Legislature "to allow or encourage more people to use more accessible land for recreational enjoyment" ... . Viewing the facts in the light most favorable to plaintiffs, the nonmoving party, we agree with Supreme Court that, under the distinctive fact pattern presented, defendant did not establish, as a matter of law, that decedent was "hiking" within the embrace of General Obligations Law § 9-103 (1) (a) at the time of his death ... . * * *
...[A] question of fact remains as to whether the cliff's edge was visible and obvious or presented a latent, dangerous condition necessitating an appropriate warning... . King v Cornell Univ, 2014 NY Slip Op 05393, 3rd Dept 7-17-14
NEGLIGENCE
Questions of Fact Whether Handrail Which Did Not Extend to the Top of the Stairs Constituted a Dangerous Condition Which Proximately Caused Plaintiff's Fall
The Third Department determined the fact that a handrail did not extend to the top of the stairs raised a question of fact about a dangerous condition of which the defendant had constructive notice:
The fact that the handrail only starts at the third step down the staircase presents a question for a factfinder to resolve as to whether this placement created a dangerous condition ... .
Further, defendant did not meet its prima facie burden of demonstrating that the lack of a handrail extending to the top of the stairs did not cause or contribute to claimant's fall ... . "Even if [claimant's] fall was precipitated by a misstep, given her testimony that she reached out to try to stop her fall, there is an issue of fact as to whether the absence of a handrail [at the top of the stairs] was a proximate cause of her injury" ... . Likewise, the fact that claimant had used the stairs in the past and may have been aware of the defective condition did not defeat her claim but, rather, this "may be considered by a jury in assessing comparative negligence"... . Carter v State of New York, 2014 NY Slip Op 05394, 3rd Dept 7-17-14
NEGLIGENCE/CIVIL PROCEDURE
Black Letter Law Re: Rear-End Collisions and Premature Summary Judgment Motions Explained
In affirming the grant of summary judgment to the plaintiff in a rear-end collision case, the Second Department provided the black letter law on rear-end collisions and on whether a summary judgment motion is premature:
When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle ... . Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident ... . "A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" ... . * * *
CPLR 3212(f) provides, in relevant part, that a court may deny a motion for summary judgment "[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]...). " This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion' " ... . A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]...). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" ... . Singh v Avis Rent A Car Sys Inc, 2014 NY Slip Op 05320, 2nd Dept 7-16-14
NEGLIGENCE/IMMUNITY/MUNICIPAL LAW
Delay In Arrival of an Ambulance During a Snow Storm Not Actionable
The causes of action against the city based upon delay in the arrival of an ambulance during a snow storm were dismissed. The Second Department determined that both the ambulance service and the snow removal were governmental functions and, in the absence of a special relationship with the decedent, were not actionable:
A municipal emergency response system is "a classic governmental, rather than proprietary, function" ... . Contrary to the plaintiffs' contentions, the amended complaint fails to allege any facts tending to show that there was any "justifiable reliance" on any promise made to the decedent by the defendants. Accordingly, the amended complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the amended complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the plaintiffs' 911 call ... . Estate of Radvin v City of New York, 2014 NY Slip Op 05302, 2nd Dept 7-16-17
NEGLIGENCE/MEDICAL MALPRACTICE/EMPLOYMENT LAW
Question of Fact Whether Hospital Vicariously Liable for Actions of Non-Employees
The Third Department determined there was a question of fact whether defendant hospital could be held vicariously liable for the actions of nonemployee doctors with respect to plaintiff's decedent who was initially treated in the emergency room. The court explained the applicable law:
Under settled law, a hospital ordinarily may not be held liable for the negligent acts of treating physicians who are not hospital employees ... . Vicarious liability for malpractice on the part of nonemployee physicians may be imposed, however, on a theory of ostensible or apparent agency ... . "'Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority' to act on behalf of the principal" ... . Consequently, "a hospital may [face vicarious liability] for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician" ... . Friedland v Vassar Bros Med Ctr, 2014 NY Slip Op 05388, 3rd Dept 7-17-14
REAL ESTATE/CONTRACT LAW
Sellers Entitled to Keep Downpayment Based Upon Purchaser's Failure to Close on Law Day
The Second Department determined Supreme Court should have granted the sellers' motion for summary judgment and allowed the sellers to keep the purchaser's downpayment based upon the purchaser's failure to close on the date set by a "time-of-the-essence" demand. The court explained the applicable law as follows:
"To prevail on a cause of action for the return of a down payment on a contract for the sale of real property, the plaintiff must establish that the defendant breached or repudiated the contract and that the plaintiff was ready, willing, and able to perform on the closing date" ... . "While a vendee can recover his [or her] money paid on the contract from a vendor who defaults on law day without a showing of tender or even of willingness and ability to perform where the vendor's title is incurably defective, a tender and demand are required to put the vendor in default where his [or her] title could be cleared without difficulty in a reasonable time" ... . The seller in such a case is entitled to "a reasonable time beyond law day to make his [or her] title good" ... . "[W]hile a purchaser must normally first tender performance and demand good title to place a seller in default, when the vendor is given notice of the defect prior to the scheduled closing date and does nothing to correct it until after the closing date, the purchaser need not tender performance as such tender would be meaningless'" ... . "[W]here a seller seeks to hold a purchaser in breach of contract, the seller must establish that [he or she] was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close" ... . * * *
...[T]he sellers demonstrated, prima facie, that they were given no notice of the alleged defect, and that the purchaser was therefore required to appear at closing and tender her performance ... . Furthermore, under these circumstances, the sellers were entitled to a reasonable adjournment to allow them to address the purchaser's objections, notwithstanding the fact that they had declared that time was of the essence ... . Moreover, the sellers satisfied their prima facie burden of demonstrating that they were ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for her failure to close ... . Martocci v Schneider, 2014 NY Slip Op -5308, 2nd Dept 7-16-14
REAL PROPERTY TAX LAW
First Appellate Decision Addressing the Computation After Default of a Delinquent Tax Installment Agreement
In a tax foreclosure proceeding based upon the alleged default of the respondent in making installment payments on the taxes owed, the Third Department, in finding County Court had not correctly determined the redemption amount correctly, explained, in a full-fledged opinion by Justice McCarthy, how the calculation should be made:
We begin with the statutory requirements for installment agreements, as relevant to a default. RPTL 1184 (6) calls for amortization of interest over the period of the agreement and says that each installment payment is due on the last day of the month. RPTL 1184 (7) refers to RPTL 924-a for the applicable interest rate, which here is 12% per annum or 1% per month (see RPTL 924-a [1], [2]). Pursuant to RPTL 1184 (7), "[i]f an installment is not paid" by its due date, "interest shall be added at the applicable rate for each month or portion thereof until paid. In addition, if an installment is not paid by the end of the fifteenth calendar day after the payment due date, a late charge of [5%] of the overdue payment shall be added." In the event of a default, the taxing authority has "the right to require the entire unpaid balance, with interest and late charges, to be paid in full" (RPTL 1184 [8] [b]), and can also go forward with foreclosure or enforce the collection of the delinquent tax lien pursuant to any other applicable law (see RPTL 1184 [8] [b]). * * *
We start by explaining how to calculate "the entire unpaid balance." Although the statute may be complex, we find that its language is unambiguous and, therefore, we must give effect to its plain meaning ... . Respondent acknowledges that it failed to pay the September, October and November 2011 installment payments. The "entire unpaid balance" must be figured as of the date that petitioner demanded that the balance be paid in full (or accelerated it), which occurred here after the September installment payment was overdue. When that payment was not paid by its due date, 1% interest should have begun to accrue (see RPTL 1184 [7])[FN3]. The statute calls for interest to be added if "an installment" is not paid, so this interest should be calculated on the overdue September installment payment. In addition, a 5% late charge should have been added for the September installment payment because that payment was overdue by more than 15 days (see RPTL 1184 [7] [imposing late charge of 5% "of the overdue payment"]). So the amount owed as of the date of acceleration, but before acceleration occurred, included the amount of the September installment payment, plus 1% interest on that installment payment amount from the day after the September payment was due until the date of acceleration, plus 5% of the September installment payment amount as a late charge. Adding that sum of September's payment, interest and late charge to the remaining unpaid principal as of the date of acceleration (covering what would have been the October and November installment payments, but not including the amortized interest for those months as those payments were not yet due under the agreement) will produce "the entire unpaid balance."
From the time that the balance was demanded (or accelerated), 1% interest per month is due on that amount until the property was redeemed. Although interest is still calculated at 1%, this interest rate is not determined under the statutory provisions dealing with interest on installment agreement payments (see RPTL 1184 [6], [7]), but is determined under the default provision of RPTL 1184 (8) (b) that allows petitioner to enforce the collection of the delinquent tax lien pursuant to any other applicable law (i.e., RPTL 924-a, which addresses interest on tax delinquencies). Matter of County of Ulster..., 2014 NY Slip Op 05398, 3rd Dept 7-17-14
REAL PROPERTY TAX LAW/RELIGION
Parcels of Land Entitled to Tax Exempt Status Despite Alleged Violations of Building and Fire Code
The Third Department determined three parcels of land were entitled to tax exempt status, based upon the use of the land for religious and charitable purposes, despite alleged building and fire code violations:
RPTL 420-a (1) (a) provides, in relevant part, that "[r]eal property owned by a corporation or association organized or conducted exclusively for religious [or] charitable . . . purposes . . . and used exclusively for carrying out thereupon\. . . such purposes . . . shall be exempt from taxation as [therein] provided." To demonstrate entitlement to this exemption, "(1) the [petitioning] entity must be organized exclusively for purposes enumerated in the statute, (2) the property in question must be used primarily for the furtherance of such purposes, . . . (3) no pecuniary profit, apart from reasonable compensation, may inure to the benefit of any officers, members, or employees, and (4) the [petitioning] entity may not be simply used as a guise for profit-making" ... . Notably, "a property owner seeking a real property tax exemption which demonstrates that it is a not-for-profit entity whose tax-exempt status has been recognized by the Internal Revenue Service and whose property is used solely for [charitable] purposes has made a presumptive showing of entitlement to [the] exemption" ... . * * *
...[B]ecause the alleged violations do not divest petitioner of its ability to use the affected parcels for religious or charitable purposes, such violations cannot operate to deprive petitioner of a tax exemption to which it otherwise has demonstrated entitlement. To the extent that respondents believe that petitioner is not in compliance with all relevant provisions of the Town's building and fire code, their remedy is to issue a stop work order or pursue whatever enforcement proceedings may be available. Oorah Inc v Town of Jefferson, 2014 NY Slip Op 05387, 3rd Dept 7-17-14
UNEMPLOYMENT INSURANCE
Anesthesiologist Was Not an Employee
The Third Department determined an anesthesiologist was not an employee of QPMA:
Where, as here, the work of medical professionals is involved, the relevant inquiry is whether the purported employer retained "'overall control' . . . 'over important aspects of the services performed other than results or means'" ... .
Here, undisputed evidence was presented that, after QPMA referred claimant to PCSC, claimant set her own work schedule, performed all services at PCSC's location, used PCSC's supplies and equipment, and wore surgical scrubs bearing PCSC's logo. Claimant's per diem rate of pay of $1,000 per day was agreed to by her and a principal of QPMA, and QPMA paid her twice a month. Notably, however, QPMA did not issue claimant a W2 form, have a written contract with her, verify her credentials, retain any supervisory authority over her, provide her with performance reviews or evaluations, or maintain medical records related to her services. In addition, claimant paid her own malpractice insurance and licensing fees, was not reimbursed for travel expenses and was not restricted from working for others. Significantly, it was PCSC that dealt with any complaints related to claimant's services. Although QPMA was responsible for referring another anesthesiologist if claimant was unable to perform her duties, the record as a whole does not demonstrate that QPMA retained sufficient overall control over important aspects of claimant's work to be considered claimant's employer... . Matter of Jean-Pierre ..., 2014 NY Slip Op 05397, 3rd Dept 7-17-14