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June Page III

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


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Parties' Agreement to "Litigate" Their Entitlement to Interest on a judgment Did Not Constitute a Waiver of the Relevant Insurance Policy's Arbitration Clause---The Arbitrability of the Claims Must Be Determined by the Arbitrator Not the Courts


The Fourth Department determined an agreement to litigate the parties' entitlement to interest on a judgment did not constitute a waiver of the relevant insurance policy's arbitration clause. The issue whether the parties' claims are arbitrable, therefore, must be determined by the arbitrator, not the courts:


"Once the parties to a broad arbitration clause have made a valid choice of forum, as here, all questions with respect to the validity and effect of subsequent documents purporting to work a modification or termination of the substantive provisions of their original agreement are to be resolved by the arbitrator" ... . This is not a situation in which the parties engaged in litigation to such an extent that they "manifested a preference clearly inconsistent with [a] later claim that the parties were obligated to settle their differences by arbitration' " ... . Nor is this a situation in which the entire contract containing the arbitration provision has been cancelled or terminated, such that "the designation of the arbitration forum for the resolution of disputes is no longer binding upon the parties" ... . We thus conclude that the determination of the arbitrability of the parties' claims under the Policy should be made by an arbitrator. Town of Amherst v Granite State Ins. Co., Inc., 2015 NY Slip Op 05352, 4th Dept 6-19-15






Co-Tenants of Dog Owner Can Be Strictly Liable  for Harboring a Dog with Vicious Propensities---Co-Tenants' Motions for Summary Judgment Should Have Been Denied


The Second Department, in a full-fledged opinion by Justice Austin, determined the summary judgment motions by co-tenants of the owner of a dog which injured plaintiff should have been denied.  Although the cotenants did not own the dog, there was a question of fact whether the co-tenants "harbored" the dog.  The court further determined a joint trial including the cotenants was proper. The meaning of "harboring" and the proof requirements for "vicious propensities" were explained:


... [W]e hold that cotenants can be held strictly liable for a vicious attack by dogs owned solely by another cotenant, provided that there is evidence that the cotenants participated in the care of the dogs in their household to a sufficient degree to support a finding that they joined with the dogs' owner in harboring the animals. We further determine that a unified trial is appropriate in this case. * * *


Generally, the owner of a domestic animal who knows or should know that the animal has a vicious disposition or vicious propensity is strictly liable for an injury caused by the animal ... . Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensity ... . However, no liability can be found against a defendant who neither owned, harbored, nor exercised dominion and control over the animal, and did not permit it to be on or in his or her premises ... . * * *


"Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation'" ... . "Once this knowledge is established," the owner or anyone harboring the animal "faces strict liability" ... . "Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" ... .


The owner or harborer of a dog with vicious propensities is not entitled to the benefit of the so-called "one free bite" rule ... . Even a dog which has not previously bitten or attacked may subject its owner or harborer to strict liability where its propensities are apparent ... .


Knowledge of an animal's vicious propensities may also be discerned, by a jury, from the nature and result of the attack ... . Matthew H. v County of Nassau, 2015 NY Slip Op 05157, 2nd Dept 6-17-15






Supreme Court Should Have Held a Hearing to Determine Whether Attorneys Were Entitled to the Fees Sought by Them---Plaintiff Had Already Paid the Attorneys Nearly the Amount the Case Ultimately Settled For---the Attorneys, Who Had Been Discharged Without Cause, Sought 40% of the Settlement Pursuant to a Contingency Agreement Which Was Entered In Anticipation of Trial


The Second Department reversed Supreme Court and ordered a hearing to determine whether respondents-attorneys had received all the fees they were entitled to.  The attorneys had been paid nearly $54,000 by the plaintiff.  Then plaintiff then entered a 40% contingency arrangement prior to trial. The case ultimately settled for $57,500 and plaintiff discharged the attorneys:


An attorney of record who is discharged without cause possesses a charging lien pursuant to Judiciary Law § 475 which constitutes an equitable ownership of the cause of action an attaches to any recovery ... . Additionally, "[i]f a client discharges an attorney without cause, the attorney possesses a common-law retaining lien on the client's file in his or her possession and is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered, regardless of whether that amount is more or less than the amount provided in the contract or retainer agreement" ... . The retaining lien "is extinguished only when the court, which controls the functioning of the lien, orders turnover of the file in exchange for payment of the lawyer's fee or the posting of an adequate security therefor following a hearing" ... . "Absent exigent circumstances, the attorney may generally not be compelled to surrender the papers and files until an expedited hearing has been held to ascertain the amount of the fees or reimbursement to which he or she may be entitled" ... . A court may summarily determine that an attorney is charging excessive fees, limit those fees, and discharge the attorney's liens ... .


Here, the Supreme Court erred in denying the plaintiff's cross motion without holding a hearing to ascertain the amount of fees or reimbursement to which the respondents may be entitled ... . The gravamen of the plaintiff's cross motion was that the charging lien and retaining lien should be vacated because he had already paid the respondents a total of $53,763.99 in legal fees and he did not owe the respondents any additional legal fees. In contrast, the respondents sought to collect a contingency fee of $23,000, which was the full 40% of the $57,500 recovery, without crediting the plaintiff with the $5,000 which should have been credited against the contingency fee pursuant to their agreement. Thus, it appears that the respondents were seeking excessive fees.


Under these circumstances, we reverse the order insofar as appealed from and remit the matter to the Supreme Court, Westchester County, for a hearing on the issue of whether the respondents have received all of the fees owed to them for the reasonable value of their services ... . D'Ambrosio v Racanelli, 2015 NY Slip Op 05149, 2nd Dept 6-17-15






No Survivorship Language in Joint Bank Account Documents/Evidence the Joint Account Was Created as a Matter of Convenience/Summary Judgment Should Not Have Been Granted Awarding Plaintiff Half the Funds in the Account Upon the Death of the Other Person Named on the Account


The Fourth Department noted that Supreme Court erred in concluding a joint bank account was a joint tenancy with right of survivorship and granting the aspect of plaintiff's motion for summary judgment seeking half the funds in the account upon the death of the other party named on the account. There was no survivorship language in the account documents, and there was evidence tending to rebut any statutory presumption of a joint tenancy (i.e., evidence the account was created as a matter of convenience):


Contrary to the court's determination, we conclude that the statutory presumption of joint tenancy set forth in Banking Law § 675 does not apply to the joint account inasmuch as "the account documents do not contain the necessary survivorship language" ... .


We note in any event that the statutory presumption may be rebutted "by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account[s] had been opened for convenience only" ... . Even assuming, arguendo, that the statutory presumption of joint tenancy applies to the joint accounts, we conclude that defendant submitted evidence tending to rebut the statutory presumption that is sufficient to raise a triable issue of fact whether, "at the time the accounts were created, the accounts were opened as a matter of convenience" ... . In particular, defendant submitted evidence establishing, inter alia, that decedent was the sole depositor of the joint accounts, and that plaintiff never withdrew funds from the joint accounts during decedent's lifetime ... . In addition, defendant submitted evidence establishing that decedent's creation of a joint tenancy with the right of survivorship in the joint accounts "would represent a substantial deviation from [her] previously expressed testamentary plan" ... , Harrington v Brunson, 2015 NY Slip Op 05309, 4th Dept 6-19-15





Requirements for a Finding of Civil Contempt Explained (Not Met Here)


In finding the motion to hold a party in civil contempt was properly denied (no clear and convincing evidence mandate in a subpoena was disobeyed), the Second Department explained the relevant law:


To find a party in civil contempt pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, " (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'" ... . Korea Chosun Daily Times, Inc. v Dough Boy Donuts Corp., 2015 NY Slip Op 05161, 2nd Dept 6-17-15






Although It Was Proper to Consider the Motion to Dismiss Made After Issue Was Joined a Motion for Summary Judgment, Supreme Court Should Not Have Determined the Motion Without Giving Notice to the Parties So the Parties Could Lay Bare Their Proof


The Second Department determined Supreme Court should not have converted the motion to dismiss to a motion for summary judgment without notice to the parties.  Because the motion to dismiss was made after issue was joined, it should be treated as a motion for summary judgment. However, because none of the exceptions to the notice requirement applied, Supreme Court should not have determined the motion without giving the parties the opportunity to submit additional evidence.  The matter was remitted for that purpose:


Since the [defendants'] motion was made after issue was joined, the Supreme Court correctly determined that it should be treated as a motion for summary judgment pursuant to CPLR 3212 ... . However, the Supreme Court "was required to give adequate notice to the parties' that the motion was being converted into one for summary judgment" ..., unless one of the recognized exceptions to the notice requirement was applicable ... . Here, no such notice was given, and none of the recognized exceptions to the notice requirement is applicable ... . Neither the [defendants] nor the plaintiff made a specific request for summary judgment, nor did they "indicate that the case involved a purely legal question rather than any issues of fact" ... . Further, the parties' evidentiary submissions were not so extensive as to "make it unequivocally clear' that they were laying bare their proof' and deliberately charting a summary judgment course'" ... . Accordingly, the Supreme Court erred by, in effect, converting the [defendants'] motion pursuant to CPLR 3211(a)(3) to dismiss the complaint into one for summary judgment, and should not have searched the record and awarded summary judgment to the plaintiff ... . JP Morgan Chase Bank, N.A. v Johnson, 2015 NY Slip Op 05159, 2nd Dept 6-17-15






Change of Venue to Avoid Appearance of Impropriety Properly Granted--Plaintiff Was a Long-Time Senior Employee of Supreme Court in the County Where the Action Was Brought


The plaintiff was employed by Supreme Court Queens County.  For that reason, the Second Department determined Supreme Court properly granted the motion to change the venue from Queens County to Nassau County to avoid the appearance of impropriety:


"To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed" ... . A motion to change venue pursuant to CPLR 510(2) is addressed to the sound discretion of the trial court and its determination should not be disturbed absent an improvident exercise of discretion ... . Under the circumstances of this case, including the evidence demonstrating that the plaintiff has been employed at the Supreme Court, Queens County, since 2001, first as a court officer, and more recently as a senior court clerk, the Supreme Court providently granted the motions for a change of the venue of the action from Queens County to Nassau County, in order to avoid any appearance of impropriety ... . Rutherford v Patel, 2015 NY Slip Op 05170, 2nd Dept 6-17-15






Indemnification Clause in Lease/Alteration Agreements Unenforceable---No Exception for Lessor's Negligence


The Second Department determined an indemnification clause in lease/alteration agreements was unenforceable because it was not limited to the lessee's acts or omissions and because it did not make exceptions for the lessor's negligence (General Obligations Law 5-321):


Broad indemnification provisions ... which are not limited to the lessee's acts or omissions, and which fail to make exceptions for the lessor's own negligence, are unenforceable pursuant to General Obligations Law § 5-321 where [the relevant agreements] were not negotiated at arm's length by two sophisticated business entities... . Nolasco v Soho Plaza Corp., 2015 NY Slip Op 05164, 2nd Dept 6-17-15







Unambiguous Language In a Rider and an Exclusion In a Financial Institution Bond Precluded Coverage of Losses Stemming from the "Madoff" Ponzi Scheme


The First Department reversed Supreme Court and determined a rider and an exclusion of coverage in a financial institution bond applied to the "Madoff" Ponzi scheme. The losses associated with the Ponzi scheme were therefore not covered by the bond.  The rider covered loss resulting from dishonest acts of named persons (including Madoff) "solely" with respect to such persons' duties as an "outside investment advisor." Because the losses stemmed from Madoff's hybrid duties as both an "outside investment advisor" and a "securities broker," the rider did not cover the losses.  In addition, a specific exclusion from coverage included losses caused by the dishonest acts of a non-employee securities broker (i.e., Madoff). Jacobson Family Invs., Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 2015 NY Slip Op 05273, 1st Dept 6-18-15






Quantum Meruit and Account Stated Causes of Action Should Have Been Dismissed---Quantum Meruit is Not Available Where a Valid, Enforceable Written Contract Covers the Subject Matter---Account Stated Can Not Be Used to Collect Under a Disputed Contract


The Second Department determined, in a breach of contract action, the quantum meruit and account stated causes of action should have been dismissed. No action for quantum meruit lies when a contract covers the subject matter of the dispute. An "account stated' cause of action can not be used as another means to collect under a disputed contract:


A party cannot recover under a theory of quantum meruit where a valid and enforceable written contract governs the subject matter involved in the dispute ... . Moreover, "a claim for an account stated may not be utilized simply as another means to attempt to collect under a disputed contract" ... .


Here, the defendant expressly agreed, in the written contract, to pay "as reasonable" for required "extra material and/or labor." Therefore, the plaintiff's remedy with respect to the additional labor and materials is not in quantum meruit or account stated, but to seek recovery in breach of contract pursuant to that provision ... . Aquatic Pool & Spa Servs., Inc. v WN Weaver St., LLC, 2015 NY Slip Op 05137, 2nd Dept 6-17-15







Court Properly Ordered Further Deposition of County Employee and the Deposition of the Commissioner of Public Works Based Upon Plaintiff's Showing the Witness Previously Provided Did Not Have Sufficient Knowledge


The Fourth Department noted that the court did not abuse its discretion in ordering the further deposition of a county employee and the deposition of the Commissioner of Public Works concerning the maintenance of a section of the road where plaintiff's-decedent's car left the road and struck a pole.  The employee's prior testimony was incomplete because he could not recall relevant information. And, although the county can determine who should be deposed on its behalf, the court can order the deposition of a specific witness where the plaintiff shows the witness previously produced did not have sufficient knowledge:


"A trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion" ... . We note with respect to the employee that he admitted at his initial deposition that he could not recall specific details relevant to plaintiffs' theory of the County's liability without reviewing the documents that subsequently were produced by the County. We thus conclude that the court did not abuse its discretion in directing the further deposition of the employee concerning those documents.


We likewise conclude that the court did not abuse its discretion in directing the County to produce the Commissioner for a deposition. "Although a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition, a plaintiff may demand production of additional witnesses when (1) the officers or employees already deposed had insufficient knowledge or were otherwise inadequate, and (2) there is a substantial likelihood that the person sought for deposition possesses information which is material and necessary to the prosecution of the case" ... . Here, the record establishes that the two employees previously produced by the County have at most a general understanding of the reconstruction project contemplated by the County with respect to the section of road where the accident occurred and the reasons that the reconstruction project was abandoned, while the Commissioner has peculiar and specific knowledge about that project and the decision-making process pursuant to which it was abandoned. We therefore conclude that plaintiffs met their burden of demonstrating that the employees previously produced by the County "did not possess sufficient knowledge of the relevant facts or [were] otherwise inadequate" ... . Black v Athale, 2015 NY Slip Op 05355, 4th Dept 6-19-15






Terms and Circumstances of the Signing of the Prenuptial Agreement Rendered it Manifestly Unfair


The Second Department determined the terms and the circumstances surrounding the signing of a prenuptial agreement supported the order setting the agreement aside:


In general, New York has a "strong public policy favoring individuals ordering and deciding their own interests through contractual agreements" ... . "However, this right is not and has never been without limitation" ... . "An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse" ... . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that the terms of the prenuptial agreement were manifestly unfair given the nature and magnitude of the rights she waived and in light of the vast disparity in the parties' net worth ... . The circumstances surrounding the signing of the agreement support a finding that the unfairness of the agreement was the product of the defendant's overreaching, including that the agreement was presented to the plaintiff two days before the wedding as "take-it or leave-it" when she had already moved in with her children to the marital home. In opposition, the defendant failed to raise a triable issue of fact ... . Smith v Smith, 2015 NY Slip Op 05171, 2nd Dept 6-17-15






Court Properly Awarded Sole Custody to Mother, Despite Expressed Wishes of Adolescent Child


The Fourth Department, over a two-justice dissent, determined Family Court properly awarded custody to mother, despite the wishes of the adolescent child.  The dissenters argued that great weight should have been given to the expressed wishes of the child.  Sheridan v Sheridan, 2015 NY Slip Op 05301, 4th Dept 6-19-15






Child's Out-of-Court Statements Not Sufficiently Corroborated for Admission Into Evidence


The Second Department determined Family Court properly refused to admit evidence of the child's out-of-court statements in an abuse and neglect proceeding because the statements were not corroborated:


A child's prior out-of-court statements may provide the basis for a finding of abuse or neglect, provided that these hearsay statements are corroborated so as to ensure their reliability ... . Any other evidence tending to support the reliability of the child's previous statements shall be sufficient corroboration (see Family Ct Act § 1046[a][vi]...). There is a threshold of reliability that the evidence must meet ... . The Family Court has considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated ... . Here, the Family Court did not improvidently exercise its discretion in determining that the statements of the subject child Anthony W. were insufficient to corroborate the statements of the subject child Sally W. as to the alleged sexual abuse perpetrated upon her. Matter of Gerald W. (Anne R.), 2015 NY Slip Op 05198, 2nd Dept 6-17-15






Best Interests of Child Justified Denial of Petition to Vacate Acknowledgment of Paternity (Equitable Estoppel)


The Second Department determined Family Court properly denied the petition to vacate an acknowledgment of paternity.  Petitioner demonstrated his signing of the acknowledgment was based upon a mistake of fact. Although petitioner was not the child's biological father, the best interests of the child, with whom petitioner had lived from birth for six years, mandated denial of the petition. The court explained the relevant law:


A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516-a[b][ii]). If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child's best interests, from challenging paternity ... . * * *


The Family Court providently exercised its discretion in concluding that the petitioner should be equitably estopped from denying paternity. The purpose of equitable estoppel "is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position" ... . Thus, "a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity" ... . "The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship" ... . The paramount concern in such cases "has been and continues to be the best interests of the child" ... .


Here, the hearing evidence demonstrated that the petitioner lived with the child from the time of her birth in March 2005, until 2011. After the parties separated in 2011, the petitioner continued to visit with the child approximately one to two times per week. According to the petitioner, the child is free to visit with him whenever she wants. Although the child knows that the petitioner is not her biological father, she does not refer to or think of anyone else as her father. The child has a strong relationship with the petitioner and wants to spend more time with him and his son, whom she regards as her brother. Accordingly, the evidence established that, up to the time of the hearing, there had been a recognized and operative parent-child relationship between the petitioner and the child in existence all of the child's life ... . Matter of Luis Hugo O. v Paola O., 2015 NY Slip Op 05195, 2nd Dept 6-17-15






Either Possession of the Note or an Assignment of the Note Confers Standing


The Second Department explained that standing to bring a foreclosure action is demonstrated either by possession of the note or an assignment of the note on the date the action is commenced:


In a foreclosure action, a plaintiff has standing if it is either the holder of, or the assignee of, the underlying note at the time that the action is commenced ... . Either a written assignment of the underlying note or the physical delivery of the note to the plaintiff, prior to the commencement of the action, is sufficient to transfer the obligation ... . Emigrant Bank v Larizza, 2015 NY Slip Op 05151, 2nd Dept 6-17-15






"Assault and Battery" Exclusion from Coverage Applied Even Though Plaintiff Was Not the Intended Target of the Assault


The plaintiff was struck by a bar stool in a fight at the insured bar.  Plaintiff was not involved in the fight and the assailant apparently did not intend to strike her. The Second Department determined the "assault and battery" exclusion in the bar's policy applied and the insurer (North Sea) was not obligated to defend and indemnify the insured bar.  The fact that the plaintiff was not the intended target of the assault did not preclude the application of the exclusion:


"The duty to defend is triggered whenever the allegations of a complaint, liberally construed, suggest a reasonable possibility of coverage, or the insurer has actual knowledge of facts establishing a reasonable possibility of coverage" ... . "[A]n insurance carrier can be relieved of its duty to defend if it establishes, as a matter of law, that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" ... . "An insurer may also disclaim coverage on the basis of a policy exclusion by demonstrating that the allegations of the complaint cast that pleading solely and entirely within the exclusion" ... . "An exclusion for assault and/or battery applies if no cause of action would exist but for' the assault and/or battery" ... .


Here, North Sea demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the assault and battery exclusion is applicable to the claims asserted by the plaintiff against the pub defendants in the underlying action ... . The claims asserted by the plaintiff in the underlying action arise out of the assault and, thus, fall within the exclusion under the subject policy ... .


In opposition, the plaintiff failed to raise a triable issue of fact as to the exclusion's applicability ... . Contrary to the plaintiff's contention, the fact that the bar stool made physical contact with her and not the intended target does not negate the conclusion that the act was done with the intention to commit an assault or a battery ... . Parler v North Sea Ins. Co., 2015 NY Slip Op 05166, 2nd Dept 6-17-15






Equitable Relief Sought for the Purpose of Determining a Money Judgment---Plaintiffs Entitled to Jury Trial


In an action involving former partners, plaintiffs sought an accounting, a declaration of defendant's share in the business, and money judgments for breach of contract and unjust enrichment. The Third Department determined Supreme Court properly held plaintiffs are entitled to a jury trial. The inquiry is whether the primary character of the case is legal or equitable.  Here the primary character was the seeking of a monetary judgment:


... [W]e agree with Supreme Court that plaintiffs are entitled to a jury trial. In determining whether a party is entitled to a jury trial, "the relevant inquiry 'is not whether an equitable counterclaim exists but whether, when viewed in its entirety, the primary character of the case is legal or equitable'" ... . Here, plaintiffs seek equitable relief — an accounting of defendant's share of Medical Arts and an account stated between the parties — only for the purpose of determining the money judgment against defendant. Staunton v Brooks, 2015 NY Slip Op 05248, 3rd Dept 6-18-15






Defendant-Homeowner's Providing Plaintiff With a Ladder With Allegedly Worn Rubber Feet Raised a Question of Fact About Defendant's Liability for the Ladder's Slipping and Plaintiff's Fall---Cause of Accident Can Be Proven by Circumstantial Evidence


The Second Department determined Supreme Court should not have granted summary judgment to the defendant homeowner.  Plaintiff was using defendant's ladder when the ladder slipped and plaintiff fell.  Plaintiff alleged the rubber feet on the ladder were totally destroyed. That allegation created a question of fact whether defendant provided dangerous or defective equipment to the plaintiff which caused plaintiff's injury. In response to defendant's argument that plaintiff could not explain the cause of the accident without resort to speculation, the court noted that the cause of an accident can be proven by circumstantial evidence (here the condition of the feet of the ladder and fact that the feet slipped):


"[W]hen a defendant property owner lends allegedly dangerous or defective equipment to a worker that causes injury during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition" ... . While lack of constructive notice can generally be established by evidence demonstrating when the area or condition was last inspected relative to the time of the accident ..., the absence of rubber shoes on a ladder is a "visible and apparent defect," evidence of which may be sufficient to raise a triable issue of fact on the issue of constructive notice ... . Here, the defendants satisfied their prima facie burden with evidence that the ladder had been inspected prior to the accident. The defendant Billis Arniotis (hereinafter Billis) testified that, since purchasing the ladder 20 years before the accident, he had used it once per week and had inspected its rubber feet each time. Billis last inspected the ladder one or two weeks before the accident and did not observe any wear at that time. However, the plaintiff testified that he inspected the ladder after the accident and found that its rubber feet were "totally eaten up, worn," and "destroyed." This conflicting evidence, coupled with Billis's testimony that the ladder had not been used between the time of the accident and the plaintiff's inspection, raised a triable issue of fact.


Contrary to the defendants' contention, they failed to make a prima facie showing that the plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff's inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence ... . Here, Billis's testimony establishes that he was present at the time of the accident and that he watched the ladder slide down while the plaintiff was on it. Evidence that the ladder's rubber feet were worn down also is sufficient to permit the inference that this defective condition caused the slippage ... . Patrikis v Arniotis, 2015 NY Slip Op 05167, 2nd Dept 6-17-15






Acceptance of Unsolicited Rent After Expiration of a Lease and After the Requisite Nonrenewal Notice Does not Waive the Intention Not to Renew or Vitiate the Notice


The Second Department, in a full-fledged opinion by Justice Cohen, determined the acceptance of unsolicited rent payments after the lease for a rent-stabilized apartment had expired, and after the tenant had received the requisite nonrenewal notice, did not constitute a waiver of the intention not to renew:


... [W]e are asked to determine whether a landlord's acceptance of unsolicited rent in the "window period" between the expiration date of a lease and the commencement of a holdover proceeding nullifies a landlord's previous service of a notice of intention not to renew the lease. We conclude that the acceptance of unsolicited rent in these circumstances does not, by itself, demonstrate an intentional waiver of a previously served notice of intention not to renew the lease and, thus, does not vitiate that notice. Matter of Georgetown Unsold Shares, LLC v Ledet, 2015 NY Slip Op 05185, 2nd Dept 6-17-15







Promise Made or Advice Given by a Municipal Employee Does Not Give Rise to Equitable Estoppel


The Second Department noted that the doctrine of equitable estoppel is applied only rarely against municipalities.  Here plaintiff alleged the four-month statute of limitations for redemption (re: a foreclosure action) passed because of a municipal employee's promise to hold papers submitted in support of an attempt at redemption.  The court held that a promise made or advice given by a governmental employee will not give rise to equitable estoppel: "... [E]quitable estoppel is applied against a municipality performing governmental functions only in the rarest of cases ..., and "erroneous advice by a governmental employee will not give rise to an exception to the general rule"... . Wilson v Neighborhood Restore Hous., 2015 NY Slip Op 05176, 2nd Dept 6-17-15







Petitioner's Position Properly Abolished by Enactment of Town Budget


The Second Department determined that the town did not act in bad faith when it abolished petitioner's position through the enactment of the town budget. The court explained the applicable law:


A public employer may abolish civil service positions to "promote efficiency and economy," provided that the employer acts in good faith ... . Where a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law ... . "Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee" ... . "[W]hen there exists a triable issue of fact with regard to bad faith, a full hearing must be held" ... .


Here, contrary to the petitioner's contention, adoption of a municipal budget may properly serve, under certain circumstances, to abolish an employee's position ... . Matter of Grant v Town of Lewisboro, 2015 NY Slip Op 05187, 2nd Dept 6-17-14







Failure to Strictly Comply With Notice Requirement in the Civil Service Law Rendered the Involuntary Leave Imposed Upon the Petitioner-Firefighter a Nullity---Petitioner Entitled to Back Pay for Leave Period---Petitioner Properly Deemed Unfit for Active Duty Due to His Inability to Manage Diabetic Symptoms


The Fourth Department determined a firefighter was properly deemed unfit for active duty as a firefighter because of his inability to manage diabetic symptoms. During the course of the decision, the Fourth Department held that the city's failure to strictly comply with the notice requirements of the Civil Service Law rendered the involuntary leave imposed on petitioner a nullity (entitling him to back pay for the leave period):


We conclude that the procedural protections contained in Civil Service Law § 72 (1) apply to proceedings brought pursuant Civil Service Law § 72 (5) based on the language in subdivision (1) that the provisions of notice and hearing therein apply to employees "placed on leave of absence pursuant to this section" (emphasis added), "which includes Civil Service Law § 72 (5)" ... . These procedures are necessary "to afford tenured civil servant employees . . . procedural protections prior to involuntary separation from service" ... . "Because of the significant due process implications of the statute, strict compliance with its procedures is required" ... . Here, it is undisputed that respondents did not strictly comply with the procedures pursuant to section 72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that petitioner was provided with "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [petitioner was] not fit to perform the duties of" his position (§ 72 [1]). Although the parties had engaged in negotiations during the period before respondents provided petitioner with written notice, respondents concede that at no time did petitioner waive his rights under section 72 ... . Additionally, petitioner did not receive the final notice of determination within 75 days from the receipt of his request for review (see § 72 [1]). The absence of strict compliance with these procedural requirements renders petitioner's alleged leave a nullity prior to September 30, 2013, when Linnertz issued his final determination after reviewing the Hearing Officer's decision ... , and petitioner is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013. Matter of Williams v Troiano, 2015 NY Slip Op 05318, 4th Dept 6-19-15







There Was a Rational Bases for Fire District Board of Commissioners' Rejection of Petitioner's Bid to Supply a Radio Dispatch System---Court Cannot Substitute Its Own Judgment for the Board's


The Second Department determined the respondent board (fire district commissioners) had a rational basis for rejecting petitioner's bid for a radio dispatch system. As long as a rational basis for an administrative decision exists it must be upheld.  A court may not substitute its own judgment:


General Municipal Law § 103(1) provides that, in awarding any contract in excess of $35,000, public entities must award the contract to "the lowest responsible bidder." "The central purposes of New York's competitive bidding statutes are the (1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts'"... . Nevertheless, it is a municipality's right to determine whether a bid meets its specifications, and that determination is entitled to deference if it is supported by "any rational basis" ... . Thus, " a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion'" ... . It is the petitioner's burden to demonstrate that a bid has been wrongly awarded ... .


Here, the board identified three reasons for rejecting the petitioner's bid: (1) the petitioner did not demonstrate that it had a service location within 20 miles of the fire district; (2) the petitioner offered to supply equipment which differed from the bid specifications; and (3) over the life of the contract, the monthly maintenance costs would render the petitioner's bid more expensive than Eastern's. Although the petitioner disagrees with the board's conclusions as to each of these points, any one of them would provide a rational basis for the rejection of the petitioner's bid. Matter of Hello Alert, Inc. v East Moriches Fire Dist., 2015 NY Slip Op 05189, 2nd Dept 6-17-15




Evidence of Prior Uncharged Offenses Involving the Same Behavior and Against the Same Victim as Alleged in the Charged Offense Deemed Admissible to Prove Motive, Intent and to Provide Necessary Background Information About the Nature of the Relationship Between the Victim and Defendant


The Fourth Department determined evidence of prior uncharged sexual abuse of the victim, which included actions attributed to the defendant in the charged offense (abuse when the victim was unconscious from alcohol intoxication), was properly admitted. The court found the uncharged crime evidence was admissible to prove intent and motive, and to provide background information about the nature of the relationship between the victim and defendant:


We reject defendant's contention ... that the court erred in admitting evidence of defendant's prior uncharged sexual abuse of the victim which, according to the victim's testimony, also occurred while she was unconscious from alcohol intoxication. "The general rule is that evidence of . . . uncharged crimes may not be offered to show defendant's bad character or his propensity towards crime but may be admitted only if the acts help establish some element of the crime under consideration or are relevant because of some recognized exception to the general rule" ... . Here, we conclude that the evidence of uncharged crimes was admissible to establish intent and motive under the first two exceptions specifically identified in Molineux's illustrative and nonexhaustive list ... . Specifically, the disputed evidence was relevant to the issue whether defendant intended to commit the instant crime for the purpose of sexual gratification (see Penal Law §§ 130.00 [3]; 130.65 [2]), and to establish defendant's motive in providing a large quantity of alcohol to the victim. Consequently, "the evidence in this case was not propensity evidence, but was probative of [defendant's] motive and intent to [sexually] assault his victim" ... . Moreover, the evidence was also admissible under a more recently recognized Molineux exception, i.e., to "provide[] necessary background information on the nature of the relationship" between defendant and the victim ... and thus, we conclude that the court did not abuse its discretion in allowing the People to present the evidence at issue ... . People v Leonard, 2015 NY Slip Op 05314. 4th Dept 6-19-15







Motion to Vacate Conviction Should Not Have Been Granted---Hearsay Statement Exonerating Defendant Did Not Meet the Criteria for a Statement Against Penal Interest and Should Not Have Been Admitted---The Underlying Evidence Was Not Newly Discovered Because Defendant Was Aware of It at the Time of Trial--Defendant Did Not Provide the Evidence at Trial Because He Feared Retaliation by Gang Members


The Fourth Department determined defendant's motion to vacate his conviction should not have been granted.  The hearsay statement made by Jackson which exonerated defendant did not meet the criteria for a statement against penal interest and should not have been admitted in evidence.  The evidence involved was not newly discovered.  Defendant did not provide the evidence at trial out of fear of retaliation by gang members:


... [T]he court erred in admitting Jackson's statement in evidence at the hearing, and, in any event, the statement would not be admissible at trial. This is vital because " [i]mplicit in th[e] ground for vacating a judgment of conviction is that the newly discovered evidence be admissible' " ... . Here, the court admitted the statement at the hearing as a declaration against penal interest, but it is well settled that "[f]or a statement against penal interest to be admissible the interest compromised must be such as to all but rule out' motive to falsify, [and] the declarant must be conscious of the consequences of his statement at the time it is made . . . Those assurances of probative value, which might in a proper case substitute for cross-examination, were not present in this case" ... . Although a less stringent standard applies where, as here, the declaration is offered by defendant to exonerate himself rather than by the People, to inculpate him... , none of the requirements was met here. To the contrary, the statement of the gang member was provided only after he was assured that he would not be prosecuted for any information that he provided, thus removing any indicia of reliability regarding that information... . ...


Even assuming, arguendo, that Jackson's statement was properly admitted at the hearing, and further assuming, arguendo, that the information he provided is material, noncumulative, and does not merely impeach or contradict the record evidence, we conclude that the information was known to defendant at the time of the trial ... . We cannot agree with the court that it was in effect "newly discovered" based on defendant's fear of physical harm to himself and his family. "A defendant who chooses to withhold evidence should not be given a new trial on the basis of the evidence thus withheld' " ... . Therefore, the evidence does not satisfy the requirement that it was "discovered since the entry of a judgment based upon a verdict of guilty after trial" ... . People v Backus, 2015 NY Slip Op 05330, 4th Dept 6-19-15






Failure to Pronounce the Amount of Restitution at Sentencing Survives Waiver of Appeal and Requires Vacation of the Sentences and Remittal


The Second Department noted that county court's failure to pronounce the amount of restitution at sentencing survived waiver of appeal and required vacation of the sentences and remittal for that purpose:


Since the County Court failed to pronounce the sentences of restitution in open court, the sentences must be vacated and the matter remitted to the County Court, Orange County, for resentencing in accordance with CPL 380.20 ... . People v Guadalupe, 2015 NY Slip Op 05206, 2nd Dept 6-17-15







Attorney's Telling the Court There Was No Reason Sentencing Should Not Go Forward in the Face of Defendant's Pro Se Motion to Withdraw His Guilty Plea Adversely Affected Defendant's Right to Counsel


The Second Department ordered that a hearing be held on defendant's motion to withdraw his guilty plea and that another lawyer be assigned. When defendant made his pro se motion to withdraw his plea, his attorney told the court there was no reason sentencing should not go forward. The attorney's taking a position adverse to the defendant's adversely affected the defendant's right to counsel:


The defendant's right to counsel was adversely affected when his attorney took a position adverse to his ... . The County Court should have assigned a different attorney to represent the defendant before it determined the defendant's motion to withdraw his plea of guilty ... . Accordingly, the matter must be remitted to the County Court, Westchester County, for a hearing on the defendant's motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and for a new determination of the motion thereafter. People v King, 2015 NY Slip Op 05209, 2nd Dept 6-17-15







Insufficient Break Between "Unwarned" Statement and Statement Made Subsequently After the Miranda Warnings Were Given---Entire Statement Should Have Been Suppressed


The Fourth Department determined there was an insufficient break (10 minutes) between an "unwarned" inculpatory statement made by the defendant and a subsequent statement made after the Miranda warnings were given.  The entire statement should have been suppressed:


"When, as part of a continuous chain of events, a defendant is subjected to custodial interrogation without Miranda warnings, any statements made in response as well as any additional statements made after the warnings are administered and questioning resumes must be suppressed" ... . Where, however, "there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning," his or her statements in response to renewed questioning after he or she has received Miranda warnings and waived his or her constitutional rights may be admitted ... . Here, the initial questioning by the second officer, although brief, produced an inculpatory statement directly related to the instant crime... , and the second interrogation, which produced another inculpatory statement, occurred less than 10 minutes later and in the same location ... . Moreover, contrary to the People's contention, the record does not establish that "a reasonable suspect in defendant's position would have perceived a marked change in the tenor of his engagement with [the] police" ... . We thus conclude that "it cannot be said that there was such a definite, pronounced break' in the interrogation that defendant was returned to the position of one who was not under the influence of the initial improper questioning" ... . People v Walker, 2015 NY Slip Op 05313, 4th Dept 6-19-15






Placing Defendant in the Back of a Patrol Car Did Not Constitute De Facto Arrest


In affirming the conviction, the Fourth Department noted that placing the defendant in the back seat of a patrol car did not, under the circumstances, amount to a de facto arrest. Rather "the temporary detention of defendant was proper as 'part of a continuum of permissible police intrusions in response to escalating evidence of criminal activity' ;"


We conclude that "the police action fell short of the level of intrusion upon defendant's liberty and privacy that constitutes an arrest" ... . Here, the brief investigative detention of defendant by the police was "justified by reasonable suspicion that a crime [had] been, [was] being or [was] about to be committed" ..., i.e., "that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" ... . Indeed, after the man with defendant displayed the contents of the duffel bag, the officer had reasonable suspicion that defendant and the other man had committed a crime. The established circumstances at that point were that the officer had received a report that suspicious individuals carrying bags had gone behind a residence in an area where burglaries targeting copper pipe had previously occurred; the officer observed two men matching the description coming down a driveway carrying bags; the two men admitted that they were walking around looking for copper plumbing; and the contents of the duffel bag revealed their actual possession of numerous copper pipes of various sizes with no indication of other scrap metals. Under these circumstances, we conclude that the temporary detention of defendant was proper as "part of a continuum of permissible police intrusions in response to escalating evidence of criminal activity" ... . Here, "the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant" ... , and "a less intrusive means of fulfilling the police investigation was not readily apparent" ... . People v Howard, 2015 NY Slip Op 05350, 4th Dept 6-19-15






Absolute Privilege Attaches to Statement Made by a Nonparticipant in the Litigation Which Is Republished by an Attorney In the Course of the Litigation


The Third Department determined an action based upon the republication of an allegedly defamatory statement (made by a nonparticipant in the litigation) by an assistant attorney general in the course of a medical malpractice case was precluded by the absolute privilege afforded attorneys in matters related to litigation:


Statements made by parties and their counsel in the context of a legal action or proceeding are protected by an absolute privilege so long as, "by any view or under any circumstances, they are pertinent to the litigation" ... . Allowing such statements or writings to form the basis of an action for defamation "would be an impediment to justice, because it would hamper the search for truth and prevent making inquiries with that freedom and boldness which the welfare of society requires" ... . A liberal standard guides the inquiry of what is pertinent ... , and encompasses "any statement that may possibly or plausibly be relevant or pertinent, with the barest rationality" ... . Moreover, the burden rests with claimant "to conclusively, and as a matter of law, establish the impertinency and the irrelevance of the statement" ... .


Here, claimant asserts that the memorandum was prepared by a nonparticipant to the litigation which removes it from the protection of the absolute privilege; however, this contention ignores that claimant's action is grounded in the republication of the alleged defamatory statement by the AAG, whose statements are afforded the protection ... . It is evident that the AAG turned over the memorandum after the malpractice litigation had been commenced in federal court ... and, further, the statements in the memorandum were clearly pertinent to the malpractice litigation, as they concerned allegations that were relevant to the treatment of the inmate ... . McPhillips v State of New York, 2015 NY Slip Op 05242, 3rd Dept 6-18-15







Question of Fact Whether Employer Considered Accommodation for Plaintiff's Injury---Summary Judgment to Employer Should Not Have Been Granted


Plaintiff's employment with the Department of Correctional Services (DOCS) was terminated (after plaintiff injured her hand) on the ground that plaintiff had failed to demonstrate she was medically fit to return to work and had failed to provide a date by which she would return to full duty. The plaintiff challenged her proposed termination and sought reinstatement before the effective date of termination. The Second Department determined Supreme Court should not have granted summary judgment to the employer (DOCS).  A question of fact had been raised about whether DOCS met its duty to consider accommodation for plaintiff's injury:


An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law § 296 "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation," and the employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request" ... .


"The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested" (9 NYCRR 466.11[j][4]). Viewing the evidence in the light most favorable to the nonmoving party ... , we find that the plaintiff's responses to the notice of proposed termination could reasonably have been understood as a request for accommodation, which DOCS rejected by terminating the plaintiff's employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.


Therefore, we conclude that the defendants failed to establish, prima facie, that they engaged in a good faith interactive process that assessed the needs of the plaintiff and the reasonableness of her requested accommodation ... . Cohen v State of New York, 2015 NY Slip Op 05147, 2nd Dept 6-17-15






Supreme Court Properly Annulled New York Division of Human Rights' Determination there Was No Probable Cause to Believe the School District Discriminated against Petitioner When It Refused to Hire Her Because of Her Anticipated Absence (Due to Pregnancy)


The Fourth Department affirmed Supreme Court's annulment of the New York Division of Human Rights' (SDHR's) finding, without a hearing, there was no probable cause to believe the school district discriminated against the petitioner. Petitioner was not hired because of her anticipated absence due to pregnancy. The school district's stated reason for not hiring petitioner was that she was going to be unavailable to counsel students and there was concern about the resulting lack of continuity of counseling services for the students.  However, the petitioner's unavailability was due to her pregnancy and discrimination could therefore be inferred:


"Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law § 297 (4) (a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis' " ... . "Probable cause exists only when, after giving full credence to the complainant's version of the events, there is some evidence of unlawful discrimination" ... . "There must be a factual basis in the evidence sufficient to warrant a cautious [person] to believe that discrimination had been practiced" ... . The complainant's factual showing must be accepted as true on a probable cause determination ... . While our standard of review is highly deferential to the agency's determination ..., we agree with the court that SDHR's determination "was not rationally based upon the evidence presented" ... .


Executive Law § 296 prohibits an employer from refusing to hire or employ an individual based on, inter alia, the individual's sex. In opposition to the petition, the District argued that it decided not to rehire petitioner because of her unavailability and its concern for continuity of counseling services for its students. Petitioner was unavailable to work, however, because of her pregnancy, and we conclude that discrimination could be inferred from the record before us ... . The District relies on Roslyn Union Free Sch. Dist. v State Div. of Human Rights (72 AD2d 808) in support of its argument that it did not discriminate against petitioner. To the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination (see id. at 809-810), we decline to follow it. Matter of Mambretti v New York State Div. of Human Rights, 2015 NY Slip Op 05384, 4th Dept 6-19-15






"Hostile Work Environment" (Allegedly Offensive Sex-Related Remarks) and "Retaliation for Opposition to Discriminatory Practices" Causes of Action Explained


The Second Department determined defendant-employer was entitled to summary judgment on plaintiff-employee's "hostile work environment" cause of action (allegedly offensive sex-related remarks) but was not entitled to summary judgment on plaintiff-employee's "retaliation for opposing discriminatory conduct" cause of action. Defendant was able to demonstrate the allegedly offensive remarks were isolated incidents which did not permeate the work environment.  But a question of fact was raised about the "retaliation" cause of action. Plaintiff was terminated one day after the employer received a letter about the alleged discrimination from plaintiff's attorney.  The Second Department explained the elements of "hostile work environment" and "retaliation for opposing discriminatory conduct" causes of action:


A hostile work environment exists where the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" ... . Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a "mere offensive utterance," and whether the alleged actions "unreasonably interfere[ ] with an employee's work" are to be considered in determining whether a hostile work environment exists ... . The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an "objectively hostile or abusive environment—one that a reasonable person would find to be so" ... . * * *


Under the New York State Human Rights Law, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[7]...). In order to make out a cause of action for retaliation, "[a] plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action" ... . "To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual" ... . La Marca-Pagano v Dr. Steven Phillips, P.C., 2015 NY Slip Op 05162, 2nd Dept 6-17-15

















Pilot Assumed the Risk of a Take-Off from a Wet, Grass Field


The Fourth Department determined plaintiff-pilot's complaint should have been dismissed because the pilot, injured attempting to take off from a grass field, assumed the risk associated with a take-off from a wet field.  The airport is a designated venue for the recreational activity of private aviation.  Therefore the recreational use of the airport was a qualifying activity under the doctrine of primary assumption of the risk. The pilot was aware of the wet conditions prior to his attempt to take off:


We agree with defendant that its airport is a designated venue for the recreational activity of private aviation and that plaintiff's use thereof was in furtherance of his pursuit of that activity ... . We thus conclude, as defendant contends, that plaintiff's recreational use of defendant's airport was a qualifying activity under the doctrine of primary assumption of the risk ... . Primary assumption of the risk applies when a consenting participant in a qualified activity "is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" ... . "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" ...  . "[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff" ... . The primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions... . "It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" ... .


Here, the undisputed facts establish that plaintiff, an experienced pilot, was well aware of the risk inherent in taking off from a soft, wet grass runway with the type of landing gear with which his aircraft was equipped. Plaintiff's awareness of the risk was amply established by his admitted preflight concern about the condition of the grass runway, and by his personal inspection thereof generated in part by his encounter with wet and muddy conditions while towing his aircraft to the runway by motor vehicle. Bouck v Skaneateles Aerodrome, LLC, 2015 NY Slip Op 05300, 4th Dept 6-19-15





Motion to Compel Plaintiff to Submit to a Psychological Test Should Have Been Granted---Plaintiff Placed Her Mental Condition In Issue and Did Not Demonstrate the Test Was Invasive or Harmful


Reversing Supreme Court, the Second Department determined the defendants' motion to compel plaintiff to submit to the administration of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) should have been granted.  Plaintiff amended the bill of particulars to allege she suffered from post-traumatic stress disorder (stemming from the underlying car accident). Plaintiff placed her mental condition in issue, and there was no showing the MMPI-2 would be invasive or harmful:


Where the mental or physical condition of a party is in controversy, the party may be required to submit to a medical examination ... . However, a plaintiff who places his or her physical or mental condition in controversy will not be required to undergo an examination or objective testing procedure which is invasive, painful, or presents the possibility of danger to life or health ... .


Here, it is undisputed that the plaintiff's mental condition was put into controversy by her service of the bill of particulars denominated a second supplemental bill of particulars, in which she alleged that she has post-traumatic stress disorder that was caused by the accident. In support of their motion, the defendants established, through the affidavit of a psychologist, that the MMPI-2 is a conventionally accepted noninvasive test utilized for the assessment of a diagnosis of post-traumatic stress disorder.


In opposition, the plaintiff failed to establish that subjecting herself to the MMPI-2 would be invasive or harmful to her health ... . Peculic v Sawicki, 2015 NY Slip Op 05168, 2nd Dept 6-17-15





Liability for a Defective or Dangerous Condition on Real Property Must Be Predicated Upon Ownership, Occupancy, Control, or Special Use of the Property---Here Defendant Demonstrated None of Those Factors Applied


The Second Department, finding that defendant's motion for summary judgment in a slip and fall case was properly granted, noted that in order for a defendant to be liable for a dangerous or defective condition on real property the liability must be predicated "upon ownership, occupancy, control, or special use of that property ...".  Here no such factors were demonstrated (defendant denied the allegation that it acted as the property manager).  Reynolds v Avon Grove Props., 2015 NY Slip Op 05169, 2nd Dept 6-17-15






Defendant Sky-Diving Instructor's Duty of Care (Re: Training) Did Not Extend to the Unforeseeable Conduct Which Resulted In the Plane Crash


Plaintiff was injured in a plane crash which occurred as the pilot was attempting to pull a skydiver back into the plane.  The hatch door opened unexpectedly on take-off and a skydiver, against the pilot's instructions, stood up and attempted to pull the door closed. Plaintiff had completed a one-hour skydiving course offered by defendant prior to the flight.  Plaintiff alleged that defendant breached his duty to provide proper training for the pilot, instructors and other skydivers. The court determined defendant owed no duty of care to the plaintiff with respect to the unforeseeable conduct which occurred on the plane:


"The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors" ... . In making such a determination, "the courts look to whether the relationship of the parties is such as to give rise to a duty of care . . . , whether the plaintiff was within the zone of foreseeable harm . . . and whether the accident was within the reasonably foreseeable risks" ... . "[T]he law draws a line between remote possibilities and those that are reasonably foreseeable because [n]o person can be expected to guard against harm from events which are . . . so unlikely to occur that the risk . . . would commonly be disregarded' " ... .


We conclude that defendant established as a matter of law that the plane crash at issue was not a reasonably foreseeable consequence of defendant's alleged failure to provide adequate training. Although the risk may now readily be perceived with the benefit of hindsight, we conclude that the plane crash due to the hatch door opening and the response of the pro-rated skydiver was not "within the class of foreseeable hazards" associated with defendant's alleged failure to provide proper training ... . We thus conclude that defendant had "no cognizable legal duty to protect [plaintiff] against the injury-producing occurrence" .... . Tiede v Frontier Skydivers, Inc., 2015 NY Slip Op 05311, 4th Dept 6-19-15






Signed Consent Form Precluded Cause of Action for Assault and Battery (Re: a Hysterectomy)---Defendant Demonstrated the Allegation Plaintiff Did Not Consent to the Hysterectomy Was "Not a Fact At All"--Question of Fact Raised Re: the "Lack of Informed Consent" Cause of Action


The Second Department, over a partial concurrence/dissent, determined defendant was entitled to dismissal of the assault and battery cause of action, which was based on the allegation a hysterectomy was performed without plaintiff's consent.  The evidence however demonstrated plaintiff signed a consent form, and thereby demonstrated that the "without consent" factual allegation was "not a fact at all."  Plaintiff did, however raise a question of fact concerning the "lack of informed consent" cause of action. The court explained the elements of assault and battery in this context, the elements of a "lack of informed consent" cause of action, as well as how to handle a motion to dismiss for failure to state a cause of action which is accompanied by evidentiary submissions:


"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one . . . [The motion] must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" ... .


"To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact'" ... . "To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature" ... . Here, the evidence in the record upon which the Supreme Court relied established that "a material fact as claimed by the plaintiff" was "not a fact at all" ... . Notwithstanding the plaintiff's allegations and testimony that she never gave permission for the performance of a hysterectomy, the signed consent form clearly authorized such a procedure, and she admitted that she signed the consent form. Therefore, dismissal of the assault and battery cause of action was proper ... .


"To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff's position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3])...). Here the plaintiff's deposition testimony indicates that she was not fully advised of the risks, benefits, and alternatives to the procedure or treatment, including the fact that one of the risks was a total hysterectomy and/or perforation of the bowel, nor was it established as a matter of law that if the plaintiff received full disclosure, she still would have consented to the procedure. Since the defendants' submissions included the plaintiff's deposition testimony, they failed to establish, prima facie, that there were no triable issues of fact with respect to the cause of action alleging lack of informed consent ... . Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging lack of informed consent. Thaw v North Shore Univ. Hosp., 2015 NY Slip Op 05173, 2nd Dept 6-17-15






Patient's Suicide Was Not a Foreseeable Consequence of Doctor's Alleged Failure to Properly Diagnose and Treat Patient's Abdominal Pain


The Third Department affirmed summary judgment granted to defendant doctor (Skezas).  Plaintiff alleged the doctor failed to properly diagnose and/or treat plaintiff's decedent's abdominal pain. Decedent was told by the doctor he may have cancer, which, if not treated, could be fatal within 6 to 12 months. The doctor set up an appointment for plaintiff's decedent with a specialist.  Before seeing the specialist, plaintiff's decedent committed suicide. The Third Department determined plaintiff's decedent's suicide was not a foreseeable consequence of the actions ascribed to the doctor:


"An intervening act will be deemed a superseding cause and will serve to relieve [a] defendant of liability when the act is of such an extraordinary nature or so attenuates [the] defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant" ... . Applying this rule to a person's intentional act of taking his or her own life, negligent conduct can only support liability for another person's suicide under certain circumstances and where suicide is a foreseeable consequence of such conduct ... . Here, Skezas did not practice psychiatry, decedent was not confined to Skezas' care and Skezas did not advise decedent to commit suicide. The possibility that decedent would choose to take his own life in the absence of any actual terminal cancer diagnosis and rather than taking advantage of the second medical opinion — regarding a diagnosis and/or pain management — from the specialist that Skezas had secured for decedent is not a foreseeable consequence of the alleged negligent acts ... . Stein v Kendal At Ithaca, 2015 NY Slip Op 05246, 3rd Dept 6-18-15






Question of Fact Whether Failure to Provide Personal Ropes to Firefighters Gave Rise to a Claim Under 
General Municipal Law 205-a and Labor Law 27-a


The First Department, recalling and vacating its decision and order dated March 3, 2015, determined the defendants' motion for summary judgment dismissing the plaintiff-firefighter's action based upon General Municipal Law 205-a and Labor Law 27-a was properly denied. The action alleged the city failed to provide firefighters with personal ropes and, as a result, firefighters were forced to jump from windows without ropes (resulting in injury and death). Labor Law 27-a requires employers to provide a place of employment free from recognized hazards. A question of fact was raised whether the failure to issue personal ropes resulted from the city's discretionary decision-making, and therefore is not subject to government-function immunity:


The motion court properly declined to dismiss the portion of plaintiffs' General Municipal Law (GML) § 205-a claims predicated on an alleged violation of Labor Law § 27-a(3)(a)(1). The City unavailingly contends that Labor Law § 27-a(3)(a)(1) cannot provide a valid predicate for any General Municipal Law § 205-a claim. However, the statute, known as the Public Employee Safety and Health Act (PESHA), which imposes a general duty on an employer to provide employees with "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees" (Labor Law § 27-a[3][a][1]), is sufficient since it is "a requirement found in a well-developed body of law and regulation that imposes clear duties" ... .


Moreover, the City failed to "show that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff's injuries" ... . There is evidence, including testimony and an investigative report, that the failure to issue personal ropes to the firefighters contributed to the injuries and deaths suffered when the firefighters jumped from windows using either no safety devices or a single rope that had been independently purchased by one of the firefighters. The City is also not entitled to dismissal of these claims pursuant to governmental function immunity, since the evidence concerning the removal of existing personal ropes in 2000, and the failure to provide new ropes in the period of more than four years from then until the fire giving rise to these claims, raises issues of fact concerning whether the absence of ropes "actually resulted from discretionary decision-making — i.e., the exercise of reasoned judgment which could typically produce different acceptable results" ... . Stolowski v 234 E. 178th St. LLC, 2015 NY Slip Op 05099, 1st Dept 6-16-15






Construction at County Airport Was a Governmental Function---County is Therefore "Immune" from a Suit Alleging the Construction Caused a Highway White-Out Condition Which Resulted in Plaintiff's-Decedent's Death in a Collision


Plaintiffs alleged that construction by the defendant-county caused snow to blow across the highway leading to the "white-out" which resulted in plaintiff's decedent's death in a collision. The Fourth Department determined the county was immune from suit because the relevant construction was a governmental, not proprietary function, and the county did not owe a special duty to the plaintiffs:


... "[I]f the [municipal defendant] acted in a proprietary role, i.e., when its activities essentially substitute for or supplement traditionally private enterprises . . . , ordinary rules of negligence apply. If, however, the [defendant] acted in a governmental capacity, i.e., when its acts are undertaken for the protection and safety of the public pursuant to general police powers . . . , the court must undertake a separate inquiry to determine whether the [defendant] owes a special duty to the injured party. In the event that the plaintiff fails to prove such a duty, the [defendant] is insulated from liability" ... . A municipal defendant can therefore establish entitlement to judgment as a matter of law by showing that its allegedly negligent acts were undertaken in a governmental rather than a proprietary capacity, and that it did not owe the plaintiff a special duty.


We conclude that defendants established on their motion that the construction of the tunnels and retaining wall was undertaken in a governmental capacity ... , inasmuch as the construction was the result of defendants' discretionary decision-making after defendants consulted with experts to determine how to make improvements to the Airport property in compliance with, inter alia, safety regulations of the Federal Aviation Administration ... . We further conclude that plaintiffs failed to raise a triable issue of fact whether defendants owed a special duty to plaintiffs or were acting in a proprietary capacity ... . Klepanchuk v County of Monroe, 2015 NY Slip Op 05323, 4th Dept 6-19-15







Causes of Action Against City Alleging Negligence In Responding to a 911 Call and In Preparing for and Responding to a Snow Storm Which Blocked Roads Should Have Been Dismissed---Only Governmental Functions Were Involved and there Was No Special Relationship between the City and Plaintiffs' Decedent 


The Second Department determined the complaint against the city should have been dismissed under the doctrine of governmental immunity.  Plaintiffs alleged the city was negligent in responding to a 911 call for an ambulance and was negligent in preparing for and responding to a snow storm (which blocked roads). Because the relevant acts or omissions related to government functions, and because no special relationship existed between the city and plaintiffs' decedent, the city was immune from suit. The Second Department provided a good explanation of the relevant law:


As a general rule, "a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services" ... . When a negligence cause of action is asserted against a municipality, and the municipality's conduct is proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties ... . If it is determined that a municipality was exercising a governmental function, the municipality may not be held liable unless it owed a special duty to the injured party ... . "A special duty' is a duty to exercise reasonable care toward the plaintiff,' and is born of a special relationship between the plaintiff and the governmental entity'" ... . Insofar as relevant here, to establish a special relationship against a municipality which was exercising a governmental function, a plaintiff must show: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" ... . * * *


A municipal emergency response system is a classic governmental, rather than proprietary, function ... . Contrary to the plaintiffs' contentions, the complaint fails to allege any facts tending to show knowledge by the defendants that inaction would lead to harm, or that there was any justifiable reliance on any promise made by the defendants. Accordingly, the 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 complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the 911 call ... .


Furthermore, the Supreme Court improperly denied that branch of the defendants' motion which was to dismiss the cause of action alleging that the defendants failed to prepare for, and respond to, the snowstorm. A municipality is obligated to maintain the streets and highways within its jurisdiction in a reasonably safe condition for travel ... . A municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers ... . Under the circumstances presented here, the defendants' snow removal operation on the public streets was a traditionally governmental function, rather than a proprietary function ... . Moreover, the plaintiffs failed to sufficiently allege in their complaint the existence of a special relationship between the decedent and the defendants as to the defendants' snow removal function ... . Cockburn v City of New York, 2015 NY Slip Op 05146, 2nd Dept 6-17-15






Only an "Unexcused" Violation of a Provision of the Vehicle and Traffic Law Constitutes Negligence Per Se---Damages May Include Cost of Demolition of a Building Which Has Been Deemed a Safety Hazard


In the course of a decision finding questions of fact precluded summary judgment, the Fourth Department explained the doctrine of negligence per se as it relates to a violation of the Vehicle and Traffic Law, and the recoverable damages when property damage requires demolition of a building which was rendered a safety hazard.  The defendant-driver here struck plaintiff's building which was then destroyed by fire.  The cost of demolition, which the town had ordered because the building was a safety hazard, exceeded the fair market value of the building prior to the accident. The court noted that the demolition costs could be recoverable damages. The court further noted that only the "unexcused" violation of the Vehicle and Traffic Law constitutes negligence per se.  Therefore the defendant's guilty plea to a Vehicle and Traffic Law violation could be excused by the jury if the jury determined the driver acted to avoid an object in the road. In that situation, the violation would only constitute "some evidence" of negligence:


It is well settled that "the fact that [the] driver entered a plea of guilty to a Vehicle and Traffic Law offense is only some evidence of negligence and does not establish his negligence per se" ... . Rather, it is the "unexcused violation of the Vehicle and Traffic Law [that] constitutes negligence per se" ... . If a trier of fact accepts as true the position that the driver swerved to avoid an object in the road, the jury may excuse the driver's alleged negligence, in which case defendant would not have any vicarious liability for the accident ... . * * *


It is well settled that the standard for assessing damages to property is the lesser of replacement cost or diminution in market value ... . Here, it is undisputed that the cost of the required demolition exceeds the fair market value of the property before the accident. Defendant contends that plaintiffs' damages are limited to the market value of the property before the accident, with no consideration of demolition costs, inasmuch as the full market value of the property before the accident is less than the repair or replacement cost. We agree with plaintiffs, however, that demolition costs are recoverable where the property to be demolished constitutes a "safety hazard beyond repair" ... . There are also situations in which a property may be deemed to have a negative market value, i.e., where the cost to remediate the property exceeds the market value of the property ... . Shaw v Rosha Enters., Inc., 2015 NY Slip Op 05305, 4th Dept 6-19-15






Negligence and Proximate Cause Inextricably Interwoven---Verdict Finding that Defendant Was Negligent but Such Negligence Was Not the Proximate Cause of Plaintiff's Injury Properly Set Aside as Against the Weight of the Evidence


The plaintiff-student was sexually assaulted at school.  The jury found the school was negligent in its supervision of its students, but that the negligence was not the proximate cause of plaintiff's injury.  The Second Department determined the verdict was properly set aside as against the weight of the evidence.  The issues of negligence and proximate cause were inextricably interwoven, such that finding the negligence was not the proximate cause of injury was against the weight of the evidence:


"A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence" ... . " A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause'" ... .


Under the circumstances of this case, the issues of negligence and proximate cause were inextricably interwoven, such that the jury's finding that the defendants were negligent, but that their negligence was not a substantial factor in causing the infant plaintiff's injuries, was contrary to the weight of the evidence ... . Victoria H. v Board of Educ. of City of N.Y., 2015 NY Slip Op 05156, 2nd Dept 6-17-15








Sole Proximate Cause of Plaintiffs' Injuries Should Have Been Determined as a Matter of Law---Complaint Against Non-Negligent Driver (Whose Car Was Pushed into the Pedestrian-Plaintiffs by the Negligent-Driver's Car) Should Have Been Dismissed


Reversing Supreme Court, the Second Department found that the proximate cause of the accident should have been determined as a matter of law and the complaint against the non-negligent driver should have been dismissed.  The negligent driver violated the Vehicle and Traffic Law by attempting to make a left turn and crossing the lane in which the non-negligent driver was travelling.  The non-negligent driver 's car collided with negligent driver's car and then struck plaintiffs (pedestrians).  Here it was clear that the negligent-driver's actions were the sole proximate of the plaintiffs' injury as a matter of law:


"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ... . "There can be more than one proximate cause of an accident" ..., and "[g]enerally, it is for the trier of fact to determine the issue of proximate cause" ... . "However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts" ... . Velez v Mandato, 2015 NY Slip Op 05174, 2nd Dept 6-17-15






Question of Fact About Sequence of Rear-End Collisions Precluded Summary Judgment


The Second Department determined a question of fact had been raised about whether the middle driver in a three-car rear-end collision was negligent. Although the middle-car driver alleged she was struck from behind and pushed into the lead car, the third-car driver alleged the middle car struck the lead car before he struck the middle car:


Supreme Court erred in granting the motions of the plaintiff [lead car driver] and [the middle-car driver] for summary judgment. Based on the plaintiff's account of the accident, those movants established, prima facie, their freedom from comparative fault and that [third-car driver] was negligent based on the presumption of negligence that arises from a rear-end collision with a stopped or stopping vehicle ... . However, [third-car driver's] affidavit, which recited that his vehicle only struck the [middle] vehicle after the [middle] vehicle had already collided with the lead vehicle, raised triable issues of fact as to the sequence of the collisions, whether [the middle-car driver] was at fault, and the proximate cause of the plaintiff's alleged injuries .... . Gavrilova v Stark, 2015 NY Slip Op 05153, 2nd Dept 6-17-15






Ordinance Imposing a Duty Upon Abutting Property Owners to Keep Sidewalks in Good Repair Raised a Question of Fact whether a Defect Caused by a Tree Root Should Have Been Repaired by the Defendant---The Defect Was Not So Significant As to Allow a Determination of Defendant's Liability as a Matter of Law


The Fourth Department determined the existence of an ordinance imposing upon abutting property owners the duty to maintain the sidewalk created a question of fact whether defendant breached that duty. Apparently the defect was caused by a root from a tree on village property which defendant alleged he had no authority to disturb. The ordinance, however did not include any exceptions to the duty to repair.  The defect was not of such significance that summary judgment on liability as a matter of law was warranted:


... "[I]t is well established that, as an abutting landowner, [defendant] is not liable for injuries sustained as the result of a defect in the sidewalk unless[, inter alia,] . . . there is a local ordinance charging [defendant] with the duty to maintain and repair the sidewalk and imposing liability for injuries resulting from [defendant's] failure to do so" ... . Here, in opposition to the motion, plaintiff submitted relevant portions of the General Code of the Village of Hamburg (Village), which charges landowners such as defendant with the duty to "repair, keep safe and maintain any sidewalk abutting [the landowner's] premises," and imposes liability on the landowner "for any injury or damage by reason of omission or failure to repair, keep safe, and maintain such sidewalk" (Village of Hamburg General Code § 203-26 [B]; see § 203-28 [A] [2]).


We conclude that, by submitting that local ordinance, plaintiff raised an issue of fact whether defendant breached the duty imposed on it to maintain the sidewalk abutting its property. Although defendant contends that the alleged defect in the sidewalk was created by a tree root that it had no authority to disturb because it originated from a tree on property owned and maintained by the Village, we note that the local ordinance contains no exceptions to the duty imposed on abutting landowners to maintain the sidewalk, even if the allegedly dangerous condition was created by a root extending from Village property. In any event, it cannot be said as a matter of law that defendant could not have repaired the alleged defect in the sidewalk without cutting the tree root that purportedly created it ... .


We agree with defendant, however, that the court erred in granting that part of plaintiff's cross motion for partial summary judgment on the issue of negligence against defendant, and we therefore modify the order accordingly. "Generally, a sidewalk defect presents an issue of fact for a jury . . . , unless . . . the defect is so trivial as to warrant disposition [in defendant's favor] on summary judgment" ... . Here, we cannot conclude that the alleged defect, as depicted in photographs included in the record, is of such significance that defendant may be held liable as a matter of law ... . Shatzel v 152 Buffalo St., Ltd., 2015 NY Slip Op 05333, 4th Dept 6-19-15






Contract Merged with the Deed and Any Rights Afforded Purchaser by the Uniform Vendor and Purchaser Risk Act Were Extinguished Upon Transfer of Title


After transfer of title, the purchaser alleged that the property had been damaged between the execution of the purchase contract and the transfer of title. The Third Department determined summary judgment was properly awarded the seller. The property was sold "as is" and the contract did not survive the transfer of title.  Any rights granted purchaser under the Uniform Vendor and Purchaser Risk Act (UVPRA), which allows for rescission in some cases, were extinguished upon the transfer of title:


Unless a land sale contract expressly provides otherwise, a vendor bears the risk of loss until legal title or possession has been transferred to the purchaser ... . However, a contract for the sale of real property merges with the deed and, as a result, the terms of the contract do not survive transfer of title unless the parties clearly specify otherwise ... . Here, the terms and conditions of the auction provided that the sale would be governed by the Uniform Vendor and Purchaser Risk Act (hereinafter UVPRA), which provides a purchaser with the right to rescind the sale contract or recover money paid toward the purchase price under certain circumstances (see General Obligations Law § 5-1311 [1] [a]). However, there was no indication that plaintiff's rights under the UVPRA would survive transfer of title. In fact, the terms and conditions provided that the property would be sold "as is" and that a purchaser would not have recourse against defendant for any defects stemming from the sale. Therefore, any rights that plaintiff may have asserted under the UVPRA were extinguished when title was transferred to plaintiff. Burkins & Foley Trucking & Stor., Inc. v County of Albany, 2015 NY Slip Op 05252, 3rd Dept 6-18-15






Supreme Court Justices Who Are "Certificated" to Continue on the Bench at Age 70 Are Entitled to Both Their Pensions and Their Salaries


The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, determined Judges who reach the age of 70 and are "certificated to continue their services on the Supreme Court bench" are entitled to receive both their pensions and their judicial salaries. To hold otherwise violates the plain meaning of Retirement and Social Security law 212 (1) which reads: "any retired person may continue as retired and, without loss, suspension or diminution of his or her retirement allowance, earn [an amount not greater than statutorily prescribed] in a position or positions in public service." That same provision provides that "there shall be no earning limitations under the provisions of [Retirement and Social Security Law § 212] on or after the calendar year in which any retired person attains age [65]"... . Matter of Loehr v Administrative Bd. of the Cts. of the State of N.Y.2015 NY Slip Op 05243, 3rd Dept 6-18-15






Court Deferred to the Agency's Interpretation of a Statute Because the Interpretation Involved Knowledge and Understanding of the Underlying Operational Practices (In the Usual Case, a Court Will Not Defer to an Agency's Interpretation of a Statute)/The Term "Business Enterprise" in Tax Law 14 (a) Refers to the Taxable Entity, Not the Legal Entity


The Third Department deferred to the interpretation of a statute by the Tax Appeals Tribunal which found that petitioners were not entitled to Qualified Enterprise Zone Enterprise (QEZE) tax reduction credits and refundable Empire Zone (EZ) wage credits.  The case turned on the Tribunal's definition of a business enterprise.  The Tribunal determined the term refers to the taxable entity, not the legal entity. Because the interpretation of the relevant statute, Tax Law 14 (a), involved knowledge and understanding of the underlying operational practices, the court deferred to the agency's determination. (In the usual case a court need not defer to an agency's interpretation of a statute):


The parties' primary disagreement here centers on whether the term business enterprise under Tax Law § 14 (a) refers to the taxable entity or the legal entity. The Tax Law does not define business enterprise, and this Court will "defer to the governmental agency charged with the responsibility for administration of [a] statute in those cases where interpretation or application involves knowledge and understanding of underlying operational practices" ... . While, as a general rule, courts will not defer to administrative agencies in matters of pure statutory interpretation, where, as here, the question is "'one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially,'" deference is appropriate ... . To prevail over the Tribunal's construction of the statute, petitioners must establish that their "interpretation of the statute is not only plausible, but also that it is the only reasonable construction"... .


In our view, it cannot be said that the Tribunal acted irrationally in construing the term business enterprise in accordance with an entity's classification for state and federal income tax purposes. Matter of Ayoub v Tax Appeals Trib. of the State of N.Y., 2015 NY Slip Op 05240, 3rd Dept 6-18-15






Town Board's Terminating, Without Notice, Plaintiff's Construction Project Violated Plaintiff's Right to Substantive Due Process/Town Was Not Entitled to Qualified Immunity


The plaintiff had cleared the way for building on land which included wetlands by obtaining the necessary permits and waivers from the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) when, without notice, the town board passed a resolution rescinding a previously issued sewer tap-in waiver and terminating the construction project. Among other theories, plaintiff sued under 42 USC 1983 (deprivation of property without due process of law) and won. On appeal the due process violation verdict was upheld. The Fourth Department explained the criteria for the due process cause of action and noted that the defendant town was not entitled to qualified immunity because the town board's actions violated plaintiff's constitutional rights:


... [W]e note that the Court of Appeals has set forth a two-part test for substantive due process violations: "[f]irst, [a plaintiff] must establish a cognizable property interest, meaning a vested property interest, or more than a mere expectation or hope to retain the permit and continue their improvements; they must show that pursuant to State or local law, they had a legitimate claim of entitlement to continue construction' . . . Second, [a plaintiff] must show that the governmental action was wholly without legal justification" ... . Under the first prong, "a legitimate claim of entitlement to a permit can exist only where there is either a certainty or a very strong likelihood' that an application for approval would have been granted" ... . "Where an issuing authority has discretion in approving or denying a permit, a clear entitlement can exist only when that discretion is so narrowly circumscribed that approval of a proper application is virtually assured' "... . * * *


We reject defendant's contention that the state constitutional claims should be dismissed because defendant is entitled to qualified immunity. " A government official is entitled to qualified immunity provided his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known' " ... . Defendant failed to establish that it was objectively reasonable for the Town Board to believe that its conduct in withdrawing the sewer tap-in waiver request on ... was appropriate ... . Instead, the evidence established that the Town Board members acted without knowing the history of the project and acted knowing that only the Planning Board had to take action, i.e., to give site plan approval for the property. Despite the existence of plaintiff's constitutionally protected property interest in the ... tap-in waiver request, the Town Board acted ... to withdraw that waiver request, which was a violation of plaintiff's constitutional rights. As such, defendant is not entitled to qualified immunity. Acquest Wehrle, LLC v Town of Amherst, 2015 NY Slip Op 05346, 4th Dept 6-19-15






Lien for Attorney's Fees (Re: Workers' Compensation Award) Can Be Satisfied Before Reimbursing Municipality for Benefits Paid by the Municipality to the Injured Corrections Officer Pursuant the General Municipal Law


The Third Department determined that a lien for attorney's fees could be attached to Workers' Compensation benefits prior to reimbursing a municipality for benefits paid to the municipal employee pursuant to the General Municipal Law. Claimant corrections officer was injured on the job. Under General Municipal Law 207-c municipal employers are required to pay full wages to corrections officers injured in the performance of their duties.  Workers' Compensation Law 30 (3) provides that the amount of the payments made under the General Municipal Law shall be credited against any award of compensation pursuant to the Workers Compensation Law. The municipality argued it was entitled to the entire amount paid to the employee and the amount should not be reduced by the attorney's fees (a lien on the Workers' Compensation award).  The Third Department disagreed:


General Municipal Law § 207-c requires municipal employers to pay full wages to correction officers who are injured in the performance of their duties. Workers' Compensation Law § 30 (3) provides that the amount of such payments "shall be credited against any award of compensation" that may also be made to such an officer. The employer contends that the mandatory language of the Workers' Compensation Law provision entitles employers to full credit for such payments and, thus, precludes the attachment of a lien for counsel fees. However, Workers' Compensation Law § 24 likewise uses mandatory language in providing that, when approved by the Board, counsel fees "shall become a lien upon the compensation awarded . . . [and] shall be paid therefrom only in the manner fixed by the [B]oard" (emphasis added). The lien attaches when the compensation is awarded "and takes precedence over the employer's right to reimbursement of funds previously paid to the claimant-employee" ... . The purpose of enacting Workers' Compensation Law § 30 (3) was not to preclude counsel fees, but "to avoid duplicate benefits to an injured [officer], the combined total of which might exceed the salary [the officer] would have received for the period" if the injury had not occurred ... . Workers' Compensation Law § 30 (3) must be harmoniously interpreted with the Workers' Compensation Law as a whole and with General Municipal Law § 207-c ... . We find nothing in the statutory language indicating a legislative intent to treat employees who receive benefits under General Municipal Law § 207-c differently from other injured employees by departing from the statutory scheme for payment of counsel fees set forth in Workers' Compensation Law § 24. Matter of McCabe v Albany County Sheriff's Dept., 2015 NY Slip Op 05236, 3rd Dept 6-18-15







Zoning Board's Interpretation of Village Ordinances Upheld---Keeping of Chickens Is Not an Allowed "Residential Use"


The Third Department determined the village zoning board of appeals' interpretation of a zoning ordinance had a rational basis.  Petitioner sought a ruling allowing him to keep chickens in a residential zone. Because "poultry husbandry" was specifically mentioned in the zoning ordinances as an agricultural use, and was not mentioned as an allowed residential use, the board's interpretation was upheld as "neither irrational nor unreasonable:"


Here, Village of Champlain Zoning Code § 119-20 (B) states that the permitted uses in an R1 residential district are "one- and two-family dwellings" and "accessory uses." The code allows for accessory uses that are "of a nature customarily incidental and subordinate to the principal use of the structure, such as garages, outbuildings, swimming pools, energy collection devices and the keeping of domesticated animals" (Village of Champlain Zoning Code § 119-16). The code also defines "agriculture" as "[t]he use of land for agricultural purposes, including tilling of the soil, dairying, pasture, apiculture, arboriculture, horticulture, floriculture, viticulture, forestry, animal and poultry husbandry and the necessary accessory uses for packing or storing of products" (Village of Champlain Zoning Code § 119-16). The code further states that "[a]ny use not listed as permitted [w]ithin a [z]oning district is assumed to be prohibited in that [z]oning district" (Village of Champlain Zoning Code § 119-191). Matter of Meier v Village of Champlain Zoning Bd. of Appeals, 2015 NY Slip Op 05245, 3rd Dept 6-18-15

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