JUST RELEASED

March Page II

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

 

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ARBITRATION/CIVIL PROCEDURE

 

Language in the Arbitration Agreement Supported the Applicability of the New York Law Reserving the Determination of a Statute of Limitations Defense to the Court, Even Though the Controlling Federal Arbitration Act Presumptively Reserves the Determination of a Statute of Limitations Defense to the Arbitrator

 

The First Department determined that an arbitration agreement which specifically incorporates "the arbitration laws of New York State" incorporates the New York rule that the resolution of a statute of limitations defense is for the court, not the arbitrator, even where the matter is controlled by the Federal Arbitration Act [FAA] (which presumptively reserves resolution of a statute of limitations defense to the arbitrator):

 

Under the FAA, the "resolution of a statute of limitations defense is presumptively reserved to the arbitrator, not a court" ... . "[A]n exception to this rule exists where parties explicitly agree to leave timeliness issues to the court" (Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247, 253 [2005]). This is in keeping with the FAA policy by which private arbitration agreements are to be enforced according to their terms (id. at 252). Unlike the FAA, New York law "allows a threshold issue of timeliness to be asserted in court" even absent an agreement to do so (...CPLR 7502 [b]; 7503 [a]).

 

The arbitration clause of the agreement before us provides that "the arbitration laws of New York State" shall govern the parties' arbitration. In Matter of Smith Barney, Harris Upham & Co. v Luckie (85 NY2d 193 [1995]...), the Court held that a choice of law provision which states that New York law shall govern both "the agreement and its enforcement" incorporated New York's rule that threshold statute of limitations questions are for the courts (id. at 202). In Diamond Waterproofing, the Court held that an agreement that merely provided that it "shall be governed by the law of [New York]" did not express an intent to have New York law govern enforcement (4 NY3d at 253). The Court reasoned that "[i]n the absence of more critical Language concerning enforcement . . . all controversies, including issues of timeliness, are subjects for arbitration" (id.).

 

The question arises as to whether the specific incorporation of "the arbitration laws of New York State" in the instant arbitration clause itself constitutes the needed "more critical language concerning enforcement" within the contemplation of Diamond Waterproofing. We hold that it does and, under the agreement, the arbitration laws of New York State include article 75 of the CPLR.  Matter of ROM Reins Mgt Co Inc v Continental Ins Co Inc, 2014 NY Slip Op 01546, 1st Dept 3-11-14

 

 

CIVIL PROCEDURE

 

Defendant Company's Failure to Keep Current Address On File With Secretary of State Was Not an Adequate Excuse for Default

 

The Second Department determined that the failure of defendant limited liability company to maintain its current address with the Secretary of State precluded defendant from successfully opposing the motion to enter a default judgment (based upon defendant's failure to answer:)

 

To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its default and the existence of a potentially meritorious defense (see CPLR 5015[a][1]...). The defendant contended that it maintained an old address on file with the Secretary of State, and denied receipt of copies of the summons and complaint. However, the defendant's unexplained failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse ... .

 

Furthermore, the defendant was not entitled to vacatur of its default pursuant to CPLR 317. The defendant failed to rebut the plaintiff's evidence that, for a period of more than five years, the defendant failed to file, with the Secretary of State, the required biennial form that would have apprised the Secretary of State of its current address (see Limited Liability Company Law § 301[e]). Under these circumstances, the defendants' failure to personally receive copies of the summons and complaint was a result of a deliberate attempt to avoid notice of actions commenced against it... . Cruz v Keter Residence LLC, 2014 NY Slip Op 01575, 2nd Dept 3-12-14

 

 

CIVIL PROCEDURE

"Law Office Failure" Excuse for Failure to Enter a Default Judgment Within One Year Not Sufficient

 

The Second Department determined that the offered "law office failure" excuse for failing to enter a default judgment within the one-year time limit was not sufficient:

 

CPLR 3215(c), entitled "Default not entered within one year," provides, in pertinent part, that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" (emphasis added). "To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for his or her delay and must demonstrate that the complaint is meritorious" ... .

 

Here, contrary to the Supreme Court's conclusion, the plaintiff failed to offer a reasonable excuse as to why it did not seek to enter a judgment against the defendant until nearly three years after his failure to answer or appear (see CPLR 3215[c]...). The excuse of law office failure proffered by the plaintiff in its moving papers was "vague, conclusory, and unsubstantiated" and, thus, did not constitute a sufficient excuse for the plaintiff's extended delay in moving to enter a default judgment after the defendant's default... . GMAC v Minewiser, 2014 NY Slip Op 01581, 2nd Dept 3-12-14

 

 

CIVIL PROCEDURE

Motion to Renew Granted in Interest of Justice Despite Knowledge of Facts at Time of Original Motion/Motion to Vacate Default Granted Based On Law Office Failure

 

The Second Department determined a motion to renew was properly granted, in the interest of justice, even though the facts were known at the time of the original motion.  The court also determined, under the facts, the motion to vacate a default judgment was properly granted on the ground of law office failure:

 

A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2]...). However, "[t]he rule is not inflexible, and renewal may be granted in the court's discretion, in the interest of justice, even on facts that were known to the movant at the time of the original motion" ... . Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the motion of the defendants ...  which was for leave to renew that branch of their prior motion which was pursuant to CPLR 5015 to vacate so much of a prior order of the same court as granted the plaintiff's unopposed motion for leave to enter a default judgment ... .

 

Upon renewal, the Supreme Court also properly permitted the Lee defendants to interpose an answer to the complaint and precluded the plaintiff from enforcing the default judgment ... . In moving pursuant to CPLR 5015(a)(1) to vacate a default, the movant is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action ... . The Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005). Here, the ... defendants' principal affirmed that he retained prior counsel to oppose the plaintiff's motion for leave to enter a default judgment, but that prior counsel nevertheless failed to oppose the motion, which was granted without opposition. Under such circumstances, the Supreme Court providently exercised its discretion in accepting this explanation as an excusable default ... . The ...defendants also demonstrated a potentially meritorious defense to the action ... . In addition, there was no showing of prejudice to the plaintiff from the delay in answering, and no evidence of an intent by the Lee defendants to abandon any defenses to the action.  Shin v ITCI Inc, 2014 NY Slip Op 01600, 2nd Dept 3-12-14

 

 

CRIMINAL LAW

 

Defendant Properly Sentenced As a Youthful Offender on One Indictment But Not on a Second Indictment

 

The Second Department determined the sentencing court properly sentenced defendant as a youthful offender under one indictment and properly declined to sentence defendant as a youthful offender under a second indictment:

 

The defendant contends that, because the sentencing court granted him youthful offender status with respect to Indictment No. 12-00529, it was required to do so with respect to Indictment No. 12-01380. The defendant was not convicted of two crimes set forth in separate counts of a single indictment, nor was he convicted of two crimes set forth in two separate indictments consolidated for trial purposes (see CPL 720.20[2]). Therefore, the sentencing court was authorized in its discretion to determine that the defendant was a youthful offender with respect to either or both convictions ... . Accordingly, the sentencing court properly determined that it may find the defendant a youthful offender with respect to his conviction under Indictment No. 12-00529, but not with respect to his conviction under Indictment No. 12-01380.  People v Shaquille Mc, 2014 NY Slip Op 01633, 2nd Dept 3-12-14

 

CRIMINAL LAW

Court Properly Accepted Partial Verdict and Sent the Jury Back to Continue Deliberations on the Remaining Count

 

The Third Department determined the trial court properly accepted a partial verdict and sent the jury back to deliberate on the remaining count:

 

After the jury indicated that it had reached a verdict, the court started taking the verdict but, when the jury was polled on the larceny charge, one juror stated that she had made a mistake with her verdict. As a result, and over defendant's objection, Supreme Court took the verdict on the two counts of criminal contempt and sent the jury back to further deliberate on the larceny charge. In our view, Supreme Court properly followed the procedure outlined inCPL 310.70 (1) (b), and there is no basis in the record to conclude that the court abused its broad discretion in accepting the partial verdict and then directing the jury to continue deliberations... . People v Phoenix, 2014 NY Slip Op 105148, 2nd Dept 3-13-14

 

 

CIVIL PROCEDURE

Defendant Entitled to a Hearing On His Motion to Vacate His Conviction/Newly Discovered  Evidence Someone Else Confessed to the Crime

 

The Third Department determined defendant had presented sufficient evidence to warrant a hearing on his motion to vacate his conviction.  The court found no indication the new evidence could have been discovered with due diligence at the time of trial and the new evidence (the confession of another to the crime) was not merely impeachment evidence:

 

...[W]e find that the affidavit of Maurice Miller proffered by defendant was sufficient to warrant a hearing.Miller's affidavit was subscribed to in January 2012 and alleged, among other things, that he had witnessed another drug dealer,Alexander Llanos, sell crack to Grimsley on the day of the shooting, that defendant was not present in the area, and thatLlanos later confessed to the shooting. First addressing whether the evidence could have been obtained with due diligence prior to trial, a court must keep in mind "the practicalities of the situation" and weigh the "limited resources generally available" to a defendant ... . Miller averred that he had not contacted police at the time of the crime because he feared retaliation. Defendant was 16 years old, incarcerated and had assigned counsel. Under these circumstances, there is no indication that defendant's failure to discover this witness was the result of a lack of due diligence ... .

 

Turning to the question of whether the evidence proffered was merely impeachment evidence, the confession of Llanos to the crime was material to the ultimate issue of defendant's guilt or innocence ... . Furthermore, a defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged and, therefore, a hearing should have been held to determine the probative value of Miller's testimony and its probable effect on the verdict ... . Accordingly, we find a hearing necessary to promote justice inasmuch as the issues raised are "'sufficiently unusual and suggest searching investigation'" ... . People v Page, 2014 NY Slip Op 105312, 3rd Dept 3-13-14

 

 

CRIMINAL LAW/APPEALS

 

Concise Example of a Weight of the Evidence Review

 

The First Department reversed defendant's conviction and dismissed the indictment after a weight of the evidence review. The court found too many inconsistencies in the evidence, especially with respect to the identification of the defendant as the attacker.  The decision is a concise example of the kinds of proof problems which are considered significant under a weight of the evidence analysis:

 

Here, there were troubling discrepancies in the evidence presented to the jury. Most significantly, the complainant testified that the club was sufficiently well-lit for him to see his assailant's face while the encounter was ongoing. However, the detective who investigated the incident and interviewed the complainant testified, after having had his recollection refreshed with the DD-5 report he prepared in connection with the investigation, that the complainant told him he "did not have a clear recollection of the suspect because it was somewhat dark" in the Maribella. While the complainant denies he told the detective that, the People do not offer, nor can we perceive of, any reason why the detective would have been untruthful not only on the witness stand, but also in a contemporaneous internal report documenting the investigation.

 

Further clouding the accuracy of the complainant's identification of defendant was the photograph he picked out of an array. We acknowledge that the complainant did not represent that the person in the photo he chose was his assailant, but rather that he looked like him. Nevertheless, there is a significant difference in the appearances, especially the complexions, of the people depicted in the two photographs, which calls into question the confidence the complainant had in recalling what his attacker looked like.  People v Diaz, 2014 NY Slip Op 01661, 1st Dept 3-13-14

 

 

CRIMINAL LAW/CONSTITUTIONAL LAW/ATTORNEYS

 

Prosecutor's Creating the Impression Non-Testifying Witness Identified Defendant as Shooter Violated Defendant's Right to Confront the Witnesses Against Him

 

The Second Department, over a dissent, determined that a new trial was required because the prosecutor created the impression a non-testifying witness [Drake] had identified the defendant as the shooter.  Although the error was not preserved by objection, the court addressed the issue in the interest of justice.  The court noted as well that the defense counsel's objections to the prosecutor's comments during summation (which reinforced the impression) were erroneously overruled:

 

Generally, during cross-examination, a party cannot introduce extrinsic evidence or call another witness to contradict a witness's answers concerning collateral matters solely for the purpose of impeaching such witness's credibility ... . As the defendant correctly contends, during the cross-examination of Lloyd, the prosecutor improperly gave the impression that Drake, who did not testify, implicated the defendant while the police questioned her ... . Notably, the prosecutor acknowledged at the second trial that Drake had testified at the initial trial, and that Drake had not identified the defendant as having been present at the party.

 

The defendant's constitutional right to be confronted with the witnesses against him prohibits the "admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination" (Crawford v Washington, 541 US 36, 53-54; see People v Pealer, 20 NY3d 447, 453, cert denied _____US_____, 134 S Ct 105). Here, the defendant's constitutional right to be confronted with the witnesses against him was violated.  People v Lloyd, 2014 NY Slip Op 01631, 2nd Dept 3-12-14

 

 

CRIMINAL LAW/PRIVILEGE/CIVIL PROCEDURE

 

Youthful Offender Privilege Explained/Privilege Not Waived By Denial of the Act Which Was the Subject of the Youthful Offender Adjudication in Subsequent Civil Suit

 

The Second Department determined the defendant's son did not waive the privilege associated with his youthful offender status. Although defendant's son had pled guilty to an assault based upon his throwing an egg, he denied throwing the egg in his deposition during the related civil proceedings.  That denial did not waive the privilege and the plaintiff could not gain access to the records of the criminal proceedings:

 

The youthful offender statute (CPL article 720) provides special measures for persons found to be youthful offenders, which " emanate from a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals'" ... . Thus, "[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense" (CPL 720.35[1]). Further, pursuant to CPL 720.35(2), all official records and papers concerning the adjudication are sealed. * * *

 

The privilege created by this statute attaches not only to the physical documents constituting the official record, but also to the information contained within those documents ... . Thus, a person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made. However, the person must still answer questions regarding the facts underlying the adjudication ... . * * *

 

Here, the defendant's son did not waive the privilege afforded by the statute since he did not commence an action which places the conduct at issue ... . The defendant did not assert counterclaims or cross claims in this action placing the conduct at issue ..., and the defendant's son did not testify as to the confidential contents of the records ... . Contrary to the plaintiff's contention, the testimony of the defendant's son at his deposition denying that he threw the egg which allegedly struck the plaintiff's daughter did not waive the protections of the statute ... . Castiglione v James FQ, 2014 NY Slip Op 01571, 2nd Dept 3-12-14

 

 

 

 

 

 

 

 

 

 

 

EMPLOYMENT LAW/CIVIL RIGHTS/HUMAN RIGHTS LAW

 

Stray Remarks Doctrine Applied in Action Under New York City Human Rights Law

 

The First Department determined that the "stray remarks doctrine" applied to actions brought brought under the New York City Human Rights Law.  The court rejected the argument that a statement in an email written weeks after plaintiff's termination was actionable, asserting the so-called "stray remarks doctrine:"

 

Plaintiff relies on one remark made in an email exchange that took place weeks after the decision to terminate him was made and that concerned the resolution of his union's grievance following the termination. In the email, one of defendant's employees responsible for making the decision to terminate plaintiff declined to reconsider the penalty because of the nature of plaintiff's convictions and his concern about the liability that defendant would assume if plaintiff committed a similar crime while on company time. However, "[s]tray remarks such as [this], even if made by a decision maker, do not, without more, constitute evidence of discrimination" ... .  Indeed, plaintiff did not demonstrate a nexus between the employee's remark and the decision to terminate him... .

 

We decline to hold, as urged by plaintiff and amici, that the stray remarks doctrine may not be relied on in determining claims brought pursuant to the City Human Rights Law, even as we recognize the law's "uniquely broad and remedial purposes" (Bennett, 92 AD3d at 34 [internal quotation marks omitted]). The doctrine is not inconsistent with the intentions of the law, since statements "constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant's decision to discharge the plaintiff" ... . Godbolt v Verizon NY Inc, 2014 NY Slip Op 01561, 1st Dept 3-11-14

 

FAMILY LAW

 

Father Estopped from Moving to Vacate Order of Filiation Entered Upon Consent Despite "Somewhat Limited" Parent-Child Relationship

 

The Second Department determined father was estopped from challenging an order of filiation even though there was evidence the parent-child relationship was "somewhat limited:"

 

Here, the order of filiation was entered approximately 10 years prior to the instant petition, and the father had been paying child support during that time. In addition, the father sought, and was granted, visitation with the subject child, which he exercised, although sporadically. The father attended some of the child's school functions and parent-teacher conferences, had telephone contact with the child, and saw the child on some of her birthdays. The child, who was 15 years old at the time the father's petition was filed, was acquainted with some of the father's family members, considered the father to be her father, and had never known any other father. Under these circumstances, the Family Court properly invoked the doctrine of equitable estoppel to preclude the father's challenge to the order of filiation ..., and "the evidence indicating that the parent-child relationship was somewhat limited did not preclude the application of [that] doctrine" ... . Matter of Shawn H v Kimberly F, 2014 NY Slip Op 01610, 2nd Dept 3-12-14

 

 

FAMILY LAW

Family Court Improperly Conditioned Future Visitation Upon Enrollment in a Drug Testing Program and Improperly Delegated Its Authority to Control Father's Visitation to Mother

 

The Second Department noted that Family Court could not condition father's future visitation upon enrollment in a drug testing program.  Family Court could only make participating in the drug testing program a component of a current visitation order.  In addition Family Court improperly delegated its control of father's visitation to mother:

 

..."[A] court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation" ... . Thus, the Family Court erred in conditioning the father's visitation upon his enrollment in a random drug testing program at a medical facility, and should have instead directed the father to enroll in such a program as a component of visitation. Moreover, by authorizing the mother to suspend visitation upon the father's failure to provide proof of his prescription, the Family Court improperly delegated its responsibility to determine whether and when visitation rights should be suspended ... . Matter of Welch v Taylor, 2014 NY Slip Op 01619, 2nd Dept 3-12-14

 

 

FRAUD/CIVIL PROCEDURE

 

Inexperience or Lack of Sophistication Does Not Toll the Statute of Limitations Re: the Discovery of Fraud/The Test for When the Fraud Should Have Been Discovered in an Objective One

 

The First Department determined the action alleging the fraudulent churning of trades by an employee of Morgan Stanley was untimely.  The plaintiff argued that plaintiff's inexperience and lack of sophistication should toll the statute of limitations re: the discovery of the fraud.  The court explained that when the fraud should have been noticed is determined by an objective test:

 

"The test as to when fraud should with reasonable diligence have been discovered is an objective one," and the duty of inquiry arises "where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he [or she] has been defrauded" ... . Apt v Morgan Stanley DW Inc, 2014 NY Slip Op 01541, 1st Dept 3-11-14

 

 

INSURANCE LAW

 

"In Transit" Means Between Destinations, Even If "At Rest"

 

The First Department, in a full-fledged opinion by Justice Saxe, determined that the "in transit" clause of a bond covered the loss which occurred when the stolen cash was in a vault owned by the armored car company.  Under New York law, the term "in transit" covers a larceny which occurs when the stolen item is between destinations, even if it is not being moved at the time:

 

An "In Transit" provision was discussed and interpreted in the controlling case of Underwood v Globe Indem. Co. (245 NY 111 [1927]). In Underwood, a bond salesman who was attempting to arrange a bond sale to a potential buyer brought the bonds from Pine Street, in lower Manhattan, to West End Avenue near 88th Street, where the buyer gave him a worthless check that had been forged to appear certified, in exchange for the bonds. When the buyer absconded with the bonds, the seller made a claim under a policy for the theft of the bonds while "in transit." The Court concluded that the transit of the bonds was never completed, because the completion of transit would have involved a lawful transfer of title, whereas the bonds had been taken "by a trick and false device," without a valid transfer of title (id. at 115). The Court reasoned that "[t]o hold that transit means actual movement, and not a period of rest, is too narrow a construction to give to this undertaking, and is contrary to its full meaning and scope" (id.).

 

The Underwood analysis was at the heart of the determination in Franklin v Washington Gen. Ins. Corp. (62 Misc 2d 965 [Sup Ct, NY County 1970], affd 36 AD2d 688 [1st Dept 1971]), a determination affirmed by this Court, holding that the test for whether something is "in transit" is "whether the goods, even though temporarily at rest, were still on their way, with the stoppage being merely incidental to the main purpose of delivery" (at 966-967).  CashZone Check Cashing Corp v Vigilant Ins Co, 2014 NY Slip Op 01565, 1st Dept 3-11-14

 

 

LABOR LAW-CONSTRUCTION LAW

 

Being Thrown from the Forks of a Forklift Is a Gravity Related Event Under Labor Law 240 (1)

 

The First Department determined that being thrown from the front forks of a forklift (Bobcat) is a gravity related event covered by the Labor Law:

 

...[W]e find that falling from the Bobcat is the type of gravity related event contemplated by the Court of Appeals in Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]). In Potter v Jay E. Potter Lumber Co., Inc. (71 AD3d 1565 [4th Dept 2010]), the Fourth Department, relying on Runner, similarly found that a worker, who like plaintiff here, was positioned as a counterweight for a load on a forklift and was catapulted forward when the forklift became unstable, was entitled to the protection of Labor Law § 240(1). Penaranda v 4933 Realty, LLC, 2014 NY Slip Op 01547, 1st Dept 3-11-14

 

 

LANDLORD-TENANT/CONTRACT LAW

 

Landlord Cannot Recover Lost Rent In Action Based Upon Breach of Covenant to Keep the Premises in Good Repair

 

Over the dissents of two justices, the First Department determined that lost rent was not recoverable for breach of a lease provision requiring a tenant to keep the premises in good repair:

 

It is well settled that lost rent is not recoverable as damages for breach of a lease covenant requiring a tenant to keep the premises in good repair. An action alleging breach of such a covenant can be brought either before or after the expiration of the lease term ... . In Appleton v Marx (191 NY 81 [1908]), the Court of Appeals identified two different measures of damages, depending on when the action is commenced. If the action is brought before the lease expires, a landlord can recover "the injury done to the reversion" (id. at 83), i.e. "the difference between the value of the premises with the improvement and absent the improvement" ... . On the other hand, if the action is brought after the expiration of the lease term, "the measure of the damages is the cost of putting the premises into repair" ... . In neither circumstance, however, did the Court of Appeals provide that lost rent is included in the measure of damages.  Building Serv Local 32B-J Pension Fund v 101 Ltd Partnership, 2014 NY Slip Op 01544, 1st Dept 3-11-14

 

 

 

 

 

 

 

NEGLIGENCE

 

Licensee Assumed Sufficient Control Over Hired Premises to Create Duty to Maintain Premises in 

Safe Condition

 

The Third Department determined the American Cancer Society (ACS), as a licensee, had assumed sufficient control of the premises hired for an event hosted by the ACS to create a duty to maintain the premises in a safe condition.  Plaintiff had tripped over a cable placed by an outfit hired by ACS to provide audio-visual services:

 

Supreme Court properly concluded that ACS owed plaintiff a duty of care. In the context of premises liability, a party owes a duty to take reasonable measures to protect others from dangerous conditions on the property only where that party owns, occupies or controls the property or makes a special use of it ... . No party contends that ACS owned, leased or made special use of the Hall of Springs. However, ACS, as a licensee exercising control, owed a duty to those on the property to maintain the premises in a reasonably safe condition during the period of its use ... . Although "mere sponsorship, absent control, does not render [an entity] legally responsible" for defects on the premises ..., ACS's involvement with the gala exceeded bare sponsorship. ACS entered into a contract with Mazzone Management for use of the Hall of Springs, approved the floor plan for the gala, hired ACES to provide audiovisual services, and hired a band for entertainment, and ACS representatives were present during and oversaw the set up and the event. An ACS representative testified at her deposition that she was present during the set up between 1:00 p.m. and 4:00 p.m. on the day prior to the event, that she performed a walk-through of the premises, and that if she had noticed any hazards – including tripping hazards – she would have pointed them out and had them remedied. As the record demonstrates that ACS "conceived of, planned, orchestrated and supervised the [gala]," it had control over the premises during the set up and the event and thereby owed a duty of care to those present to maintain the site in a reasonably safe condition ... . Stevenson v Saratoga Performing Arts Center..., 517156, 3rd Dept 3-13-14

 

 

NEGLIGENCE/MEDICAL MALPRACTICE

 

Conclusory and Unsupported Affidavit from Plaintiff's Expert Did Not Raise a Question of Fact/Standard of Care for Doctors and Mental Health Professionals In the Context of a Patient's Post-Treatment Suicide Described

 

The First Department, in a full-fledged opinion by Justice Sweeny, reversed Supreme Court and granted the defendants' motion for summary judgment dismissing the action.  The complaint alleged that plaintiff's husband's suicide was the result of negligence on the part of the treating doctors, psychiatrists and other health professionals.  The court noted that in most instances the affidavit from an expert asserting a deviation from the appropriate standard of care will be sufficient to defeat summary judgment.  But here the affidavit from plaintiff's expert was conclusory and unsupported:

 

It is well settled that "a doctor is not liable in negligence merely because a treatment, which the doctor as a matter of professional judgment elected to pursue, proves ineffective. . ." ... . Liability is imposed "only if the doctor's treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care" ... . Although a plaintiff's expert may have chosen a different course of treatment, "this, without more, represents, at most, a difference of opinion among [medical providers], which is not sufficient to sustain a prima facie case of malpractice'" ... . In the context of mental health providers, we have held that "[w]hen a psychiatrist chooses a course of treatment, within a range of medically accepted choices for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability" ... . Where a psychiatrist fails to predict that a ...patient will harm his or herself if released, liability will likewise not attach for a mere error in professional judgment ... . While it is true that "the line between medical judgment and deviation from good medical practice is not easy to draw" ... , the "prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instance it involves a measure of calculated risk. If liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitations of a vast number of patients would be impeded and frustrated" ... . However, if a decision to release a patient was less than a professional medical determination, liability may attach ... . A decision will not be insulated by the medical judgment rule if it is not based upon a careful examination ... .

 

Generally, " the opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants'" ... . To suffice, the expert's opinion "must demonstrate the requisite nexus between the malpractice allegedly committed' and the harm suffered" ... . However, where "the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment" ... . Park v Kovachevich, 2014 NY Slip Op 01679, 1st Dept 5-13-14

 

 

MUNICIPAL LAW

 

Village Ordinance Prohibiting Crematory Not Preempted by State Law Under Either Express or Conflict Preemption Criteria

 

The Second Department determined that the Not-for-Profit Corporation Law, which includes "crematory" in the definition of cemetery, did not pre-empt a village ordinance prohibiting the construction of a crematory in petitioner's cemetery.  Both express preemption and conflict preemption were addressed by the court:

 

The Supreme Court correctly determined that Not-for-Profit Corporation Law article 15 did not preempt any attempt at local regulation of cemeteries under the doctrine of "field preemption." That doctrine "applies under any of three different scenarios. First, an express statement in the state statute explicitly avers that it preempts all local laws on the same subject matter. Second, a declaration of state policy evinces the intent of the Legislature to preempt local laws on the same subject matter. And third, the Legislature's enactment of a comprehensive and detailed regulatory scheme in an area in controversy is deemed to demonstrate an intent to preempt local laws" ... . * * *

 

Thus, although Not-for-Profit Corporation Law article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries. Further, there is no declaration of State policy in either Not-for-Profit Corporation Law article 15 or the rules and regulations promulgated under it that evinces any such intent (see N-PCL 1501...). Finally, the regulatory scheme under Not-for-Profit Corporation Law article 15 does not evince the Legislature's desire to preempt the local zoning law ... . Accordingly, the Not-for-Profit Corporation Law did not preempt the field of cemetery regulation. 

 

The Supreme Court properly determined that Not-for-Profit Corporation Law § 1502(d) does not invalidate the Village's more restrictive definition of "cemetery" under the doctrine of conflict preemption. The Not-for-Profit Corporation Law is addressed to the management of cemetery corporations, and the definition contained in the Not-for-Profit Corporation Law addresses the scope of that law. By contrast, the Village Code's definition of "cemetery," which excludes crematories, is addressed to land use, which is another matter entirely. Since the differing definitions of "cemetery" are addressed to differing purposes, they are not in direct conflict ... . Matter of Oakwood Cemetery v Village/Town of Mount Kisco, 2014 NY Slip Op 01616, 2nd Dept 3-12-14

 

 

REAL ESTATE LAW

 

Question of Fact Whether Owner of Servient State Had Duty to Maintain Easement in Safe Condition/Easement Used for Servient-Estate-Owner's Own Purposes

 

The Second Department explained when the owner of a servient estate has a duty to maintain an easement in a safe condition:

 

While an easement generally imposes no affirmative duty on the owner of the servient estate to maintain and repair structures ..., such an owner may be required to perform maintenance functions where it makes use of the easement for its own purposes and that use does not interfere with the legitimate activities of the holder of the dominant estate ... . Under those circumstances, the owner of the servient estate may retain its duty as a landowner to maintain the portion of its premises that is subject to the easement in a reasonably safe condition, provided that such maintenance subjects the owner of the servient estate to no unusual hazards and requires no special expertise ... .

 

Here, the Supreme Court correctly determined that the appellants failed to establish their prima facie entitlement to judgment as a matter of law, since their submissions revealed the existence of a triable issue of fact as to whether they have used the portion of the property that is subject to the easements for their own purposes by creating and maintaining a private, for-profit parking lot upon that portion of the property. Kleyner v City of New York, 2014 NY Slip Op 01584, 2nd Dept 3-12-14