NEGLIGENCE

 

Defendant Failed to Raise Question of Fact About Lack of Notice of Icy Condition

 

Over a dissent, the First Department determined the defendant in a slip and fall case failed to raise a question of fact re: its claim it did not have notice of the icy condition on the sidewalk. The court explained that the defendant failed to offer sufficient evidence of the condition of the sidewalk before the fall:

 

Plaintiff correctly contends that defendants failed to satisfy their prima facie burden since they did not submit evidence sufficient to establish that they did not have constructive notice of the hazardous icy condition on the sidewalk in front of their franchise restaurant on which plaintiff allegedly slipped …. In cases involving slip and falls on icy sidewalks, a defendant moving for summary judgment must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident … . …

 

Defendants' supervisor, who only visited that franchise twice per week, attested that the employees would typically respond to winter storms by shoveling the sidewalk, and then applying rock salt. However, she had no personal knowledge of whether this procedure was followed in response to this storm, did not aver that she was present on either the day of the storm or the accident, and offered no evidence as to when the sidewalk had last been inspected or cleaned of snow, ice, or other debris. Hence, defendants' evidence was "not probative of lack of actual or constructive notice," and the evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment …. As defendants failed to meet their initial burden, the motion should have been denied regardless of the sufficiency of plaintiff's opposition papers … . Rodriguez v Bronx Zoo Rest. Inc, 2013 NY Slip Op 06294, 1st Dept 10-1-13

 

 

 

Summary Judgment for Out of Possession

Landlord in Slip and Fall Case

 

In a slip and fall case, the Fourth Department determined the defendant out-of-possession landlord (McDonald’s) had met its burden demonstrating it was not responsible for snow and ice removal:

 

McDonald’s met its initial burden of establishing its entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact … .  McDonald’s submitted evidence demonstrating that it, as a franchisor, lacked day-to-day control over the franchisee …, and that it was an out-of-possession landlord who did not retain control over the premises and was not contractually obligated to repair or maintain the premises… . Maisano v McDonald’s …, 994, 4th Dept 10-4-13

 

 

Abutting Landowner Not Liable for Sidewalk Slip and Fall

 

In affirming summary judgment to defendants (abutting landowners) in a sidewalk slip and fall case, the Fourth Department explained:

 

“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions [on a] public sidewalk[] is placed on the municipality and not the abutting landowner” … .  That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk … .

 

It is undisputed that the applicable town code does not impose liability on defendants for injuries to users of the public sidewalk abutting their property.  Furthermore, the testimony and affidavits submitted by defendants in support of their motion established that the sidewalk was not constructed in a special manner for their benefit, that they did not affirmatively create the defect, and that they did not negligently construct or repair the sidewalk.  Notably, defendants’ submissions established that the sidewalk was constructed by the builder of defendants’ development, who laid it in continuation of the sidewalk on the properties neighboring defendants’ property in both directions, and that defendants did not request that the sidewalk be constructed and had no input into its construction.  Contrary to plaintiffs’ further contention, defendants established that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway… . Schroeck v Gies…, 1021, 4th Dept 10-4-13

 

 

NEGLIGENCE/PHYSICIAN-PATIENT PRIVILEGE

 

Disclosure Appropriate in Lead Paint Case/Physician-Patient Privilege Waived

 

In a lead-paint-exposure case the Fourth Department reversed Supreme Court’s ruling that defendants were not entitled to full disclosure of records based on the physician-patient privilege.  The Fourth Department determined the privilege had been waived:

 

In view of the injuries alleged by plaintiff, we conclude that she waived her physician-patient privilege and any related privileges with respect to the records sought, and that those records may be material and necessary to the defense of the action … . There may be information in plaintiff’s records, however, that is irrelevant to this action, and there are legitimate concerns with respect to “the unfettered disclosure of sensitive and confidential information” contained in those records … . Thus, here, as in Dominique D. v Koerntgen (107 AD3d 1433, 1434), we modify the order by denying defendants’ motion and cross motion to the extent that they seek authorizations for the full disclosure of the records sought and by granting plaintiff’s cross motion to the extent that it seeks an in camera review of the records, and we remit the matter to Supreme Court for such in camera review and the redaction of any irrelevant information… . Adams v Daughtery…, 907, 4th Dept 10-4-13

 

 

 

NEGLIGENCE/MUNICIPAL LAW

 

 

Question of Fact About Whether Village

Negligent in Maintaining Sewer System

 

The Fourth Department reversed Supreme Court and determined plaintiffs had raised a question of fact about whether the defendant village was negligent in maintaining the sewer system resulting in sewage leaking into plaintiffs’ basement:

 

We conclude that issues of fact exist whether defendant “received ‘notice of a dangerous condition or ha[d] reason to believe that the [sewer] pipes ha[d] shifted or deteriorated and [were] likely to cause injury’ ” and whether defendant neglected to “ ‘make reasonable efforts to inspect and repair the defect’ ” … .  The record establishes that plaintiffs made numerous complaints to defendant for many years prior to the incident at issue and that defendant did not consistently keep written records of the complaints it received with respect to the sewer lines.  Mason v Village of Neward, 856, 4th Dept. 10-4-13

 

 

 

NEGLIGENCE/PHARMACY MALPRACTICE

 

 

Malpractice Action Against Pharmacy Dismissed/Applicable Standard of Care and Insufficiency of Expert Affidavit Explained

 

In affirming the dismissal of a malpractice complaint against a pharmacy (Rite Aid) for failure to state a cause of action, the Fourth Department explained the standard of care imposed upon a pharmacy and the necessary contents of an expert affidavit alleging the profession has established a different standard of care:

 

With respect to the sufficiency of the complaint before us, we note that in New York “ ‘[t]he standard of care which is imposed on a pharmacist is generally described as ordinary care in the conduct of his [or her] business.  The rule of ordinary care as applied to the business of a druggist means the highest practicable degree of prudence, thoughtfulness and vigilance commensurate with the dangers involved and the consequences which may attend inattention’ ” … .  “Generally, a pharmacist cannot be held liable for negligence in the absence of an allegation that he or she failed to fill a prescription precisely as directed by the physician or was aware that the customer had a condition that would render the prescription of the drug at issue contraindicated” … .  Here, because plaintiff failed to allege that the dosage “fell below or exceeded the medically acceptable range of dosages that should be provided under any circumstance” …, that Rite Aid did not follow the prescribing physician’s directions, or that Rite Aid was aware that the drug was contraindicated for plaintiff, the court properly concluded that the complaint fails to state a cause of action for negligence on the part of Rite Aid … .

 

Contrary to plaintiff’s further contention, she failed to establish through an expert’s affidavit that the pharmacy profession itself has created a different standard of care from that set forth herein.  In support of that contention, plaintiff submitted the affidavit of a pharmacist who opined that “[t]he dose [of prednisone prescribed for plaintiff] triggers the need to contact the prescribing physician to double check the dosage and to notify the patient of the very high dose and risks associated with that dose.”  “ ‘[O]rdinarily, the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would’ [be sufficient to allege a violation of a professional standard of care] .

 

. . Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to” establish a violation of a standard of care … . Thus, an expert’s affidavit is insufficient to establish that a standard of care exists where it is “devoid of any reference to a foundational scientific basis for its conclusions” … .  Here, the expert cites no industry standard, treatise or other authority in support of his opinion regarding the standard of care …, and plaintiff therefore failed to establish that the pharmacy profession itself imposes a different standard of care from that set forth in the applicable case law. Burton v Sciano, et al, 837, 4th Dept 10-4-13

 

 

 

NEGLIGENCE/EDUCATION LAW

 

Request to File Late Notice of Claim Granted in

Absence of Good Reason for Delay

 

Over a dissent, the Second Department determined Supreme Court properly allowed plaintiff to file a late notice of claim, in the absence of a good reason for the delay. The infant plaintiff was a student who injured her finger in a door at school:

 

The plaintiffs demonstrated that the defendant acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). "In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves" … .

 

Before the infant plaintiff was taken to the hospital by ambulance, her teacher told her that he would give her a dollar for every stitch she had, and he later called the infant plaintiff's home to inquire about her. During that telephone call, the teacher and the infant plaintiff's mother allegedly discussed a door at the school… Additionally, the school nurse completed a medical claim form, detailing the accident, the injury, and the treatment provided. Under these circumstances, the defendant acquired actual knowledge of the essential facts constituting the claim … . 

 

Furthermore, the defendant will not be substantially prejudiced in maintaining a defense on the merits as a result of the plaintiffs' delay in seeking leave to serve a late notice of claim, in light of the teacher's involvement in the incident and the nurse's documentation of the accident and injuries … . "[T]he absence of a reasonable excuse for the delay does not bar the granting of . . . leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice" … . Claud v West Babylon Union Free Sch Dist, 2013 NY Slip Op 06339, 2nd Dept 10-2-13

 

 

 

FAMILY LAW

 

 

Mother Demonstrated Relocation to Mississippi Was In Best Interest of Child/Job and Family Support Available

 

In a full-fledged opinion by Justice Saxe, the First Department reversed Family Court and granted the mother’s petition for relocation with the couple’s child to Mississippi.  The mother’s inability to find sufficient work in New York, after several years of effort, coupled with job offers in Mississippi and the support of grandparents in Mississippi, were important factors:

 

In this relocation case, where respondent mother, Elizabeth E., seeks permission to move with the parties' child to Oxford, Mississippi, we are once again confronted with the problem of balancing a child's need for the ongoing presence of both parents in his daily life, with the custodial parent's proven inability to support herself and the child beyond the subsistence level here in New York. * * *

 

Admittedly, the mother here is not (yet) destitute. Her financial situation is certainly not as bleak as that of the mother in Matter of Melissa Marie G. v John Christopher W. (73 AD3d 658, 658 [1st Dept 2010]), where this Court affirmed the grant of the mother's application to relocate with the parties' child to a stable home near the mother's family in Florida, after she and the child had lived in a series of homeless shelters. However, while the need to improve the mother's and child's economic situation was far more extreme in that case, we find that the present relocation application was prompted by a legitimate, pressing need for a secure economic situation. Not only do we reject the unsupported suggestion that the mother actually had other, hidden, means of support, but we observe that proof of economic necessity does not require the parent to wait until she has used up every last dollar of her savings before taking steps to ensure that she will be able to care for the child's future economic needs. Matter of Kevin McK v Elizabeth AE, 2013 NY Slip Op 06328, 1st Dept 10-1-13

 

 

 

Wife’s Encumbrance of Marital Property in Violation of Court Order and Knowledge of the Court Order by Mortgage-Holder’s Agent Precluded Payout to Mortgage-Holder from Surplus Foreclosure Sale Proceeds

 

The Second Department determined the holder of a mortgage (Marie Holdings), which was undertaken by the wife in violation of the matrimonial court’s order not to encumber the marital residence, was not entitled to any of the surplus proceeds after a foreclosure sale of the property.  The facts that the wife violated the matrimonial court’s order and the attorney who was the agent for the mortgage holder knew of the court-order were determinative:

 

"The surplus funds of a foreclosure sale stand in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land" … . Accordingly, "[s]urplus money takes the place of the equity of redemption and only one who had a vested estate or interest in the land sold under foreclosure which was cut off by the foreclosure sale is entitled to share in the surplus money with priority in each creditor determined by the filing date of his lien or judgment" … . * * *

 

Contrary to Marie Holdings' contention, the matrimonial court had authority to determine that the husband was entitled to the surplus funds as part of the equitable distribution of the marital property … . Thus, notwithstanding the secured interest Marie Holdings acquired in the marital home by virtue of the mortgage the wife gave to it, because the wife undertook the mortgage in violation of the restraining order … , and because Marie Holdings' agent knew or should have known of the restraining order, its interest in the surplus funds was properly limited to the wife's interest therein … . The matrimonial court, in its discretion, divested the wife of that interest based upon her conduct. Emigrant Mtge Co Inc v Biggio, 2013 NY slip Op 06344, 2nd Dept 10-2-13

 

 

Separation Agreement Found Unconscionable

 

The Fourth Department affirmed Supreme Court’s vacation of a separation agreement finding insufficient evidence the agreement was signed under duress but determining the terms of the agreement were unconscionable:

 

“ ‘Judicial review [of separation agreements] is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions’ ” … . “[S]eparation agreements will be scrutinized ‘to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity’ ” … .  “A separation agreement ‘may be vacated if it is manifestly unfair to one party because of the other’s overreaching or where its terms are unconscionable’ ” … .  

 

We agree with defendant that plaintiff did not sign the agreement under duress.  Plaintiff’s allegations that defendant threatened to evict her from the marital residence if she did not sign the agreement and that he threw the agreement at her are not substantiated by proof sufficient to justify setting it aside … .  Further, even accepting plaintiff’s allegation that defendant persistently urged her to sign the agreement, such conduct does not constitute duress, particularly inasmuch as plaintiff signed the agreement after defendant revised it in accordance with her suggested changes.

 

We conclude, however, that the court properly determined that the agreement was “ ‘one such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other’ ” … .  As defendant correctly concedes, the agreement gives him almost all of the marital property, including his pension and retirement assets, and we note that the value of the pension and retirement assets is not apparent from the record because defendant failed to include a copy of his net worth statement.  The agreement further provides that plaintiff may not seek maintenance and, most troubling under the circumstances of this case, that plaintiff waived her right to seek child support. Dawes v Dawes, 886, 4th Dept 10-4-13

 

 

 

CIVIL PROCEDURE

 

Relief Granted By Court Went Too Far Beyond Relief Requested

 

In a partition action, the First Department determined Supreme Court ordered relief which went too far beyond the relief requested in the motion papers and explained the relevant principles:

 

Pursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only "on motion of [an] interested person" and "with such notice as the court may direct" (CPLR 5015[a] [emphasis added]…). " Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment'" … . Likewise, while a court "may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing [in] the papers on both sides," it may do so only "if the relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically" … .  Carter v Johnson, 2013 NY Slip Op 06333, 2nd Dept 10-2-13

 

 

 

Plaintiff Should Have Been Granted Extension to Serve Summons and Complaint Three Days After 120-Day Period Expired

 

The Second Department determined plaintiff should have been granted an extension of time to serve the summons and complaint where the statute of limitations ran out between the commencement of the action and the service.  The Second Department further determined that service of one copy of the summons and complaint upon an officer of defendant corporation (MBRI) was valid for both the corporation and the officer:

 

The defendants contend that MBRI was never served with a copy of the summons and complaint. We disagree. Service of one copy of a summons and complaint upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, where, as here, there was simultaneous compliance with CPLR 311(a)(1) and CPLR 308(1) … .Here, MBRI was served pursuant to CPLR 311(a)(1) when the plaintiff's process server delivered the summons and complaint to the individual defendant, an officer of MBRI. Accordingly, the method employed to serve MBRI was proper and, thus, that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against MBRI for lack of personal jurisdiction should have been denied. 

 

In this case, where the statute of limitations expired between the time that the action was commenced and the time that the copy of the summons and complaint was served, that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon MBRI nunc pro tunc to September 11, 2011, should have been granted in the interest of justice … . The copy of the summons and complaint was served only 3 days after the 120-day time period of CPLR 306-b had expired, the plaintiff promptly sought relief after receiving the answer, and there was no demonstrable prejudice to MBRI attributable to the delay in service … .  Fernandez v Morales Bros Realty Inc, 2013 NY Slip Op 06345, 2nd Dept 10-2-13

 

 

Action Abandoned/Should Not Have Been Restored

 

In determining an action had been abandoned and should not have been restored, even though there had been a stipulation to restore the action, the Second Department wrote:

 

Where, as here, an action has been marked "off" the trial calendar, and more than one year has passed without its restoration to the trial calendar, the action shall be deemed abandoned and shall be dismissed (see CPLR 3404). A plaintiff subsequently seeking to restore an action to the trial calendar must demonstrate the existence of a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant … .

 

Although the stipulation to restore this action provides some indication that the plaintiff did not intend to abandon it when it was first marked "off," and there was sporadic activity over the period, in excess of five years, between the automatic dismissal and the motion to restore the action to the trial calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed pursuant to CPLR 3404… . Saint Mary Byzantine Catholic Church v Kalin, 2013 NY Slip Op 06355, 2nd Dept 10-2-13

 

 

 

Plaintiff Should Have Been Allowed to

Voluntarily Discontinue Lawsuit

 

The First Department determined Supreme Court should have permitted plaintiff to voluntarily discontinue the lawsuit:

 

The court erred in declining to permit plaintiff to voluntarily discontinue the action. CPLR 3217(b) authorizes a court to grant a motion for voluntary discontinuance "upon terms and conditions, as the court deems proper." While the determination upon such an application is generally within the sound discretion of the court …, a party ordinarily cannot be compelled to litigate and, absent special circumstances, such as prejudice to adverse parties, a discontinuance should be granted … . No special circumstances have been shown here, especially since the action is still in the early stages of litigation. Nor was there any showing that plaintiff sought the discontinuance only to avoid an adverse determination in this action ,,, . Since we are granting plaintiff's motion, the cross motion to compel discovery must be denied.  Bank of Am NA v Douglas, 2013 NY Slip 06440, 1st Dept 10-3-13

 

 

 

CIVIL PROCEDURE/NEGLIGENCE/MEDICAL MALPRACTICE

 

Hospital Not Necessary Party in Malpractice

Action Where Liability Vicarious

 

The Second Department determined a hospital which may be vicariously liable in a medical malpractice action was not a necessary party to the action:

 

The Supreme Court did not err in concluding that the nonparty Victory Memorial Hospital (hereinafter the hospital) was not a necessary party to this action. Contrary to the appellants' contention, even if it were shown that the hospital would be vicariously liable for any negligence of the individual defendants, or that it had a contractual obligation to indemnify those individual defendants for damages recovered from them in this action, those factors would not render the hospital a necessary party to this action (see CPLR 1001[a]…). Complete relief may be accorded to the parties in this action without the presence of the hospital, as a plaintiff may proceed against any or all joint-tortfeasors, and a judgment for or against one tortfeasor does not operate as a merger or bar of a claim against other tortfeasors … . Accordingly, the Supreme Court properly denied those branches of the motion and cross motion which were pursuant to CPLR 3211(a)(10) to dismiss the complaint for failure to join a necessary party.  Smith v Pasqua, 2013 NY slip Op 06356, 2nd Dept 10-2-13

 

 

 

ANIMAL LAW

 

Negligence of Dog Owners In Calling A Dog

Which Ran Into Bicyclist’s Path Is Actionable

 

Over a two-justice dissent, the First Department determined a lawsuit alleging the negligence of dog owners could go forward.  Plaintiff, a bicyclist, was injured when plaintiffs caused their dog to run into plaintiff’s path. After noting a change in the Court of Appeals’ approach to animal-caused injuries that are not the result of vicious propensities, the court wrote:

 

Recently, however, the Court of Appeals revisited Bard and Petrone when it decided an appeal of Hastings (94 AD3d 1171). In reversing the grant of summary judgment to the defendants, the Court recognized that an accident caused by an animal's "aggressive or threatening behavior" is "fundamentally distinct" from one caused by an animal owner's negligence in permitting the animal from wandering off the property where it was kept (21 NY3d 122, 125 [2013]). The Court stated that the consequence of a blanket rule against negligence claims in cases where animals displayed no vicious propensities "would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people's property" (id.). * * *

 

Defendants' actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball's path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence. Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants' actions, and not the dog's own instinctive, volitional behavior, that most proximately caused the accident. Doerr v Goldsmith, 2013 NY slip Op 06442, 1st Dept 10-3-13

 

 

 

WORKERS' COMPENSATION

 

Retroactive Transfer of Liability to Special Fund Proper

 

The Third Department affirmed the board’s determination that retroactive transfer of liability to the Special Fund to a time within seven years of the underlying injury was proper:

 

Pursuant to Workers' Compensation Law § 25-a, liability is transferred to the Special Fund "when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation" (…see Workers' Compensation Law § 25-a [1]).  Here, there is no dispute that these conditions have been met and the only issue before us is whether the Board properly transferred liability to the Special Fund retroactively to a period of time prior to the lapse of seven years following claimant's injury.  

 

While the retroactive transfer of liability to the Special Fund is limited to no longer than two years prior to the date of the application to reopen (see Workers' Compensation Law § 25-a [1-a]…), there is no statutory requirement that there be a seven year lapse from the date of a claimant's injury prior to the date of a retroactive transfer of liability (see Workers' Compensation Law § 25-a [1-a]).  Accordingly, we conclude that the Board's determination, that Workers' Compensation Law § 25-a does not preclude a retroactive transfer of liability to the Special Fund to a time period within seven years of the underlying injury, is not unreasonable, irrational or inconsistent with the purpose of the statute …, and the Board has set forth sufficient reasons for no longer following any prior decisions to the contrary. Canfora v Goldman Sachs…, 515529, 3rd Dept 10-3-13

 

 

Accidental Disability Retirement Benefits (Police Officers)

 

Injuries In Line of Duty Not Due to “Accidents”

 

The Third Department confirmed the comptroller’s determination that the injuries suffered by a police officer were not the result of “accidents” and therefore did not justify the award of accidental disability retirement benefits.  The officer slipped on a wet metal-encased curb while directing traffic and was subsequently injured again when a suspect he was chasing resisted arrest.  The Third Department wrote:

 

Initially, we note that petitioner has the burden of demonstrating that he is entitled to receive accidental disability retirement benefits, and the Comptroller's determination will be upheld if supported by substantial evidence … .  In order to qualify as an accident, the precipitating event must be "a sudden, fortuitous mischance that is unexpected, out of the ordinary and injurious in impact" … .  Notably, an injury will not be considered accidental if it "'results from an expected or foreseeable event arising during the performance of routine employment duties'" … . Matter of Rodriques v DiNapoli, 515935, 3rd Dept 10-3-13

 

 

 

DEFAMATION

 

Statements Constituted Opinion, Not Facts/Defamation Complaint Against Syracuse Basketball Coach Dismissed for Failure to State a Cause of Action

 

Over a two-justice dissent, the Fourth Department affirmed the dismissal of a defamation action at the pre-answer stage, finding that the statements attributed to the defendant in the complaint constituted opinion, not fact.  The defendant (coach of the Syracuse University basketball team) characterized allegations made by plaintiff (accusing defendant’s friend and long-time assistant coach, Bernie Fine, of sexual improprieties) as lies. Taking the statements attributed to defendant as a whole, the Fourth Department determined they amounted to opinion and were therefore not actionable:

 

“Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation . . . Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue” … .  “The issue at this early, preanswer stage of the litigation is whether plaintiff[s’] [complaint] sufficiently allege[s] false, defamatory statements of fact rather than mere nonactionable statements of opinion” … .  “Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” … .  Although the Court of Appeals has acknowledged that “[d]istinguishing between opinion and fact has ‘proved a difficult’ task” …, it has provided three factors for courts to consider in determining whether the alleged defamatory statements are actionable statements of fact or nonactionable statements of opinion ….

 

We agree with plaintiffs that defendant’s statements that they lied and that they did so out of a financial motivation are statements of fact when viewed in light of the first two factors set forth in Mann, i.e., those statements use specific language that “has a precise meaning which is readily understood” and are “capable of being proven true or false” ….  We note in particular that, when defendant was asked during the syracuse.com interview what plaintiff’s “possible motivation would be to tell his disturbing story at this time,” he responded that plaintiff was “trying to get money.  He’s tried before.  And now he’s trying again.”  Although that statement may be interpreted as implying that defendant knew facts that were not available to the reader…, we are nevertheless mindful that we “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about . . . plaintiff” … .  Furthermore, we must “avoid[] the ‘hypertechnical parsing’ of written and spoken words for the purpose of identifying ‘possible fact[s]’ that might form the basis of a sustainable libel action” … .  

 

Defendant’s statements also must be viewed in light of the third factor set forth in Mann, i.e., “whether either the full context of the communication in which the statement[s] appear[] or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” … .  Defendant additionally stated in the interview with syracuse.com:  “So, we are supposed to do what? Stop the presses 26 years later?  For a false allegation?  For what I absolutely believe is a false allegation?  I know [plaintiff is] lying about me seeing him in his hotel room.  That’s a lie.  If he’s going to tell one lie, I’m sure there’s a few more of them . . . I have never been in Bernie Fine’s hotel room in my life . . . Now, could I have once . . . one time?  I have a pretty good recollection of things, but I don’t ever recollect ever walking into Bernie Fine’s hotel room.  Ever.”  In his interview with ESPN, defendant stated:  “I know this kid, but I never saw him in any rooms or anything . . . It is a bunch of a thousand lies that [plaintiff] has told.  You don’t think it is a little funny that his cousin . . . is coming forward? . . . He supplied four names to the university that would corroborate his story.  None of them did . . . [T]here is only one side to this story.  He is lying.”

 

We conclude that defendant’s statements demonstrate his support for Fine, his long-time friend and colleague, and also constitute his reaction to plaintiff’s implied allegation, made days after Penn State University fired its long-term football coach, that defendant knew or should have known of Fine’s alleged improprieties.  We therefore conclude that the content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ”… . Davis and Lang v Boheim…, 836, 4th Dept 10-4-13

 

 

 

MEDICAID

 

Statutory Moratorium On Rate Appeals Applied

Retroactively to All Appeals Prior to April, 2015

 

The Fourth Department reversed Supreme Court and determined that a 201/2011statutory moratorium on Medicaid reimbursement rate appeals filed by nursing homes applied retroactively to all appeals filed before April, 2015:

 

We agree with respondents that section 2808 (17) (b) and (c) [Public Health Law] apply retroactively to petitioners’ rate appeals.  The seminal case on whether statutes are to be applied retroactively is Majewski v Broadalbin-Perth Cent. Sch. Dist. (91 NY2d 577, 584), which provides, in relevant part, that “[i]t is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it” (see generally McKinney’s Cons Laws of NY, Book 1, Statutes § 51 [b]).  We conclude that the language of the statute requires that it be applied retroactively.  Public Health Law § 2808 (17) (b) states that, for the period from April 1, 2010 through March 31, 2015, “the [C]ommissioner shall not be required to revise certified rates of payment . . . for rate periods prior to April [1, 2015], based on consideration of rate appeals filed by residential health care facilities” in excess of the monetary cap.  While there is no explicit statement that the moratorium and cap shall apply to rate appeals filed before April 1, 2010, the statute specifically states that no revisions are required for any period before April 1, 2015 where the revision would emanate from a rate appeal filed by a residential health care facility.  In our view, the necessary implication of that language is that the statute applies to any rate appeal seeking a revision for any period before April 1, 2015, including any revisions resulting from rate appeals filed before the statute took effect. * * *

 

Inasmuch as the moratorium applies retroactively to petitioners’ rate appeals, petitioners do not have a clear legal right to relief, and their [Article 78 mandamus] petition must be denied… . Matter of Woodside Manor Nursing Home… v Shah…, 862, 4th Dept 10-4-13

 

 

 

REAL PROPERTY/TRUSTS AND ESTATES

 

Right of First Refusal Not Triggered by Partition Action

 

In a partition action, the Fourth Department determined the agreement between the parties was a right of first refusal, not an option to purchase, which was not triggered by the partition action.  The court explained the operative law:

 

Plaintiff and Waite [one of the defendants] are tenants in common and acquired the property at issue by an executor’s deed pursuant to the settlement of their mother’s estate.  In settling that estate, plaintiff, Waite and the other named defendants signed a settlement agreement providing that plaintiff and Waite “agree to grant to [each of the other named defendants] the option to purchase the . . . property, in the event that [plaintiff and Waite], either jointly or severally, determine to sell, assign or transfer the . . . property to someone other than each other.  The option price shall be [$120,000] plus the costs of any improvements made by [plaintiff and Waite] to the premises subsequent to [their] purchase of the premises.  Said option may be prepared in recordable form by any or all of the [other named defendants] at their own cost and expense, and [plaintiff and Waite] will execute any said recordable option.  Upon receipt of an offer to purchase the premises, except from [each other], [plaintiff and Waite] shall notify each of the [other named defendants] then living, in writing of the proposed sale of the premises, and the [other named defendants] shall have sixty (60) days to exercise their option as granted herein.” * * *

 

We conclude that the right bestowed by the settlement agreement … is a right of first refusal, not an option to purchase, despite the use of the term “option” therein …, and thus that Supreme Court mistakenly treated the contractual right as an option to purchase.  “A right of first refusal is a dormant right that is triggered when an owner decides to sell the property to a third party at an agreed-upon price” …, and those are the applicable facts set forth in the settlement agreement.

 

 We agree with Waite on her appeal that the court erred in determining that the contractual right was triggered upon plaintiff’s commencement of the instant action, for partition and sale.  It must first be determined in a partition action whether the property may be partitioned, i.e., divided among the owners in some fashion, without great prejudice to them, and “partition sale” is a secondary consideration only in the event that partition greatly prejudices the owners (see RPAPL 901 [1]…).  Thus, commencement of the partition action did not trigger the right of first refusal inasmuch as a partition, as opposed to a partition sale, would not result in a transfer of the property to a third party.  Furthermore, no offer of purchase from a third party triggered either the right of first refusal or the contractual obligation of plaintiff or Waite pursuant to the settlement agreement or recorded document. Tuminno v Waite…, 915, 4th Dept 10-4-13

 

 

 

ARBITRATION/CONTRACT

 

Stay of Arbitration Properly Denied/Collective Bargaining Agreement Allowed Issue to Be Determined in Arbitration

 

In affirming Supreme Court’s dismissal of an Article 75 petition seeking a permanent stay of arbitration (with respect to a collective bargaining agreement [CBA]), the Fourth Department explained the operative analysis:

 

In determining whether an issue is subject to arbitration under a collective bargaining agreement (CBA), a court must apply the two-step analysis set forth in Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.) (42 NY2d 509, 513).  “First, a court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … .  If the court determines that there is no such prohibition and thus that the parties have the authority to arbitrate the grievance, it proceeds to the second step, in which it must determine whether that authority was in fact exercised, i.e., whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration … .  With respect to the second step, where there is a broad arbitration clause such as the one in the CBA at issue, “[a] determination of arbitrability is limited to ‘whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA’ ” … .  “Succinctly, the test centers on two distinct inquiries as to the public parties’ purported entry into the arbitral forum:  may they do so and, if yes, did they do so” … .  Here, with respect to the issue whether petitioner properly followed the procedures mandated by the CBA in terminating the employee in question, we conclude that the court properly determined that the parties had the authority to agree to arbitrate this grievance, and that they in fact agreed to do so.  Matter of Arbitration…, 1019, 4th Dept 10-4-13