FULL SUMMARIES OF SELECTED DECISIONS RELEASED 11-27-23 - 12-1-23 BY THE 1ST, 2ND & 3RD DEPARTMENTS
Click on the legal categories to go to all the summaries in those categories on the New York Appellate Digest website, most recent first. Click on the citations to go to the full decisions on the official New York Courts website.
THE JUDGE IN THIS SORA RISK-LEVEL PROCEEDING DID NOT MAKE DETAILED FINDINGS OF FACT, REQUIRING REMITTAL; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, IN PART BECAUSE COUNSEL DID NOT ARGUE FOR A DOWNWARD DEPARTURE (THIRD DEPT).
The Third Department, reversing County Court’s level-three SORA risk-assessment, noted that the judge failed to set forth all of the relevant findings of fact and determined defense counsel was ineffective. Defense was not aware that youthful offender adjudications can be considered by the SORA court and defense counsel failed to argue for a downward departure. The departure would have been warranted because defendant, who was 17 at the time, had been charged with a misdemeanor based on having sex with his girlfriend:
Failure to comply with the statutory mandate to make detailed findings on the record would alone require that the matter be remitted to County Court … . *
The only argument advanced by defendant’s counsel at the SORA hearing was a challenge to the assessment of 30 points under risk factor 9, on the basis that a youthful offender adjudication should be precluded in assessing defendant’s sex offender classification. That argument, however, was devoid of merit … , and demonstrated counsel’s unfamiliarity with existing and applicable case law … . *
… [Counsel] did not request a downward departure from the presumptive risk level three classification. The crime underlying the youthful offender adjudication was the class A misdemeanor of sexual misconduct … , stemming from defendant, who had just turned 17, having sexual intercourse with his girlfriend, who was about two months younger. Downward departure has been found appropriate where there is a “relatively slight age difference between [the] defendant and the victim [and] undisputed evidence that the victim’s lack of consent was premised only on her inability to consent by virtue of her age” … . Notwithstanding facts and case law that could support a reasonable argument for a downward departure here, counsel failed to make such a request. In our view, the foregoing establishes that defendant was deprived of the effective assistance of counsel … .?People v Wilcox, 2023 NY Slip Op 06175, Third Dept 11-30-23
Practice Point: The judge in a SORA risk-level proceeding is required to make detailed findings of fact.
Practice Point: Defense counsel in a SORA risk-level proceeding is ineffective if counsel is not aware youthful offender adjudications can be considered by the SORA court.
NOVEMBER 30, 2023
THE BOARD’S REVERSAL OF THE WORKERS’ COMPENSATION LAW JUDGE’S FINDING CLAIMANT HAD NOT MADE A WILLFUL MISREPRESENTATION WAS BASED ON SPECULATION AND SURMISE (THIRD DEPT).
The Third Department, reversing (modifying) the Worker’s Compensation Board, determined the Board’s finding that claimant made a willful misrepresentation was based upon speculation and surmise:
… [T]he Board reversed the WCLJ, who had found “no evidence of a wi[l]lful misrepresentation with the intent to deceive either the Board or the carrier or anyone [who] has an interest.” The Board’s contrary determination relied in part upon what it characterized as a discrepancy between claimant’s testimony during two different appearances. In 2015, during a brief appearance to find jurisdiction and set the matter for trial, claimant’s attorney asked her whether she was “suing any third party for injuries,” and she responded, “Yes.” Her attorney then immediately asked, “Only this claim?” to which she also replied, “Yes.” The WCLJ interjected, “We have to ask to see if there is a Supreme Court action.” Claimant’s attorney then asked about the date of the next hearing[*3], the WCLJ stated a time and expected duration and the employer’s attorney is recorded as having added, “Case was not even filed.” The WCLJ then directed that the record be held, and an off-record discussion took place, after which the appearance concluded. In 2016, claimant was asked during a hearing whether she had sued anyone, and she repeatedly denied having done so. When questioned about the foregoing in 2021, she explained that the 2016 denial was based upon her belief that, because she was no longer pursuing her third-party action, it did not constitute bringing a lawsuit.
The Workers’ Compensation Board characterized claimant’s 2015 testimony as “confirm[ing] that she was suing a third party.” It noted the significance of the inconsistency between that purported confirmation and her subsequent denials, discredited her 2021 explanation that she denied having sued anyone because she lacked understanding of the law and concluded that she willfully made false statements in violation of Workers’ Compensation Law § 114-a.
… [W]e find the Board’s characterization of claimant’s 2015 testimony to be based upon speculation and surmise … .?Matter of Salvia v Nutritional Frontiers LLC, 2023 NY Slip Op 06177, Third Dept 11-30-23
Practice Point: Where the Workers’ Compensation Board reverses a finding by the Workers’ Compensation Law Judge based solely upon surmise and speculation, the court will reverse the Board.
NOVEMBER 30, 2023
THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) DID NOT APPLY RETROACTIVELY; THEREFORE THE STATUTE CONFERRED IMMUNITY ON DEFENDANT NURSING HOME RE: COVID-19 PRECAUTIONS; PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE ADEQUACY OF THE COVID PRECAUTIONS TAKEN BY DEFENDANT NURSING HOME (THIRD DEPT).
The Third Department, reversing?(modifying) Supreme Court, in a full-fledged opinion by Justice Ceresia, determined that the Emergency or?Disaster Treatment Protection Act (EDTPA), which conferred immunity on nursing homes during the COVID-19 pandemic, precluded the COVID-related negligence action against defendant nursing home. The Third Department ruled that the repeal of the EDTPA should not be applied retroactively. Therefore the statute was in effect at the relevant time. The Third Department further held that the evidence of proper COVID-19 precautions offered by the nursing home was not refuted by the plaintiff:
… [T]he ultimate repeal of the EDTPA contained no express indicator of retroactivity — rather, the Legislature simply stated that the repeal would “take effect immediately” … . *
Turning to plaintiff’s argument that retroactivity is appropriate because the repeal was remedial in nature, “[c]lassifying a statute as ‘remedial’ does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law” … . Based upon all of the foregoing, and noting that the retroactive application of the repeal of the EDTPA would merely punish healthcare providers “for past conduct they cannot change — an objective [that has been] deemed illegitimate as a justification for retroactivity” … we hold that the repeal of the EDTPA was not retroactive … .?Whitehead v Pine Haven Operating LLC, 2023 NY Slip Op 06180, Third Dept 11-30-23
Practice Point: The repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) should not be applied retroactively to remove immunity related to COVID precautions conferred on a nursing home during the life of the statute.
NOVEMBER 30, 2023
THE PROSECUTOR REFUSED TO PARTICIPATE IN THE MURDER TRIAL ARGUING THAT THE JUDGE’S PRECLUSION OF EVIDENCE MADE THE PROSECUTION IMPOSSIBLE; IN THE PROSECUTOR’S ABSENCE AT TRIAL, THE JUDGE DISMISSED THE INDICTMENT PURSUANT TO CPL 290.10; THE JUDGE DID NOT HAVE AUTHORITY TO DISMISS THE INDICTMENT; WRIT OF PROHIBITION GRANTED (THIRD DEPT).
The Third Department, in a full-fledged opinion by Justice Aarons, issued a writ of prohibition against the respondent County Judge nullifying the order dismissing the murder indictment against defendant. The petitioner was the district attorney (DA) who was prosecuting defendant. The DA disagreed with certain preclusion orders issued by the Judge and argued the prosecution of the defendant was rendered impossible by the preclusion of evidence. The DA refused to participate in the trial. At trial, in the DA’s absence, the Judge dismissed the indictment pursuant to Criminal Procedure Law (CPL) 290.10. Because such a dismissal requires a trial as a prerequisite, and because there was no trial, the Third Department held the Judge did not have the authority to dismiss the indictment:
Upon a criminal defendant’s motion, a court may dismiss any count of an indictment on the basis that the trial evidence was not legally sufficient to establish the charged crime (see CPL 290.10 [1] [a]). Critically, a court is empowered to do so “[a]t the conclusion of the [P]eople’s case or at the conclusion of all the evidence” (CPL 290.10 [1]). Based on this language, a dismissal under CPL 290.10 contemplates, at the very least, that a prosecutor actually present a case. This did not occur in the underlying criminal proceeding. Petitioner did not deliver an opening statement, did not call witnesses and did not tender documentary evidence to be received by respondent. Without a case by petitioner, respondent could not dismiss the indictment under CPL 290.10 … . In essence, the dismissal of the indictment was due to the default of petitioner, which respondent lacked authority to do … .?Matter of Clegg v Rounds, 2023 NY Slip Op 06181, Third Dept 11-30-23
Practice Point: If the prosecutor refuses to participate in the trial, the judge cannot dismiss the indictment pursuant to CPL 290.10. The statute requires a trial as a prerequisite. Here there was no trial. The prosecutor’s petition for a writ of prohibition against the judge was granted. The “trial” was nullified.
NOVEMBER 30, 2023
THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).
The Third Department, reversing County Court, determined County Court’s order failed to included the required findings of fact. In addition, the Attorney General should have been notified of defendant’s constitutional arguments:
County Court’s order failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). The March 2022 order states that at a hearing held on an unspecified date, the court “set out its findings of fact . . . which support the assignment of points for each risk factor.” No such findings are set forth in the order and, if placed on the record at the hearing, no hearing transcript is contained in the record. Absent any record findings of fact and conclusions of law by the court, this Court is precluded from conducting a meaningful appellate review of the assessment of points and defendant’s risk level classification. As such, the matter must be remitted … . Further, to the extent that defendant raises direct constitutional challenges to certain portions of Correction Law § 168, as set forth in his memorandum submitted to County Court, the record is devoid of any indication that the Attorney General was timely notified of such challenges or whether the court ruled on any of the issues raised. In view of the foregoing, County Court’s March 30, 2022 order is reversed and the matter remitted for further proceedings.?People v Kelsey, 2023 NY Slip Op 06186, Third Dept 11-30-23
Practice Point: The Correction Law requires that an order in a SORA risk-level proceeding include findings of fact.
Practice Point: Where a defendant raises constitutional arguments in a SORA risk-level proceeding, the Attorney General must be notified.
NOVEMBER 30, 2023
THE DENIAL OF PETITIONER-INMATE’S RIGHT TO CALL WITNESSES REQUIRED ANNULMENT OF ONE MISBEHAVIOR DETERMINATION AND EXPUNGEMENT OF ANOTHER (THIRD DEPT).
The Third Department annulled one misbehavior determination and expunged another because petitioner was denied his right to call witnesses:
… [The Hearing Officer improperly denied petitioner’s request to call as a witness one of the correction officers who was present during the search of petitioner’s cell and endorsed the second misbehavior report (see 7 NYCRR 254.5). Given the passage of time, respondent does not seek a rehearing and requests that the determination in relation to the second misbehavior report be annulled.
… [T]he determination in relation to the first misbehavior report must also be annulled on the ground that petitioner was improperly denied his right to call a witness. The record reflects that petitioner, who denied the assault and claimed he was being set up, requested to call as a witness the alleged victim of the assault. Although there was a discussion at the hearing that the alleged victim would have to agree to testify, there is no indication that the alleged victim refused to testify or that the Hearing Officer made any effort to procure him as a witness. “[W]here the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry was made of him [or her] as to why he [or she] refused or that the [H]earing [O]fficer communicated with the witness to verify his [or her] refusal to testify, there has been a denial of the [incarcerated individual’s] right to call witnesses as provided in the regulations” (… see 7 NYCRR 254.5). As we view the unexplained outright denial of a witness commensurate to the denial of petitioner’s constitutional right to call witnesses, expungement rather than remittal for a new hearing is the appropriate remedy … .?Matter of Diaz v Annucci, 2023 NY Slip Op 06187, Third Dept 11-30-23
Practice Point: In prison misbehavior proceedings the erroneous or unexplained denial of an inmate’s right to call witnesses is reversible error.
NOVEMBER 30, 2023
AN ESCAPE LADDER BOLTED TO THE CEILING OF A PERSONNEL HOIST DETACHED AND FELL ON PLAINTIFF; PLAITIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action should have been granted. Plaintiff was in a personnel hoist when an escape ladder bolted to the ceiling detached and fell on him:
The injured plaintiff … demonstrated that the access ladder “required securing for the purposes of the undertaking” … . … [T]he hoist — an enumerated safety device — was “inadequate for its purpose of keeping plaintiff safe while engaged in an elevation-related activity” … .Safeway’s [defendant’s] hoist mechanic testified that the hoists were inspected every ninety days, which involved the performance of a drop test to ensure the car stopped, a check that all switches and safety features were operational, and a visual inspection of the ladder, including the wingnut, washer, and bolt, to confirm it was secured to the ceiling. He further testified that the ladder was provided as an “escape ladder” for workers to exit the hoist, thus rendering it an “essential component of the hoist” … .?Tisselin v Memorial Hosp. for Cancer & Allied Diseases, 2023 NY Slip Op 06210, First Dept 11-30-23
Practice Point: Here an escape ladder bolted to the ceiling of a personnel hoist fell on plaintiff. Plaintiff should have been awarded summary judgment on the Labor Law 240(1) cause of action.
NOVEMBER 30, 2023
IN A REAR-END COLLISION CASE, DEFENDANT’S ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident cause should have been granted. Defendant’s allegation plaintiff stopped suddenly did not raise a question of fact:
It is well established that a rear-end collision with a slowing or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle … .
… [D]efendant failed to provide a nonnegligent explanation for the accident … . Defendant failed to establish that she maintained a safe following distance (see Vehicle and Traffic Law § 1129[a] … ) and that any repeated braking by plaintiff was not foreseeable due to the existence of the construction zone and 15 mile per hour speed limit. Defendant failed to establish that given the circumstances she could have “reasonably expected that traffic would continue unimpeded” … . While defendant claims that plaintiff made a sudden stop, a “claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … .?Ahmad v Behal, 2023 NY Slip Op 06196, First Dept 11-30-23
Practice Point: In a rear-end collision case, alleging the car in front stopped suddenly does not defeat the presumption that the rear driver was negligent.
NOVEMBER 30, 2023
THE RIGHT TO SEEK REMOVAL OF A CLOUD ON TITLE IS NEVER BARRED BY A STATUTE OF LIMITATIONS (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the causes of action which sought to remove a cloud on title should not have been dismissed as time-barred because the right to that relief is never barred by a?statute of limitations:
Supreme Court erred in granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss as time-barred the first and second causes of action, which sought to set aside and cancel, as null and void, the two mortgages held by the defendants. The Trust, as the alleged owner of the subject property, is “presumptively entitled to possession” … , and the first and second causes of action seek to remove the cloud on title resulting from the allegedly fraudulent mortgages. “[W]here a plaintiff seeks to remove a cloud on title, the right to such relief ‘is never barred by the Statute of Limitations. It is a continuing right which exists as long as there is an occasion for its exercise'” … .?Mostafa v Pension Solutions, LLC, 2023 NY Slip Op 06134, Second Dept 11-29-30
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Practice Point: The right to seek removal of a cloud on title is never barred by a statute of limitations.
NOVEMBER 29, 2023
ONLY CONTRACTORS AND OWNERS AND THEIR AGENTS CAN BE LIABLE UNDER LABOR LAW 240(1) AND 241(6); HERE DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT FOR ANY POTENTIALLY LIABLE PARTY BECAUSE IT EXERCISED NO SUPERVISORY CONTROL OVER THE WORKSITE (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action against one defendant (G Buddy) should have been dismissed because G Buddy had no control or supervisory duties at the worksite:
The express terms of Labor Law §§ 240 and 241(6) provide that “the nondelegable duties imposed by those statutes apply only to ‘contractors and owners and their agents'” … . “To hold a defendant liable as an agent of the general contractor or the owner for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work that brought about the injury” … . Here, G Buddy established, prima facie, that it was not an agent of either the Board or the contractor at the time of the plaintiff’s accident by submitting evidence demonstrating that G Buddy had no control over or supervisory responsibilities on the worksite … .?Hossain v Condominium Bd. of Grand Professional Bldg., 2023 NY Slip Op 06128, Second Dept 11-29-23
Practice Point: In order to hold a party liable under Labor Law 240(1) or 241(6) as an agent of a contractor or owner, the party must have exercised supervisory control over the worksite.
NOVEMBER 29, 2023
A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT AND SERVIENT PROPERTY; HERE THE CRITERIA FOR A DEEDED EASEMENT WERE NOT MET; BUT THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE MET (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiffs did not demonstrate they had a deeded easement over the disputed land, but did demonstrate they had a prescriptive easement, although the extent of the easement must be determined at trial:
“An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it . . . and a grant of the land carries with it the grant of the easement” … . “An easement appurtenant occurs when [an] easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate” … . However, “[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so called ‘stranger to the deed,’ does not create a valid interest in favor of that third party” … . Thus, “[f]or an easement by grant to be effective, the dominant and servient properties must have a common grantor” … .
Here, the defendant made a prima facie showing of his entitlement to judgment as a matter of law declaring that the plaintiffs do not have a deeded easement over the disputed area by “establishing that, at the time the easement was purportedly created, the grantor owned the servient property, but not the dominant property … .? *
… [P]laintiffs established … their predecessors in interest acquired an easement by prescription over the disputed area, which easement ran with the land when the plaintiffs purchased the property in 2018 … . Notably, the defendant learned of the purported deeded easement in 2005 and assumed that it was valid until at least July 2019. Therefore, the defendant’s relationship to the dominant estate’s use of the driveway area was one of acquiescence, rather than permission … . … Supreme Court erred in denying that branch of the plaintiffs’ cross-motion which was for summary judgment declaring that they have a prescriptive easement over the disputed area.?Daniello v Wagner, 2023 NY Slip Op 06116, Second Dept 11-29-23
Practice Point: The criteria for a deeded easement and a prescriptive easement are clearly explained.
NOVEMBER 29, 2023
THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT AMBIGUOUS AND NEED NOT BE REFORMED; THE STIPULATION WHICH WAS INCORPORATED BUT NOT MERGED INTO THE DIVORCE JUDGMENT CANNOT BE REFORMED PURSUANT TO A MOTION, A PLENARY ACTION IS REQUIRED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the stipulation that was incorporated but not merged into the divorce judgment was not ambiguous and should not have reformed the stipulation based upon a mutual mistake. The stipulation was not ambiguous and required the husband to share his pension when he turned 62. In addition, reformation of the stipulation was not appropriate pursuant to a motion. A plenary action is required to reform stipulation which is incorporated but not merged into the judgment of divorce:
… Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62 … . Inasmuch as the language of the stipulation disclosed the parties’ intent to defer the plaintiff’s pension distribution until the defendant reached age 62, at a time he would have been eligible for regular service retirement benefits, and is not subject to more than one reasonable interpretation, the agreement is not ambiguous … .
… [T]o the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation … . In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract” … .?Anderson v Anderson, 2023 NY Slip Op 06108, Second Dept 11-29-23
Practice Point: Here the judge should not have determined the stipulation incorporated but not merged into the judgment of divorce was ambiguous because it was subject to only one interpretation.
Practice Point: A stipulation which is incorporated but not merged into the judgment of divorce cannot be reformed pursuant to a motion. A plenary proceeding must be commenced.
NOVEMBER 29, 2023
PLAINTIFF WAS INJURED DIVING UNDER A TRUCK WHEN THERE WAS AN EXPLOSION AS A BROKEN UTILITY POLE WITH LIVE ELECTRIC WIRES WAS BEING HOISTED; THE WORK WAS NOT ROUTINE MAINTENANCE SO THERE WERE QUESTIONS OF FACT PRECLUDING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE LABOR LAW 241(6) CAUSE OF ACTION; QUESTIONS OF FACT ABOUT THE CAUSE OF THE EXPLOSION AND SUPERVISORY CONTROL PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined defendants’ summary judgment motion on the Labor Law 241(6) and 200 causes of action should not have been granted. Plaintiff was 150 feet away from a broken utility pole which needed to be removed. The pole was damaged when struck by a vehicle and the attached electric wires were live. Plaintiff was injured diving under a truck when there was an explosion as the pole was being hoisted:
… [T]he defendants failed to establish, prima facie, that the work they were performing at the time of the incident constituted routine maintenance or repairs not within the ambit of Labor Law § 241(6) … . The defendants’ evidentiary submissions indicated that the incident occurred while the defendants were hoisting a portion of the utility pole to enable the total replacement of the pole, which had been severely damaged after a vehicle hit the pole. Thus, the defendants’ evidentiary submissions did not demonstrate, prima facie, that the work involved merely “replacing components that require replacement in the course of normal wear and tear” …. . *
… [T]he defendants failed to establish, prima facie, that they had no authority to supervise or control the work being performed by the defendants’ own employees at the time of the incident … . Further, to the extent the plaintiff alleged that the incident was caused by a dangerous condition, the defendants did not address the issues of whether they created or had actual or constructive notice of a dangerous condition … . Accordingly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 200 … .?Ricottone v PSEG Long Is., LLC, 2023 NY Slip Op 06155, Second Dept 11-29-23
Practice Point: Labor Law 241(6) does not apply to routine maintenance. Replacing a utility pole struck by a vehicle is not routine maintenance.
Practice Point: Where there is a question of fact about the cause of dangerous condition and whether defendant has supervisory control over the worksite, summary judgment in favor of defendant on a Labor Law 200 cause of action is precluded.
NOVEMBER 29, 2023
THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the action should have been restored to the active calendar because the 90-day demand?required by CPLR 3216 was never provided. The issue was properly considered for the first time on appeal because, had the issue been raised below, it could not have been ignored:
Here, the order dated June 26, 2018 … directed the filing of a note of issue by June 29, 2018, but failed to provide the plaintiff with 90 days within which to comply with that directive. Thus, the order dated June 26, 2018, did not constitute a valid 90-day demand pursuant to CPLR 3216 … . Moreover, the order dated June 26, 2018, did not contain the requisite language advising that failure to file a note of issue would be the basis for a motion to dismiss … . …
Although the plaintiff’s contentions i… are raised for the first time on appeal, they may be reached, as they involve issues of law appearing on the face of the record that could not have been avoided if they had been raised at the proper juncture … .?OneWest Bank, FSB v Segal, 2023 NY Slip Op 06146, Second Dept 11-29-23
Practice Point: The failure to provide the 90-demand required by CPLR 3216 is reversible error which can be raised for the first time on appeal.
NOVEMBER 29, 2023
PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined petitioner-reporter’s request for an unredacted telephone directory for employees of the county police department should have been granted because the county did not demonstrate the information was exempt from disclosure. In addition, petitioner should have been awarded attorney’s fees and litigation costs because petitioner had prevailed in the FOIL action. The fact that some of the requested information (names and salaries of police officers, for example) was available on a public website, to which petitioner was referred, did not warrant a finding petitioner had not prevailed:
… Supreme Court improperly, in effect, denied that branch of the petition which was to compel the production of a NCPD [Nassau County Police Department] telephone directory, without redactions, insofar as asserted against the County and the NCPD, as those respondents failed to demonstrate the applicability of an exemption to disclosure warranting redaction of the telephone directory …, which did not contain any personal telephone or cell phone numbers (see Public Officers Law § 89[2-b][b]). *
… [T]he petitioner substantially prevailed in this proceeding by obtaining a significant portion of the records and information responsive to the FOIL request after the commencement of the proceeding … . Contrary to the respondents’ contention, the purported public availability of the requested records and information does not preclude a determination that the petitioner substantially prevailed … . Moreover, the record reflects that the respondents did not have a reasonable basis for the initial denial of the petitioner’s FOIL request in its entirety … .?Matter of Lane v County of Nassau, 2023 NY Slip Op 06139, Second Dept 11-29-23
Practice Point: Unless the municipality can show the information sought by a FOIL request is exempt from disclosure the information must be disclosed.
Practice Point: The fact that information sought in a FOIL request is available on a public website, to which the petitioner is referred, does not preclude a finding that petitioner prevailed in the FOIL proceeding.
NOVEMBER 29, 2023
THE JURY’S FINDING THAT THE SCAFFOLD PROVIDED ADEQUATE PROTECTION FOR THE PLAINTIFF IN THIS SCAFFOLD-FALL CASE WAS AGAINST THE WEIGHT OF THE EVIDENCE; NEW TRIAL REQUIRED (FIRST DEPT).
The First Department, setting aside the defense verdict and ordering a new trial in this Labor Law 240(1) scaffold-fall action, determined the scaffold did not adequately protect the plaintiff:
The scaffold on which plaintiff was working at the time of his accident failed to adequately protect him from a height-related hazard when his core drill jerked, causing him to fall backward … . “It does not matter whether plaintiff’s fall was the result of the scaffold . . . tipping, or was due to plaintiff misstepping off its side. In [either] of those circumstances, either defective or inadequate protective devices constituted a proximate cause of the accident” … ?Since the remedy for a verdict that is against the weight of the evidence is a new trial … , the issues of whether defendants violated Labor Law § 240 (1), whether such violation proximately caused plaintiff’s accident and injuries, and damages should be retried.?Isaac v 135 W. 52nd St. Owner LLC, 2023 NY Slip Op 06085, First Dept 11-28-23
Practice Point: In this Labor Law 240(1) scaffold-fall case, the jury’s finding that the scaffold provided plaintiff with adequate protection was deemed against the weight of the evidence. Where a jury verdict is against the weight of the evidence, a new trial is required.
NOVEMBER 28, 2023
THE CIVIL RIGHTS LAW, NOT THE CPLR, CONTROLS COUNTERCLAIMS FOR ATTORNEY’S FEES AND PUNITIVE DAMAGES IN A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) ACTION (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court in this Strategic Lawsuit Against Public Participation (SLAPP) proceeding, determined that the criteria for dismissal of counterclaims are those in the Civil Rights Law, not the CPLR:
In this Strategic Lawsuit Against Public Participation (SLAPP) action, the court’ s application of CPLR 3212(h) to the underlying summary judgment motion was improper, because the counterclaims “subject to the motion” were not SLAPP claims, but affirmative counterclaims for punitive damages and attorneys’ fees … .The award of attorneys’ fees and punitive damages in SLAPP actions are subject to their own statutory regime found in Civil Rights Law §§ 70-a and 76-a (anti-SLAPP statutes). The anti-SLAPP statutes contain their own requirements and evidentiary burdens that have nothing to do with CPLR 3212(h) … .
With respect to punitive damages, Civil Rights Law § 70-a(1)(c) provides that they may only be recovered upon “an additional demonstration” that the SLAPP action was commenced or continued for the sole purpose of “harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.” Thus, when the court improperly applied the burden-shifting mechanism of 3212(h) to the punitive damages analysis, it effectively negated the requirement that defendants make this “additional demonstration.” …
With respect to attorneys’ fees, the pre-amendment version of Civil Rights Law § 70-a(1)(a) squarely put the burden of proof on the party advancing counterclaims to recover damages in the context of a SLAPP suit. As the November 2020 amendments to the anti-SLAPP statutes do not apply retroactively, this pre-amendment version of the statute applies … .
The pre-amendment version of Civil Rights Law § 70-a(1)(a) provided that “attorney’s fees may be recovered upon a demonstration . . . that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law.” Courts have held that attorneys’ fees are discretionary under the pre-amendment statutory framework, and that it is not necessary to award attorneys’ fees “in every situation in which [an anti-SLAPP] claim is interposed” … . … [W]e find that the court providently exercised its discretion in awarding attorneys’ fees here … .?161 Ludlow Food, LLC v L.E.S. Dwellers, Inc., 2023 NY Slip Op 06076, First Dept 11-28-23
Practice Point: The analysis of counterclaims for attorney’s fees and punitive damages in a SLAPP action is controlled by the Civil Rights Law, not the CPLR.
NOVEMBER 28, 2023