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Recent Posts by Arnom Zamir

In Zwinge v. Love (37 AD2d 874, 325 N.Y.S.2d 107 [3rd Dept 1971]), the Court declined to impose liability on the defendant parents of the owner of the dog who did not reside on the premises, but nonetheless owned the premises.

In Zwinge, the Court found "no evidentiary showing indicating that defendant owner but non-resident of the premises harbored or kept the dog," (id.)

In Zito v. County of Suffolk, 81 AD3d 722, 916 N.Y.S.2d 611 [2d Dept., 2011], the County of Suffolk made a motion to dismiss pursuant to CPLR 3211 (a) (1), (5) and (7) based on the statute of limitations and the statute of frauds.

The lower court denied the motion.

The lower court also denied the County's subsequent motion to amend its answer to assert the same affirmative defenses.

The Appellate Division reversed, finding that the order denying the County's CPLR 3211 dismissal motion did not determine, as a matter of law, that the affirmative defenses had no merit.

The Appellate Division granted the County's motion to amend its answer to assert the same affirmative defenses.

In Zayas v. Franklin Plaza, 23 Misc. 3d 1104[A], 881 N.Y.S.2d 368, 2009 NY Slip Op 50579[U] [Civ Ct, NY Co, Singh, J, 2009], the tenant in a Mitchell-Lama cooperative development sued her landlord to recover for personal injuries and property damage arising from a bed bug infestation.

The court found that the cooperative corporation had breached its non-delegable duty under section 78(1) of the Multiple Dwelling Law (applicable only to residential buildings) to maintain the building in good repair because there was a building-wide bed bug infestation.

In Zanghi v. Niagara Frontier Transportation Commission, 85 NY2d 423, 436, 649 N.E.2d 1167, 626 N.Y.S.2d 23 [1995], the Court provided guidance in determining when a common-law claim may properly be asserted:

"For example, if a police officer who is simply walking on foot patrol is injured by a flower pot that fortuitously falls from an apartment window, the officer can recover damages because nothing in the acts undertaken in the performance of police duties placed him or her at increased risk for that accident to happen. On the other hand, if an officer is injured by a suspect who struggles to avoid an arrest, the rule precludes recovery in tort because the officer is specially trained and compensated to confront such dangers." (Id at 440.)

In Yu Xiu Deng v. A.J. Contr. Co. (255 AD2d 202, 255 A.D.2d 303, 680 N.Y.S.2d 223 [1st Dept 1998]), the First Department held that partial summary judgment was properly granted to a plaintiff who fell off a ladder, notwithstanding some discrepancies as to how the accident occurred.

"Whether the ladder on which plaintiff was working tipped as a result of plaintiff losing her balance when she lost control of the sheetrock she was handling, or, indeed, whether plaintiff fell off the ladder without it having tipped at all, are not material issues of fact. Plaintiff's negligence, if any, is of no consequence" (id.)

The Court further stated that "it is clear that the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the ladder, were provided" (id. at 202-203).

In Yong Ju Kim v. Herbert Constr. Co., Inc., 275 AD2d 709, 713 N.Y.S.2d 190 (2d Dept 2000), the plaintiff was employed as a staff electrician at a hotel which hired a separate electrical contractor to renovate the panels in the electrical closets on each floor.

He was injured while attempting to determine the cause of a malfunctioning outlet in one of the rooms on the ninth floor.

The court determined that the plaintiff was not covered by the Labor Law because his routine maintenance work was unrelated to the renovations taking place at the hotel.

In Yonaty v. Glauber, 40 AD3d 1193, 834 N.Y.S.2d 744 [3d Dep't 2007], the court denied a notice of pendency motion because it found that the true action behind the plaintiff's request to impose a constructive trust on certain real property was "to enforce defendants' promise to give the plaintiff a 20% interest in the LLC which acquired the property, not an ownership interest in the real property itself." (Yonaty, 40 AD3d at 1194).

There, the plaintiff asserted that the defendants breached various oral contracts involving plaintiff's assistance in acquiring development rights to the real property in return for a 20% interest in the LLC that would take title to the property and a construction management fee. (Id. at 1194).

The plaintiff sought, inter alia declaratory relief, an accounting, and imposition of a constructive trust on the subject property. (Id.)

The Yonaty court held that, "while the plaintiff seeks imposition of a constructive trust on real property," the plaintiff never claimed to have an interest in the real property itself and asserted only an interest in the LLC which acquired the subject real estate. (Id. at 1195).

Such claim implicated a membership interest in the LLC, which is personal property, "and an LLC member has no interest in specific property of the LLC." (Id. quoting Limited Liability Company Law § 601).

The Yonaty court also pointed out that a realty-owning corporation, such as an LLC, itself owns its assets, and a shareholder merely owns an interest in the corporation, and does not have a direct claim on its real property. (Yonaty, 40 AD3d at 1195.)

Thus, in Yonaty, the court looked past the labels assigned to the plaintiff's causes of action and the relief sought, and ascertained that the pleadings did not support the notices of pendency. (Yonaty, 40 AD3d at 1195).

In Yellow Book Sales and Distribution Company, Inc. v. Mantini, 85 A.D.3d 1019, 925 N.Y.S.2d 646 (2d Dept.2011), Champion Locksmith entered into certain advertising contracts with plaintiff.

Defendant Mantini executed many of the contracts on behalf of Champion. Defendant Mantini moved for summary judgment dismissing the complaint against him, asserting that he executed the contracts solely in a representative capacity and was not individually liable thereon.

Trial Court granted summary judgment against both defendants in favor of plaintiff.

In Second Department disagreed with trial court's determination that Mantini failed to sustain his prima facie burden on the motion.

Quoting Yellow Book of N.Y. v. Shelley, 74 A.D.3d 1333, 1334, 904 N.Y.S.2d 216 (2d Dept.2010), the Court stated that "'(a)n agent who signs an agreement on behalf of a disclosed principal will not be held liable for its prformance unless the agent clearly and explicitly intended to substitute his personal liability for that of his principal'".

In Yarbough v. Franco, 95 N. Y.2d 342, 740 N.E.2d 224 (2000) the Court determined that the four month statute of limitations for commencing an Article 78 proceeding begins to run from the denial of the request to vacate a default judgment - applies to a motion to vacate the stipulation of settlement, such as in the instant action, is without merit.

In Yarbough, the Court of Appeals determined that when a tenant requests to vacate NYCHA's default determination, the four-month statute of limitations for commencing an Article 78 proceeding begins to run from the receipt of the denial of the request to vacate the default.

The Yarbough court reasoned that the statute of limitations did not begin to run until the denial of the request to vacate the default because "an administrative determination is not final for judicial review if it rests upon an empty record ... a request to vacate a default affords the defaulting party an opportunity to develop a factual record setting forth the reasons for the nonappearance and any meritorious defenses that would justify re-opening the default... and because no meaningful judicial review lies from the default itself..." (See Yarbough, 95 N.Y.2d 342, 347-348, 740 N.E.2d 224, 717 N.Y.S.2d 79.)

The Yarbough Court further reasoned that a motion to vacate a default is different from a motion to reconsider - which does not toll the statute of limitations - because "a motion to reconsider generally seeks the same relief, and advances factual and legal issues that were previously litigated at the administrative level" while "in contrast, a motion to vacate a default presents factual questions not previously passed upon by the administrative agency." See id at 348-349.)

The Court further noted that a motion to reconsider differed from a motion to vacate a default in that unlike a motion to reconsider, "by seeking to vacate the default, petitioner was simply availing herself of NYCHA's own invitation under its procedures to present new facts supporting her reasons for the default and to proffer a meritorious defense." (See id at 349.)

In Yanai v. Columbia Univ., 2006 WL 6849491 [Sup Ct, NY County 2006], the plaintiff, Sandra Yanai ("Yanai"), had been employed by Columbia University from February 1984 to July 2003 as an administrative officer in the Health Sciences Division.

Yanai was notified on June 30, 2003, that her position "was being eliminated as a result of a reorganization with the department." At the time, Yanai was 49 years old. Yanai commenced an action, alleging, inter alia, age discrimination under New York State and New York City human rights law.

In analyzing Yanai's age discrimination claims, the court held that she had satisfied the "'initial low threshold' of a prima facie case by showing that her discharge occurred under circumstances giving rise to an inference of age discrimination as plaintiff was replaced by someone substantially younger ...", and "additional evidence of discrimination can be inferred from defendant's departure from its stated policy in not placing plaintiff in its 'layoff' pool."

The Court found that Defendant, in turn, submitted "sufficient evidence to establish that the elimination of plaintiff's position was part of a restructuring of the Department intended to improve efficiency and undertaken in response to financial pressures, which constitutes a legitimate and nondiscriminatory reason for an employment decision."

The Court found that Plaintiff, in turn, had provided sufficient evidence to defeat Defendant's summary judgment.

The Court held, "First, that age discrimination was a motivating favor in the layoff the plaintiff, notwithstanding restructuring, can be inferred from the undisputed fact that the restructuring of the Department affected a disproportionate number of older employees, as 100% of the terminated employees were over age 40 and no younger employees were terminated in the restructuring."

The Court further held, "These circumstances - the age of the terminated employees, the age of plaintiff's replacement and defendant's departure from its personnel policies - when viewed together are sufficient to create a genuine factual issue as to whether during the restructuring, age was a motivating factor in defendant's decision to terminate plaintiff's employment." (Id.).

In Wyckoff v. Searle Holdings Inc., 111 AD3d 546, 547, 975 N.Y.S.2d 393 [1st Dept 2013], the First Department affirmed the Supreme Court's decision that denied plaintiff's request to rescind the parties' contract based on a similar breach as the one in this action.

In Wyckoff the defendants agreed to pay to the plaintiff $160,000 in return for plaintiff's releasing all claims against the defendants. Defendants paid only $55,000. (Id.)

Supreme Court found, and the First Department agreed, that even though the defendant materially breached the contract by failing to make the full payment, rescission was inappropriate because:

(1) plaintiffs had an adequate remedy at law in monetary damages;

(2) defendant partly performed by paying more than a third of the contract amount;

(3) the status quo could not be restored because the parties made irreversible changes of position by entering into other agreements in reliance on the contract in dispute. (Id.)

In Woodson v. American Transit Ins. Co. (280 AD2d 328, 720 N.Y.S.2d 467 [1st Dept 2001]), the insured alleged that the insurer acted in bad faith when it denied the insured a defense in a personal injury action.

Therein, the Court held that the insurer could not assert claims of attorney-client privilege with respect to materials regarding retained counsel's handling of the claim since the attorney-client privilege belonged to the insured.

Thereafter, the Court stated, as a notation, that generally that where it is alleged that an insurer breached a fiduciary duty to the insured, the insurer may not use the attorney-client or work product privileges to shield disclosure of material relevant to the insurer's handling of the claim.

In Wong v. Gouverneur Gardens Housing Corp., 308 AD2d 301, 764 N.Y.S.2d 53 [1st Dept 2003], the plaintiff, a Mitchell-Lama tenant, was served with predicate notice of eviction on the grounds that she was in violation of the terms of her occupancy agreement and New York City regulations because her application and tenancy were not approved by the New York City Department of Housing Preservation and Development ("HPD"), the City agency charged with overseeing Mitchell-Lama cooperatives and rentals. (Id. at 302).

Supreme Court granted the plaintiff-tenant a preliminary injunction and the First Department reversed. (Id.).

In holding that the administrative scheme contemplates an initial review by HPD, the First Department reasoned that the doctrine of primary jurisdiction is intended to coordinate the relationship between courts and administrative agencies to the end that divergence of opinion between them not render ineffective the statutes with which both are concerned, and to the extent that the matter before the court is within the agency's specialized field, to make available to the court in reaching its judgment the agency's views concerning not only the factual and technical issues involved but also the meaning of the statute administered by the agency" (Id.).

In Wojeski v. Del Favero, 17 A.D.3d 1024 (2005), the Supreme Court Appellate Division, Fourth Department found that an "award of $5,000 for past pain and suffering could not have been reached upon any fair interpretation of the evidence" where evidence established that plaintiff "sustained cartilage displacement in her jaw, causing frequent, significant pain, inflammation, limitation of motion, and difficulty speaking and eating."

The court set aside the "verdict with additur of $20,000.

In Winegrad v. NYU Med Center, 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985), the Court held that "bare conclusory assertions" from the defendant doctors, denying that they deviated "from good and accepted medical practices," were insufficient to establish that a plaintiff's cause of action "has no merit so as to entitle defendants to summary judgment." (64 NY2d at 853.)

The Court of Appeals accordingly reversed a lower court decision granting summary judgment to the defendants. (Id.)

It did so notwithstanding the fact that the plaintiffs had submitted "only their Counsel's affidavit" in opposition to defendants' motion. (Id. at 852.)

In Wilson v. Galicia Contracting & Restoration Corp., 10 N.Y.3d 827, 828-9, 890 N.E.2d 179, 860 N.Y.S.2d 417 (2008), the trial court, after defendants failed to comply with the court's preliminary conference order, issued a self-executing conditional order directing defendants to comply by a set date or have their answer stricken.

When the defendant failed to comply, the court enforced its order. Id. at 829.

According to the Court of Appeals, the self-executing nature of the conditional order coupled with the defendants' failure to comply rendered the order "absolute," and prevented the defendant from introducing evidence "tending to defeat plaintiff's cause of action." Id. at 830.

In Williams v. Village of Endicott, (91 AD3d 1160, 936 N.Y.S.2d 759 [3d Dept 2012]), a retiree from the village police department claimed that changes in the health care coverage the village provided him violated the terms of his contract.

When he retired, the collective bargaining agreement then in effect contained an express provision that the village would "keep in full force and effect medical coverage and hospital coverage for each member of the bargaining unit, with benefits to be of a value at least equivalent to those presently in force," and that, in exchange for the village's agreement to continue their health insurance coverage, retirees would pay specified amounts toward their individual and family annual health care premiums (id. at 1161).

Finding an ambiguity about the scope of the coverage the village was obliged to provide, the court allowed consideration of parol evidence (id. at 1162-1163.)

In Williams v. Gallatin, 229 NY 248, 128 N.E. 121 [1920], a taxpayer sought to enjoin the New York City Commissioner of Parks from leasing the Central Park Arsenal Building to the Safety Institute of America, arguing the transaction was "foreign to park purposes" (Id at 250).

The lease was for a 10-year term, cancellable if the City needed the property for park use, In prohibiting the lease, the Court of Appeals found that a park is a recreational pleasure area set aside to promote public health and welfare, and as such, "no objects, however worthy, . . .which have no connection with park purposes, should be permitted to encroach upon [parkland] without legislative authority plainly conferred...The legislative will is that Central Park should be kept open as a public park ought to be and not be turned over by the commissioner of parks to other uses. It must be kept free from intrusion of every kind which would interfere in any degree with its complete use for this end" (Id at 253-254.)

In Widewaters Herkimer Co., LLC v. Aiello (28 AD3d 1107, 817 NYS2d 790 [4th Dept 2006]), the majority member commenced an action against two minority members to acquire their membership interest in the company for failure to make required capital contributions.

The defendants answered and asserted a counterclaim to dissolve the company for breach of their fiduciary duty to the minority members and unlawful or oppressive conduct toward them.

The trial court dismissed this counterclaim for failure to state a cause of action for dissolution under the Limited Liability Company Law.

On appeal, the Appellate Division, Fourth Department, affirmed the dismissal of the counterclaim.

In Whitney v. Quaker Chem. Corp. (90 NY2d 845, 683 NE2d 768, 660 NYS2d 862 [1997]), plaintiff's action was time-barred because he was "aware of the primary condition for which damages are sought" more than four years after:

(1) he made repeated trips to a local hospital and a center;

(2) the doctors' reports reflected a diagnosis that coolant exposure caused plaintiff's illness;

(3) plaintiff told an attending nurse that "the coolant is killing me";

(4) plaintiff filed a workers' compensation claim and Employer's Report of Injury/Illness forms, outlining the same symptoms and stating that the coolant exposure was at fault (id. at 847).

In White v. N.Y. City Hous. Auth., 288 AD2d 150, 734 N.Y.S.2d 11 (1st Dept 2001), the plaintiff's notice of claim alleged only that she slipped and fell on a foreign substance while her bill of particulars attributed her fall to inadequate lighting.

The court struck the inadequate lighting claim because it was raised for the first time in the bill of particulars and could not be fairly implied from her notice of claim.

In White v. New York City Housing Authority, 139 A.D.3d 579, 580, 32 N.Y.S.3d 140 (1st Dept 2016), a case wherein the plaintiff's son was burned by a steam heating pipe, the First Department modified the Supreme Court's decision and granted summary judgment dismissing the plaintiff's common law negligence claim.

The First Department held that "the mere fact that the heating pipe, a heat source for the bedroom, was hot and lacked insulation, which would have interfered with its function, is not actionable." Id. at 580.

In White v. Nassau Trust Co., 168 NY 149, 153, 61 N.E. 169 (1901), rearg denied 168 NY 678, 61 N.E. 1135 (1901), the defendant's dredging, which was partly on its own land and partly on the underwater lands belonging to a municipality, damaged the plaintiff's adjoining pier.

The lower courts permitted the plaintiff to recover a judgment for the cost of restoration of his pier, but the Court of Appeals reversed.

As the Court of Appeals explained (at page 153):

"The theory upon which the plaintiff's right to recover has been upheld is that the plaintiff had an easement of lateral support in the adjacent land, and that it was the defendant's duty to protect the plaintiff's pier by preserving to it what lateral support there had been. I entertain the gravest doubt that the common-law rule thus invoked has its proper application to the case of land under the waters of the sea. The differing circumstances and the interests of the state incline me to the view that it should not be applied".

In White v. Averill Park Cent. School Dist., 195 Misc 2d 409, 759 NYS2d 641 [Sup Ct, Rensselaer County 2003], the plaintiffs properly filed a notice of claim against the school district, but did not list individual employees as additional defendants. The claims against the individual school district employees were ultimately dismissed as a result of that omission.

In support of the opinion that individual defendants must be named in a notice of claim, the court reasoned: "General Municipal Law § 50-e clearly does not dispense with claimants' naming the objects of their notice of claim, including the individuals against whom they intend to commence a cause of action" (White, 195 Misc 2d at 410-411).

No authority, however, was offered for this reading. Instead, the court in White engaged in a broad discussion of statutory interpretation, beginning its analysis with a survey of the lack of certain provisions in section 50-e, rather than a reading of affirmative provisions .

More specifically, it called to attention the fact that section 50-e "makes no provision for directing the notice of claim at one entity and then prosecuting an action against another" (White, 195 Misc 2d at 411).

Further, the court opined that section 50-e "certainly does not authorize actions against individuals who have not been individually named in a notice of claim" (White, 195 Misc 2d at 411).

The Court expressed its belief that the notion of not requiring a plaintiff to individually name the specific defendants in a notice of claim is inconsistent with "the notice of claim's acknowledged purpose of affording the public corporation the opportunity to not only locate the defect, conduct a proper investigation, but also to assess the merits of the claim" (White, 195 Misc 2d at 411.)

The court further stated that:

"where the notice of claim fails to complain about the action or inaction of a particular employee and/or fails to set forth a theory for imposing individual liability on that employee, the municipality has no basis for investigating whether or not the claimant has a valid claim against that employee" (White, 195 Misc 2d at 411-412).

In Whitehead v. Town House Equities, Ltd. (8 AD3d 369, 777 NYS2d 917 [2004]), the Appellate Division, Second Department held:

"A person not licensed to practice law in the State of New York pursuant to the Judiciary Law may not appear pro se in court on behalf of a litigant as an attorney-in-fact pursuant to a power of attorney. A person who does so has unlawfully engaged in the unauthorized practice of law" (id. at 370).

The Court held that the provisions of the General Obligations Law which give an attorney-in-fact powers related to litigation only apply to the "decision to prosecute or defend, not to representation" (id.).

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