ON AVVO

 

WRONGFUL PROLONGATION OF LIFE?

Wrongful death is recognized as a cause of action in New York. But what if a decedent's wishes as to cessation of health care is not followed. 

Lanzetta v. Montefiore Med. Ctr., 2021 NY Slip Op 21026 - NY: Supreme Court February 16, 2021:

".....

A "wrongful life" claim typically refers to a medical malpractice or negligence claim by a parent (or other guardian) on behalf of an impaired child based on the theory that the child would have been better  off had he or she never come into being (see B.F. v Reproductive Medicine Assocs. of New York, LLP, 136 AD3d 73, 76 [1st Dept 2015], affd 30 NY3d 608 [2017]). A "wrongful life" claim is not cognizable in New York "because, as a matter of public policy, an infant born in an impaired state suffers no legally cognizable injury in being born compared to not having been born at all" (30 NY3d at 614). As the Court of Appeals stated in its seminal "wrongful life" decision, Becker v Schwartz (46 NY2d 401, 412 [1978]), "a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make."^[3]

In Cronin v Jamaica Hosp. Med. Ctr. (60 AD3d 803 [2009]), the Second Department concluded that a plaintiff's action for medical malpractice and negligence premised on the theory that the medical personnel of the defendant hospital wrongfully prolonged the plaintiff's decedent's life by resuscitating him twice in violation of do-not-resuscitate orders essentially sounded in "wrongful life." The CroninCourt stated that the defendant, which had moved for summary judgment dismissing the complaint, made a prima facie showing of entitlement to judgment as a matter of law on the ground that the plaintiff's decedent had not sustained any legally cognizable injury as a result of the defendant's conduct, and that the plaintiff had failed to raise a triable issue of fact (id. at 804). Notably, the Cronin Court held that "the status of being alive does not constitute an injury in New York" (id., citing Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d 978, 979 [1984]; Becker v Schwartz, 46 NY2d at 412). The claim pursued by the plaintiff in Cronin has been characterized as one for wrongful prolongation of life (see Hodge, Wrongful Prolongation of Life — A Cause of Action That May Have Finally Moved Into the Mainstream, 37 Quinnipiac L. Rev. 167, 183-191 [2019]; Saitta & Hodge, Wrongful Prolongation of Life — A Cause of Action That Has Not Gained Traction Even Though a Physician Has Disregarded a "Do Not Resuscitate" Order, 30 Temp. J. Sci. Tech & Envtl. L. 221, 235 [Winter 2011]; 77 CJS Right to Die § 39).

Cronin, which is binding on this court (see People v Turner, 5 NY3d 476, 482 [2005]; Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664-666 [2d Dept 1984]), compels the conclusion that plaintiff's decedent did not sustain a legally cognizable injury as a result of defendant Hochster's alleged failure to provide treatment in conformity with the directives in the 1993 living will and the directions of decedent's health care agent.

Plaintiff does not address Cronin; rather, plaintiff contends that defendant Hochster may be liable in tort under two statutes: Public Health Law §§ 2982 and 2994-f.

Public Health Law § 2982 is part of article 29-C of the Public Health Law ("the health care agents and proxies act"), which governs health care agents and proxies (see Public Health Law §§ 2980-2994). Under the health care agents and proxies act, an adult (i.e., the principal) may execute a health care proxy designating an agent to make health care decisions for the principal should he or she lose the capacity to make those decisions him- or herself (see Public Health Law §§ 2981-2983). A health care provider who is provided with a health care proxy relating to a patient must place the proxy in the patient's medical record, and, subject to certain exceptions, comply in good faith with the health care decisions of the health care agent (see Public Health Law § 2984[1], [2], [3], [4], [5]).

The health care agents and proxies act does not expressly create a private right of action in favor of a principal (or his or her estate) against a health care provider for violating the statutory duty to comply in good faith with the health care decisions of the principal's health care agent. Therefore, plaintiff can seek damages based on a violation of the health care agents and proxies act only if a private right of action is fairly implied in the act or its legislative history (see Cruz v TD Bank, N.A., 22 NY3d 61, 70 [2013]). The following three factors must be evaluated in gauging whether a private right of action is fairly implied from a statutory scheme: "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme" (id., quoting Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]).

Plaintiff satisfies the first two factors relevant in determining whether a private right of action is fairly implied in the health care agents and proxies act because plaintiff's decedent was one of the class for whose particular benefit the act was enacted — adults who wish to appoint health care agents to make health care decisions for those adults should they lose the capacity to make health care decisions (seeGovernor's approval mem., 1990 New York State Legislative Annual, at 364; mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 361-363) — and recognition of a private right of action would arguably promote a legislative purpose of the act — ensuring that an adult's medical treatment wishes will be honored if he or she loses the capacity to make medical treatment decisions (see Governor's approval mem., 1990 New York State Legislative Annual, at 364; mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 361-363). However, plaintiff does not satisfy the third factor, which is the most important in determining whether an implied right of action exists: whether creation of such a right would be consistent with the legislative scheme (Cruz v TD Bank, N.A., 22 NY3d at 70).

The health care agents and proxies act was rooted in research by and discussions of a task force that had been convened by then-Governor Mario M. Cuomo to study "the ethical and legal issues raised by the process by which medical care decisions are made in cases involving persons without decision-making capacity" (mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 362). The health care agents and proxies act, which was "based on th[e] [task force's] effort," was designed to accomplish the following goals: (1) protect and enhance the ability of competent adults to have their medical treatment wishes honored in the event that they lost their capacity to make medical treatment decisions; (2) provide guidance to patients, their families, and health care providers regarding health care proxies and their enforceability; and (3) establish important safeguards concerning the appointment of health care agents and the exercise of authority by them (id.; see Governor's approval mem., 1990 New York State Legislative Annual, at 364). Ultimately, the health care agents and proxies act "establish[ed] a process for the appointment of an agent, se[t] out the parameters of the agent's authority, and provide[d] standards for the exercise of that power" (mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 363).

While the health care agents and proxies act "provides a whole range of procedural safeguards to ensure that the patient's rights and best interests are protected" (id.),^[4] neither Senator Tully, who sponsored the act, nor the Governor suggested in their respective legislative memoranda that a damages action was an appropriate remedy for a health care provider's failure to honor a health care agent's directives, which failure prolonged a patient's life. Moreover, at the time the Legislature passed the act, the common law in New York provided that the status of being alive did not constitute an injury (see Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d at 979; Becker v Schwartz, 46 NY2d at 412), and the Court of Appeals has cautioned against inferring a significant alteration to existing law from legislative silence (Cruz v TD Bank, N.A., 22 NY3d at 72). If the Legislature had intended to impose new liability on health care providers for failing to comply with the directives of health care agents, it would have provided so in the health care agents and proxies act (see generally id.).

Plaintiff's reliance on Public Health Law § 2994-f, which is part of the Family Health Care Decisions Act ("FHCDA") in article 29-CC of the Public Health Law, is misplaced. The FHCDA, which provides a procedure for the selection of a surrogate health care decisionmaker for a hospitalized individual who lacks the capacity to make his or her own treatment decisions, is inapplicable when, as here, the hospitalized individual has, by way of a duly-executed health care proxy, designated a health care agent (see Public Health Law § 2994-b[2] ["Prior to seeking or relying upon a health care decision by a surrogate for a patient under this article [i.e., 29-CC], the attending practitioner shall make reasonable efforts to determine whether the patient has a health care agent appointed pursuant to article [29-C]. If so, health care decisions for the patient shall be governed by such article, and shall have priority over decisions by any other person except the patient or as otherwise provided in the health care proxy."] [emphasis added]).^[5]

Ultimately, the right of a competent adult to have his or her medical treatment wishes honored in the event that he or she loses the capacity to make medical treatment decisions is important, and the law recognizes that right and provides substantial processes that allow a competent adult to exercise that right. New York law does not, however, recognize a cause of action seeking damages for wrongful prolongation of life. Whether the law ought to do so under our common law is a matter for the appellate courts; whether it ought to do so by statute is a matter for the Legislature."

SUPREME COURT OPEN TO COMMERCIAL LANDLORDS?

Rather than pursue a non-payment in housing court, this commercial landlord, due to Covid restrictions and considerations, commenced an action for money damages only in Supreme Court, NY County on August 4, 2020 seeking rent due since March 2020. An Answer was filed in October 2020 and landlord moved for summary judgment on December 10, 2020. Here is the decision.

111 FULTON ST. INVS., LLC v. FULTON QUALITY FOODS LLC, 2021 NY Slip Op 30348 - NY: Supreme Court February 5, 2021:

"The motion by plaintiff for summary judgment against defendant Fulton Quality Foods LLC ("Fulton Quality") and dismissing this defendant's counterclaims is granted.

Background

Plaintiff is the landlord for a commercial space located on the ground floor in a building in Manhattan. Fulton Quality entered into a lease for the premises in 2011 for a twelve-year term. Fulton Quality runs a restaurant at the site. Plaintiff insists that Fulton Quality is in default of the lease and points to an October 30, 2019 letter allegedly sent to Fulton Quality that sets forth the basis of the default. Fulton Quality later cured its defaults but stopped making payments in March 2020. Another default letter was sent in June 2020. Plaintiff moves for summary judgment seeking the amount it claims is due.

In opposition, Fulton Quality raises numerous reasons why the motion should be denied. Fulton Quality argues that plaintiff failed to attach the pleadings to the motion, that there is no affidavit of merit and that plaintiff did not send bills and notices to both the tenant and its attorney in accordance with the lease.

Fulton Quality also claims that it has meritorious defenses that should compel the Court to deny the instant motion. It claims that the ongoing pandemic forced it to shut down its restaurant and, therefore, the purpose of the lease was frustrated. Fulton Quality also points to a "casualty clause" and the "eminent domain clause" of the lease as reasons to deny the instant motion.

In reply, plaintiff claims that the frustration of purpose defense fails as a matter of law, that Covid-19 was not a "casualty" and it was not a "taking" under the eminent domain provision of the lease.

Discussion

To be entitled to the remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012]).

Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court's task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]).

Procedural Issues

As an initial matter, the Court finds that plaintiff has met its prima facie burden. The fact that plaintiff did not attach a copy of the pleadings to the motion is of no moment because this an e-filed case and the docket is readily accessible. The Court also finds that the "certification" of Mr. Rosenberg, officer for plaintiff, satisfies the requirement that plaintiff file an affidavit of merit in support of its motion. Moreover, plaintiff established that it sent the proper notices concerning a default pursuant to the lease and that it has standing to bring this case.

Frustration of Purpose

The doctrine of frustration of purpose requires that "the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense"(Crown IT Services, Inc. v Koval-Olsen, 11 AD3d 263, 265, 782 NYS2d 708 [1st Dept 2004]). "[T]his doctrine is a narrow one which does not apply unless the frustration is substantial"(id.).

The Court finds that this doctrine is inapplicable. The record on this motion shows that Fulton Quality only made a partial payment of rent on March 1, 2020. Restaurants were not shuttered for indoor dining until March 20, 2020. Even if the Court were to entertain the notion that frustration of purpose could help a tenant avoid paying any rent while still operating a takeout business, it appears that Fulton Quality had financial issues before the pandemic devasted the restaurant industry. On March 1, 2020, the pandemic did not prevent Fulton Quality from paying its rent and it only paid $10,000 of the $34,097.23 due. While the pandemic certainly reduced Fulton Quality's ability to improve its business, it was not the cause of the initial failure to pay the full amount due. Therefore, this common law defense does not raise an issue of fact.

Casualty and Eminent Domain Clauses of the Lease

Fulton Quality insists that Section 10.1 of the lease (the casualty clause) renders its performance under the lease as impossible. The Court disagrees. That provision references damage to the building (such as a fire) that renders the commercial space unusable. A deadly infectious disease is not a "casualty." Throughout 2020, Fulton Quality was able to operate by doing takeout and delivery, outdoor dining if it acquired the proper permits and limited indoor dining during certain months. The physical space (and kitchen) was available to this defendant. That customers decided not to place as many orders does not lead to a conclusion that the pandemic qualifies as a casualty under the terms of the lease.

The Court also declines to find that pandemic-related restrictions qualifies as a taking sufficient to invoke Section 11.1 of the lease concerning Eminent Domain. No physical portion of the restaurant was taken for public or quasi-public use. Rather, governmental restrictions designed to save lives limited the operations of Fulton Quality. Under Fulton Quality's view, any regulation that limits the operation of a business would constitute a taking. The Court declines to endorse such a broad and expansive view of the definition of a taking.

Because Fulton Quality does not dispute the amount sought by plaintiff, the Court awards plaintiff the amount sought in its motion. The Court also dismisses the case against defendant Nikas as this Court has already found that plaintiff failed to properly serve this defendant (NYSCEF Doc. No. 26).

Accordingly, it is hereby

ORDERED that the motion by plaintiff for summary judgment, to strike the answer and counterclaims of defendant Fulton Quality Foods LLC is granted and the Clerk is directed to enter judgment in favor of plaintiff against this defendant in the amount of $410,864.71 plus interest from June 26, 2020 along with costs and disbursement upon presentation of proper papers therefor; and it is further

ORDERED that the issue of reasonable legal fees is severed and a hearing will be held by the court to determine the amount due to be scheduled by the clerk of this part; and it is further

ORDERED that the case is dismissed as against defendant Nikas for failure to timely serve this defendant."

EXPIRING MECHANIC'S LIEN

EMERALD SERVS. CORP. v. EMPIRE CORE GROUP LLC, 2021 NY Slip Op 30394 - NY: Supreme Court February 9, 2021:

"As discussed in Aztec Window & Door Mfg., Inc. v. 71 Vill. Rd., LLC, 60 A.D.3d 795, 796 (2d. Dept 2009) "Pursuant to Lien Law § 17, a mechanic's lien expires one year after filing unless an extension is filed with the County Clerk or an action is commenced to foreclose the lien within that time and a notice of pendency is filed in connection therewith (see MCK Bldg. Assoc. v. St. Lawrence Univ., 5 A.D.3d 911, 912). In the event neither of these conditions is accomplished within the statutory period, nor is a further extension of the lien obtained by order of the court, the lien automatically expires by operation of law, becoming a nullity and requiring its discharge (see Matter of Cook v. Carmen S. Pariso, Inc., 287 A.D.2d 208, 211)." As plaintiff did not complete either of said requirements during the statutory period, the statutory period, the Liens have expired by operation of law.

Plaintiff cross-moves seeking an Order allowing plaintiff to file extensions of said mechanic's liens, nunc pro tune. As discussed in Aztec, as plaintiff did not apply for extensions of the Liens within the statutory period, the expiration of same is automatic and this Court lacks the power, in its discretion, to grant plaintiff's motion. Plaintiff further argues that they are entitled to a toll of the relevant statutory timeframes pursuant to Executive Order 202.8, which provides, "In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020." The Court notes that said Executive Order has been superseded by Executive Order 202.67, which provides "The suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled."

As plaintiff filed the instant motion after November 3, 2020, its motion cannot be granted upon said grounds. The Court further notes that plaintiff filed the instant action on June 25, 2020 and failed to file a Notice of Pendency at that time. As such, plaintiff's arguments are without merit."

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

PRO BONO

 

DIVORCE - THE IMPORTANT PENDENTE LITE ORDER

Important because it sets the tone of the litigation to push the parties into a quick settlement or trial mode and because the "aggrieved party" who seeks to appeal the order has many obstacles as noted in this recent case.

Barra v Barra, 2021 NY Slip Op 01022, Decided on February 17, 2021, Appellate Division, Second Department:

"The parties were married in 2006 and have one child together. In 2019, the plaintiff commenced this action for a divorce and ancillary relief and moved for pendente lite relief. The Supreme Court awarded the plaintiff the sum of $2,031.19 per month for pendente lite child support and directed the defendant to pay 50% of the mortgage, real estate taxes, and homeowner's insurance on the marital residence, where the plaintiff and the child reside.

The defendant contends that the Supreme Court erred in calculating his pendente lite child support obligation by considering the parties' combined income above the then-statutory cap of $148,000. "Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances" (Otto v Otto, 13 AD3d 503, 503; Albanese v Albanese, 234 AD2d 489, 490). The defendant has failed to establish exigent circumstances so as to justify a downward modification of the pendente lite award of child support.

In any event, the Supreme Court was not required to calculate the defendant's child support obligation pursuant to the Child Support Standards Act (hereinafter CSSA) (see George v George, 192 AD2d 693; see also Domestic Relations Law § 236[B][7]). The CSSA "provides the formulas to be applied to the parties' income and the factors to be considered in determining a final award of child support. Courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so" (Davydova v Sasonov, 109 AD3d 955, 957 [emphasis, citation, and internal quotation marks omitted]). Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Swickle v Swickle, 47 AD3d [*2]704).

The defendant also contends that the Supreme Court erred in directing him to pay the sum of $1,575.83 per month, representing his 50% responsibility for the mortgage, real estate taxes, and insurance on the marital residence, contending that such payment should have been reduced by the sum the court directed him to pay for pendente lite child support. The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors (see Westreich v Westreich, 169 AD3d 972; Minervini v Minervini, 152 AD3d 666; Gillman v Gillman, 139 AD3d 667). It is generally the responsibility of both parties to maintain the marital property and keep it in good repair during the pendency of a matrimonial action (see Brinkmann v Brinkmann, 152 AD3d 637; Goldman v Goldman, 131 AD3d 1107; Hymowitz v Hymowitz, 119 AD3d 736). Insofar as the court specifically indicated that it sought to preserve the marital asset in directing the defendant to pay his 50% share of the mortgage, real estate taxes, and homeowner's insurance, we perceive no improvident exercise of its discretion.

The defendant further contends that the Supreme Court erred in directing him to make the pendente lite child support payment to the Child Support Collection Unit, while making the payment of his 50% share of the mortgage, real estate taxes, and homeowner's insurance on the marital home to the plaintiff. The plaintiff had requested that the defendant's 50% share of the mortgage, real estate taxes, and homeowner's insurance be made directly to her. Thus, the court did not improvidently exercise its discretion in granting that application (see Caro v Marsh USA, Inc., 101 AD3d 1068; Nehmadi v Davis, 95 AD3d 1181; Clair v Fitzgerald, 63 AD3d 979; Frankel v Stavsky, 40 AD3d 918). Furthermore, the court did not improvidently exercise its discretion in directing the defendant to make the pendente lite child support payment to the Child Support Collection Unit insofar as this method was "'not too dramatically unlike the relief sought'" (Clair v Fitzgerald, 63 AD3d at 980, quoting Frankel v Stavsky, 40 AD3d at 919)."

NEW RULES RE: FAMILY EVICTIONS?

ALONI v. Oliver, 2021 NY Slip Op 50069 - NY: Appellate Term, 1st Dept. January 29, 2021:

"Petitioner's motion for summary judgment of possession should have been granted. The summary judgment record conclusively establishes that respondent was a licensee whose license to occupy the cooperative apartment he shared with petitioner, the sole proprietary lessee, was revoked by petitioner (see RPAPL 713[7]). No issue of fact was raised by respondent as to whether he had any possessory interest in the premises or any right to continued occupancy.

Contrary to the conclusion below, no issue of fact was raised as to respondent's purported "status as a family member or. . . licensee." Even accepting respondent's contention that he and petitioner resided together in the apartment in a family-like "romantic relationship," a licensee proceeding pursuant to RPAPL 713(7) is properly maintainable against respondent. The RPAPL contains no language exempting individuals with some familial relationship to a petitioner from eviction as licensees (see Heckman v Heckman, 55 Misc 3d 86 [App Term, 2nd Dept, 9th & 10th Jud Dists 2017]; see also Tausik v Tausik, 11 AD2d 144 [1960], affd 9 NY2d 664 [1961] [interpreting Civil Practice Act § 1411(8)]), and courts should not engraft such an exception into the statute "where none exists" (McKinney's Cons Laws of NY, Book 1, Statutes, § 76, Comment at 168 [1971 ed]).

Rosenstiel v Rosenstiel (20 AD2d 71 [1963]), which involved a summary licensee proceeding by a husband to remove his wife from the marital home, does not warrant a contrary result. In that case, the court held that the wife was not a licensee, i.e. one whose rights exist "by virtue of the `permission' of her husband or under a `personal' and `revocable privilege' extended by him" (20 AD2d at 76). Rather, the wife's rights "exist[] because of special rights incidental to the marriage contract and relationship" pursuant to which the husband has the obligation to maintain "a home or housing for the wife" (id at 77).

In the present case, however, although respondent initially claimed that he was the spouse of petitioner, an order rendered in a related action between the parties held that there was no legal marriage between petitioner and respondent, and that respondent has no right to support, maintenance, equitable distribution or exclusive use of the subject apartment (see Oliver v Aloni, Sup Ct, NY County, January 24, 2020, Sattler, J., index No. 350001/19). Thus, Rosenstiel is distinguishable. Moreover, Rosenstiel does not otherwise compel or suggest that a licensee proceeding cannot be maintained against a family member other than a spouse "whose rights as such have not been annulled or modified by any court decree or special agreement" (Rosenstiel at 73; see Young v Carruth, 89 AD2d 466 [1982]; Halaby v Halaby, 44 AD2d 495 [1974]; Tausik v Tausik, 11 AD2d 144 [1960]; Heckman v Heckman, 55 Misc 3d 86).

Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]) is inapplicable to the particular facts of this case. Braschi extended statutory rights to succeed to rent regulated apartments, which were held by family members, to nontraditional family members (see East 10th St. Assoc. v Estate of Goldstein, 154 AD2d 142, 145 [1990]). Manifestly, Braschi applies to cases commenced by a landlord against a remaining family member of a rent regulated apartment who seeks succession rights, and not to cases between a lessee and another occupant of the apartment (see Heckman v Heckman, 55 Misc 3d 86). "The expansive definition of family set forth in Braschi . . . has no bearing on interpreting different statutes with different statutory purposes" (Preferred Mut. Ins. Co. v Pine, 44 AD3d 636, 640 [2007]; see Raum v Restaurant Assoc., 252 AD2d 369, 370 [1998]), such as RPAPL 713(7).

Nor do we perceive any policy reason to deprive petitioner of the right to commence a statutory summary proceeding. The remedy provided by article 7 of the Real Property Actions and Proceedings Law was designed to be a "simple, expeditious and inexpensive means of regaining possession of his premises" (Metropolitan Life Ins. Co. v Carroll, 43 Misc 2d 639, 640 [App Term, 1st Dept 1964], quoting Reich v Cochran, 201 NY 450, 454 [1911]), with Civil Court as the preferred forum for resolution of such disputes (see Waterside Plaza v Yasinskaya, 306 AD2d 138 [2003]). These objectives are served by permitting petitioner to maintain "the modern and generally more satisfactory summary proceeding" (Young v Carruth, 89 AD2d at 469) to remove respondent from the premises, rather than relegating petitioner to the more cumbersome Supreme Court ejectment action. Summary proceedings "should not be so hypercritically restricted as to destroy the very remedy which they are designed to afford" (Reich, 201 NY 455)."

ARBITRATION OF DISCRIMINATION CLAIMS

Wilson v. PBM, LLC, 2021 NY Slip Op 593 - NY: Appellate Div., 2nd Dept. February 3, 2021:

"The plaintiff is an African-American male who was employed by the defendant PBM, LLC, doing business as Perfect Building Maintenance Corp. (hereinafter PBM), as a porter and freight elevator operator from 2002 until termination of his employment in August 2014. PBM is a privately held company that provides janitorial and related services to single- and multi-tenant properties in the northeast area. It is a member of the RAB, a multi-employer bargaining association. While at PBM, the plaintiff was a member of the Union. The terms and conditions of the plaintiff's employment during the relevant time period were governed by the CBA, which was effective January 1, 2012, to December 31, 2015. Section 30(A) of Article XVI of the CBA, which addresses arbitration, provides that discrimination claims "shall be subject to the grievance and arbitration procedure (Article V and VI) as the sole and exclusive remedy for violations." Section 30(B), the No-Discrimination Protocol, provides, inter alia, for arbitration procedures when the Union has declined to take an individual employee's employment discrimination claims set forth in section 30(A) to arbitration.

The plaintiff alleges that, at his workplace, he routinely experienced discrimination, was subjected to a hostile work environment, and was discharged from his employment due to his race. He asserts that beginning in or around December 2012, his direct supervisor began to routinely refer to him as "boy," and from July 2013 until February 2014, he observed "several nooses" hanging in the workplace. After filing a grievance with the Union, the plaintiff was reassigned to another building, without being given any explanation for the transfer. On February 7, 2014, the plaintiff filed a second grievance with the Union regarding the transfer and alleging racial discrimination. He was then reassigned a second time to a different building, where he was required to undergo a background check which revealed that he had prior criminal convictions that he had failed to report on his original employment application. The plaintiff's employment was terminated on August 4, 2014. The plaintiff filed another grievance on the basis that he was unjustly discharged. While the Union arbitrated the plaintiff's unjust discharge complaints, it declined to arbitrate the plaintiff's claims of racial discrimination. In October 2015, the plaintiff attempted without success to mediate the discrimination claims. Thereafter, in December 2015, the plaintiff commenced this action against PBM and several of PBM's employees to recover damages, alleging discrimination and hostile work environment based on race and retaliation under 42 USC § 1981, the New York State Human Rights Law (Executive Law § 296; hereinafter NYSHRL), and the New York City Human Rights Law (Administrative Code of City of NY, tit 8; hereinafter NYCHRL). The plaintiff also alleged causes of action to recover damages for negligence, negligent supervision and retention, and negligent training.

In May 2016, the defendants moved pursuant to CPLR 7503 to compel arbitration and/or, in effect, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. They argued that the plaintiff's claims were subject to mandatory arbitration pursuant to the terms of the CBA. The Supreme Court granted the defendants' motion. The plaintiff appeals.

...

...As previously noted, the CBA contains the No-Discrimination Protocol, a pilot program originally initiated by the Union and the RAB in response to their dispute following Pyett, which specifically provides procedures for the plaintiff to arbitrate his discrimination claims in the circumstance when the Union has declined to pursue them. The plaintiff's additional argument that the CBA is not enforceable because it requires him to arbitrate his claims on his own when the Union declines to do so is equally unavailing, as he had access to the arbitral forum, whether through the Union, or on his own, to vindicate his statutory rights (see Glover v Colliers Intl. NY, LLC, 2014 WL 5410016, 2014 US Dist LEXIS 151227 [SD NY, No. 13-CV-8843 (JMF)]; Germosen v ABM Indus. Corp., 2014 WL 4211347, 2014 US Dist LEXIS 119092).

Many United States District Courts have decided cases involving collective bargaining agreements similar to the one herein. These courts have rejected arguments posited by parties similar to the substantive waiver argument presented by the plaintiff herein (see Hamzaraj v ABM Janitorial Northeast Inc., 2016 WL 3571387, 2016 US Dist LEXIS 83216 [finding that the plaintiff's statutory discrimination claims were subject to mandatory arbitration where the collective bargaining agreement at issue contained the Protocol. The court reasoned that there was no waiver of the plaintiff's statutory rights nor was he prevented from vindicating them in the arbitral forum, noting that even if the Union declined to take the plaintiff's discrimination claim to arbitration, the collective bargaining agreement provided a means for him to pursue his claim in arbitration independently]; Glover v Colliers Intl. NY, LLC, 2014 WL 5410016, *4, 2014 US Dist LEXIS 151227, *12-13 [finding that the plaintiff's ADEA claims were subject to mandatory arbitration. The court reasoned that "[a]lthough Pyett did leave open the possibility that an arbitration clause could be deemed unenforceable if it prevents plaintiffs from effectively vindicating their federal statutory rights in the arbitral forum, that potential escape hatch" did not apply as the agreement at issue provided for procedures for arbitration when the Union declined to bring an employee's claim to arbitration (internal quotation marks and citation omitted)]; Germosen v ABM Indus. Corp., 2014 WL 4211347, 2014 US Dist LEXIS 119092 [finding that the plaintiff's claims were subject to mandatory arbitration pursuant to the terms of the collective bargaining agreement]; Jenkins v Collins Bldg. Servs., Inc., 2013 WL 8112381, 2013 US Dist LEXIS 186412 [SD NY, No. 10-Civ-6305 (AKH)] [noting that the court had repeatedly concluded that under the supplemental collective bargaining agreement, which provides procedures for individual employees to arbitrate their statutory discrimination claims in those circumstances when the Union has declined to do so, individual employees are required to arbitrate their claims]).

....."

FOR THE HOLIDAY

 

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RETROACTIVE EFFECT OF HOUSING STABILITY AND TENANT PROTECTION ACT

 LANGDOC v. Warden, 2021 NY Slip Op 21009 - NY: City Court, Cohoes January 25, 2021:

"The tenants took possession of the apartment on November 15, 2018. The lease, by its terms, created a month to month tenancy. Further, the lease provided either party could terminate the lease upon thirty days' written notice. On or about May 29, 2020, the landlord served the tenants with a notice to vacate the apartment by July 1, 2020. The notice was sufficient under the terms of the lease. However, the tenants refused to vacate. In turn, the landlord commenced a holdover proceeding (RPAPL 711[1]).

Tenants have moved to dismiss the Petition. They say that while the thirty-day notice was sufficient under the lease (and it was), the notice was insufficient as a matter of law (Real Property Law ["RPL"] § 226-c). RPL 226-c[1] governs the notice a landlord must provide in situations where "the landlord does not intend to renew the tenancy. . . ." The length of the required notice is set forth in RPL 226-c[2]. As here, where "the tenant has occupied the unit for more than one year but less than two years. . . the landlord [must] provide at least sixty days' notice" to the tenants to vacate (RPL 226-c[2][c]).

This much is clear, the thirty-day notice failed to comply with the required statutory notice. However, before the enactment of RPL 226-c, the parties had agreed that a thirty-day notice would suffice to end the tenancy. So, the initial question is whether RPL 226-c can reach back and alter an established contractual relationship between the parties. The general rule is that a civil statute does not have retroactive effect. "[S]ince the beginning of the Republic and indeed since the early days of the common law: absent specific indication to the contrary, the operation of nonpenal legislation is prospective only" (Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 US 827, 841-42 [1990] [Scalia, J. concurring]. The reason for such a presumption is simple—people should be able to order their lives and make transactions in reliance on the law. Legal changes always come, but change must not cause instability. Stability stems from people's faith that an arrangement consummated one day will not be undone the next by a new act of the legislature.

The Court of Appeals has developed an approach to retroactivity that seizes upon the legal stability founded in settled expectations. As the Court noted, in some instances, the application of a new statute to conduct that has already occurred may not necessarily upset people's reliance interests (Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 365 [2020]). Thus, a statute should not have retroactive effect "if it would impair rights [that] a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed" (Id [internal citations and quotations omitted]). In contrast, "a statute that affects only the propriety of prospective relief or the nonsubstantive provisions governing the procedure for adjudication of a claim going forward has no potentially problematic retroactive effect." (Id at 365-66 [internal citations and quotations omitted]).

To begin with, there is no question that the timing to reassert possession and prevent a tenant from holding over (or allowing a tenant to quit the lease without additional rent) is a fundamental component that defines and creates a property right (see Carlo v. Koch-Matthews, 53 Misc 3d 466, 471-472 [City Ct 2016] [reviewing historical underpinnings of month to month tenancy]). Consequently, if RPL 226-c is read to void the lease's notice provision, it voids a property right and its retroactive application would be problematic. This is because the landlord can only terminate a tenancy upon service of an adequate notice and if the thirty-day notice is invalid, then the tenants' property interest never ended (Anderson v Prindle, 23 Wend 616, 619 [1840]; Sills v. Dellavalle, 9 AD3d 561 [3d Dept 2004]). In other words, in a void notice situation, the tenants' possessory interest in the premises continues until a new and proper notice is served to terminate and extinguish that interest. Therefore, if the landlord's thirty-day notice is void, then the court would have to dismiss this holdover proceeding because the landlord has no right to claim possession of the premises (Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786, 788 [1980]).

However, the court does not read RPL 226-c to invalidate a notice that fails to comply with its mandate. On this point, the statutory language is clear: "[i]f the landlord fails to provide timely notice, the occupant's lawful tenancy shall continue from the date on which the landlord gave actual written notice until the [statutory] notice period [as defined in RPL 226-c[2][a-c]] expire[s]" (RPL 226-c[1] [emphasis added]). Thus, a notice that fails to comply with RPL 226-c is not void and nothing in the statutory scheme requires the landlord to serve the tenants with a new notice to vacate the apartment. Rather, RPL 226-c extends the tenancy for a period to match the notice required by statute. That means the day after the required statutory notice expires, the tenant's occupation becomes illegal.

In sum, RPL 226-c does not destroy a property interest, it only makes the landlord wait before he can assert that interest in court. Thus, the court concludes that RPL 226-c "affects only the propriety of prospective relief" without disrupting the landlord's property right (Regina Metro. Co., LLC, 35 NY3d at 365). Therefore, RPL 226-c's time frames govern this case and not the lease provision, even though the parties had agreed to what would constitute proper notice prior to RPL 226-c's passage. In this case, since the tenants were served on May 29, the tenancy continued for sixty days (RPL 226-c[2][c]). After the sixty days expired (which was on July 28), the tenant's occupation became illegal and the holdover proceeding became ripe to be heard without the necessity of the landlord serving another notice to vacate upon the tenant.

This brings the case to a second timing issue. The landlord filed the Notice of Petition and the Petition on July 27. These documents were served upon the tenants August 13. Both these dates have legal significance. This holdover proceeding was commenced on the date of filing of the Notice of Petition and the Petition, which was a day before the expiration of the tenancy (UCCA 400[1]). However, the court obtained jurisdiction over the tenant upon the service of the papers which occurred after the expiration of the tenancy (UCCA 400[2]). This means that the holdover proceeding was premature at the time of filing but ripe at the time of service. Which time controls, all the difference makes.

The outcome of the case turns upon when the holdover proceeding is considered commenced. Determining a commencement date for a special proceeding is murky business and context dependent. "[T]he question of when a summary proceeding is `commenced' must be answered differently, in this context and others, depending on the context in which the question arises" (92 Bergenbrooklyn, LLC v. Cisarano, 50 Misc 3d 21, 24 [App Term, 2d, 11th & 13th Jud Dists 2015]).

Here, service represents the critical moment in a holdover action. Indeed, the law provides for the initiation of a holdover proceeding via Order to Show Cause "on the day of the expiration of the lease" (RPAPL 733)—which means that a holdover proceeding technically can be commenced in anticipation of a tenant holding over. This lends support to the proposition that service of the Petition rather than its filing is the key to determine ripeness. After all, it is the service of the Petition, not its filing, that places the tenant under legal compulsion to respond. Therefore, the court holds that commencement occurs upon service for the purposes of determining ripeness in the context of a notice to quit.^[1]

Accordingly, the court concludes that if on the day of service, the tenant still has possessory interest in the premises because the notice to quit has yet to expire, then the case has been brought prematurely and must be dismissed. In contrast, if on the day that the Petition is served, the landlord has possessory interest, then the case has matured and should not be dismissed. Here, the date of service was after the expiration of the notice to quit, thus the landlord has the prima facia right of possession. Thus, the landlord's holdover proceeding is ripe to adjudicate and the tenants' motion to dismiss is denied.

Finally, the landlord commenced this proceeding prior to the effective date of the Emergency Eviction and Foreclosure Prevention Act ("EEFPA") (C 381, L 2020). Section 2 of the EEFPA directs that all such proceedings be stayed for a period of at least sixty days from December 29, 2020. Therefore, the court will stay this proceeding until March 1, 2021 at 9:30 a.m., at which time the court will hold a conference. Parties may appear virtually.

The forgoing constitutes the Decision and Order of the court.

[1] Moreover, the court's reasoning is in accord with analogous situations. For example, the commencement of a hold over proceeding is determined from the date of service (rather than the date of filing) in applying the rule that the landlord's acceptance of rent from a tenant before commencing a holdover proceeding voids the proceeding (92 Bergenbrooklyn, LLC, 50 Misc 3d at 24-25)."

THE HARDSHIP DECLARATION APPLIES TO EJECTMENT ACTIONS TOO

The State of New York on December 28, 2020, enacted the "COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020" (L 2020, Ch 381), (the "Act").  Part A, § 8(a)(ii) of the Act further provides "In any eviction proceeding, if the tenant provides a hardship declaration to the petitioner, the court, or an agent of the petitioner or the court, prior to the execution of the warrant, the execution shall be stayed until at least May 1, 2021. If such hardship declaration is provided to the petitioner or agent of the petitioner, such petitioner or agent shall promptly file it with the court, advising the court in writing the index number of all relevant cases."

In JACOB CRAM COOP., INC. v. ZIOLKOWSKI, 2021 NY Slip Op 30174 - NY: Supreme Court January 22, 2021, a coop board had an action in ejectment against the coop owner, not a summary proceeding. A warrant of possession was issued and then the coop owner filed a hardship declaration but the board claimed the Act only applied to summary proceedings. The court held otherwise:

"The court agrees with defendant that in spite of the failure of the Legislature to specifically use the term "action" as applied to landlord-tenant disputes, the term "eviction proceeding" as defined therein includes New York's current hybrid common law/statutory (RPAPL Art. 6) actions for ejectment as applied to residential tenancies. Plaintiff's interpretation limiting the applicability of the statute is contrary to the Act's definition of "eviction proceeding" as including "any other judicial or administrative proceeding to recover possession of real property relating to a residential dwelling unit." Other than a plenary action for ejectment, the court is unable to discern any other "proceeding" that the legislature could have intended. Additionally, the Act includes a specific statement of legislative intent that its applicability is to be broadly construed stating:

    "COVID-19 presents a historic threat to public health. Hundreds of thousands of residents are facing eviction or foreclosure due to necessary disease control measures that closed businesses and schools, and triggered mass-unemployment across the state The pandemic has further interrupted court operations, the availability of counsel, the ability for parties to pay for counsel, and the ability to safely commute and enter a courtroom, settlement conference and the like.

    Stabilizing the housing situation for tenants, landlords, and homeowners is to the mutual benefit of all New Yorkers and will help the state address the pandemic, protect public health, and set the stage for recovery. It is, therefore, the intent of this legislation to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19."

(L. 2020, Ch. 381, Sec. 3). Finally, if the Legislature intended the Act to apply to summary proceedings only, it would have stated that clearly without the need to create and define a new and broadened term of "eviction proceedings.""