CDC MORATORIUM TO JUNE 30

 

The new CDC moratorium to June 30 on evictions can be viewed here:

 https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/CDC-Eviction-Moratorium-03292021.pdf

 

THE "RELATION BACK" DOCTRINE AND AMENDED PLEADINGS

CPLR 203 (f) provides: "(f) Claim in amended pleading.  A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."

In Campbell v. BRADCO SUPPLY CO., 2021 NY Slip Op 1744 - NY: Appellate Div., 2nd Dept. March 24, 2021,   plaintiff sued over broken cabinets that were purchased and then sought to amend its pleading to add causes of actions for personal injuries. The court noted:

"It is undisputed that the plaintiff's ninth and tenth causes of action, which were raised for the first time in the amended complaint, were time-barred (see CPLR 213[2]; 214[5]). "However, under the relation-back doctrine, a plaintiff may interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint" (Carlino v Shapiro, 180 AD3d 989, 990 [internal quotation marks omitted]; see CPLR 203[f]). Contrary to the plaintiff's contention, the allegations in the original complaint gave no notice of the facts, transactions, and occurrences giving rise to the proposed supplemental claims raised in the ninth and tenth causes of action and, thus, the relation-back doctrine does not apply (see CPLR 203[f]; Carlino v Shapiro, 180 AD3d at 990-991; Sabella v Vaccarino, 263 AD2d 451, 452). Therefore, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a) to dismiss those causes of action (see Hustedt Chevrolet, Inc. v Jones, Little & Co., 129 AD3d 669)."

WHEN DRAFTING A MOTION FOR SUMMARY JUDGMENT....

 ....remember that the rules of evidence still apply. The procedures to lay a foundation that apply to a trial also apply to the motion and appellate courts are addressing this especially in foreclosure matters. Thus, in BNH Milf, LLC v Milford St. Props., LLC, 2021 NY Slip Op 01742, Decided on March 24, 2021, Appellate Division, Second Department:

""In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782). "On its motion for summary judgment, a plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law" (US Bank N.A. v Hunte, 176 AD3d 894, 896 [internal quotation marks omitted]). "A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v McGann, 183 AD3d 700, 702).

Here, the affidavits of Steve Hackel, an officer of the plaintiff, and John P. O'Gorman, a vice president of Capital One, submitted in support of the plaintiff's motion, inter alia, for summary judgment, failed to establish the defendants' default in payment under the note (see Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 782). While O'Gorman's affidavit refers to certain default and acceleration letters claimed to have been sent to the defendants, the default letters are conclusory, lack factual basis, and are without evidentiary value (see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d 718, 719). Additionally, both affidavits failed to establish that Capital One's records were provided to the plaintiff and incorporated into the plaintiff's own records, or that the plaintiff routinely relied upon such records in its business. Thus, the affidavits failed to lay the proper foundation for the admission of Capital One's records (see id. at 720; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 783). Since the plaintiff failed to establish the defendants' default in payment under the note, it failed to establish its prima facie entitlement to judgment as a matter of law, as well as its entitlement to an order of reference and a judgment of foreclosure and sale (see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d at 720; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 783).

The plaintiff's failure to establish its prima facie entitlement to judgment as a matter of law requires a denial of those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d at 721)."

CAR DAMAGED OR LOST AFTER GARAGE PARKING?

A pet peeve of many (and not just in NYC) when your car is returned scratched or dented and a major headache if it was not returned but stolen. Of course, General Obligations Law 325 provides:

"1. No person who conducts or maintains for hire or other consideration a garage, parking lot or other similar place which has the capacity for the housing, storage, parking, repair or servicing of four or more motor vehicles, as defined by the vehicle and traffic law, may exempt himself from liability for damages for injury to person or property resulting from the negligence of such person, his agents or employees, in the operation of any such vehicle, or in its housing, storage, parking, repair or servicing, or in the conduct or maintenance of such garage, parking lot or other similar place, and, except as hereinafter provided, any agreement so exempting such person shall be void.

2. Damages for loss or injury to property may be limited by a provision in the storage agreement limiting the liability in case of loss or damage by theft, fire or explosion and setting forth a specific liability per vehicle, which shall in no event be less than twenty-five thousand dollars, beyond which the person owning or operating such garage or lot shall not be liable;  provided, however, that such liability may on request of the person delivering such vehicle be increased, in which event increased rates may be charged based on such increased liability."

In the following case, the garage was exempt from liability because it did not agree to garage the plaintiff's car, rather plaintiff's agent left the car at the lot but the garage did not agree to take it. ONYISHI v. MADI, 2018 NY Slip Op 50907 - NY: City Court, Civil Court 2018:

"Generally, a bailment is a relationship created when one person comes into lawful possession of another's property and rather than appropriate the same, agrees to account for the same (Martin v Briggs, 235 AD2d 192, 197 [1st Dept 1997]). Because a bailment is often not the result of "conscious promises of the parties made in a bargaining process but from what the law regards as a fair approximation of their expectations" (Ellish v Airport Parking Co. of Am., Inc., 42 AD2d 174, 176 [2d Dept 1973], affd, 34 NY2d 882 [1974]), a bailment may be created in the absence of a contractual agreement when the bailee comes into lawful possession of the bailor's property and agrees to care for it (Martin at 197; see Foulke v New York Consol. R. Co., 228 NY 269, 275 [1920] ["It is the element of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not."]). The lynchpins of a bailment are "dominion and control by the bailee" (Motors Ins. Corp. v Am. Garages, Inc., 98 Misc 2d 887, 889 [App Term 1979]). A bailment relationship is continual, terminable at will upon the removal of the property by the bailor or notice to do so by the bailee (In re Courant, 142 AD3d 614, 616 [2d Dept 2016], lv to appeal dismissed, 29 NY3d 929 [2017]; Dupont v Joedon & Co., 107 AD2d 369, 372 [1st Dept 1985]).

In cases involving vehicles and in parking garages/lots, a bailment is created only when the parking garage agrees — by taking the owner's car and keys — to safeguard the car until the owner returns (Chubb & Son, Inc. v Edelweiss, Inc., 258 AD2d 345, 345-46 [1st Dept 1999] ["The motion court correctly found that the parking transaction constituted a bailment as a matter of law, since defendant's dominion and control of the car was established by undisputed evidence that its employee took the key to the car and employed a mandatory procedure to ensure the key's return." (Internal quotation marks omitted)]; Motors Ins. Corp. at 889-90 ["In the absence of contractual provisions to the contrary, the facts in this case would spell out that type of control by the defendant that points ineluctably to a bailee arrangement. The customer may park his own car or, if his spot was taken, the attendant would park it. He was required to give the garage keeper a set of his keys; his car is moved if required."]). Such relationship, however, is not created in cases where the parking garage does not knowingly agree to safeguard an owner's vehicle, such as when a car is self-parked in a garage by the owner and no keys are given to or left with the garage (id. at 889; Ellish at 653-654 [Court held that no bailment was created when plaintiff self-parked her car at defendant's garage, took her keys, and where defendant did not have employees actively checking cars into the garage.]; Gadsden v Allright Parking Mgt. Inc., 02-012, 2002 WL 1482542, at *1 [App Term June 25, 2002] ["The trial evidence shows, and it is not seriously disputed, that plaintiff was authorized to use defendant's garage as an incident of his employment; that plaintiff was advised through a memorandum circulated by his employer that defendant assumed no responsibility for damage to cars; and that on the night in question plaintiff entered defendant's multi-level, 2100-space garage facility through use of a pre-issued access key and parked and locked his car without assistance and while retaining his keys. No bailment was created by the impersonal parking arrangement depicted in the record." (Internal quotation marks omitted)]).

Thus, in the absence of negligence and/or a bailment a parking garage is not liable for the theft of an automobile (Ellish at 178), nor for property damage sustained by the vehicle while parked thereat (Gadsen at 1)."

DIVORCE & MOTIONS & EVIDENCE: CONCLUSORY ALLEGATIONS DON'T WORK

We all know that the matrimonial disputes can get very emotional but if litigants are going to be make motions, whether pre-judgment or post, the rules of evidence still apply.

Battinelli v Battinelli, 2021 NY Slip Op 01741, Decided on March 24, 2021, Appellate Division, Second Department (emphasis supplied):

"....Here, contrary to the plaintiff's contention that it could reasonably be concluded that the defendant was obligated to pay monthly child support in the amount of $7,083.33 rather than the agreed-upon amount, there was no ambiguity in the stipulation of settlement as to the defendant's child support obligation, which the parties agreed was to be $3,000 per month while the plaintiff was receiving maintenance, and $4,000 per month thereafter until the emancipation of the child. The plaintiff did not allege, and she failed to submit any evidence demonstrating, that the defendant was not current with respect to this agreed-upon amount."

"Further, the plaintiff failed to demonstrate a substantial change in circumstances warranting the modification of child support or the parental access schedule (see Casler v Casler, 131 AD3d 664, 665; Whitehead v Whitehead, 122 AD3d 921, 921-922; Matter of Mazzola v Lee, 76 AD3d 531, 532). In addition, her conclusory, nonspecific, and unsubstantiated arguments did not rise to the level of warranting a hearing on either claim (see Isichenko v Isichenko, 161 AD3d 833, 834-835; Matter of Feliciano v King, 160 AD3d 854, 855)."

"Here, the defendant's contentions that the plaintiff disobeyed the stipulation of settlement were generalized and unsubstantiated. Consequently, he failed to meet his burden of proving them by clear and convincing evidence. Accordingly, the Supreme Court properly denied those branches of the cross motion which were to find the plaintiff in civil contempt and to direct her to comply with the parental access schedule."

THE STANDARD MODEL RELEASE IN ISSUE

A standard model release, with respect to stock images, etc., may provide: "For  valuable  consideration,  I  hereby  irrevocably  consent  to  and  authorize  the  use  and reproduction by you, or anyone authorized by you, of any and all photographs which you have this day taken of me, negative or positive, proofs of which are hereto attached, for any purpose whatsoever, without further compensation to me.  All negatives, together with the prints shall constitute your property, solely and completely. 

Does "for any purpose whatsoever" mean "for any purpose"? Does "anyone authorized by you" mean "anyone"? Some well known models signed standard model/image releases to a third-party. Several New York strip clubs purchased the rights to use the photographs from the third-party for their strip clubs ads. The models brought an action against the strip clubs for misusing their images claiming that their images utilized for the adult entertainment industry damages their careers.

ELECTRA v. 59 MURRAY ENTERPRS., INC., Court of Appeals, 2nd Circuit February 9, 2021 (in part):

"Relying on the release agreements in the record, the district court concluded that Appellants had executed agreements releasing all their proprietary rights to the photographs and authorizing releasees to allow third parties to use the photographs for any purpose. The district court held that the release agreements disclaimed Appellants' rights to challenge the use of the photographs, barring Appellants' Section 51 claims. In a footnote, the district court suggested that though it did not need to address the question of whether the releases constituted "written consent" for purposes of Section 51, it was "inconsistent" with the statute "for plaintiffs that have signed unlimited releases to rely on the absence of written consent in pursuing damages under that statute." Toth, 2019 WL 95564 at *11 n.14.

Appellants contend that this was an error of law, arguing that Appellees lacked written consent from Appellants, the releasees, or anyone else to use the images; that Appellees were not third-party beneficiaries of the release agreements; and that the release agreements did not constitute written consent for purposes of Section 51. We agree.

Under New York law, "the terms of a contract may be enforced only by contracting parties or intended third-party beneficiaries of the contract . . . ." Rajamin v. Deutsche Bank Nat. Tr. Co., 757 F.3d 79, 86 (2d Cir. 2014). Here, both parties agree that the Club Companies and their contractors—including Brown, IMC, and Melange—were not parties to the releases, and that there are no other agreements between Appellants and the Club Companies or their contractors authorizing the use of the photographs. In addition, Appellees conceded during oral argument that the contractors secured no legal rights to use the photographs, such as through an assignment or license. Appellees and their contractors are plainly not third-party beneficiaries of the release agreements. See State of Cal. Pub. Emps.' Ret. Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 434 (2000) (explaining that a "party asserting rights as a third-party beneficiary must establish," inter alia, "that the contract was intended for his benefit"). Appellees therefore had no legal rights under the releases or any subsequent agreement to use the images and cannot rely on the releases to bar Appellants' claims.

We further conclude that the releases are not written consent for purposes of Section 51. The text of the statute requires a party to have "written consent" to use the image, though it allows "sale or transfer" of the image "for use in a manner lawful under" Section 51. N.Y. Civ. Rights Law § 51. As case law demonstrates, written consent in favor of one party does not allow others to use an image for trade or advertising. See, e.g., Chambers v. Time Warner, No. 00-cv-2839, 2003 WL 749422, at *4 (S.D.N.Y. Mar. 5, 2003). This is true no matter how broadly an agreement releases proprietary rights to the releasee. In Rosemont Enterprises, Inc. v. Urban Systems, Inc., for example, the New York Supreme Court held—in an action under Section 51 brought by Howard Hughes against the maker of "The Howard Hughes Game"— that Hughes's "exclusive assignment of the right to exploit the Hughes name and personality" to another party did not defeat the claim. 340 N.Y.S.2d 144, 144, 147 (Sup. Ct. 1973), aff'd as modified, 345 N.Y.S.2d 17 (App. Div. 1st Dep't 1973). The court explained that Hughes was "free to protect himself from the exploitation of his name and likeness against all the world except [the assignee]. It is only between them will that assignment constitute a defense to a similar law suit." Id. at 147.

A cause of action under Section 51 does not depend on the proprietary rights a plaintiff has in a particular image. In Gautier v. Pro-Football, Inc., the Appellate Division explained that Section 51 provides "primarily a recovery for injury to the person, not to his property or business." 106 N.Y.S.2d 553, 560 (App. Div. 1st Dep't 1951), aff'd, 304 N.Y. 354. Gautier continued,

True, where an individual's right of privacy has been invaded there are certain other elements which may be taken into consideration in assessing the damages. Thus, where a cause of action under the Civil Rights statute has been established, damages may include recovery for a so-called `property' interest inherent and inextricably interwoven in the individual's personality, but it is the injury to the person not to the property which establishes the cause of action. That is the focal point of the statute.

Id. (citation omitted).^[6] The district court's conclusion that the release agreements defeated Appellants' claims would construe Section 51 claims as coextensive with claims for breach of contract: only the releasees, who retained proprietary interest in the image, could sue. But this is wrong, even in this "modern era" of the internet. Cf. Gautier, 304 N.Y. at 360. "Section 51 of the Civil Rights Law was not enacted . . . to supplement causes of action based on contracts . . . ." Gautier, 106 N.Y.S.2d at 560-61.

Thus, Lee's and Mayes' releases in favor of Dreamgirl, Koren's release in favor of Gianatsis Design Associates, and Golden's release in favor of Leg Avenue do not constitute written consent for all others to use their images for purposes of advertising or trade. That their releases conveyed their proprietary rights to the photographs does not defeat their claims, because their cause of action under Section 51 is based on their statutory rights, not their proprietary rights in the photographs. And while the releases could provide a defense in an action against the releasees or those who could assert lawful use by reason of assignment or license, Appellees concede that they had no legal rights to the images. Appellants therefore have established that Appellees used their images without written consent, and they are entitled to summary judgment as to Appellees' liability under Section 51."

In the following article, NYLJ March 24, 2021, Release Did Not Grant Consent To Use Likeness Under Civil Rights Law, Tal S. Benschar, the author suggests:

"A release of an image intended for exploitation in commercial pro-motion must do more than license proprietary rights. Rather, it should specifically state that the model consents to the use of her image for the purposes of advertisement or trade by any party licensing the photograph. It should also recite that the model has received compensation for this right, and that the agreement is for the benefit of not only the photographer, but also any third party to whom the image is licensed. Of course, in some  cases,  this  might  require  additional compensation to the model, either on a flat-fee basis or a per-use basis. 

Businesses  involved  in  use  of  images  of  models  and  other  individuals should thus beware that they have rights that may be asserted, and that those rights are distinct from the photographers’ rights. Ensuring that both are covered before the advertisement is used can go a long way to insulating the business from expensive litigation."

USURY AND THE FUNERAL CONTRACT

In this case, although a note existed which on its face was usurious, it was not a loan but part of a contract for services.

MATTER OF THOMPSON, 2021 NY Slip Op 50205 - NY: Surrogate's Court, Erie March 11 2021:

"....

The Note to the funeral home signed by Tarcia provides that a charge of 2% interest per month will be added after March 1, 2014 to any outstanding balance of the unpaid funeral expenses. Annualized at 2%, the interest rate being charged would be 24%. GOL §5-501 and NY Banking Law §14-a provide that it is illegal to "charge, take or receive any money, goods or things in action as interest on the loan or forbearance of any money, goods or things in action at a rate exceeding" 16% per year.

Where usury is claimed, "a loan or forbearance of money at the prohibited rate of interest must be shown if the defense is to prevail" (Morris Plan Industrial Bank v. Faulds, 269 App Div 238, 240 [1945]; see also Orvis v. Curtiss, 157 NY 657, 660 [1899]). In determining whether a transaction is usurious, a Court must examine several factors:

"`The rudimentary element of usury is the existence of a loan or forbearance of money' (Matter of City of Binghamton [Ritter], 133 AD2d 988, 989, lv dismissed 70 NY2d 1002; see, General Obligations Law § 5-501; see also, 72 NY Jur 2d, Interest and Usury, § 62, at 84). `[Where] there is no loan, there can be no usury' ( Oxhandler Structural Enters. v Billard, 104 Misc 2d 38, 39). When a transaction is challenged as usurious, courts traditionally look beyond the standard form of the transaction and attempt to ascertain its true nature (see, Kuklis v Treister, 83 AD2d 545). In other words, `[a] transaction must be considered in its totality and judged by its real character, rather than by the name, color, or form which the parties have seen fit to give it' (Lester v Levick, 50 AD2d 860, 862-863 [Christ, J., dissenting], revd on dissenting mem below 41 NY2d 940; see, 72 NY Jur 2d, Interest and Usury, § 56, at 76). Significantly, there is a strong presumption against a finding of usury ( see, Giventer v Arnow, 37 NY2d 305, 309; Lehman v Roseanne Investors Corp., 106 AD2d 617, 618), and this defense must be established by clear and convincing evidence as to all its elements (Giventer v Arnow, supra, at 309; Matter of City of Binghamton [Ritter], supra, at 989)" (Feinberg v. Old Vestal Rd. Assoc., 157 AD2d 1002, 1003-1005 [1990], emphasis added).

Furthermore, as the Court in Sogeti USA, LLC v. Whirlwind Bldg. Sys., 496 F. Supp. 2d 380, 382 [2007], pointed out:

"[T]he law of usury is not even applicable to agreements for the provision of goods and services as they are not considered to constitute loan agreements. In re Renshaw, 229 B.R. 552, 557 (2d Cir. BAP 1999) ('[t]he sale of goods and services are exempt from the usury law [because] [u]nlike an entity which lends money, it is not illegal for an entity providing goods and services to charge one price for cash and another price (original price plus a Service Charge) for a sale on credit.'). Feinberg v. Old Vestal Rd. Assocs., 157 AD2d 1002 (NY App. Div. 1990))" (emphasis added).

(ii)

Tarcia contends that the language and terms employed in the Note require this Court to construe it as a loan. Specifically, Tarcia refers to the title of the contract as a "Promissory Note", and to the use of the terms "lender" and "borrower", as evidence that the document is intended to have the same force and effect as a loan or forbearance agreement. The specific verbiage in the Note is not disputed, but the funeral home disagrees that such language turns the transaction into "a loan or forbearance" agreement.

The funeral agreement is a one page document that lists the merchandise selected for the decedent's funeral arrangements, including the purchase of a casket, death certificates, and use of the funeral home facilities and staff. Its terms are simple and itemized. There is no language in this agreement which would render it a loan or forbearance agreement. Rather, the terminology employed demonstrates that the purpose and intent of the agreement is for a sale of merchandise and services to be provided by the funeral home in connection with decedent's memorial service and burial.

The Note mirrors language that is included in the funeral agreement and, in essence, clarifies and expands those terms. While the terms "Lender" and "Borrower" employed in the Note are consistent with verbiage often used in loan or forbearance agreements, it is clear that the Note in this case was not intended to represent a loan agreement. The Note simply reinforced the terms of the funeral agreement, making clear what was required if the bill for decedent's funeral and associated services were not paid by March 1, 2014. So viewed, this was simply an agreement for the possible payment of those goods and services over time; and, if that extended period were to occur, the price would be higher by the addition of interest.

As our Court of Appeals pointed out in Mandelino v. Fribourg, 25 NY2d 145, 151 [1968]:

"`A contract which provides for a rate of interest greater than the legal rate upon a deferred payment, which constitutes consideration for a sale, is not usurious.' This principle seems to have been regularly followed at the Appellate Division. `There is no usury in the normal purchase-money transaction where a seller demands a higher price because the consideration is not all in cash'" (emphasis added, quoting McAnsh v. Blauner, 222 AD 381, 382 [1928]; and Butts v Samuel, 5 AD2d 1008 [1958]).^[2]

Accordingly, I find that the funeral agreement is not a loan, but a contract for the purchase of goods and services, and therefore is not governed by the usury laws. The inclusion of the language describing the charge of an additional 2% interest rate per month subsequently is also not deemed usurious, as rates higher than the legal rate of interest may be applied to contracts for the sale of goods on credit. I make the same findings with respect to the Note."

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

PET DEEMED TO BE PROPERTY FOR MALPRACTICE CLAIM

Plaintiffs commenced this action alleging that the Defendants breached the appropriate standards of veterinary care in the treatment of their cat and sought to recover compensatory damages incurred for the treatment in the sum of $15, 262.22 plus $10,000.00 for the time and lost wages suffered by the plaintiffs, plus, $10,000.00 for conscious pain and suffering experienced by the cat, along with $5,000.00 representing the fair market value of the cat and punitive damages in the amount of $250,000.00.

Ritter v. BLUEPEARL OPERATIONS LLC, 2021 NY Slip Op 30341 - NY: Supreme Court February 5, 2021:

"Defendants' motion is granted in its entirety. Specifically, Plaintiff's Sixth Cause of Action for intentional infliction of emotional distress is dismissed because in New York there is no cause of action for emotional distress damages as result of negligent care and treatment rendered to one's animal, which is considered to be property. Jason v Parks, 224 AD2d 494 (2d Dept 1996)".

ANY REMEDY WHEN CONDO BOARD REFUSES TO APPROVE SALE?

Tumayeva v. Ocean Condo. No. Two, NYLJ March 18, 2021, Date filed: 2021-02-05, Court: Supreme Court, Kings, Judge: Justice Debra Silber, Case Number: 515695/2020:

"In this action, commenced by a prospective purchaser of a condominium unit who was not able to purchase, defendants (the condominium association’s board of managers and the individuals who are board members) move, pre-answer, to dismiss the complaint for lack of standing, failing to state a cause of action, and founded on documentary evidence (CPLR 3211 [a] [1], [3], [7]). The four causes of action in the complaint are tortious interference with contract, breach of contract, breach of the By-Laws and/or breach of plaintiff’s third-party beneficiary status under the By-Laws, and breach of fiduciary duty.

....

Here, the court finds that the plaintiff lacks standing to raise the claims in her third cause of action, breach of the condominium’s by-laws, because the by-laws did not apply to her directly or as a third-party beneficiary, as she was solely a prospective unit purchaser. The fourth cause of action, breach of fiduciary duty, fails to state a viable cause of action for the same reason. Plaintiff alleges no facts that would establish a fiduciary relationship between her and any of the defendants.

Plaintiff’s second cause of action, for breach of contract — alleging a “contractual relationship” between herself and the defendants on the basis of a processing fee she paid to the condominium to review her request to purchase the unit — also fails to state a viable cause of action. Looking at it in the light most favorable to plaintiff, there are insufficient facts to demonstrate that she and the condominium board entered any contract. There was no offer, no acceptance, and no privity. The selling unit owner was the party who asked the board to review the application, and instead of paying the fee, asked the buyer to pay it. That does not create a contract between the board of managers and the prospective purchaser.

Thus, the second, third, and fourth causes of action are dismissed.

The only claim that plaintiff does have standing to maintain, in this court’s opinion, is plaintiff’s cause of action for tortious interference with her contract. She claims, perhaps not artfully enough, that the President of the Board of Managers owns and lives in the unit directly below the subject unit, that he did not want children living above him and plaintiff has young children, and he did not want a sale for the price plaintiff had negotiated with the seller. The contract was subject to short sale approval by the bank holding the first lien on the unit, a short sale which had been approved by the seller’s bank. Plaintiff claims the board was troubled that it would appear in the public record and lower the value of the units in the development, so the condominium’s Board interfered with her contract with the selling unit owner, so she was not able to purchase the unit. The condo board did not choose to exercise their right of first refusal, plaintiff alleges, but they would not provide the document which this development ordinarily provides, stating that they were not exercising their right of first refusal. Apparently, without this document, Chase Bank, which had provided a mortgage commitment to plaintiff, refused to close. While this document is not required by the Bylaws of the condominium, it is apparently the custom and practice in this development, which has hundreds of units in different “phases” of the development, each with a different board of managers. As a result of the delay, the holder of the second lien on the unit foreclosed on it, preventing plaintiff from closing. The auction was held about two months after plaintiff was supposed to close, and the unit was sold to an investor subject to the lien of the first mortgage.

Additionally, plaintiff’s claims against the individual defendants must be dismissed. Each of the individual defendants is named a party in their individual capacity, not in their capacity as officers or directors of the Board of Managers. An action against an unincorporated association (which is what a condominium is in New York) must be maintained against its president or treasurer (see NY Gen Assn Law §13; Safe Haven Props. LLC v. Madison Green Condominium, 183 AD3d 460 [1st Dept 2020]; Caines v. Prudential Ins. Co., 8 Misc 2d 789, 168 NYS2d 813 [Sup Ct, NY County 1957]). This error is amendable, however, and is not fatal to the action. Therefore, the entire complaint is dismissed as asserted against the individual defendants."

MORE NOISY NEIGHBORS

The court's suggestion at the end of the opinion is most noteworthy and I have highlighted it.

CID ASSOC., LLC v. ALMAAS, 2021 NY Slip Op 30669 - NY: Supreme Court March 5, 2021:

"This action, which was commenced by plaintiff-landlord via summons with notice, seeks wide-ranging relief from injunctions to ejectment. Plaintiff owns the building located at 101 St. Marks Place, New York, New York (the "Building"). Defendant is a long-term tenant of Apartment 19 at the building pursuant to a rent stabilized lease.

At its core, the landlord seeks to alleviate the complaints of other tenants at the building stemming from defendant's alleged disruptive behavior, including: [1] playing loud music and allowing loud noises to emanate from the apartment and causing a disturbance to other tenants in the Building at all hours of the evening and early morning; [2] banging furniture and other objects on the apartment floor and walls; [3] causing other tenants to wake up in the middle of the evening and not be able to properly sleep; [4] harassing Building residents; and [5] engaging in other unspecified "dangerous, menacing and erratic [b]ehavior." Plaintiff further complains that the defendant has failed to timely pay rent due under the lease. As conceded by plaintiff's counsel at oral argument held on the record on 3/2/21, this action has been brought in Supreme Court because plaintiff is unable to obtain relief in housing court associated with defendant's alleged conduct at this juncture due to Covid-19-related measures designed to protect tenants impacted by the pandemic.

In support of the motion, plaintiff has provided sworn affidavits from its manager, its superintendent, as well as four current tenants and/or occupants of the Building, and two former tenants thereof. The superintendent, Pllumb Cekaj, states in relevant part:

Defendant causes music to blare at extremely high levels at all hours of the night and early morning, and will scream at the top of her lungs. Defendant will also allow objects to bang on the floor and walls, while also slamming her door. Defendant's conduct is clearly done to intimidate, harass and disturb the other tenants in the Building.

The tenants in the Building often contact me in the middle of the night due to noise complaints being made against Defendant.

The tenants state the Defendant is making too much noise that it interrupts their sleep and causes them to lose the peaceful enjoyment of their apartments.

Maria Teresa Cacho Estefania, the current tenant of Apartment 14, states in relevant part:

Defendant deliberately allows loud noises, consisting of: (a) extremely loud music; (b) screaming; and (c) banging on the floors and doors to emanate from Apartment 20 and cause a disturbance to the other tenants in the Building. The conduct always occurs late in the evening and continues into the early morning hours.

Defendant causes myself and my husband to wake up in the middle of the night at least two to three each week.

I do not keep a log of the nights that my sleep is disturbed and interrupted by Defendant because the conduct is constant and occurs every week.

Robert Miller, who is married to Estefania and is also current tenant of Apartment 14 confirms his wife's account in another sworn affidavit. Plaintiff has also submitted the sworn affidavit of Bridget Cushing, a current tenant of Apartment 20 who moved into the building in August 2020. Cushing explains that her apartment faces the defendant's apartment. She further states in relevant part as follows:

On the first night I took occupancy of Apartment 20, Defendant blasted music at an excessive level from 8:00 p.m. to 5:00 a.m. Defendant's conduct was deliberate and meant to send a message to me that she can do whatever she wants and does not care what her behavior costs her neighbors.

Since taking occupancy, Defendant has continued to blast loud music, scream loudly in her Apartment, constantly bang and slam her door, and cause a nuisance at least two to three times every week.

Defendant's conduct has only gotten worse in recent months.

Defendant's conduct forces me to get no sleep on multiple evenings and has greatly diminished by ability to use of Apartment 20 for the purpose I rented it for, specifically to sleep, rest and have a place to live.

Due to Defendant's conduct, I am forced to walk quietly in Apartment 20 so that Defendant does not realize that I am home. If Defendant is not aware that I am home, then she does not create loud, objectionable noises.

When Defendant is aware that I am in Apartment 20 she will constantly slam her door loudly as a threat. These acts cause me to fear for my safety as I do not know if Defendant intends to come to my apartment.

Defendant has also been observed by myself videotaping Apartment 20's entry door. It appears that Defendant is trying to goad me into an altercation where she will videotape only the part of the incident where I am wrong. I have avoided her during these moments and have made multiple calls to 3-1-1 and the NYPD. Even when the NYPD arrives, I do not feel safe, as Defendant will try to seek retribution by making loud noises and screaming at me once they leave the Building.

I have also refrained from having friends and family visit me at Apartment 20. On one occasion, in October 2020, I had a friend visit and Defendant constantly was banging on my door and scaring me and my friend. When my friend left, we noticed the offensive sign on Defendant's door telling my friend to "Get the F---K Away". I took the photograph of the sign and sent it to Plaintiff.

On at least two or three evenings each month, the objectionable conduct becomes more violent and loud. On these nights there is no way that I can sleep and I fear that the anxiety induced on these evenings will cause more sleepless nights.

Defendant is a danger to this Building and to everyone who lives here

Plaintiff has provided a sworn affidavit from Alexandra Papadopolulos, the current occupant of Apartment 25, who has lived in the Building as a roommate of Sheila O'Neal, the tenant of Apartment 25. Apartment 25 is located directly above the defendant's apartment. Papadopolulos states in relevant part:

Since the first day that I have lived in the Building, I have had the displeasure of having to deal with Defendant. Residing in the apartment above Defendant is a living hell, as I never know whether she will have a violent episode on any given night.

...

As Apartment 25 is directly above Apartment 19, I often feel my floors start to shake from the insanely loud music played by Defendant.

Defendant's conduct is deliberate and intended to cause unease and harm to the other tenants in the Building. Defendant will purposefully play extremely loud music for twenty to thirty second sessions and then go completely silent for five to ten minutes. This conduct will go on from 10:00 p.m. to 3:00 a.m. multiple times every week.

...

Defendant has also caused me to avoid having any guests in Apartment 25. In July 2020, 1 had a friend visit me at Apartment 25. Defendant immediately began to blast last music when she knew I had company. When my guest asked Defendant to lower her music, Defendant responded by harassing my guest and throwing garbage outside my door. When cleaning up the garbage I saw shards of glass that had broken off a bottle and were all over the floor, creating a dangerous condition

...

Due to Defendant's constant loud noise and harassment, I have contacted 3-1-1 on at least eight occasions.

On two of the eight occasions, the NYPD appeared in the Building.

Upon the police leaving the Building, Defendant's conduct always gets worse and she always gets extremely angry. These are the times that I am most concerned for my own safety.

Plaintiff has provided affidavits from two former tenants, Jesse Schwartz and Sarah Story, who claim that they vacated the apartment due in whole or in part to the defendant and her conduct.

Meanwhile, in her affidavit submitted in opposition to the motion, defendant admits that she "love[s] music, especially reggae." She further states:

I have a vinyl collection and play it on a turntable because I find that has better sound than any other way of listening to music. Some times I invite my friends to my home to celebrate special occasions and we sing along to the music. In 2020 we did not have much to celebrate except my birthday on September 15 and when Joe Biden won the presidency.

Most of the times when I play music or watch a movie my neighbors do not have any problem with it. I have no way of knowing if they are annoyed or even home to hear it unless they ask me to turn it down. Generally whenever my neighbors have knocked on my door to ask me to turn down the music, I feel bad for disturbing them and turn it off or down.

Otherwise, defendant claims she does not recognize the names of some of the people who submitted affidavits in support of plaintiff's application, points out that the tenant who lives in Apartment 25 did not submit an affidavit and wonders "why the noise bothers Ms. O'Neil's roommate but not her." Defendant further states:

I like to get to know my neighbors, so I wish that the other tenants who submitted affidavits, Mr. Schwarz, Ms. Cushing, Ms. Story, and Mr. Miller, had just talked to me civilly instead of calling the police, 311, and the landlord. I would have happily participated in mediation if they had calmly requested that so that we could find a solution that works for everyone without the threat of a judgment aimed at me.

Discussion

A preliminary injunction is a drastic remedy and should not be granted unless plaintiff can demonstrate "a clear right" to such relief (City of New York v. 330 Continental, LLC, 60 AD3d 226 [1st Dept 2009]). On a motion for preliminary injunctive relief, plaintiff must demonstrate a likelihood of success on the merits, irreparable injury absent the granting of the preliminary injunction, and a balancing of the equities in its favor (see Aetna Ins. Co. v. Capasso, 75 NY2d 860 [1990]; see also 1234 Broadway LLC v. West Side SRO Law Project, 86 AD3d 18 [1st Dept 2011]).

A cause of action for private nuisance requires a showing that the defendant's conduct "is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 NY2d 564 [1977]; see Hutcherson v. Hill, 161 AD3d 495 [1st Dept 2018]; Domen Holding Co. v. Aranovich, 1 NY3d 117 [2003]).

A landlord may terminate a rent stabilized tenancy due to a nuisance condition. The Rent Stabilization Code, 9 NYCRR § 2524.3, provides as follows:

Without the approval of the DHCR, an action or proceeding to recover possession of any housing accommodation may only be commenced after service of the notice required by section 2524.2 of this Part, upon one or more of the following grounds, wherein wrongful acts of the tenant are established as follows:

(b) The tenant is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety.

While a finding of a violation of the New York City Noise Control Code is not necessary to demonstrate a prima facie cause of action for private nuisance (see 61 West 62 Owners Corp. v. CGM EMP LLC, 77 AD3d 330 [1st Dept 2010]), its provisions are instructive. NYC Administrative Code § 24-218 provides in relevant part as follows:

(a) No person shall make, continue or cause or permit to be made or continued any unreasonable noise.

(a-1) No person shall make, continue or cause to permit or be made or continued any unreasonable noise:

(1) for any commercial purpose or during the course of conducting any commercial activity; or

(2) through the use of a device, other than a device used within the interior living space of an individual residential unit, installed within or upon a multiple dwelling or a building used in part or in whole for non-residential purposes.

(b) Unreasonable noise shall include but shall not be limited to sound, attributable to any device, that exceeds the following prohibited noise levels:

(1) Sound, other than impulsive sound, attributable to the source, measured at a level of 7 dB(A) or more above the ambient sound level at or after 10:00 p.m. and before 7:00 a.m., as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way.

(2) Sound, other than impulsive sound, attributable to the source, measured at a level of 10 dB(A) or more above the ambient sound level at or after 7:00 a.m. and before 10:00 p.m., as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way.

(3) Impulsive sound, attributable to the source, measured at a level of 15 dB(A) or more above the ambient sound level, as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way. Impulsive sound levels shall be measured in the A-weighting network with the sound level meter set to fast response. The ambient sound level shall be taken in the A-weighting network with the sound level meter set to slow response.

This action has been commenced by summons with notice, and there is no complaint at this juncture. Thus, it is unclear what precise legal theories plaintiff will assert and what remedies plaintiff will seek in this action. The court finds that plaintiff is attempting to assert a cause of action for ejectment based upon nuisance against the defendant.

On this record, there are six affidavits from current and former tenants of the building who live in close proximity to the defendant attesting to her objectionable and disruptive conduct spanning a significant period of time and particularly occurring late at night. These affidavits are consistent in their descriptions of defendant's conduct. Plaintiff's own employees state based upon their personal knowledge that they have received numerous complaints about defendant's behavior. Numerous 311 complaints have been made, and the NYPD has been involved on multiple occasions.

For her part, defendant does not deny listening to music. Indeed, she implicitly admits that sometimes, when she plays music or watches a movie, her neighbors do have a problem with it. The court is troubled by defendant's further admission that "[g]enerally whenever my neighbors have knocked on my door to ask me to turn down the music, I feel bad for disturbing them and turn it off or down." This statement concedes that defendant has been repeatedly asked to turn her music down. Defendant's use of the word "generally" is cause for concern because it may imply that there are times when she does not feel bad for disturbing her neighbors or doesn't turn down her music. Nonetheless, the fact that defendant admits she has been repeatedly asked by her neighbors to turn down her music highlights an ongoing problem and a potential nuisance.

Defendant further admits to having knowledge that tenants have contacted 311 and the NYPD to complain of noise she has caused. Contrary to defendant's contention, there is no legal requirement that plaintiff or its tenants talk to her "civilly" nor mandate that the parties proceed to mediation which defendant claims she "would have happily participated in [] if they had calmly requested that..." While mediation may be fruitful at this juncture, a topic which was explored by the court on the record during oral argument, it is defendant who is obligated by law not to cause or maintain a private nuisance in the first instance.

However, as defense counsel points out, plaintiff has failed to serve a predicate notice on defendant. Indeed, no such notice is annexed to plaintiff's moving papers. Part of plaintiff's prima facie case in this action seeking ejectment is that the defendant has been served with a valid notice required by 9 NYCRR § 2524.2. That provision states in relevant part:

Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

A landlord's failure to serve this predicate notice or otherwise comply with 9 NYCRR § 2524.2 mandates dismissal of an action seeking possession (see i.e. Hirsch v. Stewart, 63 AD3d 74 [1st Dept 2009]; see also Prana Growth Fund I, L.P. v Lazala, 8 Misc 3d 667 [Sup Ct NY 2005]). Since plaintiff has failed to serve the requisite notice on defendant in compliance with the rent stabilization code, it has necessarily failed to demonstrate a likelihood of success on the merits at this juncture.

Accordingly, the motion for injunctive relief must be denied. This result gives the court pause, because as the court has laid out in this decision, defendant's conduct if proven could very well result in her ejectment from the apartment. The court is optimistic that defendant, a long-term rent stabilized tenant, can reach an amicable resolution of this action. That may involve concessions on defendant's part as simple as lowering the volume of the audio devices she is using or wearing headphones at night, options which defendant may want to consider to avoid further litigation. Apartment dwelling in New York City does not come without compromises such as hearing reasonable noise from one's neighbors, among other sources. However, defendant cannot engage in behavior that constitutes a private nuisance without impunity.

The balance of the motion seeking relief for defendant's alleged nonpayment constitutes an impermissible end-run around the moratorium on evictions due to non-payment and is therefore denied."

THE "DE FACTO CORPORATION" DOCTRINE

Torto Note Member, LLC v Babad, 2021 NY Slip Op 01438, Decided on March 10, 2021, Appellate Division, Second Department:

"....The appellants also failed to raise a triable issue of fact as to whether the assignment of the note to the plaintiff was a nullity on the ground that the plaintiff, a limited liability company, was not yet formed or in existence on the date of the assignment. New York has recognized that an unincorporated entity can take title or acquire rights by contract if it is a de facto corporation (see Lehlev Betar, LLC v Soto Dev. Group, Inc., 131 AD3d 513, 514). "Under very limited circumstances, courts may invoke the de facto corporation doctrine where there exists (1) a law under which the corporation might be organized, (2) an attempt to organize the corporation and (3) an exercise of corporate powers thereafter" (Matter of Hausman, 13 NY3d 408, 412; see Lehlev Betar, LLC v Soto Dev. Group, Inc., 131 AD3d at 514). The de facto corporation doctrine is equally applicable to LLCs (see Matter of Hausman, 13 NY3d 408, 412; Lehlev Betar, LLC v Soto Dev. Group, Inc., 131 AD3d at 514). Here, the plaintiff submitted affidavits that demonstrated the applicability of the de facto corporation doctrine (see Lehlev Betar, LLC v Soto Dev. Group, Inc., 131 AD3d at 514). Specifically, the plaintiff demonstrated that there was a law under which the LLC might be organized (see Limited Liability Company Law §§ 203, 209), that the plaintiff made a "colorable attempt" to comply with the statutes governing the formation of an LLC, including the filing requirement, and that the plaintiff exercised its powers as an LLC thereafter (see Lehlev Betar, LLC v Soto Dev. Group, Inc., 131 AD3d at 514-515)."

THE NEIGHBOR'S BRIGHT LIGHT

So if you neighbor installs a very bright spot light that stays on all night long and shines on your bedroom window, is there a remedy?

Not many. In 2011, the  International Dark-Sky Association and the Illuminating Engineering Society of North America approved the Model Lighting Ordinance (MLO), an outdoor lighting template designed to help municipalities develop outdoor lighting standards that reduce glare, light trespass, and skyglow. There are very few rules on this in New York (see Lighting Clearinghouse - NYSERDA) and even when a rule does exist, just because you find the intruding light objectionable, does not mean it is objectionable.

IN THE MATTER OF VANARMAN, 2008 NY Slip Op 50243 - NY: Plattsburgh City Court 2008:

"Before the Court is an Appearance Ticket issued by the City of Plattsburgh Building Inspector's Office to James VanArman, alleging a violation of Plattsburgh Zoning Ordinance §270-29.A. That provision is entitled "General use standards. . . . . Vibration, odor and glare." The "Comment" portion of the ticket alleges "Light shining in neighbor's window." The ticket was issued on December 7, 2007 and directed Mr. VanArman to appear in City Court on December 13, 2007.

Mr. VanArman and Building Inspector Burdo appeared on December 13, and Mr. VanArman requested a trial. The trial was scheduled for January 4, 2008, and notification was sent to the neighbors, Marty and John Strack, as well as to the parties present in Court.

On January 4, 2008, trial was held, and the Court heard testimony from Building Inspector Kyle Burdo, Marty Strack, Krista VanArman and James VanArman. The Court received exhibits, consisting of photographs, police reports, a portion of a map showing the locations of the two homes, the pertinent provision of the Zoning Ordinance and a page from the Zoning Dictionary used by the City of Plattsburgh with the definition of "Glare."

The Zoning provision of the Plattsburgh City Code reads: "§ 270-29. General use standards. In any district, the following standards for uses shall apply: A. Vibration, odor and glare. No offensive or objectionable noise, vibration, odor or glare shall be noticeable at or beyond the property line." In the Zoning Dictionary, "glare" is defined as "A sensation of brightness within the visual field that causes annoyance, discomfort or loss in visual performance and visibility."

A summary of the trial testimony follows:

Kyle Burdo — Building Inspector.

The first police report by Martha Strack complaining of the VanArmans' lights was filed in May 2007. He received a phone call complaining of the lights in July 2007. He issued a Violation Notice to VanArman on August 9, 2007. There were other police reports on October 9 and November 15, 2007. He explained that the reports were made to the police since the building inspectors office is not open at night. The Court received in evidence three police reports and the Violation Notice.

Mr. Burdo testified that he personally went to the Strack house after dark in the summer before issuing the August 9 Violation Notice. He observed a "substantial glare coming in the window" which faces the VanArman house; he observed that there was no shade, curtain or other treatment covering the window. Adjacent to this room was a bathroom, and light came into the bathroom if the door was left open. Then, on the other side of the bathroom was a bedroom, and if both bathroom doors were left open, light came through to the bedroom. The Court received as "People's Exhibit 2" a satellite photograph of the two homes, and Mr. Burdo marked on it the location of the three rooms, the street light between the two homes, and the lights on the back of the VanArman house.

Mr. Burdo said that his understanding from Ms. Strack when he went to the house was that the room facing the VanArmans was a spare bedroom, used by her grandchildren when they visit. The Police Report from May 26, 2007 states in part, "She asked me to follow her upstairs and into a spare room on the east side of the house. She complained that the light from the neighbors poolside glared into the room and woke her up. The light did shine into the spare room then through the doorway into the bathroom and then it did appear that it went through another door way into her bedroom."

Mr. Burdo testified that to him, the glare was not offensive in the second bedroom. He noted that there were steps that can be taken to stop the light, such as closing the door and putting a window treatment on. He testified that the light from VanArmans was offensive and objectionable to Ms. Strack. He was uncertain, given the repeated complaints, whether the Building Inspector was obligated to charge VanArman.

After Mr. Burdon discussed the case with his supervisor, and with Mr. VanArman, the Building Inspectors Office concluded that it should bring the charge in hopes of obtaining the ruling of City Court on two issues: (1) the meaning of "offensive or objectionable . . . glare," and (2) is the decision to charge a violation of this provision within the discretion of the Building Inspector, or does a citizen complaint require the filing of a charge?

Martha [Marty] Strack — Neighbor testified that the problem with the Van Armans' lights started in February 2007. She submitted Exhibits 9 & 10, photographs that she said she took in the first bedroom at night, which she said show how bright the room is from the VanArmans' lights. She described the light as coming through the bedroom window "24/7." She said the light goes into the bathroom if the door is open. Ms. Strack said there is no window treatment on the window facing VanArmans except café curtains. She said she priced them, and it would cost $500 to get something that would keep the light out.

She says that she sleeps in the room that faces her neighbor, and that she cannot fall asleep because of the brightness of the glare from VanArman's lights. Ms. Strack testified that the lights are not pointed at her house. She requests that the lights be shielded or otherwise redirected. She asserted that the VanArmans' lights are objectionable because their illumination goes way beyond the property line, and they are offensive to her and she cannot sleep.

Krista VanArman, wife of James VanArman, testified that the police have come over when the light is on for only 10 minutes. They turned it on when they used the pool or barbequed. They turned it off when the police asked them to. There was only one time when Ms. Strack personally contacted them about the lighting; other times she called the police without coming and explaining to the VanArmans that they had a problem.

On that one occasion Ms. Strack asked Ms. VanArman to change the light because her grandchildren would be visiting and sleeping in that room. In response, the VanArmans changed the top light to a blue bulb, and pointed the lower white bulb down, so that it does not even light to the center of the pool and does not reflect off it. She testified that it is a lot darker with the blue light. Those changes were still in place on the date of the trial.

She said the shed lights are also pointed down, and they are on a motion sensor. She explained that some things trigger it, including the automatic pool cleaner. She described that none of the lights illuminate between the pool and hedge on the Strack side of the yard, and that they use a flashlight if they and their young children are going out there at night because it is so dark.

James VanArman testified that he is willing to use the lights just for the BBQ and swimming. He portrayed himself as being reasonable and expressed his frustration that Ms. Strack called authorities repeatedly without trying to work it out with him. He pointed out the street light and suggested that its brightness was the problem.

Ms. Strack responded, expressing concern that she was being depicted as unreasonable. She stated that the street light did not cast any light into her bedroom. She also said that the VanArmans' changing to the blue light made no difference at all. She expressed her view that the law is clear-cut, that since there is light going beyond the boundary of the VanArman's property, they are in violation. She reiterated that she will not put a window covering on the one window through which the light passes because it will cost her $500.

At the conclusion of the testimony, the Court reserved decision.

Conclusions of Law

Enforcement of Zoning Ordinances.

Numerous New York state and federal courts have held that enforcement of zoning laws is entirely within the discretion of the public officials who are charged with enforcement. In this case, that is the City of Plattsburgh Building Inspector. Over and over, the Courts have held that enforcement of a municipal code is not mandatory, and public officials cannot be required to bring violations. See In the Matter of Perazzo v. Lindsay, 23 NY2d 764, 296 NYS2d 957 (1968); In the Matter of the Church of the Chosen, et al., v. City of Elmira, 18 AD3d 978, 795 NYS2d 141 (3d Dept 2005), citing Matter of Dyno v. Village of Johnson City, 261 Ad2d 783, 784, 690 NYS2d 325 (1999) appeal dismissed 93 NY2d 1033 (1999) lv denied 94 NY2d 818 (1999), and other cases. See also In the Matter of Saks v. Petosa, 184 AD2d 512, 584 NYS2d 321 2d Dept 1992); Manuli v. Hildenbrandt, 144 AD2d 789, 534 NYS2d 763 (3d Dept 1988); In the Matter of Young v. Town of Huntington, 121 AD2d 641, 503 NYS2d 657 (2d Dept 1986); Straub and Village of Ellenville Police Department v. Town of Wawarsing, Stoeckler and Kissell, 80 Fed Appx 133 (2d Cir 2003) quoting Young v. Town of Huntington; Rosendale v. Iuliano, et al., 2002 WL 215656 (SDNY) quoting Young v. Town of Huntington.

In several of these cases, including Perazzo, Church of the Chosen, Manuli, and Young, neighbors tried to compel city officials to file code violations. The Courts concluded that the neighbors could not require enforcement; that doing so was the decision of the officials.

Thus, this Court concludes that it is the determination of the Building Inspector, not the neighbor, as to whether the City Code is violated, and further whether to bring an enforcement action. If Building Inspector Burdo concluded that the light emanating from the VanArmans did not violate the ordinance, he was not required to file a violation. Repeated complaints by Ms. Strack do not eliminate the discretion of the Building Inspector to use his judgment and experience in making the decision not to bring an enforcement action against the VanArmans.

Determining a Violation.

The wording of the ordinance does not prohibit all "noise, vibration, odor or glare" which is "noticeable at or beyond the property line." It prohibits only that which is "offensive or objectionable." The Building Inspector's opinion was that the "glare" in this case did not violate the City's zoning law.

There is no question that Ms. Strack objects to her neighbors' lights. But, that in and of itself does not mean that they are "objectionable" within the meaning of the ordinance. The Building Inspector, after personally viewing the scene, determined that the exterior lighting at the VanArmans did not violate the law. Factors such as the number and wattage of the lights, their directional orientation, the location of these two homes in a city neighborhood lighted by municipal street lights, reasonable security needs, and hours of illumination are all appropriate considerations. So are the number of windows exposed to the lights and whether any window treatments cover those windows. Any accomodations made by either party are also relevant.

After carefully considering all of the evidence presented, the Court concludes that James VanArman has not violated section 270-29A of the Plattsburgh City Zoning Code. The Violation is therefore dismissed."

MEDICAL MARIJUANA AND THE WORKPLACE

 

Gordon v. Consolidated Edison, Inc., 2021 NY Slip Op 492 - NY: Appellate Div., 1st Dept. January 28, 2021:

"The record shows that plaintiff worked for defendant as a financial analyst. Plaintiff suffered from irritable bowel disease (IBD), one of the conditions covered by the Compassionate Care Act (CCA) (see PHL 3360 to 3369-e), and in December 2016, she consulted a physician about whether medical marijuana would help with her IBD symptoms. The physician told plaintiff that she would be a suitable medical marijuana patient. On December 17, 2016, plaintiff tried marijuana to see if it would alleviate her IBD symptoms, and, plaintiff alleged, the drug worked "instantaneously" to relieve her symptoms. The next day, plaintiff contacted a physician registered with the New York State Department of Health's Medical Marijuana Program (MMP) to certify patients for medical marijuana treatment, and made an appointment to see the doctor on December 27, 2016.

In the meantime, on December 21, 2016, plaintiff was randomly selected for a drug test in accordance with defendant's standing policy, and she provided a urine sample and tested positive for marijuana. On December 27, 2016, plaintiff saw the MMP-registered physician, who certified that plaintiff was likely to benefit from treatment with medical marijuana. On December 29, 2016, the MMP website stated that she was approved as a medical marijuana patient.

On that same day, defendant's Human Resources (HR) department informed plaintiff that she had tested positive for marijuana use. Plaintiff responded that she was a medical marijuana patient, and that she had used marijuana to treat her IBD symptoms. The HR officer scheduled an appointment for plaintiff to meet defendant's in-house medical review officer (MRO), a physician, on January 5, 2017.

On January 5, plaintiff saw the MRO, who ascertained that when plaintiff used marijuana on December 17 she was not yet a certified medical marijuana patient. The MRO concluded that plaintiff's use violated defendant's drug use policy, and referred plaintiff back to the HR department for action. The HR department decided that, because plaintiff was still a probationary employee, she was not eligible for accommodation and should be terminated. The HR department arranged to meet with plaintiff on January 11, 2017, to inform her of the decision.

On January 9, 2017, the MMP issued plaintiff's Registry ID card. On January 10 and 11, 2017, plaintiff reiterated to the HR department and her supervisor that she was a certified medical marijuana patient. At the meeting on January 11, defendant terminated plaintiff's employment.

The foregoing timeline establishes that there are issues of fact, for purposes of plaintiff's claim for failure to accommodate under the State Human Rights Law (HRL), as to whether defendant adequately engaged in a cooperative dialogue with plaintiff (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 [2014]; Phillips v City of New York, 66 AD3d 170, 176 [1st Dept 2009]) to determine whether it could reasonably accommodate her status as a medical marijuana patient (see PHL 3369[2]). Notably, questions of fact exist as to whether defendant improperly cut the dialogue process short when it discovered that plaintiff was a probationary employee, and refused to consider accommodating her — as it regularly did for permanent employees — by, for example, giving her discipline short of termination, or simply overlooking the one-time technical violation in light of her contemporaneously acquired status as a medical marijuana patient (see Matter of McEniry v Landi, 84 NY2d 554, 560 [1994]).

This case is distinguishable from cases like Hazen v Hill Betts & Nash LLP (92 AD3d 162 [1st Dept 2012], lv denied 19 NY3d 812 [2012]), where we held that even when an employee's "misconduct was caused by his disability, [the employer] was not required to excuse that misconduct as an accommodation" (id. at 170). Here, plaintiff did not here seek certification for medical marijuana use after testing positive for its use. Instead, her pre-certification marijuana use was the beginning of a process which ended with her certification for medicinal use. Plaintiff began the certification process before she tested positive at work. Nor is there any allegation that plaintiff's use of marijuana, either before or after certification, has ever affected the quality of her work or her ability to do that work, or that she has ever used marijuana, medicinal or otherwise, at the workplace.

The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not. Although the City HRL must be construed liberally to ensure maximum protection (see Administrative Code of City of NY § 8-130[a]), certification as a medical marijuana patient is (other than as specified for purposes of claims under the State HRL) a legal classification. It is not a "physical, medical, mental, or psychological impairment," which is how disabilities are defined under the City HRL (Administrative Code § 8-102).

Nevertheless, plaintiff's IBD, is a physical impairment and thus a disability under the City HRL. Accordingly, issues of fact exist as to whether defendant should have permitted plaintiff to treat her IBD through the medical use of marijuana, as a reasonable accommodation. In that regard, a further issue of fact exists as to whether the accommodation would reasonably extend to excusing the single pre-certification use of marijuana, and whether defendant fulfilled its duty to engage in an interactive dialogue with plaintiff aimed at reaching a reasonable accommodation for her disabling condition.

With respect to plaintiff's claim of disability discrimination, plaintiff has raised an issue of fact as to whether defendant's proffered reason for terminating plaintiff, i.e., that she violated the company's drug policy by using marijuana prior to her certification as a medical marijuana patient, was pretextual (see Uwoghiren v City of New York, 148 AD3d 457, 457-458 [1st Dept 2017]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 36 [1st Dept 2011], lv denied 18 NY3d 811 [2012]).

However, plaintiff's third cause of action for violation of PHL 3369 must be dismissed, because the provisions of PHL 3369 demonstrate that creation of a private right of action would not be consistent with the CCA's statutory scheme (see Sheehy v Big Flats Community Day, Inc., 73 NY2d 629, 633 [1989]; Rhodes v Herz, 84 AD3d 1, 10-11 [1st Dept 2011], lv dismissed 18 NY3d 838 [2011]). Section 3369 expressly references several well-developed existing statutes prohibiting discrimination, including the State HRL, Civil Rights Law § 40-c, and the hate law provisions of the Penal Law.

These express references evidence the legislature's intention to invoke the protections afforded by those statutes as the enforcement mechanisms for violations of the CCA. In particular, the CCA's unique provision that status as a medical marijuana patient shall constitute a "disability" for purposes of the State HRL, signals the legislature's intent to incorporate that highly developed body of law as a mechanism for certified patients' protection of their right to avail themselves of the benefits of medical marijuana.

Accordingly, we modify solely to grant defendant's motion to the extent of dismissing plaintiff's third cause of action for violation of PHL 3369."

PRO BONO

 

VACATING DEFAULT AND HEARING ON IMPROPER SERVICE

U.S. Bank N.A. v Giraldo, 2021 NY Slip Op 01282, Decided on March 3, 2021, Appellate Division, Second Department:

""When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the defendant under CPLR 5015(a)(1)" (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [internal quotation marks omitted]; see Wells Fargo Bank, NA v Spaulding, 177 AD3d 817, 818; Roberts v Anka, 45 AD3d 752, 753). "'The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff'" (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897, quoting Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589).

"Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308, and [a] defect in service is not cured by the defendant's subsequent receipt of actual notice of the commencement of the action" (Wells Fargo Bank, NA v Spaulding, 177 AD3d at 819 [internal quotation marks and citations omitted]). "Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant [*2]was validly served" (U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988; see US Bank, N.A. v Schumacher, 172 AD3d 1137, 1137; Fuentes v Espinal, 153 AD3d 500, 501). "'However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing'" (US Bank, N.A. v Schumacher, 172 AD3d at 1138, quoting U.S. Bank, N.A. v Peralta, 142 AD3d at 988-989).

Here, the process server's affidavit of service constituted prima facie evidence of valid service pursuant to CPLR 308 (Wells Fargo Bank, NA v Spaulding, 177 AD3d at 819). However, Giraldo's affidavit in support of his motion, in which he denied that he was served, denied that he ever lived at the address where service was allegedly made, and set forth significant discrepancies between the process server's physical description of him and his actual physical appearance, was sufficient to rebut the process server's affidavit (id. at 819; FV-1, Inc. v Reid, 138 AD3d 922, 923-924; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897).

Accordingly, a hearing is warranted on the issue of the validity of service of process upon Giraldo, and we remit the matter to the Supreme Court, Nassau County, for that purpose and a for a new determination of his motion thereafter."

SPOUSE'S SPYWARE SPRINGS SANCTIONS

C.C. v A.R., 2021 NY Slip Op 01243, Decided on March 3, 2021, Appellate Division, Second Department:

"This appeal examines the proper sanction in a matrimonial litigation where one party installed spyware on the other party's phone, invoked Fifth Amendment protections on the issue, and intentionally destroyed evidence as to what the spyware actually intercepted. The Supreme Court properly determined, under the circumstances here, that it is proper to infer that the plaintiff violated the defendant's attorney-client privilege, and that the appropriate sanction is to strike the causes of action in the complaint relating to the financial issues of the case other than child support.

The parties were married in 2008, and have two children, both born in 2009. The plaintiff commenced this action for a divorce and ancillary relief by filing a summons and complaint in October 2014.

In May 2015, the defendant moved, ex parte, by order to show cause, to direct the plaintiff to immediately turn over his computing devices for forensic imaging and analysis. The defendant introduced evidence that the plaintiff had installed spyware onto her phone, and that he had repeatedly invoked his Fifth Amendment privilege against self-incrimination when questioned about such spyware during his deposition. The Supreme Court directed the Sheriff of the City of New York to serve the order to show cause on the plaintiff and to confiscate his computing devices. The court also enjoined the plaintiff from destroying or tampering with any records related to any spyware.

The Supreme Court subsequently appointed a referee to examine the plaintiff's computing devices. Both parties hired forensic experts to assist the referee in the process.

The defendant then moved to compel the plaintiff to disclose all spyware he had purchased, alleging that her expert had found yet another spyware program on her phone, called OwnSpy. This new spyware, the defendant claimed, had a wiretapping feature and could turn her phone into an open microphone. The spyware was installed on her phone from October 10, 2014, to October 31, 2014. The defendant alleged that, the day before the plaintiff commenced this action, he had used the program to listen to her session with a psychiatrist and a meeting with her attorney.

In an interim report, the referee noted that, of the 14 computing devices that were examined, 4 of them were locked. The experts were able to open one without a password. The plaintiff claimed that he could not remember the passwords to the other 3 locked devices. The experts were able to unlock 2 of the 3 remaining devices with the help of an outside firm, but one device remained inaccessible. Based upon the experts' interim reports, the referee determined that the plaintiff did use spyware against the defendant, and that the plaintiff did intercept the defendant's confidential communications. The referee also concluded that there was no forensic evidence that the plaintiff disseminated the information to any third party, or that he intercepted or disseminated any privileged communications. However, the report noted that 1 of the locked devices contained evidence that, one day after the court order was issued to seize the plaintiff's computing devices, the plaintiff installed and executed data-wiping programs on that device. Because of this, it was impossible to determine what data, if any, was deleted and rendered unrecoverable.

The referee's final report noted that there was evidence that the plaintiff had used the spyware feature to record conversations using the defendant's phone while she was in the vicinity of her attorney's office.

The defendant then moved to hold the plaintiff in contempt for spoliation of evidence and to preclude the plaintiff from introducing any evidence at trial. The plaintiff opposed the motion. In an order dated February 5, 2018, the Supreme Court found that the plaintiff knowingly and purposefully violated the defendant's attorney-client privilege. The court also found that the plaintiff engaged in spoliation of evidence when he used data-wiping applications on his computing devices while he was obligated to preserve evidence. The court determined that the spoliation was intentional and in bad faith, and accordingly, that the relevance of the destroyed evidence was presumed. The court concluded that the plaintiff's actions "gravely prejudiced the defendant." The court determined that, because of the spoliation issues and the fact that the plaintiff repeatedly invoked his Fifth Amendment privilege against self-incrimination, the most drastic spoliation sanctions were required. Accordingly, the court, inter alia, granted that branch of the defendant's motion which was to prelude the plaintiff from introducing any evidence at trial to the extent of striking the causes of action in the complaint seeking spousal support, equitable distribution, and counsel fees.

"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a 'culpable state of mind,' and 'that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547, quoting VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45). "Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed" (Pegasus Aviation I., Inc. v Varig Logistica S.A., 26 NY3d at 547). Here, the Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff's invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant's conversations when she was in the vicinity of her attorney's office. Although this presumption is rebuttable (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d at 45), the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff's complaint seeking financial relief other than child support. "Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence" (Morales v City of New York, 130 AD3d 792, 793; see CPLR 3126; McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1094-1095). "The Supreme Court is empowered with 'broad discretion in determining the appropriate sanction for spoliation of evidence'" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718, quoting De Los Santos v Polanco, 21 AD3d 397, 397). These sanctions can include "precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action. Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party" (Ortega v City of New York, 9 NY3d 69, 76 [citations omitted]).

Here, where the plaintiff violated the defendant's attorney-client privilege, the preclusion of documents is not an appropriate alternative sanction because the plaintiff will always be privy to any litigation strategy of the defendant that he gained through secretly intercepting her privileged communications (see Lipin v Bender, 84 NY2d 562, 572-573). As the plaintiff "chose the course of action that exacerbated the harm" (id. at 569), the defendant has been seriously compromised in defending herself in this divorce action. Accordingly, the Supreme Court providently exercised its discretion in striking the causes of action in the complaint seeking spousal support, equitable distribution, and counsel fees."