U.S. Supreme Court Edits Decisions Without Notice

            According to a recent article in the New York Times by Adam Liptak ("Final Word on U.S. Law Isn't: Supreme Court Keeps Editing," 5/24/14), the United State Supreme Court has been regularly editing its decisions - without making public notice of the revisions.  According to Richard J. Lazarus in the article, law professor at Harvard and the author of a new study regarding the practice, the edits include "truly substantive changes in factual statements and legal reasoning."

            This practice is seemingly troublesome - particularly for attorneys across the country - as the decisions are relied upon for guidance, and the finality of them is now discovered to be uncertain with respect to significant legal holdings.  This was particularly noted by Jeffrey L. Fisher in the article, a law professor at Stanford, who stated, "[i]n Supreme Court opinions, every word matters...[w]hen they’re changing the wording of opinions, they’re basically rewriting the law."

            One reason the article notes for the revisions is due to the time constraints the Justices have when writing and publishing their decisions (which sometimes lead to inaccuracies and misstatements of law).  Also, according to Mr. Liptak, the final versions of decisions do not always fully replace the original ones, and the only way the public can identify most changes is by a rigorous comparison of early versions of decisions to ones published years later.

Salvatore R. Marino, Esq. 

Negligent Security Case is Dismissed

            In Vekhter v. Vishnyakov and Astoria Caterers, Inc. (NYLJ 1202653274435, at 1, Sup., Kings, decided April 21, 2014), the plaintiff brought a negligence action against a defendant restaurant, alleging that the restaurant was liable for injuries he suffered as a result of being attacked by another patron of the establishment when he was there.  Particularly, the plaintiff alleged the following causes of action: negligence and battery; intentional infliction of emotional distress; assault; negligent infliction of emotional distress; premises liability; negligent hiring, supervision, and retention; failure to provide security as required by New York City Administrative Code §20-359; and punitive damages.

            After the defendant made a motion for summary judgment (seeking to dismiss the plaintiff's action), the Kings County Supreme Court granted the defendant's motion, holding, among other things, that the plaintiff failed to raise a triable issue of fact with respect to issues of proximate cause and foreseeability.  The Court also stated the following: "While the owner of a public establishment has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control, it has no duty to protect customers against an unforseen and unexpected assault...Nonetheless, plaintiff's vague and conclusory assertion that 'fights like [his] regularly happened' is insufficient to support a duty on [defendant's] part to provide security either generally or for [the event].  Plaintiff provides no evidence of a history of assaults or altercations either at [defendant's restaurant] or [similar events] held elsewhere."

Salvatore R. Marino, Esq.

HDFC Tenants' Rights

            A recent court decision highlights Housing Development Fund Corporation (also known as "HDFC") tenants' rights with respect to eviction proceedings, and the greater protections those tenants have.

            In 823 East 147th Street Housing Development Fund Corp. v. Hinnant (NYLJ 1202649981134, at 1, Civil Court, Bronx, decided March 28, 2014), the petitioner landlord, a non-profit Housing Development Fund Cooperative Corporation, commenced a holdover eviction proceeding at the expiration of the tenant's lease, but without service of a predicate termination notice.  Before serving an answer, the tenant moved pursuant to CPLR 3211(a) to dismiss the proceeding asserting that the petition failed to state a cause of action upon which relief could be granted (including that it failed to provide a reason for the eviction), and the petitioner opposed and argued that it was not required to allege a reason for the termination because the tenant did not take possession of the subject apartment until after the HDFC conversion.

            Ultimately, the Bronx Civil Court dismissed the petitioner's action, citing the lack of any reason for the eviction (other than the expiration of the tenancy), and that HDFC tenants are entitled to greater protections by way of the U.S. Constitution as HDFC facilities are "entwined" with the government, as displayed as follows: "[i]t is well established that where a governmental entity meaningfully participates in the operation or control of a building so as to be significantly 'entwined' with it, eviction proceedings must comply with constitutional Procedural Due Process guarantees...[w]ith respect to HDFCs, a government agency fixes their rentals, requires the availability of units to occupants within certain income guidelines, and restricts the use of any their profits...thereby triggering Due Process protections.  Among the most basic of these protections is notice to the tenant of the cause for the eviction, other than mere expiration of the tenancy...." 

Salvatore R. Marino, Esq.

Tort of "Negligent Words"

            In Ripp v. Lavore (BASC 434-13, NYLJ 1202646720701, at 1, District Court, Suffolk, decided February 28, 2014), the facts are as follows: plaintiff and defendant entered into a written contract to make repairs on plaintiff's boat - those repairs included removing and replacing two rotted stringers; at some point during the work's progress, defendant advised plaintiff that it was not necessary to replace the full stringers because the fore and aft sections were "rock solid"; upon completion of this revised work plan, however, by early July 2011, the boat began to leak on the port side; as a result of the foregoing, plaintiff filed a small claims complaint against the defendant alleging breach of a contract to repair plaintiff's boat.

            After the conclusion of a trial de novo for said matter, the Court ruled in favor of plaintiff's breach of contract claim - citing contract law (particularly, that the oral modification to the written contract was unenforceable), and the tort of "negligent words" as plaintiff relied on defendant's representations to his detriment.

            With respect to the tort law, the Court stated the following: "Liability in [negligent words] cases arises only where there is a duty, if one speaks at all, to give the correct information.  And that involves many considerations.  There must be knowledge or its equivalent that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that if false or erroneous he will because of it be injured in person or property.  Finally the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care" [quoting International Products Co. v. Erie R. Co., 244 N.Y. 331, 338 (1927)]."

Salvatore R. Marino, Esq.

Order to Show Cause Improper for Wrongful Death Settlement

            In Cutrone v. Tsahalis (21344/13, NYLJ 1202641851331, at 1, Sup., Kings, decided February 03, 2014), the New York Kings County Supreme Court rejected an application by a plaintiff's attorney for a wrongful death settlement as it was improperly submitted.

            The Court's reasons included the following: (1) an Order to Show (and any other special proceeding) is not the proper route to resolve a wrongful death matter pursuant to law - rather, submission of a wrongful death compromise application to the Surrogate's Court is; (2) the respondent was never served with the application (just his insurance company was served); and (3) a wrongful death claim was never pending in the Supreme Court.

            The Court also stated the following in its decision: "[t]he allocation of responsibility between Supreme Court and Surrogate's Court for the approval of settlements of wrongful death claims and the distribution of settlement proceeds is not a matter of legislative accident...[u]nlike CPLR 1207, concerning the settlement of a claim by an infant, judicially declared incompetent, or conservatee, which explicitly provides for a special proceeding for that purpose if no action is pending, the Court is aware of no similar provision for a special proceeding for judicial approval of the settlement of a wrongful death claim.  Whether Supreme Court has inherent power to entertain such a proceeding pursuant to the State Constitution's grant of almost unlimited general jurisdiction...and whether the Surrogate's limit on the authority of a personal represented in the manner illustrated by the Letters Testamentary granted here would preclude such a proceeding...are not questions the Court is prepared to address on this record."

Salvatore R. Marino, Esq.

Meteorologist Report Fails to Create Issue of Fact

            In Gibel v. Resnik Holdings (30761/2010, NYLJ 1202638795883, at 1, Sup., Westchester, decided January 8, 2014), on Sunday February 14, 2010, the plaintiff slipped and fell on chunks of ice in front of East 5th Street near its intersection with South Fulton Avenue, Mount Vernon.  Prior to the accident, it had snowed 10 inches on February 10, 2010, but there was no additional precipitation between then and the day of the plaintiff's accident.  On February 17, 2012, the plaintiff commenced a personal injury action against the defendant, the owner of the building located at 336 South Fulton Avenue, in Mount Vernon.  After the discovery process concluded, the defendant moved for summary judgment seeking to dismiss the plaintiff's complaint on the ground that the defendant did not create nor have notice of the icy condition which caused plaintiff's fall.

            In support of its motion, the defendant relied on, among other things, the affidavit of its president, who stated that in February 2010 he did not observe any condition on the sidewalk which would constitute a dangerous condition or defect.  The defendant also relied on his deposition, in which he testified that he did not receive any complaints regarding the condition of the sidewalk before plaintiff's accident, and that the businesses in his building were closed on Saturday and Sunday that week and since there was no precipitation on those days, no one returned to the premises to check the condition of the sidewalk.  In opposition, the plaintiff argued that there are questions of fact regarding whether defendant created the icy condition.  In support of her opposition, the plaintiff submitted the affidavit of a meteorologist, who opined that the ice chunks upon which plaintiff fell were made by artificial means.

            The Westchester County Supreme Court ultimately granted the defendant's motion, thereby dismissing the plaintiff's claim, stating the following: "Defendant has establish prima facie entitlement to summary judgment by establishing that it lacked either actual or constructive notice of the condition that allegedly caused plaintiff's fall.  Plaintiff's opposition to the motion fails to raise a triable issue of fact as to whether the ice condition was created by defendant or whether defendant had notice of the condition for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it...Plaintiff's attempt to raise an issue of fact by submitting the affidavit of [a Meteorologist] is unavailing because [his] opinion that the ice chunks upon which plaintiff fell were artificially made is pure speculation.  [He] did not observe the ice chucks which caused the fall or even the area where plaintiff fell.  Rather, he bases his opinion solely on the weather conditions in New York City at the time of plaintiff's accident.  Accordingly, defendant's motion for summary judgment dismissing the complaint is granted." 

Salvatore R. Marino, Esq.

Late Request for Jury Trial Denied

            In Phillip v. Lancman (7556/11, NYLJ 1202635385724, at 1, Sup., Kings, decided December 19, 2013), the facts are as follows: the plaintiffs served a summons and complaint on April 1, 2011; on June 3, 2011, the defendant served an answer with affirmative defenses; on November 19, 2012, the plaintiff served and filed a note of issue, requesting a trial without a jury; and on JUne 28, 2013, the defendant made until June 28 a motion requesting permission to request a jury (as the defendant failed to timely do so pursuant to the CPLR, which requires one to request a jury no later than 15 days after the filing of the note of issue).

            In opposing the defendant's motion, the plaintiffs note, among other things, that the statutory deadline for filing a jury trial demand expired more than seven months ago, and that the plaintiffs would be unduly prejudiced if the defendant was permitted to demand a jury trial because the infant plaintiff and plaintiff's counsel have been preparing for a trial based upon the assumption that it would be a non-jury trial.  In reply, the defendant reiterates and argues, among other things, that the failure to timely file a jury demand was due to the inadvertence of counsel, and that there would be no prejudice to plaintiffs because there have been settlement discussions and a scheduled mediation.

            The Kings County Supreme Court denied the defendant's motion, citing CPLR 4102 (a), which states that "[a]ny party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue."  The Court also held the following: "[h]ere, the extent of defendant's delay in seeking the requested relief - over 7 months - weighs heavily against a finding of excusable conduct...[f]urthermore, the Second Department has held that a defendant's explanation that he or she failed to realize that the note of issue was filed with a request for a non-jury trial (as defendant herein claims) is an inadequate excuse...[c]onsequently, under the circumstances presented herein, defendant has failed to make an adequate factual showing that her failure to demand a jury trial was inadvertent.  Accordingly, the motion is denied." 

Salvatore R. Marino, Esq.