Farruggia v. Town of Penfield

This appeal addresses an order by the New York Supreme Court denying summary judgment, granting summary judgment, denying partial summary judgment, and granting a motion for leave to amend. The Plaintiff, Gaetano Farruggia, was a construction worker and backhoe operator. The Defendant, Town of Penfield, hired the Plaintiff’s employer to complete a project (Project) on the Co-Defendant’s, Kenneth and Suzanne Hershey, property. The Project involved performing paving work on the sidewalk and driveway. While the Project was located on the co-defendant’s property, it was also located within the Defendant’s right-of-way through Co-Defendant’s property. It appears that an area of land (Landing Area) outside of Defendant’s right-of-way, but inside and wholly located on the Co-Defendant’s property was being used to park construction vehicles and equipment. At the end of a workday the Plaintiff parked a backhoe in the Landing Area which rolled into a ravine, injuring him. Plaintiff commenced an action against the Defendant and Co-Defendant under Labor Law and common-law negligence.

The Supreme Court denied Defendant’s motion for summary judgment in dismissing the Labor Law cause of action and granted Co-Defendant’s motion summary judgment. It also denied part of Plaintiff’s motion for partial summary judgment granted part of Plaintiff’s motion for leave to amend their bill of particulars. Defendant appealed and Plaintiff cross-appealed.

The Appellate Division agreed with Defendant that the lower court erred in denying Defendant’s motion for summary judgment in dismissing the Labor Law causes of action because the Defendant was not considered an “owner” for purposes of the statutes. The accident occurred well outside the Defendant’s right-of-way, and the Defendant had no interest or legal control over the Landing Area. Further, the Landing Area was completely on the Co-Defendant’s private property, the Co-Defendant had given Plaintiff permission to park the backhoe there and directed Plaintiff on exactly where to park. The Defendant had no power to do the same and there were other options available for Plaintiff to park. Further, the Appellate Division determined Plaintiff’s accident did not have “an elevation-related risk,” as protected against in Labor Law § 240(1). The Appellate Division also agreed with Defendant in denying the common-law negligence causes of action. The Appellate Division found that since Defendant established it did not occupy, own, or have control over the area of the accident (the Landing Area), and did not employ this area for a special use, it did not owe Plaintiff a duty of care.

The Appellate Division therefore modified the Supreme Court’s order by granting the Defendant’s summary judgment and dismissing the cross claim against it. The court also modified the lower courts order by totally denying Plaintiff’s motion for leave to amend, since there is no longer a basis against the town to do so.

The Appellate Division also agreed with Plaintiff in saying the lower court erred in dismissing the Labor Law and common-law negligence causes of action against the Co-Defendant. The Co-Defendants owned and controlled the accident area and did not establish that they did not have actual or constructive notice of the dangerous condition. The court modified the lower court’s order by denying Co-Defendant’s motion for summary judgment.

989 N.Y.S.2d 715 (4th Dep’t. 2014)

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Harwood v. Addison

This appeal concerns the termination of employment of a public employee. The Petitioner, Brenda Harwood, served as a senior account clerk typist in the City of Watertown’s Parks and Recreation Department. After a twenty-nine year career with the Department, the City brought incompetence and misconduct charges against Harwood, pursuant to Civil Service Law § 75. The Hearing Officer found that two of the charges could be sustained by the evidence, and found Petitioner guilty of one count of “fail[ing] to deposit cash and checks in a timely manner” and one count of “willfully misleading the City’s retained accountant.” The City also found that Petitioner was guilty of a second count of incompetence because she had “fail[ed] to bill for services in a timely manner.” Petitioner was found not guilty of the additional charges of incompetence and misconduct. As a result of the Hearing Officer’s findings, the City “terminated [Harwood’s] employment” with the Department. Petitioner filed suit in the Supreme Court pursuant to Civil Practice Law and Rules Article 78, and Supreme Court Justice Greenwood transferred this matter to the Appellate Division Fourth Department.

The Appellate Division reviewed each of the charges in turn, beginning with the Hearing Officer’s finding that Petitioner was guilty of “willfully misleading the City’s retained accountant.” The City alleged that Petitioner had been dishonest regarding a number of uncashed checks. However, the court found that evidence raised by Petitioner–namely, that she had previously stated that she had not deposited a check for the City–directly contradicted the City’s position that she lied about making the deposit. Therefore, the court found this count was “not supported by substantial evidence.”

The court next analyzed the remaining incompetence charges together, noting a number of mitigating factors in favor of a more lenient sentence for Petitioner. The court noted “that there were several factors beyond [Harwood’s] control that contributed in the delays” in making the deposits. Petitioner’s service to the City in her official capacity, although not named in her official job description, included a number of time-consuming clerical, scheduling, and other assorted responsibilities that “took in excess of 50% of her time.” Petitioner also suffered from an illness that forced her to intermittently miss work over a period of six months, and the court noted that because no one else in the office took over her assignments during that period, “several of [her] completed invoices were inadvertently deleted[.]” The court also relied on Petitioner’s “long service to the City and her previously unblemished work record[,]” the testimony demonstrating that “she was a hard worker and did her best to complete all of her assigned duties[,]” and that she often stayed late without extra pay to justify mitigating her sentence.

In assigning a proper sanction for Petitioner, the court explained that the initial punishment of termination was vastly disproportionate to the nature of the original charged offenses, noting the penalty was “so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one’s sense of fairness.” (citing Matter of Pell v. Board of Educ. of Union Free Sch. Dist. No. 1. of Towns of Scarsdale and Mamaroneck, Westchester Cnty., 313 N.E.2d 321, 326 (N.Y.1974)). Accordingly, the court found that a sentence of a two-month suspension without pay, rather than termination, was appropriate for the two remaining incompetence charges.

988 N.Y.S.2d 814 (4th Dep’t. 2014)

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Val Tech Holdings, Inc. v. Wilson Manifolds, Inc.

This appeal addresses damages recoverable under a cross claim for breach of contract. The plaintiff, Val Tech Holdings, contracted with the defendant, Wilson Manifolds, to fabricate plastic injection molds for the production of specialty intake manifold parts to be sold by the defendant to retail customers. When plaintiff commenced an action seeking damages for breach of contract in the Supreme Court of Monroe County, the defendant responded with counterclaims of breach of contract seeking compensatory damages for loss of profits as well as punitive damages. Plaintiff then moved for partial summary judgment dismissing the defendant’s counterclaims. and defendant made a cross motion for leave to serve a second amended answer containing counterclaims breach of implied covenant of good faith and fair deal as well as fraud. In response, the court issued an order denying the plaintiff’s motion and granting the defendant’s cross motion.

Here, the court held that consequential damages for lost profits are recoverable if, at the time of contracting, the loss of profits that would be incurred from a breach are foreseeable and probable. The court rejected plaintiff’s contention that lost profits must be included as a recovery in the contract at time of creation and instead used what it called the “common sense rule” to determine what the parties would have concluded had they considered the subject of damages. Using that rule the court found that plaintiff failed to meet its initial burden of establishing as a matter of law that lost profits were not within the contemplation of the parties at the time the contract was made. The key uncontested fact that the court relied upon was plaintiff’s knowledge of defendant’s intent to use the molds for immediate production and resale of specialty automotive parts.

However, the court did agree with plaintiff that the defendant’s demand for punitive damages was unsupported by allegations and that the lower court erred in denying that part of plaintiff’s motion to strike. The court found that nothing in the allegations satisfied the requirement of egregious conduct directed at the public in general. Furthermore, the court found that defendant’s proposed counterclaim for breach of the implied covenant of good faith and fair dealings was duplicative as it could not exist by itself absent the contract. Therefore, the court held that that counterclaim should have been denied on the ground that it was palpably insufficient on its face. Importantly, the court held that the second proposed counterclaim for fraud properly alleges wrongful conduct and injurious consequences independent of those underlying the breach of contract claim and was therefore properly allowed. Therefore, the court unanimously modified the lower court’s order so as to grant the plaintiff’s motion to strike defendant’s demand for punitive damages but to deny the part of defendant’s cross motion seeking leave to serve a second amended answer adding a counterclaim for breach of the implied covenant of good faith and fair dealing. As modified the lower courts order was affirmed without costs.

990 N.Y.S.2d 379 (4th Dep’t. 2014)

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Foots v. Consol. Bldg. Contrs., Inc.

This is an appeal and cross-appeal from three summary judgment rulings in a personal injury action. The plaintiff, James Foots, was an employee of the lessee, Sodexho, a commercial laundry business. As part of the lease, Grinder was responsible for structural improvements to the dilapidated building, and Sodexho was responsible for installing the industrial laundry equipment. Grinder hired RCM to manage the project, and subcontracted with Consolidated to construct repositories or linens. These repositories were four large pits, for which Consolidated also constructed wooden frames with plywood covers, in order for employees to safely push large laundry carts across the floor.

The plaintiff was injured in the course of his employment when he drove a forklift over a plywood-covered pit and the cover collapsed. He then sued 60 Grinder Street, LLC (“Grinder”); Rollins Construction Management, Inc. (“RCM”), Grinder’s agent; and Consolidated Building Contractors, Inc. (“Consolidated”), the subcontractor that constructed the pit and the plywood cover. In addition to a common-law negligence claim, the plaintiff sought recovery under Labor Law § 240(1), which required that the plaintiff be injured while erecting, demolishing, repairing, or altering the structure. He also sought recovery under Labor Law § 241(6), which required that plaintiff be injured while installing the industrial laundry equipment as part of the renovation. Lastly, he sought recovery under Labor Law § 200, which is not limited to construction work.

Defendant Grinder moved for summary judgment seeking to dismiss the plaintiff’s common-law negligence cause of action and his claims under Labor Law §§ 200, 240(1), and 241(6) claims. Grinder also moved for summary judgment on its cross-claims against Consolidated seeking contractual and common-law indemnification. The plaintiff moved for partial summary judgment on the issue of liability against Grinder for his Labor Law § 240(1) claim. Both Grinder’s motion and the plaintiff’s were denied, and both appealed. Consolidated moved for summary judgment and sought to dismiss plaintiff’s Labor Law §§ 200, 240(1), and 241(6) claims with respect to Consolidated. The trial court granted this motion, and plaintiff appealed.

The court held that none of the trial court’s rulings were error. Because Consolidated presented evidence that it had completed its contracted work and was not present on the work site at the time of the accident, and plaintiff failed to raise an issue of fact in this regard, Consolidated could not be held liable under any of plaintiff’s causes of action. Grinder failed to establish that Consolidated was negligent or that it exercised control over the injury-producing work, and therefore Consolidated was not required to indemnify Grinder.

The court further held that there were various issues of fact which made the denial of the other motions proper. The common-law negligence claim survived because there was an issue of fact raised as to whether Grinder had actual or constructive notice of the dangerous condition. For this same reason, and also because Grinder failed to establish that they did not control the work site, the Labor Law § 200 claim survived. The trial court properly denied both Grinder’s and plaintiff’s motions on the Labor Law § 240(1) claim because there were issues of fact whether the plaintiff was merely moving a “towel folder,” an activity not covered by this section, or whether he was making an alteration to the structure, which would have been covered. The same issue of fact precluded summary judgment on the Labor Law § 241(6) claim.

The court rejected any additional contentions of the parties and affirmed all the rulings of the trial court.

989 N.Y.S.2d 723 (4th Dep’t. 2014)

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