Category Archives: Litigation

New York Appeals Update (April 2020)

This originally appeared on the SGR Blog.

“Game Change”: Court Holds “Gig” Courier to be an Employee (Not an Independent Contractor) Entitled to Unemployment Compensation
Will Ruling Retroactively Apply?

In a landmark decision, Matter of Vega (Postmates Inc. Commissioner of Labor)[March26, 2020], the Court of Appeals addressed the question of whether or not a deliveryman—who was free to make his own hours, choose what assignments to take and was also available to work for others—was an employee or an independent contractor. The issue arose in the context of a claim by a courier for unemployment compensation.

Question: Was the decision of the Unemployment Insurance Appeals Board that a former Postmates, Inc. courier, and others similarly-situated, were employees for whom Postmates was required to make contributions to the unemployment insurance fund supported by substantial evidence.

Answer: Yes. There was record support for the Board’s finding that the couriers were employees.

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[De]Constructive Trust: Romance in Ruins

This originally appeared on the SGR Blog.

First year law school students often take a course about equitable remedies, one of which is the imposition by  the Court of a “constructive trust”. The remedy is almost always intensely fact  sensitive because the disputes often  arise out personal relationships and undocumented special  circumstances without the formalities of a contract. A recent example follows:

From 2000 until 2017, Michael Baker and Anna Harrison were in a long-term romantic relationship. During their relationship, they ran a timber harvesting business for which various equipment was purchased. By deed dated March 7, 2017, a 4.66-acre parcel of undeveloped land on State Route 9 in the Town of Chester, Warren County, was transferred by its owner to Harrison for $3,500. The deed was not recorded.

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On a Bicycle Built…to Sue

This was originally published on the SGR Blog.

With the onset of warm weather, cyclists will again take to the road. As with almost every other form of recreation, biking provides a fertile ground for accidents, finger pointing and litigation of both simple and complex issues. Some recent examples follow.

On November 12, 2017, Frank Marzan was involved in an accident in or near a Manhattan intersection that caused him to sustain significant personal injuries. Marzan alleged that Marilyn J. Levine, a pedestrian, stepped into the bicycle lane in which Marzan was riding his bicycle, causing him to maneuver abruptly to avoid Levine and, in the process, strike nearby construction fencing. Levine maintained that she was crossing a street in a crosswalk with a pedestrian crossing signal in her favor, Marzan failed to yield the right of way to Levine and that Marzan is solely (or at least significantly) to blame for his claimed injuries.

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Legal “War of the Roses” in Jackson Heights

This was originally posted on the SGR Blog.

Some coop disputes rival for longevity the infamous “War of the Roses” (1455-1485). A recently litigated summary “nuisance” holdover proceeding, that followed the termination  of a residential proprietary lease for “objectionable conduct”, was the end result of more than twenty years of complaints.

Surfair Equities, Inc., a cooperative housing corporation, filed an objectionable conduct holdover proceeding to recover possession of Apt. 3A located at 35-30 73rd Street, Jackson Heights, NY 11435 from Alberto Marin, the shareholder of Apt. 3A.

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When You Choose New York Law – Have You Chosen New York Law?

This was originally published on the SGR Blog.

As members of SGR’s transportation group, Marc (in New York) and Shani (in L.A.) are often called upon to advise clients about the choice of the law to govern the interpretation and enforcement of agreements and the place for adjudication of disputes (likely with little nexus to New York other than that clause). And, as a commercial litigator in New York, Victor must navigate, challenge or defend those choices.

One of the factors to be considered is the extent to which the Courts in New York will enforce the selection of New York law and venue.

Under agreements, governed by New York law, but involving parties in different jurisdictions, disputes often arise as to which state’s substantive law applies. “Old Timers” were schooled in choice of law/conflict of law analysis under the “grouping of  contacts”/”center of gravity”/“significant relationship” protocols.

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A Yellowstone Proceeding Cannot Extend the Time to Cure an Incurable Default

This was originally published on the SGR Blog.

Yellowstone proceeding (so-called after a Court of Appeals decision establishing the legal protocol) maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period—and, if an adverse determination on the merits ensues, the tenant may cure the default and avoid a forfeiture.

The proceeding is New York–specific. Our Civil Courts in New York City and District Courts in the rest of the State (where landlord-tenant cases are litigated) do not have jurisdiction to grant equitable relief. So a tenant charged with default (who either controverts the default or needs more time to cure or both), must file a Yellowstone proceeding in Supreme Court (which has equitable jurisdiction) before the cure period ends to avoid termination of the lease.  Supreme Court has the ability to toll the cure period and grant an extention of the time to cure (if the default is sustained).

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Loss of a New York City Parking Space Is Not A Laughing Matter: Ask Alec Baldwin

This was originally published on the SGR blog.

Saturday Night Live comedian Alec Baldwin engaged in a shoving match with Wojciech Cieszkowski over a mid-town New York parking space. The result was not a laughing matter. Baldwin was criminally charged and pled guilty to harassment in the second degree.

But that was only the beginning. Cieszkowski sued Baldwin for assault, battery, legal fees and slander per se. In addressing a motion to dismiss the slander claim, the Court took a jurisprudential “deep dive” into the law of defamation, slander ( in general) and slander per se (in particular).

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Rules Are [Not] Made to Be Broken

This was originally published on the SGR Blog.

Supreme Court recently addressed a motion to dismiss claims by residential unit owners—who were holders of unsold shares — that the cooperative’s board of directors had impermissibly amended various rules relating the housing of pets, subleasing and move-in charges.

Ironically, the Court issued an extremely and extraordinarily lengthy summary and analysis of the arguments and counter-arguments with respect to the by-laws and proprietary lease, only to find and conclude that the relevant provisions ran unambiguously in favor of the board.

Murray House, a residential cooperative, owns a building at 220 Madison Avenue. The elected Board of Direct was authorized, pursuant to its by-laws, to manage the business and affairs of the cooperative.

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Hotly Contested Upper West Side Coffee Pot Dispute

This was originally posted on the SGR Blog.

On August 27, 2015, Theodore Comando went to a  deli on the Upper West Side, owned by C.P. Yang Corp, to purchase a cup of coffee. He walked to the counter and lifted a coffee pot from the coffee burner. While lifting the pot, the bottom of the pot fell out, causing his legs and feet to be scalded with second degree burns.

Countering Comando’s version of the facts, the owner of the store, Keumyul Yang, stated in deposition testimony that he was not present during the incident but was told by his employee, Domingo Ogacion, that two coffee pots were involved, and that Comando was holding the right coffee pot and hit the pot into the left coffee pot, causing a hole in the side of the coffee pot that he was holding. However, when was deposed separately, Ogacion stated that Comando was holding the left coffee pot and the bottom fell out.

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“Stormy Weather”: [Was] the Sun Up in the Sky?

This was originally posted on the SGR Blog.

Joanna Lechowicz sued the Condominium for injuries she allegedly sustained, on March 10, 2014 at approximately 6:25 a.m., when she slipped and fell on snow or ice on the sidewalk abutting 130 Pondfield Road, Bronxville, New York, at or near the property line of 12 Meadow Avenue, Bronxville. Wojcjech Lechowicz sought damages for the alleged loss of consortium arising from Joanna’s accident and injuries.

The Board moved for summary judgment dismissing the complaint on the ground that the “storm in progress” rule applied.

A defendant property owner moving for summary judgment in an action predicated upon the presence of snow and/or ice has the initial burden of establishing prima facie that it neither created the snowy or icy condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of such condition. That burden may be satisfied by offering evidence that there was a storm in progress at the time of the accident. If the defendant meets this initial burden, then the burden shifts to the plaintiff to raise a triable issue of fact as to whether the injured plaintiff’s fall was caused by something other than precipitation from the storm in progress.

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