Does New York’s new constitutional right to clean air, clean water, and a healthful environment under the Green Amendment apply to private conduct, like the operation of the State’s second largest landfill? The Fourth Department held that it does not, but only applies to state action, albeit noting that no party contested that issue. This is an interesting decision that bears watching, as the Green Amendment is being increasingly used by parties in litigation contesting large privately owned development projects. Let’s take a look at that opinion and what else has been happening in New York’s appellate courts over the past week.
Appellate Division, First Department
Brown v Riverside Church in the City of N.Y., 2024 NY Slip Op 03927 (1st Dept 2024)
Civil Procedure, Torts
Issue: Is a plaintiff barred from pursuing, at the pleading stage, a cause of action for intentional infliction of emotional distress because he pleaded negligence causes of action based on the same core facts underpinning the claim for IIED?
Facts: In this Child Victim’s Act case, alleging abuse during the 1970s, the plaintiff brought claims for “negligent supervision, negligent hiring and retention, negligent training, IIED, and sexual battery. The crux of the negligence claims is that Lorch was an employee or agent of defendant; defendant knew or should have known that Lorch had a propensity to sexually abuse children; Lorch presented a foreseeable danger to children and should not have been permitted to work with them; defendant breached its duty to plaintiff by negligently hiring, training, and retaining Lorch; and that plaintiff suffered damages as a result of defendant’s negligence. As for his claim for IIED, plaintiff alleged that Lorch was an employee or agent of defendant; that defendant knew or should have known Lorch was a child molester; that defendant engaged in, joined in, and conspired with others in carrying out the inappropriate sexual contact with plaintiff; that defendant’s conduct was extreme and outrageous; and that defendant intentionally or recklessly caused plaintiff to suffer severe emotional distress.” Defendant moved to dismiss, arguing that First Department precedent barred recovery for IIED where the plaintiff has cognizable negligence claims. Supreme Court granted the motion and dismissed the IIED claim.
Holding: The First Department reversed, noting that it had previously “on occasion stated that no IIED claim lies when the offensive conduct is embraced by a traditional tort.” But the Court distinguished those prior decisions from this CVA action because those cases “did not involve negligence claims of the kind asserted here — namely, negligent supervision, negligent hiring and retention, and negligent training. Under these circumstances, we discern no reason or rationale . . . to conclude that an IIED claim cannot be asserted alongside these negligence claims.” The Court explained that the genesis of its general rule was Court of Appeals dictum in which it questioned “whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability.” The Court noted, however, that the Court of Appeals has never subsequently adopted or repeated that dictum in subsequent IIED cases, but rather has repeatedly held that IIED is an independent tort. The Court also noted that allowing the IIED claim to be pled alongside traditional negligence claims comports with “CPLR 3014’s invitation to plead in the alternative.” Thus, the Court held, no basis existed, at the pleading stage, to dismiss the plaintiff’s otherwise well-pled IIED claim merely because it was based on the same facts as his negligence claims.
Appellate Division, Second Department
Bisono v Mist Enters., Inc., 2024 NY Slip Op 03873 (2d Dept July 24, 2024)
Civil Procedure, Statute of Limitations, Relation-Back Doctrine
Issue: May the relation-back doctrine be applied to bring untimely claims against a corporate defendant because the claims were timely made against an individual defendant who was discontinued from the action before the statute of limitations had run, but then re-added after the statute of limitations had expired?
Facts: After a car accident in which the door of a construction dumpster swung open into a lane of traffic and hit the plaintiff’s vehicle, sending the vehicle spinning into nearby parked cars, the plaintiffs sued two companies and an individual, Yakov Eisenbach. Eisenbach’s attorney requested that the plaintiffs discontinue the action as against him because “Eisenbach was not personally affiliated with or involved in the operations related to the plaintiffs’ alleged injuries, that at no time did Eisenbach possess any ownership interest in the dumpster, and that at no time was Eisenbach personally in control of the operation, maintenance, control, or use of the dumpster.” Based on those representations, the plaintiffs stipulated to Eisenbach’s dismissal without prejudice. After discovery, the remaining defendants moved for summary judgment, and the plaintiffs separately moved for leave to amend the complaint to add Design N Safety, Inc., the client who was using the dumpster at the accident site, and its CEO Eisenbach as defendants, based on information learned during discovery. Design opposed the motion on its own behalf, arguing that “it would be unduly prejudiced if named as a new defendant after the statute of limitations had expired and dispositive motions had been made” and the relation-back doctrine should not apply because the claims against Eisenbach had been voluntarily discontinued years before, and they were not united in interest. Eisenbach did not oppose the motion in any fashion. Supreme Court granted the motion to add Eisenbach, but denied the motion to add Design, without explanation.
Holding: The Second Department modified, holding that Design could be added under the relation-back doctrine, under the very unique circumstances here. The Court explained, under the relation-back doctrine, the plaintiff must satisfy all three parts of the test: “The first prong is that the new claims arise out of the same conduct, transaction, or occurrence as that alleged in the original complaint. Second, if a new party is to be added, it must be united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in defending the action on the merits. Third, if a new party is to be added, the newly-added defendant must have known, or should have known, that the action would have been timely commenced against him or her but for a mistake by the plaintiff as to the identity of the proper parties.” Because the claims had originally been timely interposed against Eisenbach, he would not have been discontinued absent the in accurate representations by counsel regarding his role with respect to the dumpster, and Eisenbach and Design were united in interest because he was their CEO and was actively managing the site, the Court held that the relation back doctrine applied to allow the pleading of the otherwise untimely claims against Design.
The Court was careful to note, however, that its decision was based on the unique circumstances here, which included the unopposed motion for leave to amend to re-add Eisenbach as a party defendant and the fact that no one ever appealed that order. “while the parties end their primary relation-back arguments with their discussions of the three necessary prongs of the doctrine, we do not do so . . . A basic requirement of the relation-back doctrine is that the untimely party to be added to an action relate back to an existing party that has been timely sued. In other words, any party to be added after the expiration of the applicable statute of limitations must be tethered to another party against which claims were timely interposed, and that preexisting party must itself be an active defendant at the time the relation-back doctrine is applied. Here, however, Eisenbach—the preexisting party—had been discontinued from the action by the plaintiffs, though under false or mistaken pretenses that were not discovered until later. Technically, therefore, when the plaintiffs sought leave to amend the complaint to add Eisenbach and Design as party defendants, the statute of limitations had already expired as to both of them; Eisenbach was no longer an existing party within the statute of limitations to which Design could be tethered. Further, for Eisenbach to be properly re-added to the action after the expiration of the statute of limitations, he would have to relate back to yet another party—a double relation-back—although no circumstances for his own relation-back are shown on this record.” Thus, the Court noted, “[w]hat the plaintiffs should have done to properly restore Eisenbach as a timely party defendant was to seek vacatur of the stipulation by which Eisenbach had been earlier discontinued from the action. Certainly, grounds for vacating that stipulation of discontinuance would have been compelling, given the plaintiffs’ reliance upon the misinformation from Eisenbach’s counsel about material facts which misled the plaintiffs into agreeing upon the discontinuance of those claims in the first instance. Upon any such vacatur, had it been successfully sought, Eisenbach would have been restored to the action under the original complaint, and would have been a timely, existing defendant to whom the claims against Design could then relate back.” But, because no party opposed the motion to re-add Eisenbach, and no party appealed that order, the Court was confined to hold that Design could be added as a defendant, because “it is not the role of an appellate court to decide an appeal on the basis of arguments that were never raised by any party.”
Appellate Division, Fourth Department
Matter of Onondaga County v Taylor, 2024 NY Slip Op 04040 (4th Dept July 26, 2024)
Family Law, Judicial Bias
Issue: How important is it “that judges must perform their duties without bias or prejudice” when deciding Family Court matters?
Facts: In a Family Court proceeding, alleging a willful violation of a child support order, the Court denied “respondent’s assigned counsel an adjournment to allow her time to prepare for the hearing, for which she had no prior notice, and further prohibited her from conferring with respondent before the court attempted to swear in respondent to testify.” The Court also turned what was scheduled as a report into an evidentiary hearing without notice, sought to call the respondent to be questioned by the court, and threatening questioned respondent’s assigned counsel “whether respondent would like to answer my questions now or would he like to go to jail today?” The Court then concluded that respondent had willfully violated the child support order and sentenced him to six months incarceration.
Holding: The Fourth Department reversed, holding that Family Court had deprived respondent of a fair trial and of his right to counsel by denying the adjournment request and denying him the opportunity to confer with his counsel. In addition, the Court held, the Family Court Judge “had a predetermined outcome of the case in mind during the hearing and took on the function and appearance of an advocate. Specifically, the court, inter alia, sua sponte transformed what was scheduled as an appearance for a report into a hearing, over the objection of respondent’s assigned counsel; exhorted that, ‘if respondent wants to be cheeky with me, we’ll be cheeky’; advised the parties in advance that the hearing was only ‘going to take ten minutes’; sought to call respondent as a witness for the court’s own line of questioning regarding his employment and inquired of respondent’s counsel whether respondent would ‘like to answer my questions now or would he like to go to jail today’; and asked respondent if he had ‘clean underwear on,’ thereby implying that he would be going directly to jail after the hearing. We are compelled under these circumstances, once again, to remind the Family Court Judge in this case that judges must perform their duties without bias or prejudice, and to express our deep concern with the Family Court Judge’s abandonment of her neutral judicial role.” The Court thus remanded the matter to a new Family Court judge for a new hearing.
Fresh Air for The Eastside, Inc. v State of New York, 2024 NY Slip Op 03950 (4th Dept July 26, 2024)
Environmental Law, Green Amendment
Issue: Does the New York Constitution’s right “to clean air and water, and a healthful environment” (NY Const, art I, § 19), known as the Green Amendment, apply to private conduct?
Facts: Waste Management of New York, L.L.C. owns and operates the High Acres Landfill, which is the second largest landfill in New York. Plaintiff, a non-profit corporation comprised of over 200 members who reside within four miles of the landfill, sued Waste Management, the State, and the Department of Environmental Conservation, among others, alleging that “odors and fugitive emissions from the landfill violate its members’ environmental rights” under the Green Amendment. Waste Management moved to dismiss, arguing that “the Green Amendment did not create a right of action against private entities.” Supreme Court granted the motion and dismissed the complaint against Waste Management.
Holding: The Fourth Department affirmed the dismissal as against Waste Management, noting that “plaintiff does not dispute WM’s contention that the Green Amendment only governs the rights of citizens with respect to their government and not the rights of private individuals against private individuals.” The Court rejected the plaintiff’s argument that the State was so intertwined with the operation of the landfill that it could be considered state action regulated under the Green Amendment. The Court explained, “[t]he factors to be considered in determining whether state action has been shown include: the source of authority for the private action; whether the State is so entwined with the regulation of the private conduct as to constitute State activity; whether there is meaningful State participation in the activity; and whether there has been a delegation of what has traditionally been a State function to a private person . . . As the test is not simply State involvement, but rather significant State involvement, satisfaction of one of these criteria may not necessarily be determinative to a finding of State action. Although the disposal of municipal solid waste has traditionally been a governmental function, the fact that landfill operation is a regulated industry and that WM’s customers are predominantly municipal entities is insufficient to impute state action to WM’s conduct.”
New York Appeals 