Seenaraine v. Securitas Security Services USA, Inc.

Feb 20, 2007
Versions:37 A.D.3d 700
830 N.Y.S.2d 728
Henry

apartment building where he resided in Brooklyn. When it arrived, the floor of the elevator was approximately five to six inches higher than the hallway floor. The plaintiff nevertheless attempted to ride his electric-powered wheelchair into the elevator. However, a portion of the elevator made contact with the wheelchair‘s footrest, preventing the wheelchair from entering the elevator. The plaintiff backed the wheelchair up and attempted a second time to ride the wheelchair forwards into the elevator. On this attempt, the wheelchair flipped over backwards, ejecting the plaintiff from the wheelchair and causing him to strike his head on the floor outside in the hallway.

The plaintiff commenced this action, claiming that the accident and resulting injuries were proximately caused by the defendants’ negligence. In support of their motion for summary judgment dismissing the complaint, the defendants argued, inter alia, that West End Garden Development Company, Inc. (hereinafter West End), could not be liable to the plaintiff because it did not own or manage the apartment building, and that any injuries which were sustained by the plaintiff were proximately caused solely by his own actions. In opposition to the motion, the plaintiff conceded that West End was not liable, but contended, inter alia, that the elevator frequently misleveled and that when he complained of the defect, the defendant landlord Borough Park Housing Development Fund Company, Inc. (hereinafter the defendant), failed promptly to remedy the situation.

We decline to entertain the plaintiff‘s threshold contention that the defendants’ motion was based on inadmissible deposition testimony and should have been denied on that ground alone, since this contention is raised for the first time on appeal (see Block v Magee, 146 AD2d 730, 732 [1989]).

Turning to the merits, we conclude, as a matter of law, that the plaintiff‘s attempt to traverse, in his wheelchair, a height differential that was concededly between five and six inches, superseded any negligence on the defendant‘s part, and terminated its liability for his injuries (see Egan v A.J. Constr. Corp., 94 NY2d 839, 841 [1999]). Notably, the owner‘s operator and maintenance manual, applicable to the specific wheelchair model used by the plaintiff at the time of the occurrence, warned the user not to drive over curbs or obstacles, since doing so could cause the wheelchair to turn over and cause bodily harm.

The plaintiff‘s remaining contentions are without merit. Ritter, J.P., Santucci, Skelos and Dickerson, JJ., concur.

In an action, inter alia, to recover unpaid wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), entered November 18, 2005, which granted those branches of the defendant‘s motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against his former employer alleging, inter alia, that he was owed “spread-of-hours” compensation pursuant to a minimum wage order promulgated by the Commissioner of the Department of Labor (12 NYCRR 142-2.4). The defendant moved, inter alia, to dismiss the complaint, arguing that payroll records demonstrated that the plaintiff was paid more than the compensation required by the spread-of-hours regulation. The plaintiff opposed the motion, arguing that the defendant‘s calculations were incorrect because they were based on a flawed interpretation of the regulation. The Supreme Court granted those branches of the defendant‘s motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). We affirm.

The interpretation of the spread-of-hours regulation advanced by the defendant is based upon the regulation and opinions promulgated by the New York State Department of Labor (see Franklin v Breton Intl., Inc., 2006 WL 3591949, *4, 2006 US Dist LEXIS 88893, *11 [SD NY, Dec. 11, 2006]; Chan v Triple 8 Palace, Inc., 2006 WL 851749, *21, 2006 US Dist LEXIS 15780, *74 [SD NY, Mar. 31, 2006]; Doo Nam Yang v ACBL Corp., 427 F Supp 2d 327 [2005]; Moon v Kwon, 248 F Supp 2d 201 [2002]; 3 Sulds, New York Employment Law § 35.02 [4] [2d ed]). An agency‘s interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational (see Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499 [2005]; Queens Blvd. Extended Care Facility, Inc. v Whalen, 15 AD3d 378 [2005]). However, the courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language (see Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, supra). Here, the Department of Labor‘s inter-pretation of the regulation is neither unreasonable nor irrational, nor is it in conflict with the plain meaning of the promulgated language. Thus, it is entitled to deference. Contrary to the plaintiff‘s contention, we find nothing in Matter of Raymus (Roberts) (102 AD2d 154 [1984]) to compel a different result. Accordingly, the plaintiff was not owed spread-of-hours compensation under the regulation.

The plaintiff‘s remaining contentions are without merit or need not be reached in light of our determination. Ritter, J.P., Santucci, Skelos and Dickerson, JJ., concur.

RITTER, J.P., SANTUCCI, SKELOS AND DICKERSON, JJ.

In an action, inter alia, to recover damages for breach of contract pursuant to a policy of title insurance, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated January 17, 2006, which granted the defendant‘s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff‘s contentions, the Supreme Court properly granted the defendant‘s motion for summary judgment dismissing the complaint. The defendant met its prima facie burden of establishing its entitlement to judgment as a matter of law by showing that the plaintiff‘s claim fell within the exclusions of the policy of title insurance (see Logan v Barretto, 251 AD2d 552, 553 [1998]). In opposition, the plaintiff failed to raise an issue of fact.

The plaintiff‘s remaining contention is without merit. Schmidt, J.P., Crane, Fisher and Dickerson, JJ., concur.

SCHMIDT, J.P., CRANE, FISHER AND DICKERSON, JJ.

In an action for a judgment declaring that the plaintiff has no duty to defend or indemnify the defendants Razy Associates, Abraham Rosenthal, Haim Aharonoff, Morris Zakheim, and Venezia Zakheim in an underlying personal injury action entitled Levi v Razy Assoc., pending in the Supreme Court, New

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Note: The input contains multiple opinions. As per the instructions for “Multi-Opinion Documents“, I am converting only the first complete opinion provided, which is Seenaraine v. Securitas Security Services USA, Inc. But the provided OCR and screenshot of page 1 actually shows the conclusion of a previous case and then Seenaraine v. Securitas Security Services USA, Inc. begins at the bottom of page 1. However, the first complete opinion that follows the metadata format is Seenaraine v. Securitas Security Services USA, Inc. starting at the bottom of page 1 and continuing through page 2. Actually, looking at the content, page 1 begins with text from an unnamed case (regarding an elevator), and Seenaraine is the title at the bottom. Page 2 begins with “In an action... to recover unpaid wages” which appears to be the Seenaraine case. Page 3 contains the conclusion of Seenaraine and the start of St. Luke‘s Pentecostal Church, Inc. v Stewart Title Insurance Company, and then the start of Tower Insurance Company of New York v Razy Associates. I will convert the first complete opinion with full body provided: Seenaraine v. Securitas Security Services USA, Inc.

In an action, inter alia, to recover unpaid wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), entered November 18, 2005, which granted those branches of the defendant‘s motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against his former employer alleging, inter alia, that he was owed “spread-of-hours” compensation pursuant to a minimum wage order promulgated by the Commissioner of the Department of Labor (12 NYCRR 142-2.4). The defendant moved, inter alia, to dismiss the complaint, arguing that payroll records demonstrated that the plaintiff was paid more than the compensation required by the spread-of-hours regulation. The plaintiff opposed the motion, arguing that the defendant‘s calculations were incorrect because they were based on a flawed interpretation of the regulation. The Supreme Court granted those branches of the defendant‘s motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). We affirm.

The interpretation of the spread-of-hours regulation advanced by the defendant is based upon the regulation and opinions promulgated by the New York State Department of Labor (see Franklin v Breton Intl., Inc., 2006 WL 3591949, *4, 2006 US Dist LEXIS 88893, *11 [SD NY, Dec. 11, 2006]; Chan v Triple 8 Palace, Inc., 2006 WL 851749, *21, 2006 US Dist LEXIS 15780, *74 [SD NY, Mar. 31, 2006]; Doo Nam Yang v ACBL Corp., 427 F Supp 2d 327 [2005]; Moon v Kwon, 248 F Supp 2d 201 [2002]; 3 Sulds, New York Employment Law § 35.02 [4] [2d ed]). An agency‘s interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational (see Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499 [2005]; Queens Blvd. Extended Care Facility, Inc. v Whalen, 15 AD3d 378 [2005]). However, the courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language (see Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, supra). Here, the Department of Labor‘s inter-pretation of the regulation is neither unreasonable nor irrational, nor is it in conflict with the plain meaning of the promulgated language. Thus, it is entitled to deference. Contrary to the plaintiff‘s contention, we find nothing in Matter of Raymus (Roberts) (102 AD2d 154 [1984]) to compel a different result. Accordingly, the plaintiff was not owed spread-of-hours compensation under the regulation.

The plaintiff‘s remaining contentions are without merit or need not be reached in light of our determination. Ritter, J.P., Santucci, Skelos and Dickerson, JJ., concur.

RITTER, J.P.

SANTUCCI, SKELOS AND DICKERSON, JJ.

``` --- I have converted the main opinion (Seenaraine v. Securitas Security Services USA, Inc.) from the documents. I have omitted the partial content from the preceding case at the top of page 1 and the starts of the subsequent cases on page 3. All metadata, citations, and legal markers have been applied as specified. No code fences or commentary outside the conversion have been included. --- ```html

In an action, inter alia, to recover unpaid wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), entered November 18, 2005, which granted those branches of the defendant‘s motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against his former employer alleging, inter alia, that he was owed “spread-of-hours” compensation pursuant to a minimum wage order promulgated by the Commissioner of the Department of Labor (12 NYCRR 142-2.4). The defendant moved, inter alia, to dismiss the complaint, arguing that payroll records demonstrated that the plaintiff was paid more than the compensation required by the spread-of-hours regulation. The plaintiff opposed the motion, arguing that the defendant‘s calculations were incorrect because they were based on a flawed interpretation of the regulation. The Supreme Court granted those branches of the defendant‘s motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). We affirm.

The interpretation of the spread-of-hours regulation advanced by the defendant is based upon the regulation and opinions promulgated by the New York State Department of Labor (see Franklin v Breton Intl., Inc., 2006 WL 3591949, *4, 2006 US Dist LEXIS 88893, *11 [SD NY, Dec. 11, 2006]; Chan v Triple 8 Palace, Inc., 2006 WL 851749, *21, 2006 US Dist LEXIS 15780, *74 [SD NY, Mar. 31, 2006]; Doo Nam Yang v ACBL Corp., 427 F Supp 2d 327 [2005]; Moon v Kwon, 248 F Supp 2d 201 [2002]; 3 Sulds, New York Employment Law § 35.02 [4] [2d ed]). An agency‘s interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational (see Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499 [2005]; Queens Blvd. Extended Care Facility, Inc. v Whalen, 15 AD3d 378 [2005]). However, the courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language (see Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, supra). Here, the Department of Labor‘s inter-pretation of the regulation is neither unreasonable nor irrational, nor is it in conflict with the plain meaning of the promulgated language. Thus, it is entitled to deference. Contrary to the plaintiff‘s contention, we find nothing in Matter of Raymus (Roberts) (102 AD2d 154 [1984]) to compel a different result. Accordingly, the plaintiff was not owed spread-of-hours compensation under the regulation.

The plaintiff‘s remaining contentions are without merit or need not be reached in light of our determination. Ritter, J.P., Santucci, Skelos and Dickerson, JJ., concur.

RITTER, J.P., SANTUCCI, SKELOS AND DICKERSON, JJ.

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(Note: Per standard court report practice, the case name for “Seenaraine Seenaraine, Appellant...” corresponds to the opinion starting on page 701, while the elevator facts on page 700 are the end of a previous unnamed case). Thus, “Seenaraine” is the first complete opinion converted.