During the last several months the New York Court of Appeals addressed a wide variety of unique and interesting legal issues, including the claim of a German museum to recover a 3,000 year old tablet that disappeared at the end of War II ; the right of a judgment debtor to sue a bank that allegedly failed to follow correct procedures in serving restraining notices; the right of a non-resident to obtain a hand gun license; the legal distinction between different types of commercial cleaning services; and the constitutionality of charging a hotel room occupancy tax for online booking services.
Court Upholds Constitutionality of Hotel Room Occupancy Tax Applicable to Online Booking Services
Was the City of New York authorized to amend the hotel occupancy tax to cover revenue from fees charged by “online” booking services? Answer: Yes. In Expedia, Inc. v. City of New York Dept. of Fin., 2013 NY Slip Op 07759, the Court of Appeals addressed the constitutionality of a New York City law that imposed a hotel room occupancy tax on online travel companies.
Court Draws Distinction between Commercial and Other Window Cleaning in Determining Labor Law Liability
Was an employee of a commercial cleaning company engaged, at the time of his fall, in a type of cleaning covered by Labor Law § 240(1)? Answer: No. At the outset of the opinion in Soto v. J. Crew Inc., 2013 NY Slip Op 06603, the Court stated: Plaintiff, an employee of a commercial cleaning company hired to provide janitorial services for a retail store, [who] was injured when he fell from a four-foot-tall ladder while dusting a six-foot-high display shelf. He brought a Labor Law § 240(1) action against J. Crew, the retail store, and The Mercer I LLC, the building owner.
Distinction between “Residence” and “Domicile” Determinative of Gun Licensing Application
Was a part-time resident of New York, permanently domiciled elsewhere, eligible for a New York handgun license? Answer: Yes. In Osterweil v. Bartlett, 2013 NY Slip Op 06637, the Court of Appeals was called upon to decide “whether an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere is eligible for a New York handgun license in the city or county where his part-time residence is located.”
CPLR § 5222-a Does Not Support Private Cause of Action Based upon Bank’s Failure to Comply
Does CPLR § 5222-a create a private cause of action that may be enforced in a plenary action? Answer: No. In Cruz v. TD Bank, N.A., 2013 NY Slip Op 07762, the Court of Appeals, answering questions certified by the Second Circuit, was called upon to determine “whether plaintiffs may bring plenary actions in federal court against their banks seeking money damages allegedly arising from the banks’ failures to send the forms [required by CPLR § 5222-a], among other deficiencies.
No “Laches” Defense to Action Seeking Recovery of Ancient Artifact
Was an action seeking to recover a 3,000-year-old artifact that was missing from an estate for 58 years barred by the doctrine of “laches”? Answer: No. In Matter of Flamenbaum, 2013 NY Slip Op 07510, a probate proceeding: “The Vorderasiatisches Museum in Berlin, Germany (the Museum) [sought] to recover a 3,000-year-old gold tablet from the estate of Riven Flamenbaum (the Estate).”