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Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



Bank’s Duty With Respect to Negligent Dishonoring of a Cashier’s Check

The plaintiff’s sued in negligence based on the defendants’ dishonoring of a cashier’s check.  The Second Department affirmed the dismissal of the negligence counts:

           The plaintiff's first three causes of action were premised upon the theory that it suffered damages as a result of the defendants' negligence. "To establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty and damages" (. As relevant here, "[t]he duty of a payor bank . . . to a noncustomer depositor of a check is derived solely from UCC 4-301 and 4-302" … . In this case, where the defendants were together alleged to be the payor bank (see UCC 4-105[b]) that was not also the depository bank (see UCC 4-105[a]), they were accountable for paying the amount of the cashier's check, whether properly payable or not, if they "retain[ed] the item beyond midnight of the banking day of receipt without settling for it" (UCC 4-302[a]), or, if after authorizing a timely provisional settlement, they failed to revoke such settlement prior to making final payment and before the "[m]idnight deadline" (UCC 4-104[1][h]), by either returning the check, or sending written notice of dishonor or nonpayment (see UCC 4-301, 4-302). Thus, the only duty which the defendants owed to the plaintiff was to pay the check, return the check, or send notice of dishonor … . As the complaint failed to allege that, upon the defendants' failure to pay the check, they breached their duty to either return the check or send notice of dishonor, the Supreme Court properly granted those branches of the defendants' motion which were to dismiss the first three causes of action, all of which sounded in negligence.  Kenin Kerveng Tung, PC v JP Morgan Chase & Co, 2013 NY Slip Op 02223, 2011-11371, 2012-040089, Index No 11885/11, 2nd Dept, 4-3-13


Hearsay About Cause of Fall Included in Hospital Report Should Not Have Been Presented to the Jury

In reversing a jury verdict in favor of the defendant, the First Department held that a hearsay statement about the cause of the plaintiff’s fall, contained in a hospital report, should not have been presented to the jury:

           Generally, admissions not germane to the treatment or diagnosis of a plaintiff's injuries are not admissible under the business records exception to the hearsay rule … . A hearsay entry in a hospital record as to the cause of an injury may be admissible at trial even if not germane to diagnosis, if the entry is inconsistent with a position taken at trial. However, there must be evidence that connects the party to the entry ….


           …[P]laintiff testified that she slipped on a metal bracket protruding from a subway step. The hospital record indicating that she slipped on wet ground should not have been presented to the jury since there was no proper foundation for its admission, inasmuch as it was unclear whether plaintiff was the source of that information … . Indeed, plaintiff testified that she did not tell the orthopedic surgeon that she slipped on a wet surface. The admission of the hospital record thus was not harmless error since it went to the crux of plaintiff's allegations. [Defendant’s] primary defense was that plaintiff slipped on wet ground, and not from its negligence … .  Grant v New York City Tr Auth, 3013 NY Slip Op 02318, 9211, 305841/08, 1st Dept 4-4-13

Late Notice of Claim Allowed in Absence of Reasonable Excuse

In affirming the granting of a petition to file a late notice of claim, in spite of the absence of a reasonable excuse for a timely filing, the Second Department wrote:

           …[T]he City defendants acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose, as indicated by an affidavit from the petitioner, wherein she stated that immediately following her son's injury, a teacher's aide took her son to the hospital where he was admitted and underwent surgery, and remained for two weeks. The petitioner further stated that within one month after the incident, she told the dean of the school that she was upset that her son was permitted to play tackle football without safety equipment during gym class, and that she wanted to make a claim against the school … . Furthermore, the City defendants would not be substantially prejudiced in their ability to maintain a defense. Although the petitioner failed to provide a reasonable excuse for failing to timely serve a notice of claim, under the circumstances of this case, that is not fatal to the petition … .   Matter of McLeod v City of New York, 2013 NY Slip Op 02251, 2012-03238, Index No 25950/11, 2nd Dept 4-3-13


Opposition to Additur or Remittitur After First Trial Can Not Be Appealed After Second Trial

In a full-fledged opinion by Judge Smith, the Court of Appeals dealt with several issues in a multi-million dollar medical malpractice suit that had already gone through two trials.  One of the issues was whether opposition to additur or remittitur with respect to the verdict in an intitial trial must be raised on appeal before retrying the case.  In holding that the issue is not appealable after a second trial, the Court of Appeals wrote:


           The Appellate Division regularly reviews, and sometimes accepts, arguments that an additur or remittitur granted by a trial court is either excessive or inadequate ... . In no such case, as far as we are aware, has the appellant’s claim been held unpreserved for failure to specify a more reasonable increase or decrease in the damages, and imposing such a requirement would serve little purpose.

           But a party that wants to challenge the amount of an additur or remittitur on appeal must do so before a new trial takes place. The chief benefit of the devices known as additur and remittitur is that, when they are accepted, they spare the parties and the court the burden and expense of a second trial. Deferring appellate review until after the second trial destroys that benefit. Such a deferral also gives the party opposing the additur or remittitur an unjustified tactical advantage: if successful on appeal, that party can choose whether to accept the new amount of the additur or remittitur, already knowing what the second jury has awarded.  *  *  *

           We see no unfairness in requiring a party dissatisfied with the size of an additur or remittitur to obtain appellate review before any retrial. If there is not time for such review, and neither the trial court nor the appellate court will grant a stay, the party’s remedy is to reject the proffered stipulation and retry the case. Defendants here pursued that remedy. They are not entitled to another remedy because they are displeased with the result.  Oakes ... v Patel, 51, CtApp, 4-2-13

Late Notice of Claim Disallowed

In finding the trial court abused its discretion in granting plaintiff’s motion for leave to file a late notice of claim, the Second Department noted that (1) serving the wrong party, i.e., law office failure, was not an acceptable excuse, (2) there was no demonstration by the plaintiffs that the (potential) defendant had actual knowledge of the facts of the claim, and (3) there was no demonstration by the plaintiffs that the (potential) defendant was not prejudiced by the delay in its ability to conduct a thorough investigation.  Peters-Heenpella v Wynn, 2013 NY Slip Op 02233, 2012-02561, Inex No 19749/11, 2nd Dept 4-3-13


Signing Checks Pursuant to a Power of Attorney Cannot Amount to Forgery

The Court of Appeals, in a full-fledged opinion by Judge Read, affirmed the appellate division’s reversal of 40 “criminal possession of a forged instrument” convictions that were based upon the defendant’s [Ippolito’s]  signing checks using only the principal’s name without indicating he was signing pursuant to a power of attorney [POA]:


           Here, the POA (until revoked) vested Ippolito with unlimited power to sign Katherine M. L.'s name on written instruments. As a result, the checks cannot have been forgeries ... .["[A] person does not 'falsely make' an instrument when he is authorized to execute it"]). Put another way, where the ostensible maker or drawer of a written instrument is a real person, a signature is not forged unless unauthorized (see Penal Law § 170.00 [4]). Since Ippolito was empowered to sign Katherine M. L.'s name at the times when he drew or endorsed the 40 checks at issue on this appeal, the People's proof was legally insufficient to convict him of [criminal possession of a forged instrument]. People v Ippolito, 32, CtApp, 4-2-13

Defendant’s Understanding Guilty Plea Would Result In Only a Year and a Half More in Prison Required Vacation of Plea

At the time defendant pled guilty to conspiracy, his 6-12 year sentence was to run concurrently with previously imposed 41/2 to 9 sentences (for class B felonies) and his understanding was that his minimum time in prison would be extended by only a year and a half.  Subsequently the B-felony convictions were reduced to three years under the Drug Law Reform Act.  The defendant then moved to vacate the conspiracy sentence and conviction but the motion was denied.  The Court of Appeals reversed and wrote:


           Defendant's plea to the conspiracy count was induced by the judge's specific representation to him that he would thereby extend his minimum incarceratory term by a year and a half only. It simply cannot be said on this record that defendant, who was clearly working toward achieving the earliest release date possible, would have pleaded guilty absent this assurance. Generally, "when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but that the choice rests in the discretion of the sentencing court" ... .  People v Monroe, 41, CtApp 4-2-13

Discharge of Defense Attorney Was Abuse of Discretion/Issue Survives Guilty Plea

The appellate division determined the trial court had abused its discretion in discharging defendant’s attorney and that the issue had not been forfeited by defendant’s guilty plea.  In affirming the appellate division, the Court of Appeals, in a full-fledged opinion by Judge Rivera, wrote:


           Here, the claim to counsel is so deeply intertwined with the integrity of the process in Supreme Court that defendant's guilty plea is no bar to appellate review. A claim that removal of counsel was part of the court's disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice. While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship, and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny.  People v Griffin, 46.CtApp, 4-2-13

DeBour Criteria Met By Facts Leading to Arrest

The Third Department determined the following scenario legitimately led to the defendant’s arrest under the DeBour criteria:


           The officers arrived at the scene and observed approximately eight people sitting on the steps. As the officers approached the group, one of them – later identified as defendant– abruptly stood up and attempted to enter the building, but could not gain entry because the door was apparently locked.  One of the officers followed defendant up the steps, placed a hand on defendant’s shoulder and asked defendant why he was in a hurry. Defendant turned around, shoved the officer, said that he was “past curfew” and, after a brief struggle, ran down the steps and took off running down the street.  People v Morris, 104201, 3rd Dept, 4-4-13


Failure to Request Jury Charge on Venue Waived Appeal of the Issue

The Third Department determined the failure to request a jury charge on venue waived any related appellate issue:

           Initially, to the extent that defendant contends that the People failed to prove by a preponderance of the evidence … that the underlying crimes  occurred  within the  geographical  jurisdiction of  Franklin County, we  note that “unlike territorial jurisdiction[,] which goes to the very essence of the State’s power to prosecute,” questions  regarding  geographical  jurisdiction or  venue are waivable … . Accordingly, inasmuch as defendant failed to request a jury charge on venue, she waived any challenge in this regard … .  People v Beauvais, 104590, 3rd Dept 4-4-13

“Prompt Outcry” Exception to Hearsay Rule Applied to Complaint Made After Several Days

The Third Department determined the “prompt outcry” exception to the hearsay rule applied to a very young victim who complained about the incident after several days:


           Under the prompt outcry rule, "evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" … . "'[P]romptness is a relative concept  dependent  on  the  facts — what  might  qualify as  prompt  in one  case might  not in another'" ….   Here, the sexual contact occurred over a weekend during which the victim was in the care of defendant's mother. The victim returned to his mother's care on a Sunday and disclosed the events to her on the following Friday. Considering  the  victim's young age and  the  familial relationship between  the victim and defendant, we  agree with County Court's determination  that  the  hearsay  statements  fell within the prompt  outcry rule …, and  the court provided an  appropriate instruction limiting the use of the testimony … .  People v Lapi, 104623, 3rd Dept 4-4-13

Detective’s Testimony About Statement Made by Nontestifying Co-Defendant Violated Defendant’s Right of Confrontation

The Second Department reversed defendant’s conviction because a detective was allowed to testify about a statement made by a nontestifying codefendant in violation of the defendant’s right of confrontation under Crawford:


           …[O]ver the defendant's objection, the trial court allowed the prosecutor to elicit, from a detective, the statement of a nontestifying codefendant that the defendant was in the codefendant's vehicle on the night of the incident. As the People correctly concede, this violated the defendant's right of confrontation, secured to him by the Sixth Amendment to the United States Constitution … . This error was compounded when, on summation, the prosecutor argued that the codefendant's statement established the defendant's presence at the scene of the incident. Since the remaining evidence establishing the defendant's identity as one of the assailants was not overwhelming, the error cannot be deemed harmless beyond a reasonable doubt… .  People v Andujar, 2013 NY Slip Op 02261, 2009-06561, Ind No 1124/06, 2nd Dept 4-3-13

DeBour Criteria Met in Street Encounter Leading to Arrest/Statements Tainted by Miranda Violations Did Not Preclude Admission of Statement Made Seven Hours Later

In a full-fledged opinion by Justice Renwick, the First Department upheld the denial of defendant’s suppression motions.  After hearing gun shots police officers approached the defendant. After defendant answered a couple of questions he “began to place his hand in his back pocket.”  At that point, the officer grabbed defendant’s arm and told defendant he wanted to frisk the defendant before allowing him to reach in his pockets.  As the officer began to frisk the defendant, the defendant ran and was brought the ground.  A firearm, still warm, was taken from the defendant’s back pocket.   Written statements subsequently given by the defendant were suppressed by the trial court because of a Miranda violation.  A videotaped statement, made seven hours after the tainted written statements, was deemed admissible:


           Prior to pleading guilty, defendant moved to suppress a gun, recovered from his pocket, and videotaped statements he made to the prosecution as fruits of an unlawful seizure. He also moved to suppress the statements as obtained in violation of his Miranda rights. We conclude that the facts disclosed in the record were such as to warrant a person of reasonable caution to believe that defendant was reaching for a weapon when the arresting officer grabbed his arm. We also find that defendant’s videotaped statements were not suppressible, notwithstanding the suppression of prior written statements made more than seven hours earlier to police officers, because the videotaped statements were attenuated by a “definite, pronounced break in the interrogation” … .  People v Davis, 2012 NY Slip Op 02337, 6129, 9270, 1st Dept 4-4-13

28-Hours Between Arrest and Arraignment Okay

The Second Department determined a 28-hour delay between arrest and arraignment did not render defendant’s confession involuntary:


           Approximately 28 hours elapsed between the time the police arrested the defendant and the time the defendant made the statement sought to be suppressed. While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant’s confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing the voluntariness of a confession … . The record does not support the defendant’s claim that the police unnecessarily delayed his arraignment. Here, the delay in arraigning the defendant was attributable to the time it took the police to conduct a thorough investigation and not to a strategically designed plan to permit the defendant to be questioned outside the presence of counsel … .  People v Lin, 2013 NY Slip Op 02267, 2008-07244, Ind No 1705/05, 2nd Dept 4-3-13

Criteria for Valid Waiver of Appeal Explained

In finding the defendant did not make a valid waiver of his right to appeal because the colloquy was inadequate, in spite of the defendant’s signing a written waiver, the First Department wrote:


           We note that litigation over the validity of appeal waivers, which arises regularly from many courts, can best be avoided if trial judges separately llocate defendants on the waiver of the right to appeal … . We again remind the courts that the better practice is to secure a written waiver, along with a thorough colloquy to ensure the defendant’s understanding of its contents … . It would be best if the court made clear that this is a separate and important right being waived, and that by signing the waiver, the plea and sentence are final, and the defendant agrees to accept the sentence imposed. The court cannot rely solely on defense counsel to explain the significance of the written waiver.  People v Oquendo, 2013 NY Slip Op 02320, 9617, 1090/09, 1st Dept 4-4-13

Court’s Imposition of Restitution at Sentencing Required Reversal Because Restitution Was Not Part of Plea Agreement

The Second Department determined the trial court’s imposition of restitution at sentencing, where restitution was not part of the plea agreement, required that the defendant be given the opportunity to withdraw his plea or to accept the enhanced sentence:


           Although a court is free to reserve the right to order restitution as part of a plea agreement, the plea minutes do not indicate that a plea of guilty was negotiated with terms that included restitution. Accordingly, at sentencing, the defendant should have been “given an opportunity either to withdraw his plea or to accept the enhanced sentence that included both restitution and a prison sentence … or for the court to impose the agreed-upon sentence.  People Poznanski, 2013 NY Slip Op 02272, 2008-06938, Ind No 2672/06, 2nd Dept 4-3-13

Criteria for Determining Sufficiency of Evidence Before Grand Jury Explained

In reinstating two counts of an indictment that were dismissed upon the trial court’s review of the sufficiency of the proof before the grand jury, the Second Department wrote:


           "Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction'" … . " Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10[1]). " In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'" … . "The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,' and whether the Grand Jury could rationally have drawn the guilty inference.' That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference'" … .  People v Woodson, 2013 NY Slip Op 02282, 2012-02226, Ind No 1881/11, 2nd Dept 4-3-13









Where Attorney Is a Party to a Lawsuit, Attorney’s Submission of an Affirmation as Opposed to an Affidavit in Opposition to Motion to Dismiss Is Not a Sufficient Ground for Dismissal of the Complaint

The Second Department determined a complaint could not be dismissed on the ground that an attorney’s unnotarized affirmation was submitted in opposition to the motion, rather than an affidavit:


           When an attorney is a party to an action, and affidavits are required to support or oppose a request for relief, that attorney may not rely upon an unnotarized affirmation in lieu of an affidavit, as the facts alleged in that affirmation would not be in admissible form (see CPLR 2106…). However, contrary to the Supreme Court’s determination, [plaintiff’s] submission of an unnotarized affirmation in lieu of an affidavit in opposition to the … defendants’ motion to dismiss the complaint insofar as asserted against them did not warrant the granting of that motion. “CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal” … . Accordingly, [defendant’s] failure to submit an affidavit was not fatal to his opposition, and the Supreme Court should not have granted the … defendants’ motion to dismiss the complaint insofar as asserted against them on that basis. Law Offs of Frishberg v Toman, 2013 NY Slip Op 02224, 2011=04956, 2011-07881, Index No 12965/10, 2nd Dept 4-3-13


Criteria for Demonstrating Documents Were Material Prepared in Anticipation of Litigation

The Second Department explained the burden of proof for demonstrating documents are immune from discovery as material prepared in anticipation of litigation as follows:


           "The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery" … . More particularly, "[t]he party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation . . . bears the burden of demonstrating that the material it seeks to withhold is immune from discovery … by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation" … . An attorney's affirmation containing conclusory assertions that requested documents are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain the movant's burden of demonstrating that the materials were prepared exclusively for litigation … .  New York Schools Ins Reciprocal v Milburn Sales Co, Inc, 2013 NY Slip Op 02227, 2012-01697, Index no 2848/11, 2nd Dept 4-3-13

Second Summary Judgment Motion to Address Deficiencies in First Motion Should Not Have Been Entertained


In holding that a second summary judgment motion which addressed deficiencies in the first summary judgment motion should not have been entertained, the Third Department wrote:

           …[W]e agree with plaintiff that  the Town's summary  judgment  motion  should not have  been  considered. "'[M]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other  sufficient cause'"  …. Here, the Town's second motion for summary judgment was made solely upon the added affidavit of its Highway Superintendent, which was submitted to address the deficiencies in the Town's proof as outlined by our prior decision. However, such affidavit was not new evidence, as no reason was given why it could not have been submitted with the initial motion … . For the same reason, this evidence could not have been a valid basis to grant renewal of the first summary judgment motion … . We discern no valid purpose for allowing a successive summary judgment motion that is based solely upon a party's belated attempt to remedy its inadequate initial proffer, without any valid explanation as to why the additional evidence was not offered in the first instance.  Keating v Town of Burke, 515400, 3rd Dept 4-4-13


Delay in Notification Justified Refusal to Defend and Indemnify

The Second Department determined the failure of one insurance company, Fage, to notify another insurance company, Utica, of an automobile accident until 2 ½ years after the accident justified Utica’s refusal to defend and indemnify Fage under the commercial liability umbrella policy issued by Utica to Fage:


          The umbrella policy requires Fage to notify Utica of an occurrence or suit as soon as practicable. Such a requirement is a condition precedent to coverage … . Where an insurance policy requires that notice of an occurrence be given as soon as practicable, notice must be given within a reasonable time in view of all of the circumstances … . Absent a valid excuse, the failure to satisfy the notice requirement of an insurance policy vitiates coverage … .

           Here, no notice was given to Utica by Fage until more than 2½ years after the subject accident and more than 2 years after the underlying action was commenced. This was an unreasonable delay … . Fage has provided no evidence of circumstances, such as lack of knowledge of the accident or a reasonable belief in nonliability, to excuse its delay … . Although Fage claims that its counsel was not aware of the existence of the umbrella policy until October 2009, such unawareness is not a valid excuse for the failure to provide Utica with timely notice … .  Ortiz v Fage USA Corp, 2012 NY Slip Op 02229, 2012-00469, Index Nos 22944/07, 23217/10, 2nd Dept 4-3-13


Expired Fire Fighters’ Collective Bargaining Agreement Was Not “In Effect” Pursuant to Statute With Respect to Fire Fighters’ Mandated Contributions to Pension Plan

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a collective bargaining agreement entered into by the City of Yonkers Fire Fighters was not “in effect” within the meaning of Article 22 of the Retirement and Social Security Law.  For some purposes, the Retirement and Social Security Law deems a collective bargaining agreement to remain “in effect” after it has expired, until another agreement is reached.  If the collective bargaining agreement had been deemed to be “in effect” in this case, the firefighters would not have been required to contribute to their pensions, a requirement that was imposed only after the collective bargaining agreement expired.  Matter of City of Yonkers v Yonkers Fire Fighters ..., 48, CtApp, 4-2-13


Pit Bull Acted in Self-Defense and Should Not Have Been Deemed “Dangerous”/”Dangerous” Finding Can Not Be Based Solely On the Dog’s Breed

The Third Department determined that a pit bull had acted in self-defense when attacked by another dog which broke free of its leash and, on that basis, reversed the “dangerous dog” finding.  The Third Department noted that a “dangerous dog” finding should not be based solely on the breed of the dog:

The condemnation of an individual dog in the context of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have  repeatedly  held  that  "'there is no  persuasive  authority  for the proposition that a court should take judicial notice of the ferocity of any  particular type or breed  of domestic animal'" … .  Matter of People … v Shanks, 514029, 3rd Dept 4-4-13


Sexual Harassment Created Hostile Work Environment/Firing Was Impermissible Retaliation

The Third Department upheld a finding by the New York State Division of Human Rights that petitioner, the owner of a restaurant, had created a hostile work environment and had retaliated against two female employees by firing them after they filed sexual harassment complaints.  Matter of West Taghanic Diner, II, Inc v NYS Division of Human Rights, 514133, 3rd Dept 4-4-13


Appeal Found “Frivilous”

In finding an appeal frivolous, the Third Department wrote:

           We also are persuaded that defendant's pursuit of this appeal is frivolous within the meaning of 22 NYCRR 130-1.1 (c) (2) and, therefore, plaintiff is entitled to an award of reasonable counsel fees incurred in responding thereto.  … [O]nce  plaintiff was  awarded  partial summary  judgment  in February 2011 and secured a judgment in its favor, defendant had several permissible options, such as appealing the underlying order and judgment or paying – in full – the amount awarded to plaintiff.  Instead, defendant continued to dispute the sum due by delaying payment, thereby compelling plaintiff to move for the turnover order and, ultimately, to expend resources responding to the instant appeal seeking $825.55.  Such conduct, in our view, warrants an award of reasonable counsel fees incurred in responding to this appeal, and this matter is remitted to Supreme Court for a determination of the amount of such fees … .  Defendant's remaining arguments, to the extent not specifically addressed, have been considered and found to be  lacking in merit.  Valley Psychological, PC v … Geico, 514672, 3rd Dept 4-4-13


Disciplinary Actions by SUNY School Did Not Violate Student’s Due Process Rights

In upholding the disciplinary action taken by a SUNY school against a student, the Third Department determined the student’s due process rights had not been violated:

           Petitioner's due  process rights were  not violated in as much as he was given written notice of the charges prior to the hearing, the name of the witness against him, the opportunity to present a defense and have the assistance of an advisor at the hearing, and a statement detailing the factual findings, evidence relied upon and discipline imposed… .  Matter of Schwarzmueller v SUNY Potsdam, et al, 515193, 3rd Dept 4-4-13


Petitioner Entitled to Attorney’s Fees Based on Respondent’s Failure to Timely Respond to Requests for Information

The Third Department determined petitioner should be granted attorney’s fees because of respondent’s ignoring a FOIL request until an Article 78 proceeding was brought.  Even though respondent indicated the requested documents didn’t exist, the Third Department ruled that petitioner had “prevailed” in the FOIL proceedings and was therefore entitled to attorney’s fees:

           By commencing this proceeding to force respondent to respond to its request, after a tortuous history, petitioner finally “received all the information that it requested and to which it was entitled in response to the underlying FOIL litigation, [and thus] it may  be said to have substantially prevailed within the meaning of Public Officers Law § 89 (4) ©” … .  

           The fact that full compliance with the statute was finally achieved in the form of a certification that the requested record could not be found after a diligent search, as opposed to the production of responsive documents, does not preclude a  petitioner from being  found  to have substantially prevailed, for the petitioner received the full and only response available pursuant to the statute under the circumstances. As we have emphasized, the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request “must engage in costly litigation,” and the statute was recently amended “in order to ‘create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL’”... .  Matter of Legal Aid Society v NYS Department of Corrections ..., 515257, 3rd Dept 4-4-13


Procedure for Testing Adequacy of Causes of Action in Article 78 Petition/Criteria for Bad Faith Abolishment of Position

The Third Department upheld Supreme Court’s determination that the petitioner had stated a cause of action in his Article 78 proceeding for bad faith abolishment of his tenured Assistant Superintendent position.  The Third Department noted that the proper criteria for analysis in this Article 78 proceeding is the same as in a pre-answer motion to dismiss under CPLR 3211:

           In a CPLR article 78 proceeding, objections in point of law may be raised either through  a pre-answer motion  to dismiss or – as here – in the verified answer  (see CPLR  7804  [f]). Such objections are appropriately afforded review similar in nature to that applied to defenses raised in a pre-answer motion to dismiss pursuant to CPLR 3211 (a).  *  *  *

           A school district may abolish a position, even when this results in the discharge of a tenured employee, so long as it "has made a good faith determination based on economic considerations" … . *  *  * We agree with Supreme Court that [petitioner’s] specific and nonconclusory assertions, when deemed to be true for this purpose, were sufficient to allege that the abolition of his position "was motivated by reasons other than a desire to promote institutional efficiency and economy" and thus state a cause of action … .  Matter of Lally v Johnson City School District, 515488, 3rd Dept 4-4-13


Absence of “Altering” and Readily Observable Risk Precluded Suit

The First Department determined plaintiff’s fall from a metal roof did not meet the criteria for a Labor Law 240(1) because attaching a temorary sign was not “altering” for purposes of the statute.  In addition the First Department determined the Labor Law 200 and common-law negligence actions should be dismissed because the risks inherent in walking on a pitched metal roof were readily observable.  Bodtman v Living Manor Love, Inc, et al, 9703, 113921/08, 1st Dept 4-2-13

Action Under Labor Law Based On Injury On a Ship in Dry-Dock Not Preempted by Federal Maritime Law

A worker on a ship in dry-dock was injured when he fell through an open hole in the floor or deck.  He brought an action pursuant to the Labor Law.  Although the action was within the jurisdiction of federal maritime law, the Second Department held that the state labor law claims were not preempted by general maritime law:

           …[T]here is no real dispute that the present action falls within federal maritime jurisdiction … . Contrary to the contention of the defendants third-party plaintiffs, however, the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not preempted by general maritime law. Under the circumstances of this case, the application of Labor Law §§ 240(1) and 241(6), which are local regulations enacted to protect the health and safety of workers in this state, will not unduly interfere with a fundamental characteristic of maritime law or the free flow of maritime commerce … . Accordingly, the Supreme Court properly denied that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing those causes of action insofar as asserted against the City. Durando v City of New York, 2013 NY Slip Op 02214, 2012-00535, Index No 33753/08, 2nd Dept 4-3-13


Usual Criteria for Piercing the Corporate Veil Applied in Fraudulent Conveyance Action

The First Department determined the “pierce the corporate veil” causes of action should be dismissed, applying the usual “pierce the corporate veil” criteria in a “fraudulent conveyance” case:

           "In order for a plaintiff to state a viable claim against a shareholder of a corporation in his or her individual capacity for actions purportedly taken on behalf of the corporation, plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice" … . "Factors to be considered in determining whether the owner has abused the privilege of doing business in the corporate form include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use … . In opposition to the [defendants’] motion for summary judgment, plaintiff failed to proffer any evidence of the above factors. Contrary to plaintiff's claim, the factors mentioned [above] remain relevant even in a fraudulent conveyance case … .  D’Mel & Associates v Athco, Inc, et al, 9713, 602486/09, 1st Dept 4-4-13




Question of Fact Raised by Competing Expert Affidavits Re: Proximate Cause

In reversing the trial court’s dismissal of a medical malpractice complaint, the First Department wrote:


           In this medical malpractice appeal, defendants do not dispute that they departed from the accepted standard of care by incorrectly informing plaintiff that her April 9, 2007 PET scan was negative for recurrent cancer and not correcting that misinformation until November 2007. Defendants argue that the six month delay in notification did not cause plaintiff any injury. Defendants met their initial burden of establishing their entitlement to judgment as a matter of law … . However, the motion court erred in finding that plaintiff failed to raise an issue of fact requiring the denial of defendants' motion and a trial. The issue of whether a doctor's negligence is more "likely than not a proximate cause of [a plaintiff's] injury" is usually for the jury to decide… . There is a substantial dissent by Justice DeGrasse.  Polanco v Reed, et al, 2013 NY Slip Op 02317, 303169/08, 8662A, 1st Dept 4-4-13

Malpractice/Negligence Claims Can Not Be Brought By Party Not In Privity with Law Firm

The Second Department dismissed a complaint against a law firm for malpractice because the law firm was not in privity with the plaintiffs with respect to the real estate transactions at issue.  The law firm represented the defendant in the transactions:

           The law firm established, prima facie, its entitlement to judgment as a matter of law dismissing the third and fourth causes of action. In this regard, the law firm submitted evidence demonstrating that it was not in privity with the plaintiffs with respect to the subject transactions. "In New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances'" … . Accordingly, the law firm established its entitlement to judgment as a matter of law dismissing the negligence cause of action. Moreover, the law firm submitted evidence demonstrating that it made no material misrepresentations to the plaintiffs …, thus establishing its entitlement to judgment as a matter of law dismissing the fraud cause of action. In opposition, the plaintiffs failed to raise a triable issue of fact … . Therefore, the Supreme Court should have granted that branch of the law firm's motion which was for summary judgment dismissing the third and fourth causes of action.  Zinnanti v 513 Woodward Ave Realty, LLC, 2013 NY Slip Op 02244, 2011-10407, Index No 3092/10, 2nd Dept 4-3-13






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