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April Page I

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)


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Non-Resident Attorneys Must Maintain a Physical Office in New York State to Practice in New York


The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the requirement that, in order to practice in New York, non-resident attorneys maintain a physical office in New York State is constitutional:


Here, the statute appears to presuppose a residency requirement for the practice of law in New York State. It then makes an exception, by allowing nonresident attorneys to practice law if they keep an "office for the transaction of law business" in this State. By its plain terms, then, the statute requires nonresident attorneys practicing in New York to maintain a physical law office here. Schoenefeld v State of New York, 2015 NY Slip Op 02674, CtApp 3-31-15





Appellate Division Should Have Allowed Respondent to Answer Petition After Dismissal of the Petition Was Reversed by the Appellate Division


The Court of Appeals determined the Appellate Division erred when it did not remand an Article 78 proceeding to Supreme Court to allow the respondent university (NYU) to submit an answer to the petition.  The petition was brought by a dental student seeking redress after she was expelled.  Supreme Court dismissed the petition.  The Appellate Division reversed:


The principal issue raised by this appeal is whether the Appellate Division erred by failing to remand to Supreme Court to permit NYU to file an answer pursuant to CPLR 7804 (f). That provision specifies that where a respondent moves to dismiss a CPLR article 78 petition and the motion is denied, "the court shall permit the respondent to answer, upon such terms as may be just" ... . We have indicated, however, that a court need not do so if the "facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer" ... . Since "the motion papers" in BOCES "clearly did not establish that there were no triable issues of fact," we held that "the procedure dictated by CPLR 7804 (subd [f]) should have been followed" ... . For the same reason, NYU should be permitted to answer in this case.


A student subject to disciplinary action at a private educational institution is not entitled to the "full panoply of due process rights" ... . Such an institution need only ensure that its published rules are "substantially observed" ... . And here, triable issues of fact exist with regard to whether NYU substantially complied with its established disciplinary procedures. Matter of Kickertz v New York Univ., 2015 NY Slip Op 02800, CtApp 4-2-15





Moratorium on Fracking Did Not Extend Oil and Gas Leases Beyond the Primary Five-Year Term


The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a "force majeur" clause in oil and gas leases was not triggered by the moratorium on fracking in New York and, therefore, the five-year primary term of the leases was not extended by the moratorium:


Each of the leases contains an identical term clause, also known as a habendum clause, which establishes the primary and definite period during which the energy companies may exercise the drilling rights granted by the leases. Specifically, the leases' habendum clause provides:


"It is agreed that this lease shall remain in force for a primary term of FIVE (5) years from the date hereof and as long thereafter as the said land is operated by Lessee in the production of oil or gas."


Under this provision, the interests conveyed by the leases exist for a five-year "primary term," followed by an open secondary term so long as the land is operated by the lessee in the production of oil or gas.


Each lease also contains what the parties refer to as a "force majeure clause." Generally, a force majeure event is an event beyond the control of the parties that prevents performance under a contract and may excuse nonperformance ... . The force majeure clause here provides:


"If and when drilling or other operations hereunder are delayed or interrupted by lack of water, labor or material, or by fire, storm, flood, war, rebellion, riot, strike, differences with workmen, or failure of carriers to transport or furnish facilities for transportation, or as a result of some order, rule, regulation, requisition or necessity of the government, or as a result of any other cause whatsoever beyond the control of Lessee, the time of such delay or interruption shall not be counted against Lessee, anything in this lease to the contrary notwithstanding. All express or implied covenants of this lease shall be subject to all Federal and State laws, Executive Orders, Rules or Regulations, and this lease shall not be terminated, in whole or in part, nor Lessee held liable in damages for failure to comply therewith, if compliance is prevented by, or if such failure is the result of any such Law, Order, Rule or Regulation." * * *


...[W]e hold that the force majeure clause does not modify the primary term of the habendum clause and, therefore, does not extend the leases. The habendum clause in the leases does not incorporate the force majeure clause by reference or contain any language expressly subjecting it to other lease terms ... . Moreover, the language in the force majeure clause stating that "the time of such delay or interruption shall not be counted against Lessee" does not refer to the habendum clause with specificity. Thus, the habendum clause is not expressly modified or enlarged by the force majeure clause. Beardslee v Inflection Energy, LLC, 2015 NY Slip Op 02677, CtApp 3-31-15





Defense Counsel's Absence When Judge Decided to Replace a Sick Juror Not Preserved by Objection/Court Need Not Put on the Record Its Consideration of Alternatives to Courtroom Closure/Factual Allegations Insufficient to Justify a Suppression Hearing



The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel's absence from the courtroom when the judge put on the record that he was replacing a sick juror was not a mode of proceedings error and was not preserved by objection. Defense counsel entered the courtroom just as the judge seated the alternate juror and did not object. The Court of Appeals also determined the trial judge was not required to put on the record his consideration of measures other than the closure of the courtroom when undercover officers testified, and sufficient facts were not raised in the defense motion papers to justify a suppression hearing:


Here, although defense counsel was not present in court while the judge was stating on the record that he intended to replace the sick juror and counsel for co-defendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel's arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on-the-record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. * * *


... [T]his Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, "it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest"... . * * *


... [D]efendant's simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a [suppression] hearing. It was defendant's role in the conspiracy ... and his conduct ... at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing. People v Garay, 2015 NY Slip Op 02672, CtApp 3-31-15





Ex Parte Interview of Important Prosecution Witness Re: the Witness' Health, Addictions and Ability to Testify Violated Defendants' Right to Confrontation and Right to Counsel


The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that the court's conducting an ex parte interview of a main prosecution witness concerning the witness' health, addictions and his related ability to testify violated the defendants' right to confrontation and right to counsel:


Absent a substantial justification, courts must not examine witnesses about nonministerial matters in camera without counsel present or ex parte (see ... People v Goggins, 34 NY2d 163, 173 [1974]). "[A]n in-camera examination of the witnesses, that is ex parte or without the parties represented would, in our view, arguably trifle with the constitutional right to confrontation and the right to counsel" (Goggins, 34 NY2d at 169). A "defendant's right to the full benefit of the adversary system should not be denied, nor qualified by impairing his right by interposing the 'neutral' Judge to assess whether the disclosure is relevant or material" (id.). Goggins concerned a defendant's right to disclosure of an informant's identity, and this Court held that where the information "relates to a substantive issue in the case, the disclosure should not be ex parte or without either party present even if in camera" (id. at 173). * * *


The denial of the right to counsel at trial "is of constitutional dimension" and is not subject to harmless error analysis ... . Courts should not delve into questions of prejudice when assistance of counsel is involved ... . As this Court recognized, "[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial" ... . And as this Court held in Hodge, a quantification of what impeachment material defense counsel might have obtained at the proceeding cannot be dispositive ..., as harmless error does not apply in right-to-counsel cases ... .


Here, the in camera proceeding clearly involved substantive issues as opposed to ministerial matters and there was no justification for excluding defense counsel. Because the discussion involved important issues for trial that might have affected a "substantial right" of a party, defense counsels' presence was required... . People v Carr, 2015 NY Slip Op 02798, CtApp 4-2-15





Line Between Inadmissible Testimonial (Hearsay) Statements and Admissible Non-Testimonial Information Clarified


The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion, determined the defendant's right to confrontation was violated in one case and not violated in another. (Ostensibly) the hearsay was not admitted for the truth of the matters asserted, but rather to explain police actions.  In one case, the hearsay was deemed testimonial (and inadmissible) because it was substantive enough to have effectively replaced the declarant's testimony.  In the other case, the information was not deemed testimonial, because any connection with the information and an out-of-court declarant was speculative . The relevant law was described as follows:


...[T]he federal Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial," unless that witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her (Crawford v Washington, 541 US 36, 53-54 [2004]...). "[A] statement will be treated as testimonial only if it was 'procured with a primary purpose of creating an out-of-court substitute for trial testimony' " ... and, "[i]f a different purpose underlies its creation, the issue of admissibility of the statement is subject to federal or state rules of evidence" ... . Our precedent teaches that "two factors . . . are 'especially important' in resolving whether to designate a statement as testimonial—-'first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing' " ... . "[T]he 'purpose of making or generating the statement, and the declarant's motive for doing so,' also 'inform [those] two interrelated touchstones' " ... .


But this is not to say that testimonial statements are invariably intolerable at trial. The federal Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted" ... . Moreover, subject to the exercise of a court's discretion, otherwise inadmissible evidence that "provide[s] background information as to how and why the police pursued and confronted [a] defendant" ... may be admitted to help a jury understand a case in context "if the evidence's probative value in explaining the [pursuit] outweighs any undue prejudice to the defendant," and if the evidence is accompanied by a " proper limiting instruction[]' "... . People v Garcia, 2015 NY Slip Op 02675, CtApp 3-31-15





Introduction of "Prompt Outcry" Evidence in a Rape Trial, After the People, Pre-Trial, Had Informed Defense Counsel and the Court There Would Be No Evidence of a "Prompt Outcry," Required Reversal


The Court of Appeals, in a full-fledged opinion by Judge Stein, reversed defendant's conviction in a rape case because the People, prior to trial, indicated there would be no "prompt outcry" evidence and, at trial, "prompt outcry" evidence was introduced.  Because defense counsel had formulated trial strategy and conducted voir dire with the understanding the first time the victim told anyone about the alleged offense was six months after the incident, the prejudice resulting from the "surprise" evidence was substantial:


Based on this record, the trial court abused its discretion when it denied defense counsel's motion for a mistrial or to strike a portion of complainant's testimony. Undisputedly, complainant's testimony that she told her friend "what happened" conveyed to the jury that she had engaged in sexual intercourse with defendant that evening. Although this testimony was relevant, we have observed that relevancy, alone, does not render evidence admissible because "'it may be rejected if its probative value is outweighed by the danger that its admission would . . . unfairly surprise a party[] or create substantial danger of undue prejudice to one of the parties'" ... .


Relying on the People's pre-trial representation, defense counsel shaped his trial strategy — from voir dire to his opening statement — based on his founded belief that complainant did not disclose the alleged rapes until months after they occurred. Complainant's testimony that she disclosed her accusations against defendant — even partially — the same night as the alleged assaults, took defendant by surprise because it was inconsistent with the People's earlier position and with complainant's grand jury testimony. Despite the People's admission that they "expected" complainant to testify in such a manner, the prosecutor inexplicably failed to convey this information to defense counsel. As a result, the surprise testimony eviscerated counsel's credibility with the jury and irreparably undermined his trial strategy. People v Shaulov, 2015 NY Slip Op 02676, CtApp 3-31-15




Misrepresentations About Expunged Drug-Related Offenses on Student's Law School Admission Application Supported the Rescinding of the Student's Admission After Completion of Three Semesters


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined a law school did not act arbitrarily and capriciously when it determined a student had made misrepresentations about (expunged) criminal offenses in his admission-application and rescinded his admission after three semesters of study:


Courts have a "restricted role" in reviewing determinations of colleges and universities ... . A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules ... or imposes a penalty so excessive that it shocks one's sense of fairness ... . None of those factors is present here.


The law school's treatment of [the student] was rational insofar as it was not wholly inconsistent with the school's approach to rescission of admission in general. The law school states that while it routinely receives, and often grants, requests from enrolled students to amend the criminal history sections of their applications, such amendments usually involve minor offenses such as open container or traffic violations, or small quantity marijuana possession. Amendments are by no means guaranteed - -the law school states that on at least two occasions, when the information contained in the subsequent disclosure would have prevented the individual from being considered for admission, the students' admission was rescinded.


The law school avers that it has an unwritten policy of not admitting people who sell drugs and that if [the student] had disclosed on his application that his arrest was for the distribution of LSD to an undercover officer and possession with intent to distribute, his application would have been denied during the initial screening process. The school explains that it generally distinguishes between applicants with a history of personal drug use, and those with a history of drug dealing - - the former can be accepted under certain circumstances, but the latter are not. Matter of Powers v St. John's Univ. Sch. of Law, 2015 NY Slip Op 02799, CtApp 4-2-15





Slip and Fall On Ice While Wearing Stilts Not an Elevation-Related Event within Meaning of Labor Law 240 (1)


The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined that a slip and fall caused by ice on the floor was not an elevation-related event within the meaning of Labor 240(1), despite the fact the worker was using stilts when he slipped and fell:


... [T]he protections of Labor Law § 240 (1) "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity" ... . "Rather, liability [remains] contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" ... . Moreover, section 240 (1) is not applicable unless the plaintiff's injuries result from the elevation-related risk and the inadequacy of the safety device ... . * * *


Here, plaintiff's accident was plainly caused by a separate hazard — ice — unrelated to any elevation risk. Plaintiff testified that stilts were the appropriate device for the type of work that he was undertaking, given the height of this particular ceiling. Plaintiff's testimony further established that it was the ice — not a deficiency or inadequacy of the stilts — that caused his fall. Nicometi v Vineyards of Fredonia, LLC, 2015 NY Slip Op 02801 CtApp 4-2-15





Work on Billboard Was "Alteration" within Meaning of Labor Law 240 (1) and "Construction" within Meaning of Labor Law 241 (6)


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that plaintiff, who fell putting up advertisement on a billboard, was engaged in covered activities pursuant to Labor Law 240 (1) (alteration), 240 (2) (no guardrail) and 241 (6) (construction):


[W]e conclude that plaintiff was engaged in work that constitutes an alteration within the meaning of the statute. In reaching this determination we apply the definition the Court adopted in Joblon, that the term "altering" in section 240 (1) "requires making a significant physical change to the configuration or composition of the building or structure" (Joblon, 91 NY2d at 465). This definition excludes "routine maintenance" and "decorative modifications" (id.). Whether a physical change is significant depends on its effect on the physical structure. Thus, the Court held that the plaintiff in Joblon who was injured when he fell off a ladder while in the process of chiseling a hole through a concrete block wall so that he could run electrical wires from one room to another to install a wall clock was engaged in "altering" under section 240 (1). As the Court held, extending the wiring and chiseling a hole through the concrete constituted a significant change and entailed "more than a simple, routine activity" (id. at 465-66).


Here, plaintiff's job was to install a new advertisement. In order to do so he and the other members of the construction crew had to attach extensions that changed the dimensions of the billboard's frame and transformed the shape of the billboard to accommodate the advertisement's artwork. Plaintiff was injured when in furtherance of this task he fell while assisting the other crew members with the removal of the old vinyl advertisement from the billboard's side panels. The vinyl removal was a prerequisite to the attachment of the extensions and therefore an integral part of the installation of the extensions. We have little difficulty concluding that the plaintiff's work entails a significant change to the billboard structure because once the vinyl is removed, the billboard is enlarged by the attachment of the extensions, work accomplished by the use of the angle iron on the back of each extension, and application of nuts, bolts and nails.  Saint v Syracuse Supply Co., 2015 NY Slip Op 02802, CtApp 4-2-15








Pursuant to the Doctrine of "Primary Jurisdiction," Teacher Seniority Matters Should First Be Considered by the Commissioner of Education, Not the Courts


The Second Department determined matters concerning teacher-seniority, before being considered by a court, should first be considered by the Commission of Education, invoking the doctrine of "primary jurisdiction:"


"The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions" ... . The doctrine applies " where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views'" ... .


Here, the issues raised in the petition relate to the appropriate calculation of the petitioner's seniority and, thus, fall within the special knowledge and expertise of the Commissioner ... . Matter of Schwartz v East Ramapo Cent. Sch. Dist., 2015 NY Slip Op 02769, 2nd Dept 4-1-15





Denial of Application for Renewal of General Contractor's Registration Based Upon a Conviction Which Preceded a Prior Renewal Was Arbitrary and Capricious


The First Department determined the denial of petitioner's application for renewal of his general contractor's registration, based upon a conviction which preceded a prior renewal, was arbitrary and capricious.  The court noted that the presumption derived from petitioner's certificate of relief from disabilities was not rebutted:


Respondent's determination lacked a rational basis (see CPLR 7803[3]...). Respondent arbitrarily concluded that petitioner's prior conviction for filing false documents bore a direct relationship to the duties and responsibilities attendant to the general contractor registration, the license for which he sought renewal (see Correction Law §§ 752[1], 750[3]...). * * *


Respondent's failure to rebut the presumption of rehabilitation deriving from petitioner's certificate of relief from disabilities also renders its determination arbitrary and capricious ... . Matter of Jakubiak v New York City Dept. of Bldgs., 2015 NY Slip Op 02858, 1st Dept 4-2-15





Statutory Provision that the Gaming Commission "Shall" Render a Determination Within 30 Days After a Hearing Is "Directory" Not "Mandatory"---A Late Determination Will Not Be Annulled Absent Prejudice


The Third Department determined Supreme Court erred when it annulled the suspension of petitioner's license to train and own horses because the NYS Gaming Commission did not render a determination within 30 days of the hearing as required by Racing, Pari-Mutuel Wagering and Breeding Law 321.  The Third Department determined the 30-day time-limit was not mandatory and petitioner could only seek relief for a violation of section 321 if he could show prejudice related to the delay:


Racing, Pari-Mutuel Wagering and Breeding Law § 321 provides that, when respondent suspends a harness racing participant's license, the licensee may demand a hearing and, "[w]ithin thirty days after the conclusion of such hearing, [respondent] shall make a final order in writing." The use of "shall" is not conclusive, however, inasmuch as the statute does not impose any limitation on respondent's power to act or provide for any consequences for the failure to comply with the time limit ... . Nor has petitioner cited any legislative history, and we are not aware of any, suggesting that the 30-day provision in the statute was intended to be mandatory. Rather, at the time this provision was enacted, similar language in the Alcoholic Beverage Control Law had been judicially determined to be directory ... , yet the Legislature imposed no additional language limiting respondent's power to act when it later enacted Racing, Pari-Mutuel Wagering and Breeding Law § 321.


Where, as here, an agency fails to follow a procedural provision that is merely directory, the subsequent determination should only be judicially annulled when the challenger can "show that substantial prejudice resulted from the agency's noncompliance" ... . Matter of Pena v New York State Gaming Commn., 2015 NY Slip Op 02821, 3rd Dept 4-2-15





Interest Pursuant to CPLR 5002 and 5003 Is a Matter of Right Not Dependent Upon the Court's Discretion or a Demand


The Second Department noted that the defendant who had obtained an arbitration award was entitled to interest on the award pursuant to CPLR 5002 and 5003:


...[P]ursuant to CPLR 5002, the defendant was entitled to prejudgment interest from the date of the arbitration award, April 28, 2009 ... . "Interest under CPLR 5002 is a matter of right and is not dependent upon the court's discretion or a specific demand" ... . It "is simply the cost of having the use of another person's money for a specified period" and is not a penalty on the party owing money ... . Accordingly, the defendant was entitled to prejudgment interest accruing from the date of the arbitration award, and to postjudgment interest pursuant to CPLR 5003. Dermigny v Harper, 2015 NY Slip Op 02722, 2nd Dept 4-1-15





Foreign Money Judgment Properly Enforced---Criteria Explained


The Second Department determined Supreme Court properly enforced a Canadian money judgment.  The court explained the relevant analytical criteria:


"Under CPLR article 53, a judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is final, conclusive and enforceable when rendered'" ... . "[A] foreign country judgment is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money'" ... . "However, a foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law' or (2) the foreign court did not have personal jurisdiction over the defendant'" ... . "A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist" ... .


The Ontario Superior Court of Justice is part of a judicial system that provides impartial tribunals and procedures compatible with due process of law ... and, here, that court had a valid basis for exercising jurisdiction over the defendant, as the defendant purposefully transacted business in Ontario (see CPLR 5305[b]; CPLR 302[a][1]...). Moreover, CPLR 5305(a)(2) provides, in relevant part, that a foreign country judgment "shall not be refused recognition" by New York "for lack of personal jurisdiction if . . . the defendant voluntarily appeared" in the foreign court proceedings for purposes other than "contesting the jurisdiction of the court" over him or her. Although the plaintiff failed to establish that the defendant was properly served with process in the Canadian action ..., the plaintiff nonetheless demonstrated that the Ontario Superior Court of Justice had personal jurisdiction over the defendant, as the defendant "voluntarily appeared" in the Canadian action (CPLR 5305[a][2]...) and "did more than [it] had to do to preserve a jurisdictional objection" ... .  Gemstar Can., Inc. v George A. Fuller Co., Inc., 2015 NY Slip Op 02726, 2nd Dept 4-1-15





"Intrinsic" Versus "Extrinsic" Fraud as the Basis of a Motion to Open a Default Judgment/Lack of Standing Not a Jurisdictional Defect


In the context of a mortgage foreclosure, the defendant made a motion pursuant to CPLR 5015(a)(3) to open a default judgment.  The Second Department determined the motion was properly denied and explained the difference between allegations of "intrinsic" and "extrinsic" fraud as the basis of the motion.  The court noted that a lack of standing is not a jurisdictional defect:


The defendant alleged, pursuant to CPLR 5015(a)(3), that the plaintiff committed "intrinsic fraud," by submitting fraudulent documents in support of its claim for a judgment of foreclosure and sale ... . She did not allege "extrinsic fraud," which is "a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter" ... . Therefore, the defendant was required to show a reasonable excuse for her default ... . However, she failed to offer any excuse for her default ... . U.S. Bank, N.A. v Peters, 2015 NY Slip Op 02757, 2nd Dept 4-1-15






Emails Can Suffice as "Documentary Evidence" to Support a Motion to Dismiss---Here the Documentary Evidence About Aspects of an Employment Agreement that Were In Contention Did Not Utterly Refute the Allegation that an Employment Contract Had Already Been Entered


The First Department, in a full-fledged opinion by Justice Renwick, over a dissent, determined the documentary evidence submitted by the defendant, which dealt with several aspects of an employment agreement that were in contention, did not utterly refute plaintiff's allegation that an employment contract had already been entered.  Therefore defendant's motion to dismiss the breach of contract cause of action was properly denied.  The opinion is long and detailed, as is the dissent, and cannot fairly be summarized here.  With respect to what constitutes documentary evidence in this context, the court wrote:


On a motion to dismiss pursuant to CPLR 3211(a)(1), a court is obliged "to accept the complaint's factual allegations as true, according to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory" ... . Moreover, dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence submitted "utterly refutes plaintiff's factual allegations" ... . If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action ... . * * *


Preliminarily, we reject Supreme Court's conclusion that correspondence such as the emails here do not suffice as documentary evidence for purposes of CPLR 3211(a)(1). This Court has consistently held otherwise. For example, in Schutty v Speiser Krause P.C. (86 AD3d 484, 484-485 [1st Dept 2011]), this Court found drafts of an agreement and correspondence sufficient for purposes of establishing a defense under the statute. Similarly, in Langer v Dadabhoy (44 AD3d 425, 426 [1st Dept 2007], lv denied 10 NY3d 712 [2008]), this Court found "documentary evidence in the form of emails" to be sufficient to carry the day for a defendant on a CPLR 3211(a)(1) motion. Likewise, in WFB Telecom. v NYNEX Corp. (188 AD2d 257, 259 [1st Dept 1992], lv denied 81 NY2d 709 [1993]), this Court granted a CPLR 3211(a)(1) motion on the basis of a letter from the plaintiff's counsel that contradicted the complaint. Therefore, there is no blanket rule by which email is to be excluded from consideration as documentary evidence under the statute. Kolchins v Evolution Mkts., Inc., 2015 NY Slip Op 02863, 1st Dept 4-2-15





Course of Conduct Revealed the Terms of an Implied Contract---Complaint Dismissed


The Third Department determined defendant had demonstrated the terms of an implied contract by course of conduct and plaintiff failed to raise a triable question of fact to the contrary:


...[A]n implied contract exists when the parties have not entered into an express contract, but their course of conduct indicates that they have reached a meeting of the minds that is sufficient to constitute an enforceable contract ... . A contract may be implied "as an inference from the facts and circumstances of [a] case, although not formally stated in words, and is derived from the presumed intention of the parties as indicated by their conduct" ... . Here, the parties agree that they had a longstanding implied contract, but disagree as to whether the terms of this agreement included the amounts that plaintiff now seeks to collect. Plaintiff asserts that these amounts represent debts resulting from systematic underpayments by defendant dating back to 2006. However, defendant contends that it was the parties' longstanding practice to resolve payment disputes shortly after each payment came due, and that plaintiff gave defendant no reason to believe that any such disagreements were not resolved or that any charges remained outstanding. * * *


...[T]he uncontradicted evidence reveals that, throughout the relationship, both parties treated all pricing disputes as resolved after plaintiff accepted payment and removed the charges from its statements. Plaintiff put forward no admissible evidence giving rise to issues of fact as to whether defendant was on notice that plaintiff considered any charges to be outstanding after this process was complete, or that defendant agreed, explicitly or implicitly, that it was liable for them. Thus, defendant established as a matter of law that there was no breach of contract, and its motion for summary judgment dismissing the cause of action for breach of contract should have been granted ... . Coca-Cola Refreshments, USA, Inc. v Binghamton Giant Mkts., Inc., 2015 NY Slip Op 02834, 3rd Dept 4-2-15






Contract Action Barred by Statute of Frauds Did Not Preclude Action Based Upon Quantum Meruit


The Third Department noted that a contract cause of action which is barred by the statute of frauds (re: the conveyance of real property) did not preclude an action based upon quantum meruit:


We agree with Supreme Court that plaintiff's claim for breach of contract, based on an alleged oral agreement to convey real property, is barred by the statute of frauds (see General Obligations Law § 5-703 [1]...). The statute of frauds does not, however, preclude "quasi-contractual recovery for the reasonable value of services rendered" ... . Accepting as true the allegations in plaintiff's complaint, they adequately set forth a cognizable claim for quantum meruit based on the alleged performance of services by plaintiff and her expectation of payment from defendant ... . Inasmuch as the quantum meruit cause of action is subject to a six-year statute of limitations, however, plaintiff's claims are barred to the extent that they allege the performance of services prior to April 25, 2007, which is six years from the commencement of the action ... . Rauch v Ciardullo, 2015 NY Slip Op 02823, 3rd Dept 4-2-15






Elements of Conversion, Moneys Had and Received and Breach of Fiduciary Duty Causes of Action Described/Equitable Estoppel Did Not Apply to Toll Applicable Statutes of Limitations


The Third Department explained the elements of causes of action for conversion, aiding and abetting conversion, moneys had and received, breach of fiduciary duty, and aiding and abetting breach of a fiduciary duty.  The Third Department further held that the doctrine equitable estoppel did not toll the applicable statutes of limitations and delineates what the applicable statutes of limitations are.  With respect to conversion, moneys had and received and equitable estoppel, the court wrote:


"Conversion is an unauthorized exercise of dominion and control over" someone else's property that "interferes with and is in defiance of the superior possessory right of the owner or another person" ... . A claim can exist for aiding and abetting conversion if the aider-abettor has actual knowledge that the person who directly converted the plaintiff's property did not own that property ... . Here, the complaint alleges that defendant knew of and acquiesced in Jaques' unauthorized personal purchases from plaintiff's accounts, that the purchased items were delivered to and used to improve defendants' home, and that defendant accepted the benefits of these converted items. These allegations stated a cause of action against defendant for aiding and abetting conversion. * * *


Plaintiff properly stated a cause of action against defendant for moneys had and received. The elements of such a cause of action are that the defendant received money belonging to the plaintiff and benefitted from that money, and that equity and good conscience will not permit the defendant to keep the money ... . The complaint alleges that money stolen from plaintiff by Jaques was used to improve and maintain defendants' home, and that defendant consented to these actions. Accepting the allegations as true, and reasonably inferring that the use of this money provided a benefit to defendant, the third cause of action was sufficient. * * *


Supreme Court erred in concluding that the doctrine of equitable estoppel tolled the statutes of limitations as raised by defendant. Although the doctrine precludes a defendant from relying on a "statute of limitations defense when the plaintiff was prevented from commencing a timely action by reasonable reliance on the defendant's fraud, misrepresentation or other affirmative misconduct . . ., equitable estoppel does not apply where the misrepresentation or act of concealment underlying the estoppel claim is the same act which forms the basis of [the] plaintiff's underlying substantive cause[s] of action" ... . Torrance Constr., Inc. v Jaques, 2015 NY Slip Op 02813, 3rd Dept 4-2-15







Even If Information About Prosecution Witness' Recent Drug Sales Had Been Withheld in Violation of Brady/Giglio, the Withheld Information Was Not "Material" In That It Would Not Have Affected the Outcome


The First Department, in a full-fledged opinion by Justice Richter, determined that there was insufficient evidence that a Brady/Giglio violation had occurred and that, assuming there was a violation, it would not have affected the verdict.  The underlying question was whether the prosecution was aware a cooperating witnesses had lied on the stand when he testified he no longer sold drugs:


...[D]efendant's principal claim is that the People violated their obligations under Brady v Maryland (373 US 83 [1963]) and its progeny. It is well established that a defendant has the right, under both the State and Federal Constitutions, to discover favorable evidence in the People's possession that is material to guilt or punishment ... . Furthermore, the People's Brady obligations apply to both exculpatory and impeachment evidence (see Giglio v United States, 405 US 150, 154 [1972]). Such evidence, however, "is subject to Brady disclosure only if it is within the prosecution's custody, possession, or control" ... . "To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ... . * * *


It is axiomatic that there can be no Brady violation unless the suppressed information is "material" ... . Where, as here, a defendant has made a specific request for the undisclosed information, "the materiality element is established provided there exists a reasonable possibility that it would have changed the result of the proceedings" ... . Under this standard, even if the information about [the witness'] recent drug sales had been disclosed before the end of trial, there is no reasonable possibility that the verdict would have been different. People v Stilley, 2015 NY Slip Op 02715, CtApp 3-31-15





Concise Description of the Application of the DeBour Street-Encounter Criteria Leading to the Seizure of a Weapon


The Second Department, in finding the seizure of a gun from the defendant proper, provided a concise application of the DeBour street encounter factors:


The arresting officer testified that he saw, from a distance of "[l]ess than a foot" away, "what looked to be" "two to three inches" of "the butt of a firearm" that was "pulling down" the defendant's rear pants pocket. These observations gave the officer an objective, credible reason to approach the defendant ... . Upon seeing the officer, the defendant immediately turned sideways to obscure his rear pants pockets from the officer's view, giving the officer a "founded suspicion that criminal activity [was] afoot," justifying greater intrusion to conduct an inquiry ... . At that point, when the defendant lowered his hands in the direction of his waist area, the officer had reason to suspect that he was in danger of physical injury and was authorized to conduct a protective frisk (see CPL 140.50[3]...). Probable cause for the defendant's arrest arose after the officer grabbed the defendant's hands for his own safety and, upon "wrestling" with the defendant, saw that the item in the defendant's back pocket was, in fact, a firearm ... . Thus, the record establishes that the officer's conduct was justified at its inception and reasonably related in scope and intensity to the circumstances of the encounter as it developed ... . Moreover, given the legality of the officer's actions, the defendant's claim that his post-arrest statement to police should be suppressed as the product of an illegal search or seizure is without merit... . People v Owens, 2015 NY Slip Op 02790, 2nd Dept 4-1-15





Sentencing Court Must Place on the Record Its Reasons for Denying Youthful Offender Status


The Second Department noted that the sentencing court must always place on the record its reasons for denying youthful offender status to an eligible youth:


In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court "must" determine whether an eligible defendant is to be treated as a youthful offender, "cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request." Compliance with CPL 720.20(1) requires the sentencing court to actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment ... .


Here, the Supreme Court failed to adequately place on the record its reasons for denying the defendant youthful offender status. Under these circumstances, we vacate the defendant's sentence, and remit the matter to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment. People v Stevens, 2015 NY Slip Op 02794, 2nd Dept 4-1-15





Court's Failure to Share Entire Contents of Note from Jury Constituted a Mode of Proceedings Error Requiring Reversal


The Second Department determined the trial court's failure to share the entire contents of a note from the jury was a mode of proceedings error requiring reversal:


CPL 310.30 requires that trial courts give notice to the People and the defense before responding to a note from a deliberating jury ... . A court's " core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors' request—in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury'" ... . Meaningful notice means notice of the "actual specific content of the jurors' request" ..., and "a court must read a jury note verbatim' so that the parties have the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response'" ... .


"Although not every violation of CPL 310.30 is immune from normal preservation principles, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error," which does not require preservation ... .


Here, the trial court's failure to share the entire contents of a substantive note from the jury constituted a mode of proceedings error requiring reversal ... . People v Cotton, 2015 NY Slip Op 02780, 2nd Dept 4-1-15




Juror Had Personal/Professional Relationships with Two Prosecution Witnesses---For Cause Challenge Should Have Been Granted


The Third Department determined the defendant's conviction must be reversed because a juror had personal/professional relationships with two of the prosecution witnesses and defendant's for cause challenge to the juror was denied:


A juror whose relationship with a potential witness is so close "that it is likely to preclude him [or her] from rendering an impartial verdict" (CPL 270.20 [1] [c]) must be excused even if the juror states that he or she can be impartial, because "the risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint" ... . In determining whether a relationship is so close as to require disqualification, a court should consider factors "such as the frequency, recency or currency of the contact, whether it was direct contact, . . . the nature of the relationship as personal and/or professional . . . [and] any facet of the relationship likely to preclude the prospective juror from being impartial" ... . As to the first witness, a former working relationship, without more, will not necessarily give rise to implied bias requiring disqualification ... . Here, however, the juror described the relationship as more than merely professional; he stated that he knew the witness well, had discussed many subjects with him, had strong feelings about him and tended to believe him, and he volunteered that he was concerned as to whether the relationship would affect his judgment. The juror's longstanding social relationship with the second witness was sufficiently close that the witness was aware that the juror had been called to jury duty on the case he had investigated, and sufficiently current that the juror and witness had spoken only a few days before the trial. Thus, this relationship, like that with the first witness, "was far more than a 'nodding acquaintance'" ... . Failure to excuse the juror could have "create[d] the perception that the accused might not receive a fair trial before an impartial finder of fact" ... . Accordingly, based upon these two relationships, defendant's challenge for cause should have been granted. People v Hamilton, 2015 NY Slip Op 02804, 3rd Dept 4-2-15





Conviction Based Upon a Plea Allocution In Which Defendant Was Not Informed of the Period of Post-Release Supervision Can Not Be Used as a Predicate Violent Felony for Purposes of Sentencing as a Persistent Violent Felony Offender


The Third Department determined a conviction based upon a plea allocution in which defendant was not informed of the period of post-release supervision (PRS) could not serve as a predicate felony for sentencing as persistent violent felony offender:


Defendant challenges the use of his 1999 conviction as a predicate violent felony, asserting that at the time of his plea to that charge he was not informed that the resulting sentence would include a mandatory period of postrelease supervision (hereinafter PRS). "Notwithstanding his failure to appeal from the [1999] conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained" ... . It is well established that a court must advise a defendant of the direct consequences of a plea prior to sentencing, specifically including the existence and duration of any PRS requirement ... .


Here, the transcript of defendant's 1999 plea allocution reveals that he was not advised that his plea would result in a mandatory period of PRS. Rather, defendant was first informed about the PRS through the court's pronouncement of his sentence. Defendant made comments expressing his surprise as to the PRS immediately thereafter, but he was not afforded an opportunity to withdraw his plea, either during his original sentencing or when he was later resentenced to adjust the duration of the PRS to conform with the requirements of Penal Law § 70.45. Given the apparent infirmities in defendant's 1999 plea allocution, we find that County Court erred in accepting the resulting conviction as a predicate violent felony for the purpose of sentencing defendant as a persistent violent felony offender ... . People v Brewington, 2015 NY Slip Op 02805, 3rd Dept 4-2-15





Defense Counsel Took a Position Adverse to the Defendant's---Sentence Vacated


The Third Department determined the defendant's sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant's motion to withdraw his plea:


"It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea"... . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client ..., make remarks that "affirmatively undermine" a defendant's arguments ..., or otherwise "take a position that is adverse to the defendant" ... . Here, when asked to respond to defendant's pro se motion, counsel advised that, in his opinion, "[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea" and that there was no way that he could see that defendant "pleaded without knowing what he was pleading to." In our view, because counsel's opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant ... . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15





Jury Instruction Reversed Burden of Proof---New Trial Ordered


The Third Department determined defendant's conviction must be reversed because the trial court's instruction to the jury reversed the burden of proof.  The defendant was accused of killing a pit bull in violation of Agriculture and Markets Law  353(a)(1):


....[D]efendant contends that County Court erred in rendering a supplemental jury instruction that effectively shifted the burden of proof to defendant to prove his own innocence. While defendant failed to preserve this issue through an appropriate objection, given the nature of the challenged instruction, we exercise our interest of justice jurisdiction to take corrective action ... . Without question, the People bear the burden of proving a defendant's guilt beyond a reasonable doubt, and County Court so charged the jury twice before giving the instruction at issue. After receiving a further note from the jury requesting definitions for certain terms, including "depraved" and "sadistic," the court determined that it would "be beneficial . . . to once again go over the definition of aggravated cruelty." In doing so, however, the court advised the jury: "Thus, if you find beyond a reasonable doubt that the defendant did not engage in conduct which caused the animal extreme pain or which was not done or carried out in an especially depraved or sadistic manner, you must find the defendant not guilty." This charge impermissibly shifted the burden of proof by suggesting that defendant needed to prove his innocence beyond a reasonable doubt. Compounding the problem, the charge was rendered shortly before the jury rendered the guilty verdict. In our view, this was a fundamental error, requiring the reversal of the judgment and a new trial ... . People v Facey, 2015 NY Slip Op 02810, 3rd Dept 4-2-15





Conditions of Probation Which Allowed Release of Defendant's Pre-Sentence Investigation Report Illegal


The Third Department, in a full-fledged opinion by Justice Devine, determined two provisions of defendant's sentence to probation which purported to allow release of defendant's Pre-Sentence Investigation report (PSI) were illegal and must be vacated.  The court noted that the illegality of a sentence which is apparent from the record survives a waiver of appeal and the absence of an objection:


CPL 390.50 (1) provides that a PSI "is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court" (emphasis added). The court that is referenced in CPL 390.50 (1) is the sentencing court ... . While the People argue that the challenged conditions constitute specific authorization of disclosure by the sentencing court, condition 17, on its face, is a blanket delegation to the Probation Department to authorize disclosure of the PSI to treatment providers if the department deems the request appropriate. In our view, such a general authorization of disclosure by the Probation Department is contrary to both the statutory mandate of specific authorization and this Court's direction that only the sentencing court can grant that authorization.


Moreover, the requirement in condition 32 that defendant consent to disclosure of the PSI is similarly contrary to law. Under CPL 390.50, criminal defendants themselves are not entitled to their PSI in collateral proceedings, absent statutory authority, except under limited conditions, i.e., upon a proper factual showing of need ... . Even when a defendant has demonstrated a need for disclosure, he or she is never "automatically entitled to an unredacted copy of [the PSI]" ... . Rather, in light of the requirement of specific authorization and given the sentencing court's discretion to except portions of a PSI from disclosure, the court must make a determination whether redaction is appropriate ... . That is, under the statute, a defendant cannot demand or "consent" to release of the entire, unredacted PSI — only the sentencing court can permit the release of the PSI after the party requesting it has shown that the information cannot be obtained in any other way, and only after the court has considered whether redaction is necessary. People v Fishel, 2015 NY Slip Op 02808, 3rd Dept 4-2-15





Forcing Defendant to Go to Trial When His Expert on the Intoxication Defense Was Not Available Rendered Defendant's Guilty Plea Involuntary and Coerced


The Third Department vacated defendant's plea, finding that it was involuntary and coerced.  Defendant admitted shooting and killing his brother, but it was clear that defendant was highly intoxicated at the time of the offense.  County Court set the matter down for trial at a time the defendant's expert on the intoxication defense was not available, after the court concluded there was no merit to the defense. During the plea colloquy the defendant answered "to the best of my recollection" when asked whether he had caused the death of his brother. Under these circumstances the waiver of appeal and the failure to preserve the error did not preclude review:


...[D]efendant's challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal but is unpreserved for our review in the absence of a motion to withdraw his plea ... . That said, we nonetheless are persuaded that the narrow exception to the preservation requirement was triggered here, as defendant's qualified response — "[t]o the best of my recollection" — to County Court's key question during the course of the plea allocution cast doubt upon his guilt and/or otherwise called into question the voluntariness of his plea, thereby obligating County Court to undertake further inquiry prior to accepting defendant's plea ... — particularly in view of the transcripts of the 911 call, wherein defendant clearly indicated that he had been drinking on the day of the shooting, and defendant's Town Court arraignment, wherein the Town Judge expressed concerns regarding defendant's ability to understand the charges against him due to his apparent level of intoxication. We also find merit to defendant's claim that his plea was coerced. As noted previously, defendant entered his plea of guilty in response to the prospect of proceeding to trial within a matter of days and without an expert witness, and such plea was entered on the heels of County Court's questionable, pretrial analysis as to the viability of defendant's asserted intoxication defense. Under these circumstances, we are unable to conclude that defendant's guilty plea was knowing, intelligent and voluntary. People v Lang, 2015 NY Slip Op 02809, 3rd Dept 4-2-15





Criteria for Downward Departure Explained (Not Met Here)


The Second Department, in finding the defendant was not entitled to a downward departure to reduce his risk assessment, explained the downward departure criteria:


There is a three-step process to be followed in determining whether a downward departure is appropriate ... . "At the first step, the court must decide whether the . . . mitigating circumstances alleged by [the defendant] are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines. At the second step, the court must decide whether the [defendant] has adduced sufficient evidence to meet [his or her] burden of proof in establishing that the alleged . . . mitigating circumstances actually exist in the case at hand . . . . [A]t the third step, the court must exercise its discretion by weighing the . . . mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an [over-assessment] of the defendant's dangerousness and risk of sexual recidivism" ... .


Upon our application of the standards set forth in People v Gillotti (23 NY2d 841), the record does not demonstrate the appellant's entitlement to a downward departure ... . The appellant failed to prove, by a preponderance of the evidence ..., the existence of any mitigating circumstance "of a kind or to a degree not adequately taken into account by the guidelines" ... . People v Stewart, 2015 NY Slip Op 02741, 2nd Dept 4-1-15





Court's Power to Review Dismissal for Academic Reasons Explained


The Second Department upheld the dismissal of a student's petition challenging her expulsion from a college nursing program for academic reasons.  The Second Department explained its limited review powers in this context:


Unlike disciplinary measures taken against a student, institutional assessments of a student's academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators ... . Thus, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations ... . Although determinations made by educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute... . Here, the petitioner's professors at the College made a substantive evaluation of her academic capabilities, and found that her clinical skills were not sufficient to pass the course designated as Nursing 204. There is no evidence in the record that the professors' evaluations were made in bad faith or were arbitrary and capricious or irrational. Nor is there any evidence of a violation of the New York or United States Constitution, or any statute ... . Matter of Zanelli v Rich, 2015 NY Slip Op 02775, 2nd Dept 4-1-15





Failure to Comply With Terms of Suspended Judgment Justified Termination of Parental Rights


The Third Department determined mother's failure to comply with the terms of a suspended judgment (permanent neglect) justified termination of her parental rights.  There was evidence the child was thriving in foster care:


It is well settled that a suspended judgment gives a parent who is found to have permanently neglected his or her child "a brief grace period within which to become a fit parent with whom the child can be safely reunited" ... . Where the parent's failure to comply with the terms and conditions of a suspended judgment is established by a preponderance of the evidence, such judgment may be revoked and parental rights may be terminated ... . * * *


..."[W]hile respondent's 'failure to comply with the terms and conditions of the suspended judgment does not compel the termination of her parental rights, [it] is strong evidence that termination is, in fact, in the best interests of the [child]'"... . Matter of Cody D. (Brittiany F.), 2015 NY Slip Op 02811, 3rd Dept 4-2-15





Father, Who Had Not Been Informed of the Birth of His Child Until After the Child Was Adopted, Was Properly Awarded Custody of the Child


The Third Department affirmed Family Court's rulings that: the father's consent to the adoption of his child was required; the father had preserved his right to contest the adoption of his child; and custody of the child is awarded to the father.  Mother put the child up for adoption and the child was adopted before mother informed father she had given birth to his child.  The Third Department heard the appeal despite problems with the notice of appeal and the absence of the Family Court hearing transcript. No one contested the factual findings made by Family Court:


"The father of a child born out-of-wedlock is entitled to full protection of his relationship with the child, including the right to deny consent to an adoption at birth by strangers, only if he 'assert[s] his interest promptly . . . [and] manifest[s] his ability and willingness to assume custody of the child'" ... . Evaluation of the father's conduct includes, among other things, factors such as "his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child" ... . Family Court's many factual findings included that: the father had paid up to 90% of the household expenses when the mother resided with him; the mother was not visibly pregnant while living with him; the mother did not know she was pregnant until she had moved to New York City; FIA [the adoption agency] made no reasonable effort to notify the father; the father was first notified about the pregnancy and child on May 6, 2014; he was unable to contribute to pregnancy expenses through no fault of his own because he had no knowledge thereof; the mother was urged by FIA to decline to identify the father of her child; and, once the father became aware of the child, he filed a paternity petition within about 10 weeks and then a custody petition and he did so despite difficult logistics regarding filing (he lived in South Carolina, the child had been born in New York City, the adoption was pending in Albany County), as well as a lack of legal representation by counsel. The father submitted an affidavit stating that, after learning of some uncovered costs of the birth, he was making arrangements to pay those costs. He had a job and residence, and was able to take immediate custody of the child. In light of the uncontested facts found by Family Court, as well as the other relevant proof in the record, we are unpersuaded that Family Court erred in determining that the father adequately preserved his right to contest the adoption of his child ... . Matter of Isabella TT. (Dalton C.), 2015 NY Slip Op 02838, 3rd Dept 4-2-15





Mother Was Not Afforded a Full Hearing in a Custody-Modification Proceeding


The Third Department determined Family Court erred by not affording mother the opportunity to fully cross-examine father or present her own proof in a custody-modification proceeding:


It is well settled "that modification of a Family Ct Act article 6 custody order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard" ... . Family Court plainly deprived the mother of such a hearing by preventing her from fully cross-examining the father or submitting her own proof before imposing a custody arrangement to which she had not consented ... . Matter of Richardson v Massey, 2015 NY Slip Op 02817, 3rd Dept 4-2-15





Court Properly Declined to Exercise Jurisdiction Over Child Custody/Access Matters Because the Children No Longer Had a Sufficient Connection with New York State


The Second Department determined Supreme Court properly refused to consider child custody/access matters because the children no longer had a significant connection with New York:


New York is the children's "home state," since they resided here for six consecutive months before the commencement of the child custody proceeding (Domestic Relations Law § 76[1][a]; see Domestic Relations Law § 76-a...). The judgment of divorce, which determined the parties' child custody issues, confers continuing jurisdiction over the children with the New York Courts (see Domestic Relations Law §§ 76, 76-a). However, a New York court may decline to exercise jurisdiction where, as here, neither of the parents nor any of the children retain a significant connection with New York and substantial evidence is no longer available in this state concerning the children's care, protection, training, and personal relationships (see Domestic Relations Law § 76-a[1][a]...). A court may also decline to exercise jurisdiction where it determines that the children or the children's parents no longer reside in New York (see Domestic Relations Law § 76-a[1][a], [b]...). Under Domestic Relations Law § 76-f, a court may decline to exercise jurisdiction if it determines, after an evaluation of statutory factors, that New York is an inconvenient forum and that another state provides a more appropriate forum ... . Here, since the defendant resides in California, and the plaintiff and children moved to Maryland in November 2012, the Supreme Court, after considering the statutory factors set forth in Domestic Relations Law § 76-f(2)(a) through (h), properly declined to exercise jurisdiction over the issues concerning the defendant's access to the children. Pelgrim v Pelgrim,2015 NY Slip Op 02738, 2nd Dept 4-1-15





Child No Longer Had Sufficient Connection to New York State---Custody-Enforcement Petition Properly Dismissed


The Third Department determined mother's custody-enforcement petition was properly dismissed for lack of jurisdiction because the child no longer had a sufficient connection to New York.  The court noted that both Title II (jurisdiction) and Title III (enforcement) of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applied:


The mother's main argument is that Family Court erred in applying title II of the UCCJEA, entitled "[j]urisdiction," rather than title III, entitled "[e]nforcement." While title III is not limited to enforcement of out-of-state custody determinations, and its "mechanisms . . . are presumptively available in any enforcement action" (Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 77, at 563; see Domestic Relations Law § 77), several of the sections within title III do refer or apply to custody determinations issued by courts in other states (see e.g. Domestic Relations Law §§ 77-b, 77-d, 77-e, 77-l). Similarly, title II has sections dealing with initial custody determinations and modification determinations (see Domestic Relations Law §§ 76, 76-b), neither of which is sought by the petition here, but the title overall is broader than those sections. Simply because the mother's petition seeks enforcement of a custody determination, rather than modification, does not mean that the title addressing enforcement must be relied upon independently and exclusively, without any possible reference to the title addressing jurisdiction. Instead, courts can apply both the jurisdiction and enforcement portions of the UCCJEA, where applicable.


A New York court that made a child custody determination "has exclusive, continuing jurisdiction over the determination until . . . a court of this state determines that neither the child, [nor] the child and one parent, . . . have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76-a [1] [a]). Here, Family Court determined that the child had lived in Georgia with the father for more than two years and all of her medical and educational records and providers are in Georgia . While the mother and other family members reside in New York, the child did not return to New York — for visitation or any other reason — during the years that she was living in Georgia ... . Thus, neither the child nor the father had a significant connection with New York, and substantial evidence regarding "the child's care, protection, training, and personal relationships" is located in Georgia rather than New York (Domestic Relations Law § 76-a [1] [a]). According to the statute, after this determination, New York courts no longer have exclusive, continuing jurisdiction over the divorce judgment determining custody. Due to this determination, Family Court properly dismissed the mother's petition for lack of jurisdiction ... . Matter of Wengenroth v McGuire, 2015 NY Slip Op 02818, 3rd Dept 4-2-15





Evidence of an "Intimate Relationship" Sufficient to Give Family Court Subject Matter Jurisdiction Over Family Offense Proceeding


The Second Department determined Family Court properly found that it had subject matter over a family offense proceeding based upon the expanded meaning of "members of the same family or household" to include  "intimate relationships."  The petitioner did not live with the appellant at the time the family offense proceeding was brought:


The Family Court properly concluded that it had subject matter jurisdiction over this proceeding. Family Court Act § 812(1) gives the Family Court jurisdiction over family offenses committed "between spouses or former spouses, or between parent and child or between members of the same family or household." Persons in the same family are defined as persons related by consanguinity or affinity, persons legally married to one another, persons formerly married to each other even if they no longer live in the same household, and persons with a child in common, "regardless of whether such persons have been married or have lived together at any time" (Family Ct Act § 812[1][d]; see Family Ct Act § 812[1][a], [b], [c]). The petitioner and the appellant did not live in the same household, were not related by consanguinity or affinity, were never married to each other, and did not have any children in common.


In 2008, the legislature expanded the definition of "members of the same family or household" as set forth in Family Court Act § 812(1) to include:


"persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an intimate relationship' include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an intimate relationship'" ... . ...


Generally, the "relationship should be direct, not one based upon a connection with a third party," such as a child or a common boyfriend or girlfriend ... . Here, however, an intimate relationship was established by the fact that the petitioner was living with the appellant's children and their father, who had custody of them, and was acting as a stepmother to the appellant's children ... .


Frequency of contact is a significant factor in determining whether there is an "intimate relationship" within the meaning of Family Court Act § 812(1)(e) ... , and it appears from this record that there is frequent contact between the appellant and the petitioner in order to arrange for the appellant's visitation with her children. Permitting the petitioner to proceed with this matter in Family Court is consistent with the purpose of a family offense proceeding, which is to end family disruption and obtain protection ... . Matter of Winston v Edwards-Clarke, 2015 NY Slip Op 02774, 2nd Dept 4-1-15






Under the Circumstances, the Filing of a Family Offense Petition Against the Father and the Issuance of an Order of Protection Made the Children Dependent on a Juvenile Court, a Prerequisite for Special Immigrant Juvenile Status


The Second Department determined Family Court erred when it found the children were not dependent on a juvenile court, a prerequisite for special immigrant juvenile status (SIJS).  The mother had filed a family offense proceeding against the father and the allegations in the petition had been substantiated:


Contrary to the Family Court's determination, in support of their motion, the children established that they were dependent upon a juvenile court. While guardianship, adoption, and custody are not directly or presently at issue in this family offense proceeding ..., under the particular circumstances of this case, the children have become dependent upon the Family Court. The children's mother has filed a family offense petition against the father seeking an order of protection, alleging that the father has assaulted her and the children. In their motion, the children claimed that they have been neglected by the father based on allegations including physical, mental, and verbal abuse. After conducting an investigation, the Administration for Children's Services concluded that certain of these allegations were substantiated. On May 6, 2013, shortly after the children made their motion, the Family Court issued an order of protection, effective for two years, directing the father, inter alia, to stay away from the mother and the children.


While a family offense proceeding, or the mere issuance of an order of protection, will not always give rise to a determination that a child has become dependent upon a juvenile court, based on the particular circumstances of this case, we conclude that such a determination is warranted here. As we have previously observed, the intended beneficiaries of the SIJS provisions of the Immigration and Nationality Act are limited to " those juveniles for whom it was created, namely abandoned, neglected, or abused children'" ... . Thus, while, for example, a child support proceeding will not give rise to a determination that a child has become dependent upon a juvenile court (see Matter of Hei Ting C., 109 AD3d 100), under the proper circumstances, a child involved in a family offense proceeding involving allegations of abuse or neglect may properly be the subject of such a determination as an intended beneficiary of the SIJS provisions. Matter of Fifo v Fifo, 2015 NY Slip Op 02762, 2nd Dept 4-1-15








Exclusions from Uninsured Motorist Coverage in Pennsylvania Policy Unenforceable in New York


The Second Department determined the exclusions from uninsured motorist coverage in a Pennsylvania policy violated New York public policy and the insurer was obligated to provide $300,000 of uninsured motorist coverage:


"[I]nsurance policies, like all contracts, should be enforced according to their terms unless they are prohibited by public policy, statute or rule" ... . "If an attempted exclusion is not permitted by law, the insurer's liability under the policy cannot be limited" ... . Here, the exclusions contained in the uninsured motorist coverage endorsement of Progressive's Pennsylvania policy are not permitted by New York law. "Insurance Law § 3420(f)(1) requires that every automobile insurance policy contain an uninsured motor vehicle endorsement. Neither that statute nor any regulations applicable to it mentions any exclusions" ... . Since the exclusions are "without the approval or protection of the law" ..., they should not be given effect ... .


Since we have determined that the underlying exclusions are invalid, and the policy does not contain a term expressly limiting coverage to the statutory minimum, no such limitation will be read into the policy ... . Consequently, Progressive's policy must be read as affording uninsured motorist coverage up to its stated limit of $300,000. Braithewaite v Progressive Cas. Ins. Co., 2015 NY Slip Op 02717, 2nd Dept 4-1-15




A Stipulation Cannot Bind an Insurer to Nonexistent Coverage


In finding that a hearing was required to determine if respondent was entitled to supplemental uninsured/underinsured motorist (SUM) coverage, the Third Department noted that a stipulation, which implied the existence of such coverage, could not bind the insurer:


Supreme Court erred in concluding that the parties' stipulation waived the issue of respondent's entitlement to SUM coverage. Although the stipulation stated that, "[u]pon the completion of [certain] discovery set forth [in the stipulation, petitioner] agrees to proceed to arbitration," a stipulation cannot create coverage of an individual, nor the obligation to arbitrate the issue of coverage, where the individual does not meet the relevant contractual prerequisites for coverage ... . Stated differently, the stipulation cannot independently bind petitioner to supply coverage where no such coverage exists under the policy. Matter of Preferred Mut. Ins. Co. (Fisher), 2015 NY Slip Op 02837, 3rd Dept 4-2-15






Elements of Intentional Infliction of Emotional Distress and Prima Facie Tort Described


In finding the counterclaims for intentional infliction of emotional distress and prima facie tort were properly dismissed, the Third Department described the elements of those causes of action:


...[W]ith respect to the counterclaim for intentional infliction of emotional distress [,] ... [defendant] was required to plead "extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress" ... . Notably, the alleged conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [be] utterly intolerable in a civilized community" ... . Here, [defendant] alleged that, during the course of their professional relationship, plaintiff sent unwanted gifts and letters, engaged in suggestive conversations and made threats of future conduct toward him. Even reading the allegations liberally and accepting them as true, we find that the alleged conduct, while undeniably inappropriate, did not rise to the level of being "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency" ... . ...


As for [defendant's] counterclaim for prima facie tort, there can be no recovery under this theory "unless malevolence is the sole motive for [plaintiff's] otherwise lawful act or, in [other words], unless [plaintiff] acts from disinterested malevolence" ... . Stated another way, the act "must be a malicious one unmixed with any other and exclusively directed to injury and damage of another" ... . Hyman v Schwartz, 2015 NY Slip Op 02819, 3rd Dept 4-2-15






Dismissal Due to People's Failure to Timely Indict Is Not a Termination in Favor of the Accused Which Will Support a Malicious Prosecution Cause of Action


The Second Department determined that the dismissal of prosecution based upon the People's failure to procure a timely indictment is not a termination favorable to the accused.  A malicious prosecution cause of action, therefore, does not lie:


In order to recover damages for malicious prosecution, a plaintiff must establish four elements: that a criminal proceeding was commenced or initiated by the defendant; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice ... . "[A]ny termination of a criminal prosecution, such that the criminal charges may not be brought again, qualifies as a favorable termination, so long as the circumstances surrounding the termination are not inconsistent with the innocence of the accused" ... . Here, although the underlying criminal charges were dismissed against the plaintiff based on the prosecution's unreasonable delay in indicting him ..., under the circumstances of this case, the disposition was "inconsistent with the innocence of the accused" ... . Thus, the defendants showed that the plaintiff's allegation that the criminal proceeding was terminated in his favor was "not a fact at all" ..., and that there is no significant dispute regarding it. Sinagra v City of New York,2015 NY Slip Op 02752, 2nd Dept 4-1-15





Loan to Grandson Was Not Made In Anticipation of the Need to Qualify for Medical Assistance


The Second Department determined the Department of Health's (DOH's) finding that the petitioner's husband did not intend to transfer assets for valuable consideration was not supported by substantial evidence. Petitioner's husband had loaned $200,000 to his grandson, and the grandson was making regular payments on the loan. The court explained the relevant law:


"In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence and are not affected by an error of law" ... . Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ... . While the level of proof is less than a preponderance of the evidence, substantial evidence does not arise from bare surmise, conjecture, speculation, or rumor ..., or from the absence of evidence supporting a contrary conclusion ... .


When determining Medicaid eligibility, an agency is required to "look back" for a period of 60 months immediately preceding the first date the applicant was both "institutionalized" and had applied for Medicaid benefits, to determine if any asset transfers were uncompensated or made for less than fair market value (42 USC § 1396p[c][1][A], [B]; Social Services Law § 366[5][e][1][vi]). If such a transfer was made during that period, the applicant may become ineligible for Medicaid benefits for a specified period of time (see 42 USC § 1396p[c][1][A], [E]; Social Services Law § 366[5][e][3]), unless there is a "satisfactory showing" that the applicant or the applicant's spouse intended to dispose of the assets at fair market value or for valuable consideration, the assets were transferred exclusively for a purpose other than to qualify for medical assistance, or all assets transferred for less than fair market value have been returned to the applicant (42 USC § 1396p[c][2][C][i], [iii]; Social Services Law § 366[5][e][4][iii]). It is the petitioner's burden to rebut the presumption that the transfer of funds was motivated, in part if not in whole, by anticipation of a future need to qualify for medical assistance ... .


Applying these rules here, the DOH's determination that the petitioner failed to make a satisfactory showing that her husband intended to transfer the assets for valuable consideration is not supported by substantial evidence. The petitioner correctly concedes that the loan was not made for fair market value since the payments due under the original note and the amended note are not actuarially sound in light of the note's 15-year repayment term and the age of the petitioner and her husband (see 42 USC § 1396p[c][1][I]). However, the evidence adduced at the fair hearing rebutted the presumption that the transfer was motivated by anticipation of a future need to qualify for medical assistance ... . In this regard, the petitioner's husband stated that he entered into the loan agreement in order to create a source of income. The petitioner demonstrated that the loan was documented by the note and the amended note, that the petitioner's husband received a stream of income from the loan by way of the monthly payments, and that the note provided a significantly greater rate of return than the one or two percent interest rate that the petitioner's husband could have obtained from a bank at the time. In addition, there was evidence at the fair hearing that some of the petitioner's assets had previously been loaned to her family members and that those loans were fully repaid. Morever, the letter from the petitioner's physician supported her claim that she was in good health at the time of the loan, and that she only required Medicaid after she fell and broke her hip. Furthermore, the petitioner's grandson and his wife averred that they were unable to immediately repay the entire loan because they used the loaned sum to renovate their home. Matter of Rivera v Blass, 2015 NY Slip Op 02768, 2nd Dept 4-1-15






Frye Hearing Should Have Been Held to Determine Admissibility of an Actuarial Recidivism Risk Assessment Tool as Proof of a Mental Abnormality


The Second Department determined defendant was entitled to a new trial because the trial court refused defendant's request for a Frye hearing.  The People introduced the Hare PCL-R Instrument (an actuarial recidivism risk assessment tool), which measures psychopathy, during the mental abnormality phase of the trial. The use of the PCL-R to prove a mental abnormality was deemed "novel" by the Second Department.  Therefore, a Frye hearing should have been held to determine its admissibility for the "novel" purpose:


...[T]he Supreme Court erred in denying that branch of the appellant's pretrial motion which was to conduct a hearing pursuant to Frye v United States (293 F 1013) concerning the admissibility of the Hare PCL-R Instrument (hereinafter the PCL-R), which measures psychopathy, during the mental abnormality phase of the trial ... . While the use of actuarial risk assessment instruments is scientifically accepted as a means to measure the risk of recidivism, the use of such instruments to determine the existence of a mental abnormality is novel, and the State's bare statement to the contrary was insufficient to satisfy the "general acceptance" test of admissibility ... . For these same reasons, the court erred in concluding that the probative value of the PCL-R outweighed any prejudicial effect of the terms "psychopath" or "psychopathy." Significantly, the State's expert ... testified that the PCL-R is not a "direct assessment of mental abnormality" and was "not designed" to measure "[h]ow much more difficult [it is] for somebody who has a high psychopathy score to control their behavior [as compared to] somebody who has a low score" and that "would be [a] misuse of the test." Under the particular circumstances of this case, it cannot be said that this error was harmless, since there is a reasonable possibility that the jury could have reached another verdict had it not heard such testimony ... . Matter of State of New York v Ian I., 2015 NY Slip Op 02771, 2nd Dept 4-1-15






Town Failed to Show Routine Inspection of Sewer System---Summary Judgment in Sewer-Backup Case Properly Denied


The Second Department determined the town was not entitled to summary judgment in a case alleging the failure to maintain the town's sewer system.  The court explained the relevant analytical criteria:


A municipality is immune from liability "arising out of claims that it negligently designed [a] sewerage system" ... . However, a municipality "is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature"... . In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no " notice of a dangerous condition,'" and that "it regularly inspected and maintained the subject sewer line" ... .


Here, the defendant Town ..., failed to establish, prima facie, that it regularly inspected and maintained the subject sewer lines ... . The evidence submitted by the Town in support of its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it demonstrated that the subject sewer lines had not been inspected more recently than approximately 19 months prior to the date of the sewage backup into the plaintiffs' residence ... . Under these circumstances, the Town failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law. Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 2015 NY Slip Op 02719, 2nd Dept 4-1-15






Emergency Power to Demolish a Building Properly Exercised


The Second Department determined the city properly exercised its emergency power to demolish plaintiff's building due to exigent circumstances:


"A municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger" ... . "[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion" ... . Here, contrary to the defendant's contention, there exists a valid line of reasoning and permissible inferences by which the jury could have rationally concluded that the defendant's determination that immediate demolition of the building was required in order to protect the public from imminent danger was arbitrary ... . Rapps v City of New York, 2015 NY Slip Op 02743, 2nd Dept 4-1-15






City Immune from Liability for Actions of Police Engaged in a Governmental Function--No Special Relationship with Plaintiff


The Second Department determined the police officers were engaged in a governmental function and there was no special relationship between the city and the plaintiff. The city was therefore immune from liability.  Plaintiff called the police when he saw someone (Moran) enter a residence.  When the police arrived plaintiff accompanied them to the residence.  Moran ran from the house and punched plaintiff. Plaintiff's lawsuit alleged the police failed to protect him:


...[T]he officers' conduct during the incident constituted a governmental function ... . "Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created" ... . Therefore, the City cannot be held liable unless there existed a special relationship between it and the plaintiff ... . "The elements of this special relationship are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" ... . Here, the City made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that no such special relationship existed which would give rise to a duty of care to the plaintiff individually ... . The evidence submitted by the City demonstrated that the police officers were performing their general duty to the public at large by responding to a call regarding a completed crime, and in the course of the investigation, made no promises to the plaintiff, in word or action, that gave rise to an affirmative duty of care running to the plaintiff personally. In opposition, the plaintiff failed to raise a triable issue of fact. Philip v Moran, 2015 NY Slip Op 02742, 2nd Dept 4-1-15




No Liability to Third Party Stemming from Contract to Install a Sign


The Second Department determined the plaintiff's verdict in a slip and fall case was properly set aside.  Plaintiff tripped on a sign that had fallen and was covered by snow.  The evidence did not demonstrate the sign company (Everlast) "launched an instrument of harm" so as to trigger tort liability in favor of a third party arising from a contract.  The analytical criteria were explained:


" [A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party'" ... . The Court of Appeals has recognized three exceptions to this rule ..., only one of which is pertinent to this case. Under that exception, a party who enters into a contract to render services may be liable in tort to a third party "where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm'" ... .


Here, there was no rational process by which the jury could have found that Everlast launched a force or instrument of harm ... . In that respect, there was no direct evidence that Everlast was negligent in installing the sign seven months before the accident. Further, there was no rational process by which the jury could have found in favor of the plaintiff based upon circumstantial evidence, since the plaintiff failed, as a matter of law, to demonstrate that it was "more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency" ... . Robinson v Limoncelli, 2015 NY Slip Op 02745, 2nd Dept 4-1-15





Criteria for Liability for Lead Paint Exposure Described


Reversing Supreme Court, the Second Department determined defendants in a lead paint case failed to demonstrate they did not have notice of the dangerous condition.  The court explained the relevant criteria:


Under New York common law, a landowner "has a duty to maintain his or her premises in a reasonably safe condition" ... . "[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected" ... . Constructive notice of a hazardous lead-based paint condition may be established by proof "that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children, and (5) knew that a young child lived in the apartment" ... . Greene v Mullen, 2015 NY Slip Op 02729, 2nd Dept 4-1-15






Tenant Has Duty to Keep Premises Reasonably Safe


The Second Department noted that a tenant (TJX) has an obligation to keep the premises safe even if the landlord agreed in the lease to keep the premises in good repair.  Here it was alleged that water dripping from a fire escape resulted in an icy area on the abutting sidewalk where plaintiff fell:


"A tenant has a common-law duty to remove dangerous or defective conditions from the premises it occupies, even though the landlord may have explicitly agreed in the lease to maintain the premises and keep them in good repair" ... . Here, TJX failed to establish, prima facie, that it had no duty to maintain the fire escape in a reasonably safe condition ... . Sellitti v TJX Cos., Inc., 2015 NY Slip Op 02748, 2nd Dept 4-1-15






Summary Judgment Properly Granted to Hospital---Criteria for Hospital Liability for Treatment by a Non-Employee Explained


The Third Department determined summary judgment was properly granted to the hospital (AOMC) because plaintiff (Hoad) was treated by her private physician (Dolkart) and there was no indication hospital staff was negligent in following the doctor's orders:


...[G]enerally, a hospital is not liable for the negligence of independent physicians except on a theory of ostensible or apparent agency ... . Put differently, a hospital may be liable "where the hospital's words or conduct communicated to a third-party patient give rise to the appearance and belief that the agent-independent physician possesses authority to act on behalf of the hospital" ... . As the proponent of summary judgment, AOMC "bore the initial burden of establishing that [Hoad] sought care from a specific physician rather than from [AOMC] generally" ... . Here, AOMC's Vice President of Medical Affairs submitted an affidavit wherein he explained that Dolkart was not an employee, but a tenant with admitting privileges at AOMC. The record confirms that when Hoad was transferred from the emergency room, she consented to a transfer into Dolkart's care at AOMC, not to AOMC generally. In response, no facts or admissible evidence were presented to establish that Hoad reasonably believed that Dolkart was AOMC's employee. We therefore discern no basis for imposing liability based upon a theory of ostensible agency ... .


We further find no basis for the infant's claims against AOMC based on the actions of its professional staff. Generally, a hospital is insulated from liability "when its professional staff follows the orders of private physicians selected by the patient" ... . An exception to this general rule exists "where the hospital staff knows that the doctor's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders" ... . Here, AOMC met its burden through the submission of an affirmation by ... an obstetrician. Hoad v Dolkart, 2015 NY Slip Op 02831, 3rd Dept 4-2-15






Plaintiff Properly Relied on the Doctrine of Res Ipsa Loquitur to Survive Summary Judgment


The Third Department determined plaintiff had raised a question of fact under the doctrine of res ipsa loquitur.  After shoulder surgery plaintiff experienced numbness and was unable to flex his index finger and thumb.  There was general agreement the injury was the result of specified nerve damage but either the anesthesia-procedure or the surgery could have caused it. The Third Department noted that plaintiff's expert could not be deemed unqualified as to one of treating physicians simply because he was not a specialist in the same field as that treating physician:


"Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff's injury" ... . "Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitor a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant's relation to it" ... . "In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized" ... . Elements of res ipsa loquitur are: "[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff" ... . Frank v Smith, 2015 NY Slip Op 02827, 3rd Dept 4-2-15






Questions of Fact Re: Whether Municipality Created the Dangerous Condition Thereby Negating the Written-Notice Requirement


The Second Department determined questions of fact existed whether the village created the dangerous sidewalk condition, thereby eliminating the written-notice prerequisite to a lawsuit:


A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies ... . Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality ... . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition ... .


Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition ... . The Village failed to do so. Monaco v Hodosky, 2015 NY Slip Op 02735, 2nd Dept 4-1-15





Written Notice Prerequisite to Suit Against County Did Not Apply to Plaintiff's Being Struck by a Traffic Signal Cable While Walking on a Sidewalk


The Second Department determined the written notice requirement for liability did not apply.  Plaintiff alleged she felt an electric shock and was struck by an cable as a nearby traffic signal was being worked on:


...[T]he plaintiff was not required to show that they received prior written notice of the alleged condition pursuant to Nassau County Administrative Code § 12-4.0(e). This provision requires prior written notice of any defective or dangerous "sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter." Here, the condition that allegedly caused the injury is an electrical condition involving a traffic signal, or a traffic signal box and related cable. The subject Nassau County Administrative Code provision does not require prior written notice of that condition ... . Moreno v County of Nassau, 2015 NY Slip Op 02736, 2nd Dept 4-1-15




Defect Properly Deemed Trivial as a Matter of Law


The Second Department determined a 1/2 inch depression was properly deemed trivial as a matter of law:


Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury ... . However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip ... . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury" ... .


* * * The evidence submitted by the moving parties—including the plaintiff's testimony describing the depression in the asphalt abutting the metal plate as being one-half inch deep—established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and therefore, was not actionable... . Palladino v City of New York, 2015 NY Slip Op 02737, 2nd Dept 4-1-15






City Properly Held Liable for Failure to Address Excessive Speeding on Road Where Infant Plaintiff Was Struck---A Proprietary, Not a Governmental, Function Was Involved---The Doctrine of Qualified Immunity Did Not Apply Under the Facts


In upholding the jury's finding the city liable for not addressing excessive speeding on the road where infant plaintiff was struck by a car and seriously injured, the Second Department explained the city's liability for proprietary versus governmental functions and the inapplicability of the qualified immunity doctrine:


When a negligence cause of action is asserted against a municipality, the court must first decide whether the municipal entity was engaged in a proprietary function or was acting in a governmental capacity at the time the claim arose ... . If the municipality's activities are proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties ... . By contrast, if the municipality was exercising a nondiscretionary governmental function, it will not be held liable unless it owed a "special duty" to the injured party ... .


Here, the plaintiffs alleged, among other things, that the City was negligent in that it received numerous complaints that vehicles were speeding and racing along the entire length of Gerritsen Avenue, but completely failed to conduct a proper and adequate study of this speeding problem, and failed to implement a reasonable plan to control or resolve the dangerous condition presented on the roadway. Since a municipality's duty to keep its roads and highways in a reasonably safe condition is proprietary in nature ..., the City's contention that it cannot be held liable under the plaintiffs' theory absent the existence of a "special duty" to the infant plaintiff must be rejected ... . 


The City's argument that the causes of action asserted against it must be dismissed because it is entitled to immunity is also without merit. In the field of traffic design engineering, a municipality is accorded qualified immunity from liability arising out of its highway planning decisions ... . The doctrine of qualified immunity, however, will only apply where the municipality has conducted a study which " entertained and passed on the very same question of risk'" ... as was alleged by the plaintiff. Indeed, a municipality may be held liable if, "after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition" ... . Moreover, after a municipality implements a traffic plan, "it is under a continuing duty to review its plan in the light of its actual operation'" ... . * * *


Considering the testimony and documentary evidence presented, there was a rational process by which the jury could have found that the City had notice that excessive speeding along the length of Gerritsen Avenue created a dangerous condition and that the City failed, in response to the complaints it received, to conduct a study which " entertained and passed on [this] very same question of risk'" ... posed by excessive speeding along Gerritsen Avenue. As such, the doctrine of qualified immunity does not apply ... . Turturro v City of New York, 2015 NY Slip Op 02754, 2nd Dept 4-1-15





Mayor Removed from Office for Unscrupulous Conduct


The Third Department affirmed the referee's report recommending the removal of the respondent-mayor from office.  It was alleged the mayor used the authority of his office to attempt to prevent his prosecution in a criminal matter:


Public Officers Law § 36 provides a means by which a public officer for a town or village may be removed for "unscrupulous conduct or gross dereliction of duty or conduct that . . . connotes a pattern of misconduct and abuse of authority" ... . To warrant removal, an official's misconduct must amount to more than minor violations and must consist of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust" ... . When this matter was previously before this Court, we found that certain allegations against respondent, if proven, would demonstrate a sufficiently serious pattern of abuse of authority and misbehavior to warrant his removal ... . In a detailed report, the Referee determined that respondent had committed a number of acts of misconduct that were sufficient to warrant his removal. Although the Referee's findings are not binding upon this Court, they serve "to inform [our] conscience" ... and, upon our independent review, we find that removal is warranted.


The first of the allegations ... was a claim that respondent had refused to provide funding for the Village police department in an effort to influence the disposition of certain criminal charges against him ... . * * *


Petitioners [also] allege that respondent sought "to use his position as Mayor and Village Manager to obtain 'special treatment' from the Village's police department with respect to his various criminal charges and has repeatedly threatened various local law enforcement officials with termination or disciplinary action for pursuing such charges against him" ... . Matter of Greco v Jenkins, 2015 NY Slip Op 02815, 3rd Dept 4-2-15





Failure to Personally Serve Petitions for Tax Assessment Reductions as Required by the Real Property Tax Law Mandated Dismissal of the Petitions


The Third Department determined the petitions seeking a reduction in tax assessments should have been dismissed because they were served by certified mail.  The controlling statute, Real Property Tax Law (RPTL) 708 (1) requires personal service.  Service by certified mail was not a technical defect which could be overlooked:


RPTL 708 (1) required petitioners to personally serve the designated assessment officer, which they admittedly failed to do, and — as this Court previously has observed — "the statute. . . does not permit service by certified mail" ... . Further, the case law makes clear that "CPLR 2001 may be used to cure only a technical infirmity" ... , and the Court of Appeals has cautioned that "simply mailing the [relevant pleadings] to [a] defendant . . . would present more than a technical infirmity, even if [the] defendant actually receives the [pleadings], inasmuch as [mailing] in general introduce[s a] greater possibility of failed delivery" ... . In this regard, we reject petitioners' assertion that, because the relevant pleadings were served via certified mail, as opposed to first class mail, the admitted service defect may be said to fall within the realm of a technical infirmity. Simply put, inasmuch as petitioners' service was defective, Supreme Court should have granted respondents' motions to dismiss the petitions. Matter of Karl v Martin, 2015 NY Slip Op 02824, 3rd Dept 4-2-15






Second Foreclosure Action Not Prohibited Where First Is Not Pending and Did Not Result in a Judgment


Reversing Supreme Court, the Second Department determined Real Property Actions and Proceedings Law (RPAPL 1371 (3)) must be strictly construed and, by its terms, the statute did not prohibit the plaintiff bank from instituting a second foreclosure proceeding.  The first proceeding had been settled and discontinued and no judgment had been entered:


...[T]he instant action was not barred by RPAPL 1301(3). Pursuant to RPAPL 1301, " [t]he holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must only elect one of these alternate remedies'" ... . "The purpose of the statute is to avoid multiple lawsuits to recover the same mortgage debt" ... . Courts have recognized that "this statute is to be strictly construed since it is in derogation of a plaintiff's common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time'" ... . RPAPL 1301(3) provides that "[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought" (emphasis added). However, where a "foreclosure action is no longer pending and did not result in a judgment in the plaintiff's favor, the plaintiff is not precluded from commencing a separate action" without leave of the court ... . Here, the prior foreclosure action was settled and discontinued, without the entry of any judgment. Since the foreclosure action was not pending at the time the Bank commenced the instant action to recover on the guaranty and no judgment was entered for the Bank, RPAPL 1301(3), which must be strictly construed ..., is not applicable ... . Hometown Bank of Hudson Val. v Belardinelli, 2015 NY Slip Op 02732, 2nd Dept 4-1-15






Graphic Designer Properly Found to Be an Employee


The Third Department affirmed the Unemployment Insurance Appeal Board's conclusion that a graphic designer was an employee, not an independent contractor:


...[I]t is well settled that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will not be disturbed if supported by substantial evidence ... . "The determination rests not on one single factor, but consideration is given to whether control was exercised over the results or the means used to achieve those results, with the latter factor deemed more important" ... .


Here, claimant responded to a website posting and, after being interviewed, was selected by Propoint to work on client projects at a mutually agreed pay rate of $28 per hour. He was paid every two weeks regardless of whether Propoint received payment from the client. Although there were no set working hours, claimant performed most of his work at the employer's premises, where he was provided with a computer, software and related items, and he was required to turn in daily time cards. Propoint did not provide claimant with any leave time or other benefits, withhold taxes from his paychecks or prohibit him from working for others, and it required him to sign an independent contractor agreement. Propoint, however, retained the right to review claimant's work product and direct him to make changes. Moreover, the confidentiality provisions of the independent contractor agreement precluded claimant from including client projects in his personal portfolio. Inasmuch as the foregoing demonstrates that Propoint retained control over both the means and the results of claimant's work, substantial evidence supports the Board's finding of an employment relationship... . Matter of Ramirez (Propoint Graphics LLC--Commissioner of Labor), 2015 NY Slip Op 02825, 3rd Dept 4-2-15


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