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


New Factual Claim Made for the First Time at Trial by Defendant Triggered “Inconsistent Statements” Jury Charge/Prior Injuries to Child Admissible under Molineux

In this case the defendant was convicted of manslaughter in the death of a three-year-old child.  In his statement to the police, the defendant said the child fell while she was in the shower. At trial the defendant testified the child also fell on the stairs.  The trial court gave an “inconsistent statements” charge to the jury, finding it would have been reasonable and logical for the defendant to have mentioned the fall on the stairs in his statement to police.  In upholding the trial court, the Third Department wrote:

           In its general instructions to the jury, County Court included a charge regarding a witness testifying to a fact that the witness omitted at a prior time when it would have been reasonable and logical to have stated the fact (see CJI2d[NY] Credibility of Witnesses  [Inconsistent Statements]).Defendant contends that this constituted error. Defendant had given a detailed voluntary statement to police regarding the pertinent events surrounding the victim's death. He did not include in that statement an account of the victim purportedly falling on the stairs while coming to eat lunch, but he testified regarding such event at trial. Since it would be reasonable to expect defendant to mention all potential injuries sustained by the victim while in his care that day, including this charge did not constitute reversible error…

In addition, the Third Department found no error in the trial court’s allowing evidence of prior injuries revealed by the autopsy and two injuries incurred by the child when she was in defendant’s care.  This evidence of “similar uncharged crimes” was deemed admissible under Molineux to demonstrate “the absence of an accident” as the cause of the child’s injuries.  People v Tinkler, 103766, 3rd Dept 4-11-13

Criteria for Motion to Vacate Based on Newly Discovered Evidence Explained

In upholding the trial court’s denial (without a hearing) of a 440 motion to vacate the defendant’s conviction based upon newly discovered evidence (i.e., a statement made by a juror to an investigator), the Third Department wrote:

           Nor do we discern any error in County Court's summary denial of that part of defendant's motion that was based upon his claim of newly discovered evidence.  As relevant here, "[t]o justify vacatur under  CPL  440.10 (1) (g), the newly  discovered evidence 'must . . . be  such  as will probably change the result if a new  trial is granted . . . [and] be  material to the issue'" …. A hearing is not necessary when the court can "adequately review the matter based upon the contents of the record and the motion papers"… .  People v Carter, 104989, 3rd Dept 4-11-13

Conduct in Prison Justified Upward Departure (SORA)

The Third Department upheld the SORA court’s upward departure from the SORA guidelines based upon the defendant’s exhibitionist sexual conduct in prison.  The Third Department wrote:

           Even if, under factor 13, defendant had been assessed the full 20 points for unsatisfactory conduct while confined "with sexual misconduct" (for a total of 55 points, still a presumptive level I), as he urges should have occurred instead of an upward departure, this factor still would not adequately take into consideration the public nature of this conduct and the use of children's images  to facilitate his arousal.  People v Walker, 513776, 3rd Dept, 4-11-13

Abuse of Discretion in Disallowing Jury Challenge Required Reversal of Conviction

In reversing a conviction because of the trial court’s refusal to consider an “untimely” peremptory challenge, the Second Department wrote:

           During the second round of voir dire, after questioning of the second group of prospective jurors was completed and each side had exercised challenges for cause, the Supreme Court asked defense counsel if he wished to exercise any peremptory challenges, and defense counsel responded, "No." Seconds later, as the court named the first three prospective jurors in the group to be assigned seats, defense counsel interrupted, apologizing, and explained that he had intended to exercise a peremptory challenge against one of the remaining prospective jurors in that group, prospective juror number four. Although that prospective juror was not yet assigned a seat and the reuest was made just moments after defense counsel mistakenly accepted all of the remaining prospective jurors in that group, the court denied defense counsel's request to challenge that juror as untimely. Under these circumstances, where there was no discernable interference or undue delay caused by defense counsel's momentary oversight, the Supreme Court improvidently exercised its discretion in denying defense counsel's request to challenge the prospective juror …. Since a trial court's improper denial of a peremptory challenge mandates automatic reversal …, we must reverse the conviction and order a new trial ….  People v Parrales, 2013 NY Slip Op 02417, 2011-05827, Ind No 1194/10, 2nd Dept 4-10-13


“Indirect Audit” to Determine Cash Receipts in Restaurant Okay

The audit division of the Department of Taxation and Finance found the petitioner’s cash sales receipts inadequate to perform an audit.  The audit division therefore used a one-day “indirect audit” to estimate what petitioner’s cash sales were (a one-day observation of the operation of the restaurant).  In upholding the method used by the audit division to determine under-reporting of cash receipts, the Third Department wrote:

           Where,  as here, a  taxpayer fails to maintain sufficient records, the Division may  resort to an  indirect audit and  the taxpayer challenging such an  audit has  the "burden of  establishing by  clear and  convincing evidence  that the audit method or tax assessment [was] erroneous" … .   Although  a  longer audit period might have produced a more accurate representation of petitioner's business activity, nonetheless petitioner failed to meet  its heavy  burden of establishing the unreasonableness or inaccuracy of the length used and method employed by the Division in its indirect audit under  the circumstances … .  Matter of Hwang v Tax Appeals Tribunal …, 512991, 3rd Dept 4-11-13


Fact that Driver’s Negligence Was Deemed “Sole Proximate Cause” of Passenger’s Injury Did Not Warrant the Dismissal of Claims Against the Other Driver Involved in the Collision

The plaintiff was a passenger in a car which was involved in an accident, injuring plaintiff.  Plaintiff sued the driver of the car she was in (Pistorino).  Based on the finding that Pistorino had violated the Vehicle and Traffic Law by making a left turn in front of an oncoming car driven by defendant Allen, the motion court determined Pistorino’s act was the sole proximate cause of plaintiff’s injury and granted summary judgment to the plaintiff on liability. Allen, the driver of the other car, moved for summary judgment dismissing the claims against him based on the motion court’s “sole proximate cause” finding.  The Second Department reversed the motion court’s dismissal of the claims against Allen and wrote:


           The Supreme Court erred, however, in granting that branch of Allen's motion which was for summary judgment dismissing all cross claims asserted against him. Allen's motion was based entirely upon the preclusive effect of the finding made by the Supreme Court in deciding the plaintiff's motion for summary judgment, that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident. However, the issue of the relative fault of Jaclyn Pistorino and Allen was not raised by the plaintiff in her motion. Correspondingly, the plaintiff did not demonstrate that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident.  Anzel v Pistorino, 2013 NY Slip Op 02362, 2011-08058, 2011-11125, Index No 4001/11, 2nd Dept, 4-10-13

Immunity for Land Owners Allowing Use of Land by Snowmobilers

Plaintiff’s decedent was killed while riding a snowmobile on a trail on privately owned land.  Plaintiff’s snowmobile struck the side of a tractor-trailer carrying logs.  The private logging road where the accident occurred was also used as a snowmobile trail.  Plaintiff sued the owner of the land.  The Third Department upheld the trial court’s ruling that the landowner was immune from suit under General Obligations Law 9-103, because the statutory “consideration exception” did not apply.  Plaintiff contended that certain “recreational leases” (for hunting and fishing) constituted “consideration” for the use of the trail, triggering the immunity exception.    The Third Department determined those leases had nothing to do with snowmobiling and noted:

           General Obligations Law § 9-103 provides immunity, subject to certain exceptions, to landowners, lessees and occupiers who make their land available to the public for various enumerated recreational  activities, including  snowmobiling. As relevant here, the consideration exception provides that immunity does not exist "for injury suffered in any case where permission . . . was granted  for a  consideration, other  than  the  consideration, if any, paid to said landowner by the state or federal government" (General Obligations Law § 9–103 [2] [b]). It is the plaintiff who has the burden of establishing that the  claimed exception applies and, as the Court of Appeals has instructed, we must strictly construe the exception so as not to defeat the statute's broad purpose … .  Ferland … v GMO Renewable Resources LLC, et al, 514045, 3rd Dept 4-11-13


Failure to Object to Monthly Invoices

In affirming summary judgment (for an “account stated”) in favor of an attorney who had submitted bills to his client for services rendered, the Third Department wrote:

          Here, plaintiff demonstrated its entitlement to judgment as a matter of law by tendering evidence that it generated invoices for services rendered on a monthly basis, mailed those invoices to defendant and did not receive any specific objection in response thereto until after the commencement of this action … . Although defendant asserted that he repeatedly complained  regarding the amount  of the bills, as well as the manner in which the various retainers he provided were applied thereto, noticeably absent from the record is any documentation – prior to the commencement of this action – substantiating defendant's  objections in this regard,  and the case law makes clear that generalized, oral protestations are insufficient to defeat a motion for summary judgment …. Whiteman … v Oppitz, 514371, 3rd Dept 4-11-13


Appellate Courts Have Jurisdiction Pursuant to Article 78 to Review Denial of Request for Reconsideration of Disciplinary Determination by the Department of Education’s Office of Professional Discipline

The Third Department determined it has jurisdiction, pursuant to CPLR Art. 78, to review the denial of a request for reconsideration of a disciplinary determination by the Director of the Office of Professional Discipline (Department of Education):

           Preliminarily, we reject respondent’s assertion that our Court lacks original subject matter jurisdiction over this proceeding. Respondent relies on the fact that only review of “decisions of the board of regents” should be brought to the Appellate Division in the first instance (Education Law § 6510 [5]); all other CPLR article 78 proceedings must be commenced in Supreme Court (see CPLR 7804 [b]; 506 [a], [b]). Here, the Board of Regents never acted upon petitioner’s application because respondent, the Director of OPD, has discretion to determine whether reconsideration of a disciplinary determination is warranted and, only if it is, to then refer the matter to a regents review committee that submits a report to the Board of Regents for a final determination …. We have, however,  previously held that where, as here, respondent  denies an  application for reconsideration, thereby determining  that it does not warrant referral to the Board of Regents, this Court has jurisdiction to review such denial under Education Law § 6510 (5)… .  Matter of Reddy v Catone…, 514467, 3rd Dept 4-11-13


Continuing Course of Treatment Doctrine Not Applicable

In a medical malpractice action, plaintiff alleged her pediatrician [Walders] was negligent in failing to properly address the condition of her foot, which turned out to be a symptom of a disorder that went undiagnosed for many years.  In upholding the trial court’s determination that the “continuing course of treatment” doctrine (which would toll the statute of limitations) did not apply, the Third Department explained:

           A  "course  of treatment  speaks  to affirmative and ongoing conduct by the physician" which is recognized as such by both the patient and  physician … .Notably, a  "[r]outine examination of a seemingly healthy  patient, or  visits concerning  matters  unrelated  to  the condition  at issue giving rise to  the  claim, are  insufficient to invoke  the  benefit of the  [continuous  treatment]  doctrine" … . Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders' failure to diagnose or treat the condition in response to the concerns of plaintiff's mother does not, by itself, establish an ongoing course of treatment … . Dugan v Troy Pediatrics, LLP, 515407, 3rd Dept 4-11-13

Expert Affidavit in Support of Hospital’s Motion for Summary Judgment Not Sufficient

In this medical malpractice case, the plaintiff alleged a delay in performing an emergency cesarean section resulted in oxygen-deprivation-injury to her baby.  In affirming the denial of summary judgment to the hospital, the Third Department noted that the affidavits submitted on behalf of the hospital did not directly address with substantive facts the evidence of a delay in assembling the surgical team:

            To establish a party's entitlement to summary judgment, a physician's affidavit "must be detailed, specific and factual in nature" and may not simply assert in conclusory fashion that a defendant complied with the standard of care without relating the contention to the particular facts at issue …. In the absence of any factual discussion of the delay, [the] general assertion that NDH "acted at all times in a prompt, timely, and reasonable manner" lacks specificity. Accordingly, NDH failed to establish its prima facie entitlement to summary judgment, and it is unnecessary to address the sufficiency of plaintiffs' opposing papers … .  Olinsky-Paul v Jaffe, et al, 514904, 3rd Dept 4-11-13

Out-of-Pocket Expenses Must Be Alleged in Claim Based on Alleged Failure to Detect Child’s Medical Condition In Utero

In dismissing a medical malpractice action which was based upon a physician’s alleged failure to detect a medical condition from the review of a sonogram, a condition which may have caused the parents to terminate the pregnancy, the Second Department reviewed the available damages in such an action. Ultimately the Second Department determined that the plaintiffs’ failure to raise a question of fact about future expenses they will incur for care of the child (currently paid for by Medicaid) required dismissal of the complaint:

            Although a child with a disability may not maintain a wrongful life cause of action, the child’s parents may, under certain circumstances, maintain a cause of action on their own behalf to recover the extraordinary costs incurred in raising the child … . To succeed on such a cause of action, which “sound[s] essentially in negligence or medical malpractice,” the plaintiffs “must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by” them … . Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant’s malpractice … . Further, the claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child’s condition …. The “parents’ legally cognizable injury’ is the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority’” … . Since the parents’ recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable ….  Mayzel v Moretti, 2013 NY Slip Op 02379, 2011-11393, Index No 102307/09, 2nd Dept, 4-10-13


Electricity/Steam Generation Rate Changes Did Not Qualify as a “Rule” Under the State Administrative Procedure Act

In affirming the NYS Public Service Commission’s approval of electricity/steam generation rates, the Third Department determined that the “long-term cost allocation method” did not qualify as a “rule” and therefore did not trigger the notice requirements of the State Administrative Procedure Act:

           The part of the order determining the long-term cost allocation method does not constitute a rule because it  does not impose "'a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers'" … .   As such, the notice provisions of the State Administrative Procedure Act do not apply (see State Administrative Procedures Act §§ 102 [2] [a]; 202 [1] [a]…).   Further, the notices issued by the Commission in connection with the planning proceeding satisfied procedural due process by clearly indicating that the planning case included consideration of the long-term impacts of cost allocation, and petitioner was provided sufficient opportunity to be heard on the issue … .  We have considered petitioner's remaining arguments and find them to be likewise without merit.  Matter of City of New York v NYS Public Service Commission, et al, 515472, 3rd Dept, 4-11-13


Criteria for Holding Parent Company Liable for Torts of Subsidiary

In a products liability case, the Third Department determined a question of fact had been raised about whether the parent company could be liable for the torts of a subsidiary.  The relevant legal standard was described as follows:

           Liability of a parent company for the torts of a subsidiary does not arise from the mere ownership of a controlling shareholder interest. "Rather 'there must be direct intervention by the parent in the management of the subsidiary to such an extent that the subsidiary's paraphernalia of incorporation, directors and officers are completely ignored'" … .   The  parent  company  must  "exercise[] complete  dominion  and  control over the subsidiary" ….  Goodspeed, et al, v Hudson Sharp Machine Company, 515490, 3rd Dept, 4-11-13


Assets Allegedly Wrongly Appropriated by Fiduciary Deemed “Asset-Transfers” for Purpose of Qualifying for Medicaid

Pursuant to a power of attorney granted to Williams, petitioners’ decedent’s assets were transferred to joint accounts with Williams and decedent on the accounts.  Some of the funds were used by Williams for personal purposes.  When decedent applied for Medicaid benefits to pay for nursing home care, the benefits were denied by the Department of Health because it was determined that certain assets had been transferred for the purpose of qualifying for Medicaid.  Petitioners brought an Article 78 proceeding arguing that Williams wrongly appropriated the assets and, therefore, the assets were not transferred to qualify for Medicaid.  In upholding the Department of Health’s asset-transfer finding, the Third Department wrote:

            In this regard, petitioners contend that Williams breached her fiduciary duty to decedent and engaged in self-dealing, thus establishing that "the assets [in question] were transferred exclusively for a purpose other than to qualify for medical assistance" and invoking the exception set forth in Social Services Law § 366 (5) (e) (4) (iii) (B). Although there arguably is evidence in the record that could support such a conclusion, given the existence of the joint checking accounts and the powers conferred upon Williams with respect to financial transactions, substantial evidence supports the Department of Health's conclusion that petitioners failed to overcome the presumption that the stocks were sold and "the proceeds were transferred – at least in part – in order to qualify for Medicaid" … .Petitioners' related assertion – that decedent lacked the mental capacity to manage his finances – is equally unavailing, as the record does not establish that decedent was incapacitated at the time the power of attorney was granted or the  joint accounts at issue  were  established. Under such circumstances, substantial evidence supports the Department of Health's determination that petitioners  did  not  demonstrate  their entitlement to the claimed exception.  Matter of Conners… v Berlin …, 515536, 3rd Dept, 4-11-13


Attorney’s Failure to Investigate Client’s Premises Liability Claim Before Encouraging Settlement Raised Issue of Fact About Malpractice

In this legal malpractice action, the trial court ruled plaintiff had raised issues of fact concerning whether his attorney failed to adequately investigate the plaintiff’s premises liability claim before encouraging the plaintiff to settle.  In affirming the trial court, the First Department noted that the settlement agreement did not bar the legal malpractice action:


            For a claim for legal malpractice to be successful, "a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for' the attorney's negligence" …. A client is not barred from a legal malpractice action where there is a signed "settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel" ….   *  *  *

           In this specific case, given plaintiff's lack of sophistication and his limited education, defendant's statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer.  Angeles v Aronsky, 2013 NY Slip Op 02454, 8925, 100091/09, 1st Dept, 4-11-13


Grant of Visitation to Mother of Deceased Father (Grandmother) Reversed

In reversing Family Court’s grant of visitation to the children’s grandmother, the Second Department wrote:

              A court determining a petition for grandparent visitation under Domestic Relations Law § 72(1), must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent or equitable circumstances …. If the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child … . "[T]he courts should not lightly intrude on the family relationship against a fit parent's wishes" … . "Indeed, it is strongly presumed that a fit parent's decisions are in the child's best interests" … .

           In this case, the Family Court should have denied the grandmother's petition for visitation. The death of the children's father provided the grandmother with automatic standing to seek visitation (see Domestic Relations Law § 72[1]…). Nevertheless, the Family Court improvidently exercised its discretion in granting the petition. The evidence in the record … established that visitation was not in the best interests of the children at the time the Family Court granted the petition … . Moreover, we note that on this appeal, the attorney for the children supports the denial of visitation. Matter of Pinsky v Botnick, 2012 NY Slip Op 02402, 2012-03338 2012-07576, 2nd Dept, 4-10-13

Award of Sole Custody to Mother Without a Hearing Reversed---Reliance on Expert Recommendations Not Sufficient

In reversing the Family Court’s award of sole custody to the mother without a hearing, the Second Department wrote:

           Here, the Family Court did not possess adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary. Indeed, the court was not involved when the parties agreed to the existing custody and parenting agreement, and only became involved in this proceeding after the prior Family Court Judge in this matter retired. Furthermore, although the court had the recommendations of an expert before it, the recommendations of experts are but one factor to be considered …, and “are not determinative and do not usurp the judgment of the trial judge” …. Accordingly, the Family Court erred in denying the father’s petition and, inter alia, awarding sole physical custody to the mother without first holding an evidentiary hearing on the issue of physical custody and visitation so that it could make an independent determination as to the best interests of the children on the basis of the evidence presented at such a hearing ….  Matter of Schyberg v Peterson, 2013 NY Slip Op 02406, 2011-1113, 2nd Dept, 4-10-12


Criteria for Preemption by Martin Act

The Second Department noted the criteria for preemption of state law by the Martin Act:

           …[T]he Supreme Court properly denied that branch of the defendant’s prior motion which was for summary judgment dismissing the complaint on the ground that it is preempted by the Martin Act (see General Business Law art 23-A). Since the plaintiff’s common-law causes of action to recover damages for breach of contract and derivative declaratory judgment causes of action are not “predicated solely on a violation of the Martin Act or its implementing regulations,” they are not preempted by the Martin Act … .  Meadowbrook Farms Homeowners Assn, Inc v JZG Resources Inc, 2013 NY Slip Op 02381, 2011-089/10, Index No 839/10, 2nd Dept 4-10-13


Guilty Plea Forfeits All Ineffective Assistance Claims Except those Relating to Plea Bargain

The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining:
…[T]o the extent that the defendant's claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. People v Barrett, 2013 NY Slip Op 02410, 2011-04637, Ind No 1727/10, 2nd Dept 4-10-13


Fraud Cause of Action in Legal Malpractice Case Sufficiently Pled

In a legal malpractice action, the Second Department determined the cause of action for fraud should not have been dismissed:

           …[T]he Supreme Court erred in granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging fraud. "To properly plead a cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance" …. Here, the complaint alleged that the defendants committed fraud by misrepresenting that they "made a motion for a default judgment" when they "never made, filed, or drafted" such a motion, that the plaintiff relied on the misrepresentation, and that the defendants billed the plaintiff for drafting the motion. Those allegations were sufficient to state a cause of action to recover damages for fraud …. Vermont Mut Ins Co v McCabe & Mack, LLP, 2013 NY Slip Op 02392, 2012-00566, Index No 4510/10, 2nd Dept, 4-10-13


Son Entitled to Remain in Deceased Mother’s Apartment

In annulling the ruling that petitioner (Carlos) was not entitled to “remaining family member (RFM)” status for the succession of his deceased mother’s apartment, the First Department wrote:

           We annul NYCHA's [New York Housing Authority’s] determination on the ground that it is not supported by substantial evidence. While the agency correctly asserts that Carlos's RFM status is jeopardized by the fact that he never received written permission to be added to his mother's lease while she was alive, the record is plain that Amparo [Carlos’ mother] took every step to have her son added to her lease, as required by 24 CFR 966.4(a)(1)(v), and it is undisputed that NYCHA violated a number of its own internal rules by determining that Carlos's 1996 conviction precluded him from joining Amparo's tenancy until May of 2008, without notifying Amparo or Carlos, and without giving them the opportunity to present evidence of Carlos's rehabilitation. … .


           …[W]hile estoppel is not available against a government agency engaging in the exercise of its governmental functions …, we have held that NYCHA's knowledge that a tenant was living in an apartment for a substantial period of time can be an important component of the determination of a subsequent RFM application … . 

In re Gutierrez v Rhea, et al, 2013 NY Slip Op 02453, 8494 402789/10, 1st Dept, 4-11-13

Failure to Comply With Lease Option Can Be Forgiven if Certain Criteria Met

The Second Department explained that the failure to strictly comply with the terms of a lease option (here involving notice to the landlord of the exercise of an option to terminate the lease) can be forgiven if certain criteria are met:

           An optionee must exercise the option in accordance with its terms, within the time and in the manner specified in the option …. The defendant failed to strictly comply with the language in the option in purporting to exercise it. However, equity will intervene to relieve an optionee of the consequences of a failure to exercise an option in accordance with its terms where (1) the optionee's failure to properly exercise the option resulted from an honest mistake or inadvertence, (2) refusal to recognize the exercise of the option would result in a substantial forfeiture by the optionee, and (3) the optionor would not suffer prejudice as a result … .  Pacific Dean Realty, LLC v Specific St, LLC, 2013 NY Slip Op 02385, 2011-10324, Index No 21508/10, 2nd Dept 4-10-13

Use Variance Criteria

The Second Department explained the criteria for a use variance as follows:

           "[A] landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses" …. Here, [the property owner] failed to show, based on competent financial evidence, that it cannot yield a reasonable rate of return absent the requested variance. Therefore, the ZBA's [Zoning Board of Appeals’] determination to grant a use variance for parking in the BB residence district must be annulled. Matter of Hejna v Board of Appeals…, 2013 NY Slip Op 02395, 2011-08146, Index No 29063/07, 2nd Dept 4-10-13

Plaintiffs Entitled to Return of Down Payment When Mortgage Application Denied, In Spite of Failure to Apply for “No Income Check” Mortgage

The Second Department determined that it would have been futile for the plaintiffs to apply for a no-income-check mortgage so their failure to do so did not allow the defendants to hang on to the plaintiffs’ down payment:


           Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on their cause of action for return of their down payment by submitting evidentiary proof demonstrating that they applied to an institutional lender for a mortgage three days before the contract to purchase the defendants’ property was fully executed, that their application was denied through no fault of their own, and that they gave the defendants timely notice that they were exercising their right to cancel the contract pursuant to the mortgage contingency clause … . Under the circumstances of this case, the plaintiffs’ failure to additionally apply for a no-income-check mortgage, as required by a rider to the subject contract, did not raise an issue of fact as to whether they made a good faith effort to secure mortgage financing. The plaintiffs’ mortgage application was already pending as of the date of the contract, and the plaintiffs’ evidentiary submissions demonstrated that it would have been futile for them to additionally apply for a no-income-check mortgage in view of the lender’s determination that, based on their credit history, they were not eligible for a mortgage of any kind … . Etienne v Hochman, 2013 NY Slip Op 02373, 2011-08896, Index No 23466/08, 2nd Dept, 4-10-13

Notice of Tax Foreclosure Proceeding Deemed Sufficient

In finding that the notice requirements in a tax foreclosure proceeding had been met, the Third Department wrote:

           Tax foreclosure proceedings enjoy a presumption of regularity, such that "[t]he tax debtor has the burden of affirmatively establishing a jurisdictional defect or invalidity in [such] proceedings" … .  In a tax foreclosure proceeding, each property owner is entitled to personal notice of the proceeding (see RPTL 1125 [1] [a]), which "shall be sent to each . . . party both by certified mail and ordinary first class mail" (RPTL 1125 [1] [b] [i]). Such "notice shall be deemed received unless both the certified mailing and the ordinary first class mailing are returned by the United States postal service within forty-five days after being mailed" … .Here, while the notice sent by certified mail to the Bayonne address was returned, there is no question that the notice sent by ordinary first class mail to respondent … at that address was not returned. Therefore, such notice was deemed received by respondent (see RPTL 1125 [1] [b] [i]…) .  Matter of Foreclosure … 514737, 3rd Dept, 4-11-13


Connection of Illness to Work at Trade Center Not Demonstrated

The Third Department upheld the denial of World Trade Center Accidental Disability benefits to a policeman who claimed a 12-hour stint looking for survivors exacerbated his pre-existing condition (ulcerative colitis).  The court determined the statutory presumption had been rebutted by the respondent and the petitioner failed to present sufficient evidence linking his condition to his work at the World Trade Center. Matter of Cardno v NY State and Local Retirement System, 514782, 3rd Dept 4-11-13


Remedy When Referee Exceeds Authority

The Second Department explained the effect of a referee’s exceeding his or her authority:

            "A referee derives his or her authority from an order of reference by the court" …. The scope of a referee's duties are defined by the order of reference (see CPLR 4311;…). A referee "who attempts to determine matters not referred to him [or her] by the order of reference acts beyond and in excess of his [or her] jurisdiction" …. Here, the Supreme Court directed the referee to hear and report on the issues of whether the plaintiff complied with the terms of the loan reinstatement agreement …. Instead of making findings of fact and reporting them to the Supreme Court, the referee exceeded his authority by making a determination that the loan should be reinstated … . Since the referee had no authority to do so, the Supreme Court should have rejected his report in its entirety … . Furman v Wells Fargo Home Mtge Inc, 2013 NY Slip Op 02374, 2011-10281, 2011-10284, Index No 25616/09, 2nd Dept, 4-10-13

Requirements for Motion to Dismiss on Documentary Evidence

In this case, the Second Department addressed the proof requirements for a CPLR 3211(a)(1) motion (motion to dismiss on documentary evidence), the potential validity of an unsigned agreement in the context of such a motion, and the proper remedy when a referee exceeds his or her authority:

           A motion pursuant to CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, although [defendant] offered documentary proof that the loan reinstatement agreement was not signed…, this proof does not conclusively dispose of the plaintiff’s specific performance or breach of contract claims since an unsigned agreement may constitute an enforceable contract where there is objective evidence establishing that the parties intended to be bound …. We further note that since [defendant] sought dismissal of the specific performance and breach of contract causes of action pursuant to CPLR 3211(a)(1) on the ground that it had a defense founded on documentary evidence, the motion should have been decided solely on the documentary evidence proffered in support of the motion. …. Furman v Wells Fargo Home Mtge Inc, 2013 NY Slip Op 02374, 2011-10281, 2011-10284, Index No 25616/09, 2nd Dept, 4-10-13

Unpleaded Cause of Action Can Be Raised in Opposition to Summary Judgment---Must Be Supported by Proof in Admissible Form

The Second Department noted that, in opposition to a motion for summary judgment, an unpleaded cause of action (which must be supported by proof in admissible form) may be raised:

            The plaintiff, in opposition, …raised a new theory of liability …. A plaintiff may successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff's proof …. However, in the instant case, the plaintiff's submission in support of the unpleaded cause of action was an affirmation of an attorney with no personal knowledge of the facts. That affirmation was not sufficient to raise a triable issue of fact to defeat the defendant's prima facie showing of entitlement to judgment as a matter of law with respect to the allegations in the plaintiff's pleadings …. Since the plaintiff submitted no evidence in admissible form in support of the unpleaded cause of action, she failed to raise a triable issue of fact. McCovey v Williams, 2013 NY Slip Op 02380, 2012-01315, Index No 38525/06, 2nd Dept, 4-10-13

Contacts Insufficient for Long-Arm Jurisdiction

The Third Department upheld the trial court’s determination that plaintiff’s business-related contacts with out-of-state defendants were insufficient to confer New York jurisdiction over them:

            Plaintiff entered into a three-month agreement with defendant Yodle, Inc. to conduct an Internet advertising campaign for his divorce document preparation business. Three weeks after agreeing to the terms of the contract, plaintiff emailed defendant Brad Leitch, a Yodle employee who lives and works in North Carolina, and stated that he could not afford to proceed due to unanticipated personal expenses. Relying on the terms of the contract, Yodle refused to refund plaintiff any money and continued the advertising campaign until – just before the end of the three-month term – plaintiff commenced this action seeking to recover damages for, among other things, fraud and breach of contract.

* * *Initially, we cannot agree with plaintiff's contention that Supreme Court erred in determining that it lacked jurisdiction over Leitch and Long [another Yodle employee who lives and works in Arizona]. Given the nature of their work on plaintiff's Internet advertising campaign and his limited contact with them via telephone and email, their conduct "did not amount to a purposeful invocation of the privileges of conducting business in New York" so as to confer personal jurisdiction under CPLR 302 (a) (1) … . Collins … v Yodle, Inc…, 514827, 3rd Dept 4-11-13

Hearing Required to Determine If Complaint Properly Served

In remitting the case for a hearing to determine whether defendant was properly served with the complaint, the Second Department wrote:


            Here, the affidavit of service of the plaintiff's process server describing service of process on the defendant NES Medical Services of New York, P.C. (hereinafter NES), constituted prima facie evidence of proper service on NES … . In support of that branch of their motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction, the appellants submitted an affidavit stating that the person served was neither employed by, nor authorized to accept service for, NES. Where, as here, "there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing" …. Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing on, and a new determination of, that branch of the appellants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction. Rosario v NES Med Srvs of NY, PC, 2013 NY Slip Op 02388, 2011-10662, Index No 4465/11, 2nd Dept 4-10-13


Injury to Officer Who Was Pursuing a Suspect Not an “Accident”

In finding that injury to a police officer was not the result of an “accident” within the meaning of the Retirement and Social Security Law, the Third Department wrote:
           Here, petitioner was performing his regular police duties chasing a suspect within his authorized patrol area at the time he was injured. As we have recognized, the "pursuit of suspects is an ordinary employment duty of a police officer" … .  Petitioner's pursuit took him through a wooded area to the edge of a ravine where he stopped because he recognized the danger of falling into it. Nevertheless, he stood too close to the edge, the edge gave way under his weight and he fell into the ravine in a manner that he reasonably could have anticipated… .  Matter Roth v DiNapoli, 516078, 3rd Dept, 4-11-13


Late Notice of Settlement of Negligence Action to Workers’ Compensation Carrier Did Not Preclude Court-Approval of Settlement Pursuant to Workers’ Compensation Law

Plaintiff was struck by a car driven by defendant while she was taking a walk during a layover between work assignments for her employer.  She filed for workers’ compensation benefits.  And she sued the driver in a negligence action.  While the workers’ compensation proceeding was progressing plaintiff settled with the driver’s carrier.  Upon notice to the employer’s workers’ compensation carrier, the carrier refused to approve the settlement. Plaintiff then moved for court-approval of the settlement pursuant to the Workers’ Compensation Law.  Supreme Court granted the motion and the Third Department affirmed, noting:

           When,  as here, court approval of a  settlement is not sought within three months of the date of settlement, a  plaintiff seeking a nunc pro tunc order must establish the reasonableness of the settlement, the lack of any  fault or neglect in applying for approval and the lack of any prejudice to the carrier … .   These determinations are directed to the discretion of the court … . Lindberg, et al, v Ross, et al, 515373, 3rd Dept 4-11-13


“Out-of-Title” Work Did Not Warrant Higher Pay

Petitioner was a sergeant at Butler Alcohol and Substance Abuse Correctional Facility and he alleged he was assigned as shift supervisor, requiring him to perform the work of a correction lieutenant.  In upholding a determination that petitioner’s “out-of-title” work did not entitle him to more pay, the Third Department noted:

          While Civil Service Law § 61 (2) seemingly provides an "unqualified prohibition against nonemergency out-of-title work,1 case law has made the standard somewhat more flexible based on practicality" ….   "Not all additional duties constitute out-of-title work but, instead, the question is whether the new duties are appropriate to petitioner['s] title[] and/or  are similar in nature to, or a reasonable outgrowth of, the duties listed in petitioner['s] job specifications" … . "'[A]n employee's performance of overlapping functions of an absent supervisor has not been found to establish a violation of Civil Service Law § 61 (2) where such functions were substantially similar to those detailed in his or her job description'" … .   Matter of New York State Correctional Officers … v Governor’s Office of Employee Relations, et al, 515409, 515410, 3rd Dept, 4-11-13


Termination of Deputy Sheriff by Sheriff after Hearing Officer Recommended Suspension Upheld

In up holding the termination of petitioner, a deputy sheriff correction officer, after a disciplinary hearing officer recommended only suspension, the Third Department wrote:

           Here, petitioner was found to have caused an injury to a defenseless, handcuffed inmate over whose custody petitioner was in charge. The Sheriff noted that his decision to terminate petitioner's employment was based, in large measure, upon the fact that, as a correction officer, petitioner was required to handle the most difficult and sometimes dangerous individuals and that "[d]isrespect and brutality of prisoners cannot and will not be tolerated." Even if there is mitigating evidence that could support a different result –  such  as petitioner's otherwise unblemished record of service during his 10 years as a correction officer – we may not substitute our judgment for that of the Sheriff ….Considering petitioner's position as a correction officer and a Sheriff's Emergency Response Team member and the serious nature of petitioner's misconduct – an assault of a handcuffed inmate who petitioner was supervising at the time – as well as petitioner's failure to take responsibility for his actions, the decision to terminate his employment  does not shock our sense of fairness … .  Matter of Knox v VanBlarcum…, 515471, 3rd Dept, 4-11-13


Statute of Frauds Precluded Recovery for Both Contract and Quantum Meruit Causes of Action

The Second Department ruled that an oral contract, as well as a related quantum meruit claim, were not enforceable under the statute of frauds (General Obligations Law):

           A party's admission of the existence and essential terms of an oral agreement is sufficient to take the agreement out of the statute of frauds… . However, if the parties dispute "the very terms and conditions of the alleged oral" agreement, the statute of frauds applies … . In the instant case, the defendants deny that they agreed to pay the plaintiff compensation based upon a percentage of any particular number. Thus, the Supreme Court correctly determined that there was no admission by the defendants as to the essential terms of the alleged contract.

          With respect to the second cause of action, which sought compensation in quantum meruit, General Obligations Law § 5-701(a)(10) specifically recites that the requirement of a writing executed by the party to be charged applies to bar enforcement not only of an oral agreement to pay compensation for services rendered in negotiating the sale or leasing of real estate or an interest in a business, but also of "a contract implied in fact or in law" covering the same subject matter.  Camhi v Tedesco Realty, LLC, 2013 NY Slip Op 02368, 2011-08356, 2012-02256, Index No 14472/10, 2nd Dept, 4-10-13

Plaintiff Was Deemed Third Party Beneficiary of Contract Between Next-Door Neighbor and Chimney Repair Company--- Smoke Was Entering Plaintiff’s Home

Smoke from defendant Moore’s fireplace was entering a neighbor’s (Trager’s) home.  Trager sued Moore and the defendant company (B & P) hired by Moore to fix their fireplace.  The motion court dismissed the cause of action against B & P.  The First Department reinstated the cause of action against B & P finding that Trager may have been a third-party beneficiary of the contract between Moore and B & P:

          The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P owed Linda Trager … a duty as a third-party beneficiary to B & P's contract with the Moore defendants … . Castlepoint Ins Co v Moore, 2013 NY Slip Op 02352, 99747, 110915/09, 1st Dept, 4-9-13

Statute of Limitations Where Continuing Duty Allegedly Breached

The Second Department explained the application of the six-year “contract” statute of limitations where the duty alleged to have been breached is a continuing one:

           "[W]here a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period" …. Here, the alleged breach is of the defendant's obligation to pay annual assessments to the plaintiff. Thus, a new breach occurred for statute of limitations purposes each year the defendant failed to make an allegedly required payment to the plaintiff …. Meadowbrook Farms Homeowners Assn, Inc v JZG Resources Inc, 2013 NY Slip Op 02381, 2011-089/10, Index No 839/10, 2nd Dept 4-10-13


Notice of Claim Deemed Insufficient to Allege Negligent Design or Construction of Road

The Second Department dismissed a complaint against a town because the notice of claim alleged "damages for negligence arising out of the use, operation, ownership, maintenance, custody, and control of Hynes Road" but did not allege defective design or negligent construction of a road, the specific theories alleged in the complaint:


           A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality … . While a claimant need not state "a precise cause of action in haec verba in a notice of claim" …, "a party may not add a new theory of liability which was not included in the notice of claim"… .

           Here, the Town established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting proof that the notice of claim made no allegations that the Town defectively designed or negligently constructed the roadway where the accident occurred … .  Crew v Town of Beekman, 2013 NY Slip Op 02370, 2011-10932, Index No 7540/07, 2nd Dept, 4-10-13


Failure to Allege Negligent Provision of Medical Care in Notice of Claim Required Dismissal of Negligence Cause of Action

Failure to Allege Facts Demonstrating a Custom or Practice of Providing Inadequate Medical Care Required Dismissal of 1983 Causes of Action

After a trial awarded the plaintiff over $17,000,000, the Second Department reversed determining (1) the negligent provision of medical care cause of action should have been dismissed because it was not included in the notice of claim, and (2) the 1983 causes of action should have been dismissed because they were not adequately pled in the complaint:

           Here, the notice of claim failed to set forth any allegations of negligence on the part of the defendants regarding the deprivation of medical treatment to the plaintiff when he was in police custody. Therefore, the Supreme Court should have directed dismissal of so much of the complaint as alleged negligence, due to the plaintiff's failure to file a proper notice of claim (see General Municipal Law § 50-e[2] … .  * * *

          To hold a municipality liable under § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy …. Similarly, where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims are tantamount to claims against the municipality itself …. Here, the complaint failed to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of depriving medical treatment to persons in police custody ….  Vargas v City of New York, 2013 NY Slip Op 02391, 2011-02266, 2011-08980, 2011-09609, Index No 33215/07, 2nd Dept, 4-10-13


General Contractor’s Liability for Ice and Snow at Work Site/Criteria for Indemnification of General Contractor

In a common law negligence and Labor Law 200 action, the Second Department explained when a general contractor can be held liable for a dangerous condition.  Here the plaintiff was injured when he slipped on ice and snow at the work site.  The general contractor was seeking indemnification under a contract:

           "[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" …. " Where, as . . . here, a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition'" …. [The general contractor] failed to establish, prima facie, that it lacked control over the work site or notice of the allegedly dangerous condition, thus precluding a finding, as a matter of law, that it was not negligent ….  Mikelatos v Theofilaktidis, 2013 NY Slip Op 02382, 2012-00163, Index No 19488/05, 2nd Dept 4-10-13

12 to 15 Inch Drop Not a “Hazardous Opening” and Did Not Trigger Ramp or Stairway Requirement

The First Department determined that a 12 to 15 inch drop from the work area to a subfloor did not constitute a “hazardous opening” and did not trigger the “stairways, ramps or runways” requirement (re: the Industrial Code):

            Industrial Code (12 NYCRR) § 23-1.7(b)(1) is inapplicable. The record indicates that plaintiff was injured after he stepped off the edge of the work area to the subfloor 12 to 15 inches below, which is not considered a "hazardous opening" within the meaning of 12 NYCRR 23-1.7(b) … .


          12 NYCRR 23-1.7(f) is also inapplicable. There is no basis in the record for any claim that the "[s]tairways, ramps or runways" identified in section 23-1.7(f) were required, given plaintiff's testimony that the subfloor was only approximately 12 to 15 inches below the first floor from which he fell ….  Frandeson v Gucci Am, Inc, 2013 NY Slip Op 02470, 9774, 114399/01 590019/02 590139/06 590372/06, 1st Dept, 4-11-13


Policy Taken Out to Cover Original One Story Building Did Not Cover Accident on Additional Floors Under Construction

The First Department, in a full-fledged opinion by Justice Saxe, determined that an insurance police which covered the original one-story building did not cover the additional floors subsequently under construction.  In a full-fledged opinion by Justice Saxe (with a dissent), the First Department wrote:


           "Coverage cannot be afforded on liability for which insurance was not purchased" …. While the obligation to defend is broader than the duty to indemnify, it "does not extend to claims not covered by the policy" …. "[I]f the allegations interposed in the underlying complaint allow for no interpretation which brings them within the policy provisions, then no duty to defend exists" … .   If a policy insures a portion of a building, it does not cover an injury occurring in another portion of the building… .  Seneca Ins Co v Cimran Co, Inc, 2013 NY Slip Op 02360, 9226, 1st Dept, 4-9-13

Only (No-Fault) “N-F 5” Form Triggers 30-Day Period to Deny or Pay a Claim

The Second Department, in a full-fledged opinion by Justice Austin, determined that the UB-04 (no-fault form) was not the functional equivalent of the N-F 5 (no-fault form).  Therefore, receipt by the no-fault carrier of the UB-04 form from the heath care provider did not trigger the 30-day period in which a no-fault insurer is required to pay or deny a claim.  Sound Shore Med Ctr v Ne York Cent Mut Fire Ins Co, 2013 NY Slip Op 02390, 2011-04975, Index No 7148/09, 2nd Dept, 4-10-13


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