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


Hearing Required for Motion for Resentencing

The Second Department explained the hearing requirement of Criminal Procedure Law 440.46 (re: a motion for resentencing) as follows:


           CPL 440.46(3), provides, in pertinent part, that "[t]he provisions of section twenty three of chapter seven hundred thirty eight of the laws of two thousand four shall govern the proceedings on and determination of a motion brought pursuant to this section." Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: "The court shall offer an opportunity for a hearing and bring the applicant before it. The court may also conduct a hearing, if necessary, to determine . . . any controverted issue of fact relevant to the issue of sentencing." The defendant's presence is not required where the court determines as a matter of law that a defendant is not entitled to relief pursuant to CPL 440.46 …. However, here, the People conceded that the defendant met the statutory requirements for relief pursuant to CPL 440.46, and the question before the court was whether substantial justice dictated that the motion should be denied. Thus, the defendant is entitled to appear before the court and to be given an opportunity to be heard .. . Since the defendant was not brought before the court, and there is no indication that he knowingly, intentionally, and voluntarily relinquished that right …, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for a new determination of the defendant's motion, to be made after affording him an opportunity to appear before the court, and, if necessary, conducting a hearing … .  People v Allen, 2013 NY slip Op 02586, 2011-11680, Ind No 1087/98, 2nd Dept 4-17-13

In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded

After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations.  The defense, however, wanted to continue to verdict with the remaining 11 jurors.  The trial court ordered a mistrial.  The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double jeopardy grounds.  The Second Department, after determining the four-month statute of limitations did not apply, granted the petition, finding the trial judge should not have ordered a mistrial over the defense objection:


           Here, the People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 persons and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals …. Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict …. Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted "evidence" and whether such an instruction could have cured the impropriety …. Accordingly, there is an insufficient basis in the record for the declaration of a mistrial, and thus retrial is precluded. Matter of Smith v Brown, 2013 NY Slip Op 02584, 2013-00751, 2nd Dept, 4-17-13

Criteria for Downward Departure from SORA Presumptive Risk Level

The Second Department described the criteria for a downward departure from the SORA presumptive risk level as follows:


           A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) only after a defendant makes a twofold showing. First, a defendant must identify, as a matter of law, an appropriate mitigating factor, namely, a factor which "tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines" … . Second, a defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor … . In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level … .  People v Arroyo, 2013 NY Slip Op 02553, 2010-10108, 2nd Dept, 4-17-13

Trial Court’s Batson Ruling Re: Pretextual Reasons for Exclusion of White Jurors Upheld

In upholding the trial court’s ruling that the proffered reasons for the exclusion of certain white jurors were pretextual, the Second Department wrote:


           In Batson v Kentucky (476 US 79, 94-98), the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories …. In step one, the moving party must make a prima facie case of purposeful discrimination by "showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason" … . If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party "offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome" … . Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and " the trial court must determine whether the proffered reasons are pretextual'" …, including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others … . Here, the trial court's determination that the proffered reasons for challenging certain white jurors were pretextual is entitled to great deference on appeal and is supported by the record… . People v Carrington, 2013 NY Slip Op 02587, 2006-09951, Ind No 369/05, 2nd Dept 4-17-13

Court’s Explanation of Lien Law Presumption (Where Money Held In Trust by Contractor and Allegedly Misused Can Be Deemed Larceny) Was Determined to Impermissibly Switch the Burden of Proof to the Defendant

In reversing a larceny conviction, the Second Department explained that allowing the jury to consider the Lien Law presumption (where use of funds held in trust for purposes other than those of the trust can constitute larceny) as mandatory, rather than permissive, shifted the burden of proof to the defendant:


            Pursuant to Lien Law article 3-A, a contractor who receives funds under a contract for the improvement of real property must hold the funds as a trustee, and if the contractor applies trust funds for any purpose other than the purposes of the trust and fails to pay a trust claim within 31 days of the time it is due, he or she may be guilty of larceny (see Lien Law §§ 70, 71, 79-a[1][b]…). The trial court instructed the jury, in accordance with Lien Law § 79-a(3), that "[f]ailure of the trustee to keep books and records required by this section shall be presumptive evidence that the trustee has applied . . . trust funds . . . for purposes other than a purpose of the trust." Like all statutory presumptions in New York, the presumption in Lien Law § 79-a(3) is permissive … . The trial court's failure to instruct the jury that the presumption "was permissive, or to emphasize that, despite the presumption, the same burden of proof remained with the People, was bound to result in misleading the . . . jurors into believing that the presumption is conclusive and binding upon them'" …. Such a mandatory presumption is unconstitutional, as it relieves the People of their burden of proving every element of the crime and undermines the jury's " responsibility at trial, based on evidence adduced by the [People], to find the ultimate facts beyond a reasonable doubt'" .. . People v Cioffi, 2013 NY Slip Op 02588, 2012-00966, 2013-03689, Ind No 11-00174, 2nd Dept, 4-17-13

Motion for SORA Downward Departure Requires Hearing

The Second Department reversed the motion court because a motion for a downward departure (SORA) pursuant to Correction Law 168-o(2) requires a hearing:


           By notice of motion dated September 21, 2010, the defendant moved pursuant to Correction Law § 168-o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act (Correction Law article 6-C). The Supreme Court denied the defendant's motion without holding a hearing. Because the requisite procedures set forth in Correction Law § 168-o were not followed, we reverse.  As the People correctly concede, the Supreme Court failed to conduct a hearing on the defendant's motion, as it was required to do pursuant to Correction Law § 168-o(4) …. Accordingly, the matter must be remitted to the Supreme Court, Suffolk County, for a hearing and, thereafter, a new determination of the defendant's motion. People v Runko, 2013 NY Slip Op 02555, 2012-07328, 2nd Dept, 4-17-13

Breath Test Results Suppressed Because Defendant Not Informed Her Attorney Had Appeared in the Case Prior to the Test

In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered.  As Justice Leventhal described the “right to counsel” issue and holding:


           This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution (see NY Const, art I, § 6), where the defendant consented to a chemical breath test to determine her blood alcohol content (hereinafter BAC), but, prior to the commencement of the test, the police made no effort to inform the defendant that her attorney had appeared in the matter. … [W]e hold that where, as here, the police are aware that an attorney has appeared in a case before the chemical breath test begins, they must make reasonable efforts to inform the motorist of counsel's appearance if such notification will not substantially interfere with the timely administration of the test. Since the People failed to establish that notifying the defendant of her attorney's appearance would, in fact, have interfered with the timely administration of the chemical breath test, we conclude that the Supreme Court properly granted that branch of her omnibus motion which was to suppress the results of that test. People v Washington, 2013 NY Slip Op 02600, 2011-07259, Ind No 2510/10, 2nd Dept, 4-17-13

Sentences for Underlying Felony and Bail Jumping Must Be Consecutive Absent Mitigating Factors that Bear Directly on the Manner the Crime Was Committed

In finding the sentencing court used the wrong “mitigating” factors to determine whether the sentence for bail jumping could run concurrently with the sentence for the underlying felony, the Third Department wrote:


           Penal Law § 70.25 (2-c) restricts a court's sentencing discretion when a person who is convicted of bail jumping in the second  degree  also is convicted of the underlying felony in connection with which he or she had been released on bail. Specifically, if indeterminate sentences are imposed upon both the bail jumping charge and the underlying felony, the bail jumping sentence must run consecutively to the other sentence unless the court "finds mitigating circumstances that bear directly upon the manner in which the crime was committed" (Penal Law § 70.25 [2-c]…).  Here, County Court sought to justify concurrent sentences based upon "the severe penalties, fines, restrictions and state prison sentence [defendant was] earning by [his] antisocial behavior of drinking and driving and failing to come to court, and because [he had pleaded] guilty . . . and waived appeal in another county." However, these factors have no bearing upon the manner in which the crime was committed … and, therefore, do not support imposing concurrent sentences in this case.  People v Harrison, 105176, 3rd Dept 4-18-22


Condition of Fence Gate “Open and Obvious” Precluding Recovery

Plaintiff was injured when, sitting on the ground, he leaned back against a fence-gate which swung open causing him to fall.  The First Department determined the condition of the fence was “open and obvious” precluding recovery (there was a dissent).  The court wrote:

           Although property owners have a duty to maintain their property in a reasonably safe condition, and to warn of latent hazards of which they are aware …, they have no duty to protect or warn, and a court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous … . "In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property" …Here, defendant … established prima facie that the unlocked gate that allegedly caused plaintiff to injure himself was open and obvious, and was not inherently dangerous. The color photographs in the record show that the gate was "plainly observable and did not pose any danger to someone making reasonable use of his or her senses" … .  Boyd v New York City Hous Auth, 2013 NY Slip Op 02507, 9724, 310500/10, 2nd Dept 4-16-13

Jury Verdict Finding No Negligence Reversed on Appeal/Article 16 Defenses Re: Negligence of Non-Party Allowed

A mechanic working in the basement of a two-family house left a trap door, which was directly outside the side door of plaintiff’s apartment, open.  Plaintiff fell through the open trap door.  In setting aside the jury verdict finding the mechanic was not negligent, the Second Department wrote:

           A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . In exercising our authority to review the weight of the evidence …, we find that the jury's verdict was contrary to the weight of the evidence. "Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same circumstances" …. Applying this standard, we conclude that the jury's determination that the defendant was not negligent was not based on a fair interpretation of the evidence, since a reasonable person should have been aware that leaving the trapdoor open created an unsafe condition …. Accordingly, we reverse the amended judgment, reinstate the complaint, and remit the matter … for a new trial.

The Second Department also made the following findings, pursuant to CPLR article 16, about defenses based upon the liability of the non-party out-of-possession landlord:


           …[T]he Supreme Court did not err in denying that branch of the plaintiff's motion which was to preclude the defendant from offering evidence as to the liability of a nonparty, the out-of-possession landlord, for the purpose of limiting the defendant's liability for noneconomic damages pursuant to CPLR article 16. Contrary to the plaintiff's contention, a defendant is not required to plead that defense as an affirmative defense (see CPLR 1601[1]…).

           …[T]he Supreme Court properly denied the plaintiff's motion to dismiss the defendant's affirmative defense pursuant to CPLR article 16, as the defendant presented evidence demonstrating that a question of fact existed as to the negligence of the nonparty landlord (see CPLR 1603…).  Cooper v Burt’s Reliable, Inc, 2013 NY Slip Op 02529, 2012-00098, Index No 6053/07, 2nd Dept 4-17-13

Question of Fact About Whether Emergency Doctrine Excused Police Officer’s Causing a Collision

In finding that a question of fact had been raised about whether a police office, when responding to an emergency call in her vehicle, had exhibited reckless disregard for the safety of others (resulting in a collision), the Second Department wrote:

           Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of authorized emergency vehicles from certain traffic laws when they are involved in an emergency operation …. The emergency operation of a police vehicle includes “responding to [a] police call” (Vehicle and Traffic Law § 114-b). A radio call to an officer on patrol by a police dispatcher regarding a 911 complaint falls squarely within the plain meaning of “police call” …. When a police officer engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), such conduct may not form the basis of civil liability to an injured third party unless the officer acts in reckless disregard for the safety of others …. The “reckless disregard” standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow … . * * *…[T]he respondents submitted the deposition testimony of four witnesses, which raised triable issues of fact as to whether the siren and emergency lights on the police officer’s vehicle were activated and whether that vehicle slowed down prior to entering the intersection at which the collision occurred.  Miller v Suffolk County Police Dept, 2013 NY Slip Op 02549, 2012-03783, dInex No 5044/06, 2nd Dept, 4-17-13

Adult Care Facility, in Which Residents Have a High Level of Autonomy, Can Not Be Held Liable for Assault by One Resident Upon Another

In finding that Lakeside, an adult care facility (ACF), was not liable for an assault by a resident, Fierro, upon the plaintiff (also a resident), the Second Department wrote:

           …[C]ourts have imposed a duty of care where "there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons that [courts] have identified a duty to do so. Thus, [courts] have imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and [the] third person whose actions expose plaintiff to harm such as would require [one] defendant to protect the plaintiff from the conduct of others" … .

           …Lakeside [presented evidence that its] residents were free to come and go as they pleased, and that in order to remove a resident from the facility, it would need to commence an eviction proceeding. Because it is an ACF, Lakeside's control over Fierro, "and consequent duty to prevent him from harming others, is more limited than in cases involving persons confined to mental institutions" …. Lakeside did not require the issuance of day passes, which would have been indicative of "a certain level of authority and control" over its residents …, who did not "relinquish general autonomy" … .  Malave v Lakeside Manor Homes for Adults, Inc, 2013 NY Slip Op 02547, 2012-00696, Index No 100904/10, 2nd Dept, 4-17-13

No Common Law Negligence Cause of Action to Recover for Injuries Caused by Dog, Even Where Dog Owner May Be Negligent

Where the plaintiff was injured when defendant’s dog collided with his bicycle, the First Department determined defendant’s (the dog owner’s) motion for summary judgment should have been granted, despite allegations of negligence on the part of the defendant (there was a dissent):

           Plaintiff was injured when, while riding his bicycle, he collided with defendant's dog. Plaintiff alleges that defendant was negligent because as plaintiff was riding nearby, defendant called for the dog, which was not wearing a leash, to come to her, resulting in the dog's running into plaintiff's path of travel.

           "New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal" …. Rather, when harm is caused by a domestic animal, its owner can be held liable if he knew, or should have known, of the animal's vicious propensities …. The term "vicious propensities" includes "the propensity to do any act that might endanger the safety of the persons and property of others in a given situation" …. Here, there is no evidence that defendant had knowledge that her dog had a propensity to interfere with traffic, and her motion for summary judgment should have been granted ….  Doerr v Goldsmith, 2013 NY Slip Op 02501, 9030, 103840/10, 1st Dept, 4-16-13

Question of Fact Raised About Whether School-Wrestler’s Risk of Injury Increased by Condition of Wrestling Mats

The Second Department ruled Supreme Court had properly denied the school’s motion for summary judgment because a question of fact had been raised about whether the way mats had been taped together increased the risk of injury to wrestlers:

           "Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation"'" … . "The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon" … . "If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies" … . However, "a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks" … . Philippou v Baldwin Union Free Sch Dist, 2012-02377, Index No 790/10, 2nd Dept, 4-17-13


Tenancy by the Entirety Extinguished When Both Husband and Wife Convey their Interests to Same Grantee, Who then Conveys His Interest Back to the Husband and Wife

Both the appellant and her husband had separately transferred their interests in property to the same grantee, defendant Feliciano.  Feliciano then mortgaged the property and executed a deed transferring 99% of the property back to appellant and her husband. Feliciano was alleged to have defaulted.  The appellant moved for summary judgment in the foreclosure action contending the tenancy by the entirety, created when she and her husband first bought the property, was never terminated.  In affirming the denial of appellant’s motion to dismiss, the Second Department wrote:

           …[W]here a tenancy by the entirety is created, "there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy . . . subject to the continuing rights of the other" …. "[T]he interest acquired by a grantee or mortgagee of such a unilateral conveyance is not denominated a tenancy by the entirety, but rather is labeled a tenancy in common"; however, "the grantee's or mortgagee's rights in the property are essentially the same as those possessed by the grantor or mortgagor: a right to shared possession and ownership subject to the original cotenants' reciprocal rights of survivorship" … .  …[W]here, as here, the interests separately conveyed away by both spouses are unified in a single grantee, the tenancy by the entirety is extinguished by merger, since the sequence in which the grantors die will no longer affect the disposition of title …. "Separate conveyances by each tenant to the same grantee . . . terminate the tenancy by the entirety vesting the entire estate in that grantee" ….   Deutsche Bank Nation Trust Co v Feliciano, et al, 2013 NY Slip Op 02531, 2012-00130, Index No 18752/08, 2nd Dept, 4-17-13

Resident in Hotel Under Contract to Provide Rooms to Homeless Persons Entitled to Rent Stabilization Protection

In finding that the respondent (Pitt) was a “permanent tenant” of a hotel which rented rooms to homeless persons under an agreement with the NYC Human Resources Administration (thereby entitling the respondent to the protections of the Rent Stabilization Code), the First Department explained the “exception to mootness” doctrine:”


           As a threshold matter, we find that this appeal is not rendered moot by the fact that Pitt voluntarily vacated the premises before the appeal was perfected. Although, as a general principle, courts are precluded from considering questions which have become moot by a change in circumstances, an exception to the mootness doctrine exists in situations that present the following: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" … . This matter presents an issue of substantial public interest that is likely to recur and evade review. Specifically, this Court must address the question of what constitutes a legal tenancy under the Rent Stabilization Code, and what rights are vested in a person occupying premises under the contract between a landlord and a social service agency. This is an issue that affects a large number of New Yorkers who declare permanent tenancy in a SRO [single room occupancy facility]. Thus, it presents an exception to the mootness doctrine … . Branic Intl Realty Corp v Pitt, 2013 NY Slip Op 02522, 9453 & 57024/10, 363, 1st Dept, 4-16-13


“Law of the Case” Does Not Bind Appellate Courts

In a medical malpractice action, plaintiff had moved to amend her complaint to add a cause of action for wrongful death and the motion was denied.  There was a mistrial.  Before the second trial, plaintiff again moved to amend her complaint.  The motion was denied because the first denial was deemed the law of the case.  In determining the motion to amend should have been allowed, the Second Department noted that the law of the case doctrine does not apply to appellate courts:


           The doctrine of the law of the case does not bind appellate courts, and thus, this Court is not bound by the law of the case established by the prior determination …. Accordingly, this Court is free to consider that branch of the plaintiff’s motion which was for leave to amend the complaint on the merits …. Under the circumstances presented here, we conclude that leave to amend the pleading should be permitted.

           Generally, leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]…). Here, in the aftermath of the court’s granting of a mistrial, Mercy [defendant] failed to allege, much less show, surprise or prejudice resulting from the plaintiff’s delay in asserting the wrongful death cause of action against it … . Moreover, the proposed amended complaint, which sufficiently alleged that Mercy’s negligence caused the decedent to suffer injuries and ultimately death, was neither “palpably insufficient nor patently devoid of merit” … .   Hothan v Mercy Med Ctr, 2013 NY Slip Op 02541, 2011-10562, Index No 14345/06, 2nd Dept, 4-17-13

Exception to “Mootness Doctrine” Applied

In finding that the respondent (Pitt) was a “permanent tenant” of a hotel which rented rooms to homeless persons under an agreement with the NYC Human Resources Administration (thereby entitling the respondent to the protections of the Rent Stabilization Code), the First Department explained the “exception to mootness” doctrine:”


           As a threshold matter, we find that this appeal is not rendered moot by the fact that Pitt voluntarily vacated the premises before the appeal was perfected. Although, as a general principle, courts are precluded from considering questions which have become moot by a change in circumstances, an exception to the mootness doctrine exists in situations that present the following: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" … . This matter presents an issue of substantial public interest that is likely to recur and evade review. Specifically, this Court must address the question of what constitutes a legal tenancy under the Rent Stabilization Code, and what rights are vested in a person occupying premises under the contract between a landlord and a social service agency. This is an issue that affects a large number of New Yorkers who declare permanent tenancy in a SRO [single room occupancy facility]. Thus, it presents an exception to the mootness doctrine … . Branic Intl Realty Corp v Pitt, 2013 NY Slip Op 02522, 9453 & 57024/10, 363, 1st Dept, 4-16-13

A Party Can Not Appeal from a Portion of an Order Where the Party Is Not Aggrieved by the Order

The Second Department noted that a party can not appeal from a portion of an order which does not grant relief the party did not request, even where the order includes reasoning with which the party does not agree:


           "A party is not aggrieved by an order which does not grant relief [he or she] did not request" … . "Merely because the order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal'" … . Here, the plaintiffs are not aggrieved by so much of the order as, in denying the … defendants' motion for summary judgment and reaching a result which was not adverse to the plaintiffs, determined that a prior judgment did not have res judicata or collateral estoppel effect on the motion before it … . Since the plaintiffs are not aggrieved by the portion of the order from which they appeal, their appeal must be dismissed.  Spielman v Mehraban, 2013 NY Slip Op 02565, 2011-10855, Index No 19056/10, 2nd Dept, 4-17-13



Failure to Make Sufficient Effort to Have Inmate’s Witness Testify Required a New Hearing

The Third Department ordered a new disciplinary hearing where insufficient efforts were made to procure the testimony of a witness requested by the inmate:

           When  petitioner requested that a fellow inmate  testify at the  disciplinary  hearing,  the Hearing  Officer merely  noted  that the witness had informed petitioner's employee assistant that he refused  to  testify. Such a notation by the Hearing Officer, without any attempt to determine the reason for the witness's refusal, is not a sufficient basis upon which to deny petitioner's right to call the witness … Matter of Dickerson v Fischer, 514685, 3rd Dept, 4-18-13

Failure to Make Sufficient Effort to Transport Injured Inmate to His Hearing Required Annulment

In annulling a disciplinary determination, the Third Department ruled the inmate’s statement to the escort officer that he had injured his foot and could not put on a shoe (to walk to the disciplinary hearing) did not constitute a refusal to attend the hearing:

           "[A]n inmate has a fundamental right to be present at his or her disciplinary hearing, unless he or she waives such right or refuses to attend"  …. Here, instead of "transporting petitioner to the hearing by  wheelchair, stretcher or other appropriate conveyance  or arranging to have medical personnel examine petitioner or otherwise developing a record on the issue of petitioner's physical ability to walk" … – or even exploring the possibility of allowing petitioner to leave his SHU cell with only one shoe – the Hearing Officer summarily accepted the  escort  officer's characterization of  petitioner's conduct  as a blatant refusal to attend the hearing … .Under these circumstances, the record does not support the finding that petitioner "willfully refused"… .  Matter of Brooks v James, 514707, 3rd Dept, 4-18-13

Failure to Record Testimony Relied Upon by Hearing Officer Required Annulment

The failure to record testimony which was relied upon by the hearing officer in a disciplinary determination required annulment.  Matter of Tolliver v Fischer, 514866, 3rd Dept, 4-18-13


New York Had Jurisdiction to Modify Pennsylvania Support Order

In finding that Family Court had jurisdiction to modify a Pennsylvania support order, the Second Department wrote:

           The Uniform Interstate Family Support Act (hereinafter UIFSA), codified in article 5-B of the Family Court Act, provides, in pertinent part, that a party seeking to modify and/or enforce a child support order issued in another state "shall register that order in this state" (Family Ct Act § 580-609). The parties agree that the support order governing the father's child support obligations, which was issued by the Court of Common Pleas of Montgomery County, Pennsylvania … (hereinafter the Pennsylvania support order) was registered in the Family Court, Suffolk County, pursuant to UIFSA …. The Family Court had jurisdiction to modify the Pennsylvania support order, upon registration thereof, since none of the parties resides in Pennsylvania, the petitioner mother does not reside in New York, and the respondent father, at all relevant times, was subject to personal jurisdiction in Suffolk County (see Family Ct Act § 580-611[a][1]).  Matter of Gowda v Reddy, 2013 NY Slip Op 02577, 2011-06440, 2nd Dept, 4-17-13

Child’s Out-Of-Court Statements Insufficient to Support Abuse Finding

In affirming Family Court’s determination that the child’s out-of-court statements were not sufficiently corroborated to support a finding of abuse by the father, the Second Department wrote:

           A child's out-of-court statements may provide the basis for a finding of abuse if the statements are sufficiently corroborated by other evidence tending to support the reliability of the child's statements (see Family Ct Act § 1046[a][vi];… . The Family Court has considerable discretion in deciding whether a child's out-of-court statements alleging incidents of abuse have been reliably corroborated …, and its findings must be accorded deference on appeal where, as here, the Family Court is primarily confronted with issues of credibility … .  Matter of Nicole G, 2013 NY Slip Op 02576, 2012-07263, 2012-07264, 2nd Dept, 4-17-13

Parent Who, Under a Shared Custody Schedule, Has Custody of the Child the Majority of the Time, Can Not Be Ordered to Pay Child Support to the Other Parent, Financial Issues Are Irrelevant

The motion court awarded child support from the father to the mother, who, by virtue of the motion court’s schedule, did not have custody of the child the majority of the time.  In a full-fledged opinion by Justice Richter, including a dissent, the First Department reversed the motion court, finding that the award of child support, in a shared custody arrangement, must be based solely on the amount of time the child spends with each parent, and not on their respective financial situations.  Therefore, the parent who has custody the majority of the time is deemed the “custodial parent “who cannot be ordered to pay child support to the “noncustodial” parent.  The First Department wrote:

           Under the CSSA's [Child Support Standards Act’s] plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1-b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, "the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation (emphasis added)" … . The mandatory nature of the statutory language undeniably shows that the Legislature intended for the noncustodial parent to be the payer of child support and the custodial parent to be the recipient. The CSSA provides for no other option and vests the court with no discretion to order payment in the other direction. * * *


           …[T]he father has 56% of time with the child compared to 44% for the mother — an almost 30% difference. Thus, the child spends significantly more time with the father, making the father the custodial parent for child support purposes… . * * *

           In finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties' financial circumstances rather than their custodial status. In doing so, the court endorsed an approach where the determination of the custodial parent is based not on whom the child spends the majority of the time with, but instead on which parent has the lesser monetary means. No matter how well-intentioned the court may have been, neither the CSSA, nor Bast v Rossoff [91 NY2d 723], allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal. Rubin v Della Salla, 2013 NY Slip OP 02681, 6669, 1st Dept 4-18-13


Denial of Receipt of Service Mandates a Hearing

In determining the affidavit of service of a complaint in a foreclosure action had been rebutted by the appellant’s sworn denial (requiring a hearing), the Second Department wrote:

           Where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence …. In order to warrant a hearing on the issue of service, a defendant must swear to detailed and specific facts to rebut the statements in the process server’s affidavit ….

           Here, the Supreme Court erred in determining the motion without first conducting a hearing, as the appellant demonstrated his entitlement to a hearing on the issue of service by his sworn denial, setting forth significant discrepancies between the age and weight of the person allegedly served and the appellant’s actual age and weight at the time of the purported service …. Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to the personal delivery provisions of CPLR 308(1) ….  Emigrant Mtge Co, inc v Westervelt, 2013 NY Slip Op 02536, 2012-08302, Index No 2031/09, 2nd Dept, 4-17-13


“Special Employee” Status Defined

Finding that the defendant company had not demonstrated as a matter of law that plaintiff was a “special employee” within the meaning of the Workers’ Compensation Law, the Second Department explained:

          The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) extends to special employers … . Thus, an injured person who elects to receive Workers' Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer …. "A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer" …. The determination of special employment status is usually a question of fact and may only be made as a "matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact" … . "Although no one [factor] is decisive,' the question of who controls and directs the manner, details and ultimate result of the employee's work' is a significant and weighty feature' of the analysis" …. The exclusivity provisions of the Workers' Compensation Law also extend to entities which are alter egos of the injured worker's employer ….  Abreu v Wel-Made Enters, Inc, 2013 NY Slip 02524, 2012-03166, Index No 36405/07, 2nd Dept 4-17-13

Question of Fact About Whether Driving to or from Work Constitutes an Act Within the Scope of Employment

Finding that issues of fact had been raised about whether the plaintiff was acting within the scope of his employment (thereby making Workers’ Compensation his only remedy), the First Department wrote:


           Defendant contends that workers' compensation benefits are plaintiff's exclusive remedy for the injuries he sustained when he was struck by the truck defendant was driving (see Workers' Compensation Law § 29[6]). However, issues of fact exist whether the parties were "acting within the scope of their employment, as coemployees, at the time of injury" … . * * * While, generally, traveling to and from work is not deemed to be within the scope of employment, as an employee approaches the site of his employment, "there develops a gray area where the risks of street travel merge with the risks attendant with employment" … . Then the test of compensability is whether there is a causal relationship between the employment and the accident and whether the employee "was exposed to a particular risk not shared by the public generally" … . Issues of fact exist whether defendant's accident was causally related to a risk attendant with his employment rather than one shared by the public generally. Ortiz v Lynch, 2013 NY Slip Op 02667, 9839, 302254/11, 1st Dept, 4-18-13

No “Special Employee” Relationship

In reinstating a jury verdict which determined a special employment relationship between plaintiff and defendant did not exist, the Second Department wrote:

           "Workers' Compensation Law §§ 11 and 29(6) provide that an employee who is entitled to receive compensation benefits may not sue his or her employer in an action at law for the injuries sustained" … . These exclusivity provisions also have been applied to shield from suit persons or entities other than the injured plaintiff's direct employer …. For purposes of the Workers' Compensation Law, a person may be deemed to have more than one employer, a general employer and a special employer … . The receipt of Workers' Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer … .


           In determining whether a special employment relationship exists, "who controls and directs the manner, details and ultimate result of the employee's work" is a "significant and weighty feature," but is not determinative of the issue … . Indeed, "[m]any factors are to be considered when deciding whether such a special employment relationship exists and not one factor is decisive" … . Other principal factors to be considered include "who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer's or the general employer's business" … . General employment will be presumed to continue unless there is a "clear demonstration of surrender of control by the general employer and assumption of control by the special employer" ….  Pena v Automatic Data Processing, Inc, 2013 NY Slip Op 02552, 2011-10265, Index No 7894/06, 2nd Dept 4-17-13

Claimant’s Failure to Give Timely Written Notice of Injury Excused

In finding claimant’s failure to give timely written notice of her injury to her employer was excused, the Third Department wrote:

           While claimant did not give timely written notice of her injury, her failure to do so may be excused "on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced" (…see Workers' Compensation Law § 18). Claimant testified that she verbally informed  the bus  dispatcher of the accident shortly after it occurred, and the employer's employee benefits supervisor confirmed that the dispatcher would be an appropriate individual to whom  to report an accident if claimant's  supervisor  was  unavailable. Claimant  also  testified that she orally notified her supervisor of the accident – perhaps the following day … .  Matter of Rankin v Half Hollow Hills Central School District, et al, 514956, 4-18-13


No “Civil Conspiracy” Tort in New York; However Conspiracy-Theory Can Link Participants to Underlying Substantive Tort

The plaintiff sued the defendant alleging the defendant conspired with plaintiff’s former husband to file a false report with the police, resulting in plaintiff’s arrest and criminal prosecution (civil conspiracy).  In determining the motion court should have granted defendant’s motion for summary judgment, the Second Department wrote:

            "Although an independent cause of action for civil conspiracy is not recognized in this State, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme" … . "The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives" … . Therefore, under New York law, "[i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement" …. "A bare conclusory allegation of conspiracy is usually held insufficient" … . Faulkner v City of Yonkers, 2013 NY Slip Op 02538, 2011-11173, Index No 20679/08, 2nd Dept 4-17-13


Forum Selection Clause Requiring All Enforcement Actions to be Brought in Surrogate’s Court Enforced

A forum-selection clause in a stipulation required any action necessary to enforce the terms of the stipulation be brought in Surrogate’s Court, Queens County.  When a proceeding to discharge a mortgage, which was related to the stipulation, was brought in Supreme Court, Queens County, the court dismissed the proceeding with leave to renew in Surrogate’s Court pursuant to the forum-selection clause. In affirming, the Second Department wrote:

           "Although once disfavored by the courts, it is now recognized that parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance of the contract" … . "A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court" … . Matter of Chiantella v Lucy Chiantella Revocable Trust of 2002, 2013 NY Slip Op 02575, 2012-01935, Index No 1853/11, 2nd Dept 4-17-13


Proof Requirements for “Breach of Employment Contract” a “Labor Law Article 6” Actions

In reversing the verdict for the defendant in a “breach of an employment contract” and “Labor Law article 6” action, the Second Department explained the proof requirements for both as follows:

           The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of the contract, and resulting damages …. "The elements of an effective employment contract consist of the identity of the parties, the terms of employment, which include the commencement date, the duration of the contract and the salary'" …. Moreover, where the duration of a contract exceeds one year, in order to satisfy the statute of frauds "a writing must identify the parties, describe the subject matter, state all the essential terms of an agreement, and be signed by the party to be charged" … .  * * *

           …”[T]he purpose of Labor Law article 6 is to strengthen and clarify the rights of employees to the payment of wages'" …. To recover under that article, "a plaintiff must first demonstrate that he or she is an employee entitled to its protections" … . Although an independent contractor is not considered an employee for the purposes of Labor Law § 190 …, "[t]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results" … .  Kausal v Educational Prods Info Exch Inst, 2013 NY Slip Op 02545, 2011-07924, Index No 5953/04, 2nd Dept, 4-17-13


“Special Relationship” Between Insured and Broker Allowed Insured to Rely on Broker’s Duty to Advise

The Second Department affirmed the motion court in finding that a question of fact had been raised about whether there was a “special relationship” between the insured and the insurance broker such that the insured could rely on the broker’s expertise and duty to advise:


           "While it is certainly better practice for an insured to read its policy, an insured should have the right to look to the expertise of its broker with respect to insurance matters'… . Additionally, where the insured relied on the expertise of the agent, or there was a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on, the agent could be found to have a duty to advise because of a special relationship with the insured … .  South Bay Cardiovascular Assoc, PC v SCS Agency, Inc, 2013 Slip Op 02564, 2012-01964, 2012-05203, Index No 37328/07, 2nd Dept 4-17-13

Injured Party, as Well as the Insured Defendant, Has a Duty to Inform Insured’s Carrier of Incident; Failure of Timely Notice by Both the Insured and the Injured Party Allowed Carrier to Disclaim

In this case the insurer [Tower] disclaimed coverage because it was not given notice of the claim.  The Second Department determined that both the insured [Xu] and the injured party [Gomez] had a duty to inform the carrier of the incident:


           The question before us is whether Tower may be required to afford coverage to its defaulting insured (Xu) for the benefit of the injured party (Gomez) pursuant to Insurance Law § 3420(a)(3). Gomez is not accountable, of course, for Xu's failure to provide notice to Tower during the period of nearly a year and a half  … . Still, even though "[i]n determining the reasonableness of an injured party's notice, the notice required is measured less rigidly than that required of the insureds" …, some level of diligence was required of Gomez, as the dissent reluctantly concedes, once his counsel, upon receipt of the certificate evidencing that coverage had been renewed five months after the incident, was put on notice of the likelihood (even if not a certainty) that Xu had been covered by a Tower policy at the time of the incident (see Kalthoff v Arrowood Indem. Co., 95 AD3d 1413, 1415 [3d Dept 2012] [where the insured has failed to comply with the notice conditions of the policy, "the injured party bears the burden of demonstrating that it made reasonable efforts to identify the insurer and provide it with prompt notice"] …). Tower Ins Co of NY v Rong Rong Sun, 2013 NY Slip Op 02645, 8777, 108391/10, 1st Dept, 4-18-13

Failure of Freezer to Properly Cool Baked Goods Was an “Occurrence” (I.e., “Accident”) within the Meaning of the Commercial General Liability Policy


Plaintiff manufactured a freezer used by a nonparty bakery.  According to the bakery, the freezer didn’t cool cakes to the proper temperature and the cakes were therefore ruined when cut, causing the bakery millions in damages.  The bakery sued plaintiff and plaintiff sought defense and indemnity from its insurer.  The insurer disclaimed coverage, arguing that the facts did not constitute a covered “occurrence” (i.e. “accident”) within the meaning of the policy.  In affirming the denial of the insurer’s motion to dismiss (there was a dissent), the First Department wrote:

           Courts have held that commercial general liability (CGL) policies do not insure against faulty workmanship in the work product itself … . However, such policies do insure against property damage caused by faulty workmanship to something other than the work product … . Plaintiff does not seek coverage simply for allegedly faulty workmanship that caused the defect in the freezer. Rather, it seeks defense and indemnity for property damage that [the bakery], a third party, alleged that it suffered because of a defect in the freezer. Indeed, in George A. Fuller Co. (200 AD2d 255), on which defendant places much reliance, the damage occurred to the property upon which the contractor performed the work - that is, to the work product itself. Plaintiff, by contrast, seeks coverage for the damage to the cakes, not to the freezer. This damage is precisely the kind that plaintiff's CGL policy contemplated, and therefore, the complaint properly alleges an "occurrence" within the meaning of the policy … . [the bakery’s]  loss of use of the facility specifically built to house the freezer is also covered under the policy, since "property damage" is defined to include "[l]oss of use of tangible property that is not physically injured."  I.J. White Corp v Columbia Cas Co, 2013 NY Slip Op 02500, 651505/11, 8420, 1st Dept 4-16-13



Claimant, Who Had Been Diagnosed With Job-Related Stress, Did Not Have Good Cause to Resign

After a doctor diagnosed claimant with job-related stress and authorized a month’s leave from work, claimant resigned from his job.  The Third Department affirmed the Unemployment Insurance Appeal Board’s finding claimant was not eligible for unemployment insurance on the ground he left his employment without good cause:


           It is well settled that general dissatisfaction with a job or the inability to get along with a supervisor does not constitute good cause for leaving one's employment … .   Here, claimant expressed extreme displeasure with his work environment as well as the demeanor of his supervisor, which undoubtedly contributed to the stress he was experiencing. While his physician provided him with a note setting forth medical reasons justifying a  leave of  absence,  claimant  did  not receive medical advice to quit his job … .   Moreover, although claimant  cited safety concerns  as another  reason  for his leaving, his supervisor testified that he  accepted  claimant's suggestions concerning  the  operation  of the  machinery  and  did  not  have  him engage in potentially dangerous work practices.  Matter of Bielak v Commissioner of Labor, 514536, 3rd Dept, 4-18-13


Reasons for Refusal of Temporary Job Not Sufficient; Claimant Disqualified

The Third Department upheld the disqualification of an unemployment-insurance claimant who refused a temporary job offer because the pay was lower than at his previous temporary job and a 20-mile commute was required:

           "A claimant who  refuses to accept a job for which  he  or she is reasonably suited by  training and  experience will be  disqualified from receiving unemployment  insurance benefits" ….   Here, the record confirms that claimant was  qualified for the job offered to him  and  the position paid the prevailing wage ….   As for claimant's rejection of the job offer due  to its location, "dissatisfaction with the length of one's commute does not constitute good cause for rejecting an otherwise  suitable  offer of  employment"  … Notably, claimant admitted receiving the unemployment  insurance handbook explaining his obligations regarding reasonable commuting  distances under these circumstances.  Matter of Neuman, 509590, 3rd Dept, 4-18-13


Inmate Should Not Have Been Required to Document His Native American Ancestry In Order to Practice His Religion

In annulling a determination by the Central Office Review Committee (CORC) that the petitioner (an inmate) must document his Native American ancestry before he will be allowed to practice his religion, the Third Department wrote:


           It has been recognized that correction officials may impose restrictions on the religious practices of inmates provided that such restrictions are reasonably related to legitimate penological interests … .Respondents candidly concede, and we agree, that CORC failed to articulate or otherwise identify any legitimate penological interest reasonably served by the documentation requirement. Consequently, we conclude that the determinations at issue are arbitrary, capricious and  without a rational basis… .  Matter of Santiago, 514317, 3rd Dept, 4-18-13


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