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April Page III

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


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Eviction Based Upon Firearm and Drugs Found in Petitioner's Apartment Affirmed Despite the Lack of Evidence Petitioner Was Aware the Items Were In the Apartment (Apparently They Were Brought Into the Apartment by Her Older Children) and Despite Petitioner's Unblemished Record as a Tenant


The First Department reversed Supreme Court and upheld the New York City Housing Authority's eviction of petitioner based upon the police finding marijuana, oxycodone and an operable firearm in petitioner's apartment.  Petitioner was not in the apartment at the time the items were found, and there was evidence the items were brought into the apartment by petitioner's older children.  There was no evidence petitioner was aware the items were in the apartment.  Supreme Court had determined eviction "shocked the conscience" because petitioner had lived in the apartment for 23 years and had an otherwise unblemished record.  The First Department reinstated the eviction order:


...[W]e review the sanction of termination in accordance with the standard set forth in Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County (34 NY2d 222 [1974]). There, the Court of Appeals defined a penalty that is unsustainable as "shocking to one's sense of fairness" as one which


"is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly [situated]" (34 NY2d at 234).


Applying this standard, we find that the facts here support petitioner's eviction. Eviction is undoubtedly a "grave" sanction. However, in permitting drugs and a lethal weapon to be present in her apartment, petitioner committed a serious breach of the code of conduct that is critical to any multiple dwelling community, and which warrants the ultimate penalty ... . Petitioner's neighbors have a right to live in a safe and drug-free environment, and petitioner significantly compromised their ability to do so, her alleged ignorance of the activities in her apartment notwithstanding ... . Matter of Grant v New York City Hous Auth, 2014 NY Slip Op 02535, 1st Dept 4-15-14





Participation in Arbitration Precluded Action to Stay Arbitration


The Second Department determined plaintiffs participated in arbitration initially and therefore could not bring a proceeding to stay arbitration:


Pursuant to CPLR article 75, "a party who has not participated in the arbitration and who has not made or been served with an application to compel arbitration, may apply to stay arbitration on the ground that a valid agreement was not made" (CPLR 7503[b]). Consequently, "a party seeking to avoid arbitration on the ground of no agreement to arbitrate can raise such objection only when it has not participated in the arbitration" ... .


Here, the record demonstrates that the plaintiffs "participated in the arbitration" (CPLR 7503[b]...). The plaintiffs could not actively engage in the arbitration proceedings and simultaneously retain their right to seek subsequent judicial intervention pursuant to CPLR 7503(b), as such "forum-hedging" is incompatible with the legislative policy underlying CPLR 7503(b) ... . Stone v Noble Constr Mgt Inc, 2014 NY Slip Op 02571, 2nd Dept 4-16-14





Extension for Service of Complaint After Statute of Limitations Had Run Properly Granted in Exercise of Discretion


The Second Department determined Supreme Court properly exercised its discretion to allow service of a complaint after the 120 period for service had passed and the statute of limitations had run:


When considering whether to grant an extension of time to effect service beyond the 120-day statutory period in the interest of justice, the court may consider the plaintiff's diligence, or lack thereof, along with other relevant factors, including the expiration of the statute of limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff's request for the extension of time, and any prejudice to the defendant ... . A determination of whether to grant the extension in the interest of justice is generally within the discretion of the motion court ... .


In the instant case, an attempt at proper service was made within the 120-day period, which was later adjudicated to be defective. Furthermore, the statute of limitations had expired by the time the appellant challenged service as defective in its motion to vacate the default judgment, the plaintiff promptly cross-moved for an extension of time to effect proper service, and there was no demonstrable prejudice to the appellant attributable to the delay in effecting proper service. Under the circumstances, granting an extension of time pursuant to CPLR 306-b to serve the appellant was a provident exercise of discretion ... .  Siragusa v D'Esposito, 2014 NY Slip Op 02570, 2nd Dept 4-16-14





Temporary Restraining Order Prohibiting Broadcast About a Murder of Which Plaintiff Was Convicted Constituted Impermissible Prior Restraint of Speech


The Third Department determined the temporary restraining order granted by Supreme Court, which prohibited the broadcast of a movie about a murder of which plaintiff was convicted, constituted an impermissible prior restraint of free speech:


"A 'prior restraint' on speech is 'a law, regulation or judicial order that suppresses speech . . . on the basis of the speech's content and in advance of its actual expression'" ... . It is well settled that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights" ... . As explained by the United States Supreme Court, "a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them . . . beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable" ... . Although the prohibition against prior restraint is not absolute, any restraint on speech comes with "a 'heavy presumption' against its constitutional validity" ... . Censorship in advance of publication will be constitutionally tolerated only upon "a showing on the record that such expression will immediately and irreparably create public injury" ... .


Plaintiff has failed to show such immediate and irreparable public harm. "Romeo Killer: The Christopher Porco Story" purports to depict the events leading up to and surrounding plaintiff's murder trial, a matter of significant public interest. Its broadcast would not create the type of imminent and irreversible injury to the public that would warrant the extraordinary remedy of prior restraint. Rather, any alleged harm or injury flowing from the content of the film would be limited to plaintiff alone. That portions of the movie may be fictionalized, dramatized or embellished does not constitute a sufficient basis for the imposition of a prior restraint enjoining its broadcast ... . While judicial redress following publication is available if it is ultimately proven that defendant abused its rights of speech, it was constitutionally impermissible under these circumstances to forbid that speech prior to its actual expression... . Porco v Lifetime Entertainment Servs LLC, 2014 NY Slip Op 02641, 3rd Dept 4-17-014





Complaint Stated Causes of Action for a Constructive Trust and Quantum Meruit


Plaintiff alleged the expenditure of resources for the development of a quarry on defendant's land. Defendant had changed the locks to the property and refused plaintiff further access. In determining that plaintiff had stated causes of action for a constructive trust and quantum meruit, the Third Department explained the relevant criteria:


Supreme Court correctly denied the motion to dismiss the cause of action seeking to impose a constructive trust on the business property. This equitable remedy may be imposed "when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" ... . To prove entitlement to this relief, a plaintiff must establish "a confidential or fiduciary relationship, a promise, a transfer in reliance thereon and unjust enrichment" ... . The element of transfer has been interpreted to include the expenditure of effort and resources in reliance upon a promise to share in a property interest ... .


Here, the complaint alleges that plaintiff had a confidential or fiduciary relationship with defendant, that defendant made promises that plaintiff and defendant had a partnership and that plaintiff had vested rights and interests in the quarry business and property, that plaintiff relied on these promises and the fiduciary relationship in contributing resources to develop the business, and that defendant breached these promises and would be unjustly enriched in the absence of a constructive trust. Deeming these allegations to be true, construing them liberally, and granting plaintiff the benefit of every favorable inference, as we must ..., we find that the amended complaint adequately states a cause of action for the imposition of a constructive trust... .


The cause of action in quantum meruit requires a showing of "a plaintiff's performance of services in good faith, acceptance of those services by a defendant, an expectation of compensation and proof of the reasonable value of the services provided" ... . The complaint alleges that plaintiff acted in good faith and in the expectation of compensation in making the previously-discussed contributions to the business, that defendant accepted its services and contributions, and that plaintiff has been damaged in the amount of the reasonable value of its contributions. Plaintiff further submitted the affidavit of its principal (see CPLR 3211 [a] [7]...) , alleging that plaintiff contributed more than $200,000 toward the business as well as all of the knowledge, labor, equipment and other resources necessary for its development, that a substantial amount of processed material that it had paid to create remained on the property when plaintiff was locked out in 2011, and that defendants have continued to benefit from plaintiff's contributions thereafter by selling materials from the business without compensating plaintiff accordingly. Thus, despite defendants' contention that plaintiff's services were performed primarily for its own benefit, we agree with Supreme Court that the complaint states a cause of action in quantum meruit ... . Rafferty Sand & Gravel LLC v Kalvaitis, 2014 NY Slip Op 02656, 3rd Dept 4-17-14





No Actionable Violations by Bank Re: Overdraft Charges/Overdraft Charges Are Not Interest


The First Department determined plaintiff had not stated causes of action against a bank based in part upon alleged violations of statements in a checking-account brochure issued by the bank.  The complaint challenged the method used by the bank to impose overdraft charges on plaintiff's checking account, alleging breach of contract, violations of General Business Law 349 and usury.  With respect to the General Business Law and usuary causes of action, the court wrote:


To state a claim under General Business Law § 349, "a plaintiff must allege that the defendant has engaged in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof" ... . A " deceptive act or practice'" is defined as "a representation or omission likely to mislead a reasonable consumer acting reasonably under the circumstances'" ... * * *  Plaintiff makes no claim that the applicability of his overdraft protection was not disclosed to him. * * *


The third cause of action, alleging usury, was properly dismissed because, as found by the motion court, overdraft charges are not interest. "If an instrument provides that the creditor will receive additional payment in the event of a contingency beyond the borrower's control, the contingent payment constitutes interest within the meaning of the usury statutes" ... . Even assuming a debtor-creditor relationship between the parties, the contingency of an account overdraft would have been within plaintiff's control ... . Feld v Apple Bank for Sav, 2014 NY Slip Op 02662, 1st Dept 4-17-14





Allegations of Wrongdoing Insufficient to Support Shareholders Derivative Action Pursuant to BCL 626 (c)


The Second Department determined plaintiffs failed to make allegations sufficient to support a shareholders derivative action pursuant to Business Corporation Law 626(c):


Pursuant to Business Corporation Law § 626(c), in order to assert a derivative cause of action, in their complaint, shareholders must "set forth with particularity [their] efforts . . . to secure the initiation of such action by the board or the reasons for not making such effort" ... . Here, because the plaintiffs conceded that they made no demand upon the board, they were required to plead facts demonstrating that a demand would have been futile.


"Demand is futile, and excused, when the directors are incapable of making an impartial decision as to whether to bring suit" ... . A plaintiff may satisfy this standard by alleging with particularity (1) "that a majority of the board of directors is interested in the challenged transaction," which may be based on self-interest in the transaction or a loss of independence because a director with no direct interest in the transaction is "controlled" by a self-interested director, (2) "that the board of directors did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances," or (3) "that the challenged transaction was so egregious on its face that it could not have been the product of sound business judgment of the directors" ... . However, "[t]o justify failure to make a demand, it is not sufficient to name a majority of the directors as defendants with conclusory allegations of wrongdoing or control by wrongdoers" ... .


Although the plaintiffs' proposed amended complaint alleges that the individual defendants had a personal interest in the challenged transactions, it fails to describe the challenged transactions or to explain how any but one of the corporation's four directors would have profited from them. These "conclusory allegations of wrongdoing or control by wrongdoers" are insufficient ... . Instead, to adequately plead self-interest, the complaint must set forth facts alleging that the directors "receive[d] a direct financial benefit from the transaction which is different from the benefit to shareholders generally" ... . The plaintiffs have failed to satisfy this standard. Similarly, the plaintiffs' allegations that the corporation's directors made "lavish and unnecessary expenditures" and paid themselves "unwarranted salaries" are insufficient because they fail to "allege compensation rates excessive on their face or other facts which call into question whether the compensation was fair to the corporation when approved, the good faith of the directors setting those rates, or that the decision to set the compensation could not have been a product of valid business judgment" ... . Because the proposed amended complaint fails to adequately describe the challenged transactions or allege in what manner they were inappropriate, it also fails to "allege[ ] with particularity that the board of directors did not fully inform themselves about the challenged transaction[s] to the extent reasonably appropriate under the circumstances" or that "the challenged transaction[s were] so egregious on [their] face that [they] could not have been the product of sound business judgment" ... . Accordingly, the plaintiffs' allegations, incorporating the proposed amendments, remained palpably insufficient, and the Supreme Court erred in determining that the plaintiffs had satisfied the standard for leave to amend a pleading ... . Walsh v Wwebnet inc, 2014 NY Slip Op 02575, 2nd Dept 4-16-14



Defense Counsel, Not Defendant, Has the Ultimate Authority to Determine Whether Defendant Should Testify Before the Grand Jury


The First Department (after noting that the record supported closing the courtroom for the undercover officer's testimony, even though the trial court did not discuss alternatives) determined the trial court properly found defense counsel had the ultimate authority to decide whether defendant should testify before the grand jury and therefore properly denied defendant's request to testify against the advice of his attorney:


Criminal Court ... properly determined that defense counsel had the ultimate authority to decide whether his client should testify before the grand jury, and properly denied defendant's request to testify against the advice of his attorney. Defendant's argument "incorrectly equates the right to testify before the grand jury with the right to testify at trial" ... . "[U]nlike certain fundamental decisions as to whether to testify at trial, which are reserved to the defendant . . . with respect to strategic and tactical decisions like testifying before the grand jury, defendants represented by counsel are deemed to repose decision-making authority in their lawyers" ... . The strategic decision to testify before the grand jury requires the "expert judgment of counsel" ..., because it involves weighing the possibility of a dismissal, which, in counsel's judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses. People v Brown, 2014 NY Slip Op 02683, 1st Dept 4-17-14




Evidence of a Prior Crime Not Admissible to Prove Intent and Not Admissible As Part of a Common Scheme or Plan/Conviction Reversed


The First Department, in a full-fledged opinion by Justice Acosta, over a dissent, determined the admission of evidence of an uncharged crime to demonstrate defendant's intent required reversal because (1) the proof was not ambiguous about defendant's intent, and (2) the prior crime was not so similar to the charged crime that it proved the existence of a common scheme or plan.  Defendant was charged with theft of a ring from a man named Cushman.  Extensive proof that defendant had previously stolen jewelry from another person was allowed:


Where intent is at issue but cannot be readily inferred from the commission of the act itself, evidence of prior criminal acts may be used to establish it ... . Where, however, proof of the act demonstrates that the defendant acted with the requisite state of mind, Molineux evidence should not be admitted ... . Here, proof of defendant's actions is sufficient to demonstrate that he acted with the requisite intent. Spraying someone in the face with mace, grabbing the person's ring and running can only indicate an intent to steal the ring. If the jury believed Cushman's testimony, then it would have to infer that defendant intended to steal the ring from him.   * * *


Nor was [the prior crime evidence] admissible under the common plan or scheme exception, which requires that "there exist[] a single inseparable plan encompassing both the charged and the uncharged crimes" ... . "There must be such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations'" .... Indeed, the Court of Appeals noted that "courts have been particularly cautious in permitting proof of uncharged criminal acts to establish a common scheme or plan" ... . Evidence that is merely indicative of a modus operandi is not sufficient. "[A] modus operandi alone is not a common scheme; it is only a repetitive pattern" ... . What is generally required is evidence of "uncharged crimes committed in order to effect the primary crime for which the accused has been indicted" ... . People v DeGerolamo, 2014 NY Slip Op 02698, 1st Dept 4-17-14




Proceedings Pursuant to CPL 440.10 Required to Determine Whether Defense Counsel Was Ineffective for Failing to Move to Reopen the Suppression Hearing When Trial Evidence Called Into Question the Arresting Officer's Credibility


The First Department, over a dissent, found that  the trial record was insufficient to determine whether defendant's counsel was ineffective for failing to ask to reopen a suppression hearing when the trial evidence called into question the arresting officer's credibility.  The conviction was affirmed without prejudice and the matter was sent back for further proceedings under a motion to vacate the conviction pursuant to CPL 440.10:


The issue of effective assistance of counsel is generally not reviewable on direct appeal, because it involves facts dehors the record, such as trial counsel's strategy ... . Accordingly, a defendant who seeks to bring an ineffective assistance of counsel claim usually must first expand the record by way of a CPL 440.10 motion before this Court can consider it ... . However, there are rare instances where the full record is sufficient to resolve the issue of counsel's effectiveness without a 440.10 motion ... . This is not one of those rare cases.  * * *


The extant record potentially supports a finding that counsel fundamentally misunderstood the necessity of making the motion to reopen the suppression hearing during trial, rather than waiting for a motion to set aside the verdict, in the event of a conviction. Defense counsel's remarks at sentencing, seemingly prompted by the court's denial of the motion to set aside the verdict, were a belated attempt to explain counsel's failure to move to reopen the hearing. Whether defense counsel was effective or not necessarily requires an evaluation of the credibility and logic of the proffered explanation, that defense counsel was afraid he would "lose that jury" and that he believed the witness "was on the ropes." Although defense counsel may have genuinely been hopeful that the jury would acquit his client, this explanation cannot be accepted at face value. After all, as the trial court's decision indicates, had defense counsel timely moved to reopen the suppression hearing, the application would have been granted, and the court could have quickly ruled upon it while giving the jury a short recess. The "witness" referred to was the arresting officer, and was available. On the other hand, there may have been legitimate concerns about the jury undeveloped on this record. In short, we cannot decide on the extant record whether defense counsel's failure to move to reopen the hearing was truly "strategic."  People v Medina-Gonzalez, 2014 NY Slip Op 02531, 1st Dept 4-156-14




Court Properly Allowed Defendant to Proceed Pro Se Three Weeks Into His Murder Trial


The Third Department affirmed defendant's conviction for murder, rejecting the claim that county court's informing all the jurors that defendant's prior conviction for the same offenses had been reversed, as well as the community's knowledge about the case due to publicity, deprived defendant of a fair trial.  In addition, the Third Department concluded that the trial judge did not err in allowing the defendant to proceed pro se three weeks into the trial.  With respect to the propriety of allowing the defendant to represent himself, the court explained:


Here, there is no question that defendant's mid-trial request to proceed pro se — made some three weeks after the trial commenced — was untimely ... . Faced, however, with defendant's repeated, articulate and impassioned pleas to represent himself, County Court elected — in an exercise of its discretion — to consider the merits of defendant's request. Although defendant now faults County Court's decision in this regard, we cannot say — under the particular facts of this case — that reversal upon this ground is warranted.


To be sure, the Court of Appeals has held that once a trial has commenced and witnesses have testified, a defendant's "right [to proceed pro se] is severely constricted and the trial court must exercise its sound discretion and grant the request only under compelling circumstances" ... . The rationale for this rule, however, stems from concerns regarding "the potential for obstruction and diversion" that may attend a defendant's decision — or be part of a defendant's strategy — to abandon representation in the midst of the trial, as well as a desire to "avert[] delay and confusion" ... . Such concerns were not an issue here, however, and it is clear that, under appropriate circumstances and following sufficient inquiry, mid-trial requests to proceed pro se may be granted ... . Based upon our review of the record as whole, and taking into consideration defendant's insistence that he be allowed to proceed pro se, we are satisfied that County Court did not abuse its discretion in considering the merits of defendant's request.


As to the sufficiency of County Court's inquiry, suffice it to say that County Court — repeatedly and in great detail — apprised defendant of the perils and pitfalls of proceeding pro se and went to great lengths to dissuade defendant from doing so. Specifically, County Court cautioned defendant that, while he may have been well versed with the facts of his case, "[t]he practice of law [was] not a simple process" and entailed education and experience that defendant did not possess. County Court went on to note the then-impending testimony of the People's handwriting and DNA experts and suggested that defendant consider the legal expertise that counsel could bring to examining those witnesses. Additionally, County Court advised defendant that, if he proceeded pro se, he would be held to the same standard as an attorney and would be responsible for the "day-to-day operation of the [trial]," which would include making appropriate objections and motions, cross-examining the People's witnesses, conducting his defense and preparing a summation. In this regard, County Court expressly warned defendant that his ability to introduce certain evidence or effectively argue any applicable motions likely would be hampered by his lack of legal training, and defendant was afforded ample opportunity to consider (and reconsider) his request and to discuss the matter with counsel.


To be sure, County Court's inquiry could have been more seamless, but the Court of Appeals has expressly rejected a strict, formulaic approach in this regard, requiring only that the record as a whole "affirmatively disclose that a trial court has delved into a defendant's age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver" ... . People v Dashnaw, 2014 NY Slip Op 02624, 3rd Dept 4-17-14




Displaying What Appeared to Be a Firearm to Someone Other than the Robbery Victim During Flight from the Robbery Scene Supported Second Degree Robbery Conviction


After noting that merely telling the cashier he had a gun was not enough to meet the criteria for displaying a firearm in the course of a robbery, the Third Department determined that defendant's "displaying" of what "appeared to be" a firearm to someone other than the victim of the robbery, as he was fleeing from the store he robbed, was sufficient to support his conviction for robbery in the second degree:


To prove the display element, "[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display" ... . While the object displayed need not in fact be a firearm ..., "it must appear to the victim by sight, touch or sound that he [or she] is threatened by a firearm" .... The display requirement "cannot be read so broadly as to include mere statements that a robber is armed with a gun" ... . While such statements can give meaning to a robber's otherwise ambiguous actions, such as "a hand consciously concealed in clothing" ..., "words alone will not constitute a display of what appears to be a firearm" ... .


Here, the cashier testified that defendant said the word "gun" when demanding that she turn over the money, but she did not testify to witnessing any action on his part that would constitute a display of a firearm, nor did she testify that she believed he possessed a firearm. Thus, her testimony is insufficient to establish that defendant displayed a firearm during the robbery. But the inquiry does not end there. Although several cases address the issue as whether the victim perceived the gun ..., the statute does not mention to whom the apparent weapon must be displayed (see Penal Law § 160.10 [2] [b]; ...). The language of the statute — namely, that the display can occur in the course of "immediate flight" from the robbery and not just during the commission thereof — implies that the display may be directed at an individual other than the victim of the robbery, with the implication that the apparent weapon must be displayed for the purpose of allowing the defendant to deter someone from attempting to either recover possession of the stolen property or impede the defendant's escape (Penal Law § 160.10 [2] [b]). People v Colon, 2014 NY Slip Op 02626, 3rd Dept 4-17-14




Defendant's Statement that He Was Thinking About Talking to an Attorney, Coupled With the Officer's Interpretation of that Statement as a Request for Counsel, Rendered Invalid Defendant's Subsequent Agreement to Speak with the Officer without an Attorney Present


The Third Department determined that stopping the defendant, asking him questions, patting him down, and searching a nearby vehicle (in which a loaded firearm was found) were supported by what the officer was told by persons who had just flagged down the officer.  The officer (Van Allen) was told the defendant had threatened one of the persons who flagged him down with a weapon and the defendant had been driving the van that was subjected to the warrantless search.  Subsequently, the defendant told the officer "I am thinking of talking to an attorney," after which the office stopped questioning him.  Later, when the defendant told the officer he wished to speak with him, and the officer asked if he was willing to answer questions without an attorney present, the defendant said "yes."  The Third Department determined, in part because the officer interpreted defendant's statement that he was thinking about talking to an attorney as a request for an attorney, the defendant's subsequent statement should have been suppressed:


Phrases such as "I think" or "maybe" do not necessarily establish that a request for counsel is uncertain or equivocal ... . The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney ... . Although this is an objective standard, the fact that an officer did, in fact, treat a defendant's request as an assertion of the right to counsel is properly taken into account in assessing what a reasonable police officer would have believed ... . Here, despite the allegedly sarcastic tone of defendant's initial statement, VanAllen indicated that he understood it as a request for counsel by promptly ceasing his inquiries. Further, when VanAllen later twice asked whether he had requested counsel, defendant confirmed without any equivocation that he had. Under these circumstances, a reasonable police officer would have understood that defendant had asserted his right to counsel ... . Accordingly, defendant's alleged waiver was ineffective, and his statements following the initial request should have been suppressed. People v Jemmott, 2014 NY Slip Op 02630, 3rd Dept 4-17-14





Aunt Met Her Burden of Establishing Extraordinary Circumstances Overcoming Mother's Superior Right to Custody of Children/Appellate Division Has Authority to Make Those Findings Where Family Court Failed to Do So


After noting that Family Court failed to address whether petitioner, a maternal aunt, had established extraordinary circumstances overcoming the mother's superior right to custody, the Third Department exercised its power to make the finding that petitioner had met her burden:


Notwithstanding Family Court's failure to make the threshold determination regarding extraordinary circumstances, we may independently review the record to make such a determination where, as here, the record has been adequately developed ... . Based upon that review, we conclude that petitioner met her burden of establishing extraordinary circumstances. Petitioner testified that the older child had lived with her for approximately four years. The younger child had lived with petitioner for about one year, returned to the mother's home and then resumed living with petitioner. According to petitioner, and as partially corroborated by the mother, the mother's health issues significantly limited her ability to care for the children. The evidence at trial established that the mother, who has substantial pulmonary issues and requires the aid of oxygen, excessively and inappropriately depended upon the children to assist her with personal and health needs, as well as housekeeping duties. The mother even required the younger child to sleep near her because she was afraid she would stop breathing while sleeping. Additionally, the mother's health issues hindered her ability to supervise the younger child, who had behavior issues and was getting into trouble at school while she was living with the mother. During various hospitalizations, the mother left the younger child with neighbors and/or relatives, some of whom were of questionable reliability.


It is abundantly clear that the mother was unable to both provide the younger child with a structured environment and to properly care for her; instead, the mother relied upon the child to take care of her. Further, when the younger child was residing with petitioner, the mother consistently pressured her to return to her home — claiming, among other thing, that she needed her home because she was dying — which was upsetting to the child. Multiple witnesses also testified to the unsanitary living conditions in the mother's trailer, including several occasions when it was flea infested. When the younger child came to live with petitioner, her clothing was ill-fitting and she had significant untreated dental issues. Finally, inasmuch as the older child had been living with petitioner for many years, placing the younger child in petitioner's care allowed the siblings to reside together. Matter of Roth v Messina, 2014 NY Slip Op 02637, 3rd Dept 4-17-14





Application for "Special Immigrant Juvenile" Status Need Only Assert Reunification with One Parent Is Not Possible


The Second Department reiterated  that an application for "special immigrant juvenile" status need only be supported by the allegation that reunification with one parent is not possible:


Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110—457, 122 US Stat 5044) and 8 CFR 204.11, a "special immigrant juvenile" is a resident alien who is, inter alia, under 21 years of age, unmarried, and "declared dependent on a juvenile court located in the United States or whom such [*2]a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States" (8 USC § 1101[a][27][J][i]). For a juvenile to qualify for SIJS status, it must also be determined that reunification with "1 or both" of the juvenile's parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (id.), and that it would not be in the juvenile's best interest to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]). As previously determined by this Court, the "1 or both" language requires only a finding that reunification is not viable with one parent ... .  Matter of Gabriel HM..., 2014 NY Slip Op 02587, 2nd Dept 4-16-14



Age Discrimination and Retaliation Claims Survived Summary Judgment


The First Department, over a dissent, determined plaintiff had raised questions of fact about both her age-discrimination and her retaliation claims.  The findings were entirely fact-based and centered on evidence the non-discriminatory motives asserted were pretextual.  A sample follows:


Defendants failed to demonstrate that they did not discriminate against plaintiff on the basis of her age ... . Plaintiff, who was 49 when she was hired by defendant Concentric Health Care LLC, was among the oldest of Concentric's approximately 70 employees, was qualified for her position of billing manager, and was subjected to a disadvantageous employment action, i.e. termination. Defendant Ken Begasse, Jr. (Junior), a principal of Concentric, testified, in effect, that Concentric, an advertising agency serving the pharmaceutical industry, preferred to hire younger workers because they tended to be cheaper and advertising is generally a "young industry."


Defendants contend that they terminated plaintiff because they were in financial trouble and their independent consultant recommended terminating plaintiff and replacing her with an employee whose annual salary would be $40,000 less than hers. However, the independent consultant made this recommendation, and others, in February 2009, and, although defendants terminated a number of people based on these recommendations, they did not terminate plaintiff until November 2009, some nine months later. Moreover, Junior and defendant Michael Sanzen, another of Concentric's principals, testified that, in the months after the consultant made his report, new employees were hired and at least one existing employee was given a $20,000 raise. Thus, issues of fact exist as to whether defendants' proffered explanation of financial distress is pretextual ... .


Issues of fact also exist as to whether defendants' proffered explanation of poor performance is pretextual. The only documentary evidence of poor performance is a negative review that plaintiff received in September 2009, and there is evidence that, by this time, defendants had already decided to terminate her. Indeed, the review prepared by plaintiff's immediate superior, Concentric's comptroller, was only mildly critical of plaintiff; defendant Ken Begasse, Sr. (another of Concentric's principals) intervened and added extensive negative comments. In an earlier employee review (December 2007), plaintiff had been lauded as "an outstanding professional with vast experience and very high standards," who "keeps the company's interest foremost in her mind," and "always seems to get the work done and done properly."  McGuinness v Concentric Health Care LLC, 2014 NY Slip Op 02534, 1st Dept 4-15-14





Dissolved Corporation Amenable to Suit Under New Jersey Law/Substitute Service Upon Insurer of Dissolved Corporation Proper 


In an asbestos case, the First Department determined that, under New Jersey law, a dissolved corporation (Jenkins Bros.) was still amenable to suit for pre-dissolution actions, and service of process upon the insurer was appropriate where service on the dissolved corporation was not possible:


In this action for personal injuries allegedly due to asbestos exposure while plaintiffs were employed by Jenkins Bros., a dissolved New Jersey corporation, appellant insurance company, Jenkins' liability insurer during the relevant time periods, maintains that Jenkins is not amenable to suit based on its bankruptcy and subsequent dissolution. The plain language of the New Jersey dissolution statute, which governs here, provides for a corporation that has been dissolved to "sue and be sued in its corporation name . . . " (NJSA § 14A:12-9[2]), and the statute places no restriction on how long a dissolved corporation maintains its capacity to be sued for its tortious conduct committed pre-dissolution ... . Thus, contrary to appellant's argument, Jenkins Bros. is amenable to suit pursuant to the laws of the state of its incorporation ... .


The motion court properly directed that substituted service be made on appellant. It is undisputed that service was attempted at multiple corporate addresses, to no avail, and that plaintiffs were only able to locate two former corporate representatives. Accordingly, substituted service on the insurer is proper and does not violate due process .... Appellant accepted premiums from Jenkins and agreed to defend and indemnify Jenkins for tortious conduct committed during the coverage periods. This coverage includes liability for conduct that may have led to injuries such as asbestos disease which carries a long latency period between exposure and manifestation of disease ... . Matter of New York City Asbestos Litig, 2014 NY Slip Op 02686, 1st Dept 4-17-14





No Duty to Defend Where Causes of Action Are Excluded from Coverage Under the Terms of the Policy


The Third Department determined that the terms of two insurance policies prohibited plaintiff's suit for a declaration the insurance companies had a duty to defend and indemnify plaintiff.  The causes of action brought against plaintiff (tortious interference with contract, unfair and deceptive trade practices and misappropriation of trade secrets) did not constitute a violation of "a person's right to privacy" within the meaning of the policies. And the causes of action explicitly excluded from coverage, therefore the insurance companies were not obligated to provide a defense:


...[P]laintiff's actions —--tortious interference with contract and business relations, unfair and deceptive trade practices and misappropriation of trade secrets --do not constitute a violation of "a person's right of privacy" within the meaning of either Twin City's or CastlePoint's policy.


...[I]it is well settled that "[a]n insurer need not provide a defense . . . when it demonstrates that the complaint's allegations cast that pleading solely and entirely within the policy exclusions, and further, that . . . the allegations, in toto, are subject to no other interpretation" ... . Here, Twin City relies upon three exclusions relative to the personal and advertising injury coverage otherwise afforded by its policy — the intentional conduct exclusion, the breach of contract exclusion and the trademark exclusion [FN4]. In the context of an insurance policy, "the phrase 'arising out of' is ordinarily understood to mean originating from, incident to, or having connection with . . . [and] requires only that there be some causal relationship between the injury and the risk for which coverage is provided or excluded" ... . Without belaboring the point, suffice it to say that our review of the underlying complaint leads us to conclude that all of the allegations contained therein with respect to plaintiff fall within at least one of the cited exclusions. Accordingly, coverage was properly denied for this reason as well. Sportsfield Specialties Inc v Twin City Fire Ins Co, 2014 NY Slip Op 02646, 3rd Dept 4-17-14





Homeowner's Exemption Applied/Fact that Three Unrelated Families Lived in the Home Did Not Negate the Finding that the Home Was a Single Family Dwelling


The First Department determined defendants were entitled to dismissal of the complaint on the basis of the homeowner's exemption to liability under Labor Law 241(6).  The fact that three unrelated families lived in the home did not negate the finding that the home was a single-family dwelling:


Under the homeowner exemption, "owners of one and two-family dwellings who contract for but do not direct or control the work" are exempt from liability under Labor Law § 241(6). Here, defendants established that the premises was a single-family dwelling by submitting affidavits stating that they purchased the premises solely as a second residence for use by family and guests, that they had never used any of the portion of the premises for a commercial purpose, and that the barn in which plaintiff was injured was being converted into a recreational room for personal use ... . Moreover, the affidavits of plaintiff's employer and supervisor stating that they supervised plaintiff's work and provided plaintiff with the tools for his work, including the saw that caused his injuries, along with defendants' affidavits stating that they were not on site during the construction work, show that defendants did not direct, supervise, or control plaintiff's work... . ...


To the extent plaintiff's affidavit states that three different unrelated families, including defendants' family, the household staff, and the groundskeeper, lived at the premises, such is insufficient to negate a finding of a single-family dwelling. Under the circumstances presented, defendants and their staff were "living together and maintaining a common household" ... . Furthermore, the certificate of occupancy lists all of the buildings under one address, and the alteration work on all of the buildings was covered by one building permit, also listing one address ... .  Patino v Drexler, 2014 NY Slip Op 02537, 1st Dept 4-15-14





Application for Undue Hardship Exception to Medicaid Ineligibility Should Have Been Granted


The Second Department determined the Department of Health (DOH) should have granted a nursing home's (Tarrytown Hall's) application for an undue hardship exception to Medicaid Ineligibility:


An individual will not be ineligible for Medicaid as a result of a transfer of assets if it is determined that the denial of eligibility will result in an undue hardship. An undue hardship occurs where the institutionalized individual is otherwise eligible for Medicaid, is unable to obtain appropriate medical care without the provision of Medicaid, and is unable to have the transferred assets returned (see 18 NYCRR 360-4.4).Here, the DOH's determination that Tarrytown Hall failed to demonstrate undue hardship is not supported by substantial evidence. To the contrary, Tarrytown Hall established that the decedent was otherwise eligible for Medicaid, and further established that she was unable to obtain appropriate medical care without the provision of Medicaid by offering proof that the decedent was insolvent and unable to recover transferred assets, and that no nursing facility which could provide her with the necessary level of care would accept her. By offering this proof, Tarrytown Hall met the statutory and regulatory requirements for the undue hardship exception. Matter of Tarrytown Hall Care Ctr v McGuire, 2014 NY Slip Op 02600, 2nd Dept 4-16-14





No Private Right of Action for Homeowners Against Lenders Under the Home Affordable Modification Program (HAMP)---Home Affordable Modification Program Was Not Enacted Solely for the Benefit of Homeowners(?)


The Second Department, after finding that the doctrine of judicial estoppel did not apply because there was no final determination adopting the plaintiff's contrary position in the first litigation, determined the federal Home Affordable Modification Program (HAMP), enacted pursuant to the Emergency Economic Stabilization Act of 2008 (EESA), did not create a private right of action against a lender or loan servicer.  The lender had denied plaintiff's application for a permanent HAMP loan modification and plaintiff's brought suit alleging breach of contract (re: a trial period plan or TPP), fraud in the inducement, promissory estoppel and a violation of General Business Law 349:


When, as here, a statute does not provide an express private right of action, the courts will imply a private right of action only upon examination of the following three factors: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme" ... .


As to the first factor, the Emergency Economic Stabilization Act of 2008 (12 USC §§ 5201-5261; hereinafter the EESA), which authorized the United States Department of the Treasury to promulgate the HAMP, was enacted "to immediately provide authority and facilities that the Secretary of the Treasury can use to restore liquidity and stability to the financial system of the United States" (12 USC § 5201[1]) and "to ensure that such authority and such facilities are used in a manner that (A) protects home values, college funds, retirement accounts, and life savings; (B) preserves homeownership and promotes jobs and economic growth; (C) maximizes overall returns to the taxpayers of the United States; and (D) provides public accountability for the exercise of such authority" (12 USC § 5201[2]). Similarly, Section 201(a)(2)(A)(i) of the Helping Families Save Their Homes Act of 2009 (111 P.L. 22, § 201[a][2][A][i], 123 Stat 1632, 1638) simply articulated a Congressional finding that, in order to reduce the number of foreclosures and stabilize real property values, mortgage lenders should be given authorization to modify mortgage loans consistent with applicable guidelines promulgated by the United States Department of the Treasury pursuant to EESA. Thus, although financially struggling homeowners may derive a benefit from the HAMP, that program was not promulgated solely for their particular benefit ... . As to the second factor, the underlying purpose of the HAMP is to incentivize mortgage loan servicers to reduce monthly mortgage payments and, thus, prevent avoidable home foreclosures ... . Accordingly, a private right of action against a lender or loan servicer arising from an alleged breach of a TPP agreement is inconsistent with the purpose of HAMP, as judicial recognition of such a private right of action would deter lenders and loan servicers from participating in the HAMP ... . As to the third factor, the EESA expressly provides for civil actions by the Secretary of the Treasury (see 12 USC § 5229[a][1]) and for actions seeking equitable relief against the Secretary of the Treasury (see 12 USC § 5229[a][2], [3]), but makes no reference to private rights of action by borrowers against mortgage lenders or loan servicers. Moreover, given that, as noted above, private rights of action could conceivably deter lenders and loan servicers from participating in the HAMP, which would, in turn, undermine the HAMP's purpose, allowing for a private right of action would be inconsistent with the legislative scheme of EESA. Since the plaintiffs' claims here are intertwined with the defendants' alleged obligations under the HAMP, and as no private right of action exists under the HAMP, the Supreme Court should have granted the defendants' motion to dismiss the amended complaint on the ground that it failed to state a cause of action... . [emphasis added]  Davis v Citibank NA, 2014 NY Slip Op 02557, 2nd Dept 4-16-14





Proof that a Floor is Inherently Slippery, Standing Alone, Will Not Support a Negligence Cause of Action


The First Department determined summary judgment dismissing the slip and fall complaint was properly granted.  Plaintiff, who suffered from dementia, did not remember the fall and proof the floor was inherently slippery, without more, was insufficient to support the action:


The duty of an owner of property to maintain his or her premises so that they are reasonably safe ...extends to any hazardous condition about which the owner has actual or constructive notice. Except where the landowner created the defective condition, thereby affording actual notice ..., it is incumbent upon the injured party to establish that the condition was either known to the owner or had existed for a sufficient period of time to have allowed the owner to discover and correct it


Here, plaintiff is alleged to have fallen as a result of a slippery floor. Plaintiff was unable to supply any information about the circumstances of the accident. Plaintiff failed to explain how she took two or three steps from a chair in the procedure room and slipped and fell down the basement stairs that were located in the back of the adjacent waiting room. As pointed out by defendant, "Plaintiff would have had to slipped [sic] all the way across the length of the office (waiting room) and made a 180 degree turn before reaching the top of the stairs." Moreover, [plaintiff's daughter] conceded that she did not know what caused her mother to fall and had not noticed that the floor was slippery. Finally, there is no evidence of any prior injury or complaint about the floor to support the conclusion that [defendant] should have known about the allegedly hazardous condition ... . Proof that a floor is "inherently slippery," standing alone, is insufficient to support a cause of action for negligence..., and the complaint was properly dismissed. Caicedo v Sanchez, 2014 NY Slip Op 02663, 1st Dept 4-17-14




1/2 Inch Variation in Stair-Step Height (In Violation of Fire Safety Code) Established Negligence


The First Department determined plaintiff had established a case of negligence based upon a 1/2 inch height differential among stair steps where plaintiff fell:


Plaintiff's expert supported her opinion that the stairway was defective "by nonconclusory reference to specific, currently applicable safety standards or practices" ... . Section 5- of the National Fire Protection Association Life Safety Code [1994] requires that there can be no variation exceeding three sixteenths of an inch "in the depth of adjacent treads or in the height of adjacent risers and the tolerance between the largest and smallest tread cannot exceed ⅜." Plaintiff's expert identified the Life Safety Code Handbook as a published authoritative and nationally recognized accepted industry standard for safe staircase construction and maintenance in the field of architecture. When asked if plaintiff's expert was correct in that regard, defendant's expert replied "yes." ...  The trial court's finding that the 1994 Life Safety Code is applicable because the stairs were renovated in 1996, when defendant constructed a new tile floor directly on top of an existing floor on the second floor landing, which created the height differential in the location where plaintiff lost her balance, is supported by a fair interpretation of the evidence. ... Thus, plaintiff's expert testimony that the one half inch differential caused plaintiff's fall established a case of negligence against defendant. Rondin v Victoria's Secret Stores LLC, 2014 NY Slip Op 02664, 4-17-15




Where Defendant Abutting Property Owner Has Cleared a Snow-Free Path on the Abutting Sidewalk There Will Be No Liability for a Fall in "Non-Cleared" Area


The First Department determined the clearance of a snow-free path on a sidewalk by the defendant abutting property owner created a reasonably safe condition and defendant could not be held liable for plaintiff's fall in a non-cleared area:


A property owner ... has a duty to keep a sidewalk abutting its property sufficiently clear of snow and ice so that the sidewalk is maintained in a "reasonably safe condition" (see Administrative Code of City of NY § 7-210). The property owner will have discharged its duty if a snow-free path is cleared between the street and the sidewalk within a reasonable walking distance of the property, since it is not reasonably foreseeable that a person would attempt to climb over a significantly obstructive curbside mound of snow rather than walk to a nearby unobstructed path ... . Since plaintiff's accident resulted, by his own account, from his unforeseeable decision to climb over the knee-high heap of snow, it is of no moment whether he lost his footing before or after he planted his foot on the sidewalk. McKenzie v City of New York, 2014 NY Slip Op 02533, 1st Dept 4-15-14




Expert Opinion About Link Between Trauma and a Stroke Erroneously Precluded/Frye Hearing Erroneously Ordered/The Opinion Evidence Was Not Controversial and Was Sufficiently Supported by the Relevant Literature to Obviate the Need for a Frye Hearing


The First Department, in a full-fledged opinion by Justice Saxe, with a concurring and a dissenting opinion, found that the trial court erred in precluding plaintiff's experts from testifying about a causal link between an automobile accident and a subsequent embolic stroke.  The First Department further concluded that the opinion testimony about the causal link was supported by enough relevant literature to obviate the need for the Frye hearing which was (erroneously) ordered by the trial court.  The First Department went on to criticize the defense's submission of motions in limine on the eve of trial, which, when erroneously granted, led to the plaintiff's inability to make a prima facie case.  With respect to the criteria for a Frye hearing, the court wrote:


We reject the trial court's determination that a Frye hearing was necessary. In the first place, defendants' moving papers failed to justify the need for a Frye hearing at all. The affidavit by defendants' expert in support of the motion merely asserted that the expert had "conducted a search of the relevant medical literature" and had found no support for plaintiff's theory that the trauma from a motor vehicle collision caused the embolic stroke. Notably, defendants' expert did not even point to literature or studies disproving such a link. Therefore, when, in response, plaintiff's expert provided proof that literature supporting the theory existed and had been published in reputable professional journals and cited or discussed in others, the basis for defendants' claim was negated; no factual issue was presented. At that point, it was up to the jury to decide whether to accept the assertion that the physical impact experienced by plaintiff in this accident was a competent producing cause of the embolic stroke.


Contrary to the dissent's assertion, the opinion of plaintiff's expert that the impact of the collision was a competent producing cause of the dislodgement of a clot, resulting in his stroke, is not the type of novel theory of causation that necessitates a Frye hearing; it was merely an opinion explaining the physiological process that caused the stroke plaintiff suffered.


Even assuming that the assertion by defendants' expert warranted an evidentiary hearing to assess the reliability of plaintiff's expert's causation claims, the evidence presented at the Frye hearing sufficiently established the reliability of those claims.


Frye hearings are used "to determine whether the experts' deductions are based on principles that are sufficiently established to have gained general acceptance as reliable" ... . The test is particularly useful for newly minted or experimental processes or newly posited psychological theories, in order to weed out baseless and unreliable theories; a Frye hearing "should be held only if the basis for the expert's conclusion is novel" ... . "[W]here the proposed expert testimony concerns a claim that the plaintiff's injury was caused by the actions taken by the defendants, the whole concept of the Frye analysis is of limited applicability" ....


As the Second Department observed in Zito v Zabarsky (28 AD3d 42, 44...), "general acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions." There is no need here for the consensus the dissent claims is necessary. Sadek v Wesley, 2014 NY Slip Op 02551, 1st Dept 4-15-14




Obstruction of View of Stop Sign by Vegetation Not Actionable Against the Town Without Allegation Town Had Prior Written Notice of the Obstruction


The Second Department determined Supreme Court should have dismissed the cause of action against the Town of Oyster Bay which alleged vegetation had been allowed to obstruct a stop sign (leading to a collision).  The prior written notice requirement applied and the plaintiffs did not allege the Town had prior written notice of the obstruction:


The Town correctly argues that any claim that vegetation obstructed a driver's view of the intersection and of traffic on the intersecting roadways is subject to its prior written notice statute ... . Since the plaintiffs did not allege that the Town had received prior written notice of any obstructed sight lines in and around the subject intersection, the Supreme Court should have granted that branch of the Town's motion which was to dismiss that claim ... . Dutka v Odierno, 2014 NY Slip Op 02558, 2nd Dept 4-16-14



Defect Properly Found Trivial As a Matter of Law


The Second Department determined Supreme Court properly determined a defect in a metal sidewalk door was trivial as a matter of law.  The court explained the applicable principles:


"[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the jury" ... . However, a property owner (and tenants) may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip ... . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury" ... . There is no " minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" ... . Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable ... . Nunez v Morwood Dry Cleaners, 2014 NY Slip Op 02564, 2nd Dept 4-16-14




Res Ipsa Loquitur Doctrine Raised Question of Fact About Whether Anesthesiologist, Who Was Alone With the Unconscious Decedent at the Time of Death, Was Negligent


The Third Department noted that the doctrine of res ipsa loquitur raised a question of fact about whether an anesthesiologist (Waid) was negligent:


...[P]laintiff submitted a detailed expert affidavit ... . The expert opined that Waid, through overinflation or improper insertion of the endotracheal tube, caused the hemorrhage that immediately led to decedent's death. Although the exact source of bleeding was never identified, the expert explained possible ways that Waid may have caused the hemorrhage and stated that such bleeding does not ordinarily occur in the absence of negligence, Waid had exclusive control over decedent's body and the medical instrumentalities at the time, and decedent was unconscious so he could not have contributed to the situation. Therefore, questions of fact exist and plaintiff may rely on the doctrine of res ipsa loquitur to attempt to establish Waid's negligence... .  Cole v Champlain Val Physicians' Hosp Med Ctr, 2014 NY Slip Op 02654, 3rd Dept 4-17-14




Brazilian Citizens Had Alternative Legal Remedies and Therefore Could Not Use a Writ of Prohibition to Stop a New York Prosecution/The Fact that the Petitioners Would Have to Come to New York to Employ the Alternative Remedies During the Course of a Criminal Prosecution Did Not Render those Remedies Inadequate



The First Department determined a writ of prohibition could not be employed by Brazilian citizens to stop a prosecution by the district attorney.  Petitioners had other legal remedies including pretrial motions and appeal if convicted.  The fact that petitioners would have to defend the prosecution in New York to use the alternative remedies did not render those remedies inadequate:


In this action for a writ of prohibition directing the DA to stay the prosecution of petitioners, Brazilian citizens (the former mayor of S o Paolo and his son) who have been indicted in New York for crimes relating to the theft of more than $11 million in Brazilian public funds that were allegedly transferred to petitioners' account in a bank located in New York, the petition was properly denied. The extraordinary remedy of prohibition is not available to petitioners, who assert that the underlying criminal action violates their statutory and constitutional rights to a speedy trial and their right to due process, or, in the alternative, that the indictment should be dismissed either in furtherance of justice pursuant to CPL 210.40(1) or under principles of international comity. These claims allege errors of law for which petitioners have adequate alternative remedies, including filing pretrial motions in the underlying criminal action and challenging any conviction on appeal ... . That petitioners would have to voluntarily leave their home country to appear for arraignment since Brazil will not extradite its own citizens before availing themselves of such remedies does not render them inadequate ... . Matter of Naluf v Vance, 2014 NY Slip Op 02546, 1st Dept 4-15-14





Health Service Provider's Action to Recoup Overpayment of a Surcharge Subject to Six-Year Statute of Limitations


The Second Department determined a statutory provision making payment of a surcharge re: certain hospital services subject to an audit within six years imposed a six-year statute of limitations upon any attempt to recoup overpayment of the surcharge:


The statutory text of Public Health Law § 2807-j(8-a)(a) provides that "[p]ayments and reports . . . shall be subject to audit by the commissioner for a period of six years following the close of the calendar year in which such payments and reports are due, after which such payments shall be deemed final and not subject to further adjustment or reconciliation." Giving effect to the plain meaning of the text, that section of the statute provides that all payments are deemed final and not subject to further adjustment or reconciliation after the period of six years following the close of the calendar year in which they are due. Thus, the clear language of that section establishes that the determination of the DOH to apply a six-year limitations period to a provider's administrative application for a refund of an overpayment was not arbitrary and capricious or irrational. Contrary to the Supreme Court's reasoning, the absence of any reference in Public Health Law § 2807-j(8)(c) to a limitations period specifically applicable to administrative requests for a refund of overpayments does not compel the conclusion that the six-year limitations period contained in Public Health Law § 2807-j(8-a)(a) is inapplicable to such requests.  Matter of New York Med & Diagnostic Ctr Inc v Shah, 2014 NY Slip Op 02592, 2nd Dept 4-16-14





Quantum Meruit and Unjust Enrichment Causes of Action Should Not Have Been Dismissed


The First Department reversed Supreme Court and found plaintiff had sufficiently pled the causes of action for quantum meruit and unjust enrichment.  Plaintiff lived with and took care of an elderly woman for six years, an obligation undertaken by the defendant.  Although plaintiff was given room and board, as well as health insurance, by the defendant, she was never paid for her work.  The suit was based upon plaintiff's allegation that defendant had promised to compensate her. The Supreme Court found the "compensation-promise" allegation incredible because plaintiff worked for six years without pay. The First Department noted that whether the "compensation-promise" allegation was credible was solely a matter for the jury.  The court explained the elements of quantum meruit and unjust enrichment:


Generally, under the doctrine of quantum meruit, "the performance and acceptance of services gives rise to the inference of an implied contract to pay for the reasonable value of such services" ... . To state a cause of action for quantum meruit, plaintiff must allege "(l) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services" ... .


Allegations that plaintiff provided personal services in good faith ... on behalf of defendant ... are sufficient. Similarly, plaintiff has sufficiently alleged the element of acceptance via allegations that defendant, inter alia, placed her on ... group insurance, filed tax returns on her behalf, and submitted visa applications in which she represented that plaintiff was an employee ... . * * *


Similarly, plaintiff has sufficiently alleged, at this juncture, that defendant ... was unjustly enriched at her expense. To state a cause of action for unjust enrichment, a plaintiff must demonstrate "that (1) defendant was enriched, (2) at plaintiff's expense, and (3) that it is against equity and good conscience to permit [] defendant to retain what is sought to be recovered" ... . A person may be unjustly enriched not only where she receives money or property, but also where she otherwise receives a benefit ... . Such a benefit may be conferred where the person's debt is satisfied or where she is otherwise saved expense or loss ... .


* * * The fact that plaintiff may have been compensated, in part, by room and board and health insurance, is not dispositive on the question of whether she received adequate compensation for her services, and does not bar the claim at the pleading stage ... . Farina v Bastianich, 2014 NY Slip Op 02661, 1st Dept 4-17-14





County Could Not Avoid or Delay Payment of Property Tax Refund on Financial Hardship Grounds


The Second Department determined the county did not make a sufficient showing of "fiscal chaos" to allow it to avoid immediate payment of a refund the  overpayment of property taxes:


Contrary to the appellants' contention, the decisions of the Court of Appeals ... do not stand for the proposition that a court may decline to issue an award of damages or refunds against a municipality whenever such award will result in financial hardship ... . "Instead, these cases stand for the more limited proposition that, where a municipality has reasonably relied upon a widespread and longstanding practice (as in Matter of Hellerstein) or a statute is later invalidated (as in Foss), and where applying the invalidation retroactively would call into question a settled assessment roll or property rights based thereon,' a court may exercise its discretion by giving its holding only prospective application" ... . No such situation is present in the instant case. Accordingly, under the circumstances presented here, the Supreme Court properly rejected the appellants' "fiscal chaos" defense, and granted the petitioner's motion to compel the appellants to satisfy obligations that they incurred in connection with the stipulation of settlement and, thus, to calculate and pay the refund owed to it. Matter of Long Is Automotive Group Inc v Board of Assessors of Nassau County, 2014 Slip Op 02586, 2nd Dept 4-16-14





Explicit Terms of the Controlling Statute Required that Petitioner Be a Party to a Written Agreement In Order to Be Eligible for an Empire Zone Tax Credit/Therefore, Even though Petitioner Made the Required "Payment In Lieu of Taxes" Pursuant to a Sublease from a Party to the Agreement, Petitioner Was Not Eligible for the Credit


The Third Department determined the controlling statute required a written agreement between a qualified empire zone enterprise (QEZE) and the Town of Rotterdam Industrial Development Agency (IDA)  in order to be eligible for an empire zone tax credit.  Because the petitioner was not a party to the "payment in lieu of taxes (PILOT)" agreement, the tax credit was not available to it, even though the petitioner made the PILOT payments pursuant to a sublease from a party to the agreement (FM Ventures):


For the tax years in dispute, Tax Law former § 15 (e) set forth three types of payments that constituted eligible real property taxes for purposes of an empire zone credit. Two involved payment of taxes; first, by a QEZE that owned the real property and, second, a QEZE that was a lessee of real property. The third applied to petitioner's situation since it addressed PILOT payments by a QEZE. It provided in relevant part: "In addition, the term 'eligible real property taxes' includes [PILOTs] made by the QEZE to the state, a municipal corporation or a public benefit corporation pursuant to a written agreement entered into between the QEZE and the state, municipal corporation, or public benefit corporation" (Tax Law former § 15 [e] [emphasis added]).


The pertinent language affirmatively requires in clear terms that, to qualify for the credit under such provision, the PILOT payments must be made pursuant to a written agreement between the QEZE and the appropriate entity. Here, FM Ventures had entered into the August 2005 PILOT agreement with the IDA. Petitioner was not a party to that agreement. Although petitioner's separate agreement with FM Ventures provided that petitioner would make the payments and the various entities may have desired to structure the transactions so that petitioner could receive the empire zone tax credit, unfortunately petitioner's PILOT payments do not qualify for such credit under the statutory language. It was petitioner's burden to show that it was clearly entitled to the credit and, in fact, the statute manifestly provides otherwise. We cannot, under long settled principles of statutory interpretation, essentially rewrite an unambiguous provision of a statute by ignoring explicit language, no matter how equitable such a result may appear ... . Matter of Golub Corp v New York State Tax Appeals Trib, 2014 NY Slip Op 02638, 3rd Dept 4-17-14





Attorneys Represent the Administrators Individually and Not the Estate Itself/Therefore an Estate May Seek Restitution of Attorney's Fees Paid from the Estate for the Representation of an Executor Who Defrauded the Estate


After it had bee determined the first executor (Carbone) had looted the estate, the new executor sued the law firm which defended the first executor.  The Second Department determined that the law firm could not be sued by the estate for legal malpractice because the retainer agreement with the first executor did not encompass "administration of the estate."  Therefore, absent allegations of fraud and collusion with the first executor, the law firm, which was not in privity with the estate, could not be sued for malpractice with respect to the estate.  However the cause of action for restitution, which alleged the payment of lawyers' fees for the representation of the first executor from the estate, could go forward:


This Court has held that "an attorney represents the administrators individually and not the estate itself" ... . Accordingly, an attorney may recover fees from the estate only where the services rendered benefit the estate ... . Where a plaintiff asserts a cause of action for restitution, the " essential inquiry'" is " whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered'" ... . In determining whether this equitable remedy is warranted, a court should " look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant's conduct was tortious or fraudulent'" ... .Here, the plaintiff alleged that the [attorney's] fees for representing Carbone were paid from estate assets even though those services were not beneficial to the estate and were, in fact, adverse to it. Thus, the plaintiff has pleaded facts sufficient to assert a cause of action for restitution ... . Betz v Blatt, 2014 NY Slip Op 02554, 2nd Dept 4-16-14



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