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


No Evidence Police Officer Acted in “Reckless Disregard” for Safety

The First Department determined the plaintiff did not raise a question of fact about whether a police officer drove his vehicle (which collided with plaintiff’s) in “reckless disregard for the safety of others,” finding plaintiff’s allegations “conclusory and speculative.:”

          Defendants' proof established that defendant Steve Tompos, a police officer, did not act in "reckless disregard for the safety of others" while operating his vehicle in the wrong direction on a one-way street (see Vehicle and Traffic Law § 1104[e]). Tompos testified that his vehicle's emergency lights and siren had been activated prior to the accident, and the evidence showed that he reduced his speed before turning onto the subject street and that he veered to his right in an attempt to avoid impact … . We note in particular that Tompos's partner testified that Tompos reduced the vehicle's speed to 10 miles per hour as he turned into the street where the accident occurred. Plaintiff's testimony that Tompos was driving at a "high" rate of speed, which plaintiff was admittedly unable to estimate, is conclusory and speculative .. . We therefore disagree with the dissent's view that issues of fact preclude summary judgment. Frezzell v City of New York, 2013 NY Slip Op 02700, 8861 116366/07, 1st Dept, 4-23-13

Criteria for Professional Negligence Actions Against Accountant Not in Privity with Plaintiff and Against Actuary

The Second Department explained the criteria for professional negligence actions against an accountant, with whom the plaintiffs were not in privity, and against an actuary:

           Accountants may be “held liable in certain circumstances for negligent misrepresentations made to parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant” … . In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: “(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance” … . *  *  *

           Because an actuary is not required to be licensed, is not regulated, and is not subject to a State-created disciplinary system, an actuary is not a “professional” for purposes of a malpractice cause of action … . Nevertheless, an actuary, possessing special knowledge, can be held liable for the negligent performance of its services …. [T]he complaint sufficiently alleges a cause of action against [the actuary] on a theory of common-law negligence ….  Health Acquisition Corp v Program Risk Mgt, Inc, 2013 NY Slip Op 02714, 2nd Dept, 4-24-13

Scientific Expert Opinion Need Not Be Based Upon Textual Authority

In determining an expert’s testimony that an MRI would have revealed any injury caused by an epidural injection was properly admitted, the Second Department explained the criteria for the admission of (scientific) expert testimony:

          In determining the admissibility of expert testimony, New York follows the rule of Frye v United States …  "that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance' in its specified field" …. The test's limited purpose is to ascertain whether the expert's conclusion is based upon accepted scientific principles, rather than simply the expert's own unsupported beliefs …. When applying the Frye test to assess the reliability of an expert's theory of causation, "it is not necessary that the underlying support for the theory . . . consist of cases or studies considering circumstances exactly parallel to those under consideration in the litigation. It is sufficient if a synthesis of various studies or cases reasonably permits the conclusion reached by the . . . expert'" …. "The fact that there [is] no textual authority directly on point to support the [expert's] opinion is relevant only to the weight to be given the testimony, but does not preclude its admissibility"… .


           [Here the] literature established that the expert's theory had an objective basis and was founded upon far more than theoretical speculation or a scientific hunch … . The lack of textual authority to support the theory pertained to the weight to be given to his testimony, but did not preclude its admissibility ….  LaRose v Corrao, 2013 NY Slip Op 02719, 2nd Dept, 4-24-13

Slip and Fall Action Based On “Trivial Defect” Dismissed

In affirming the dismissal of a personal injury action in which the plaintiff alleged she fell when she stepped on a one-inch wide and one-half-inch deep hole on the edge of a step, the Second Department wrote:


            A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" … .  *  *  * The plaintiff testified at her deposition that the semi-circular hole was one inch in diameter, half an inch deep, and located at the edge of the step. She used the staircase all the time, and she never had a problem traversing the area prior to the accident. Under the circumstances presented here, the alleged defect did not possess the characteristics of a trap or nuisance, and was trivial and, therefore, not actionable … . Maciaszek v Sloninski, 2013 NY Slip Op 02722, 2nd Dept, 4-24-13

City Failed to Affirmatively Prove It Did Not Have Notice of Dangerous Condition

The Second Department determined the city’s failure to submit proof it had not received notice of a defective condition precluded summary judgment in the city’s favor:

As the party moving for summary judgment, in order for the defendant City of New York to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint … on the ground that it had no prior written notice of the alleged defective or dangerous condition (see Administrative Code of the City of New York § 7-201[c]), it was required to submit proof that it did not receive the notice required by the statute … . The City failed to submit any affidavit from any City official or employee demonstrating that a search of the appropriate records had been done and that there was no prior written notice of the alleged dangerous condition that caused the plaintiff’s accident, and there was nothing in the deposition testimony of the three City witnesses that indicated that a search of the City records had been conducted without any success in finding any prior written notices. As such, the City failed to make a prima facie showing that no prior written notice was actually received … .   Martinez v City of New York, 2013 NY Slip Op 02723, 2nd Dept, 4-24-13

Late Notice of Claim Allowed In Absence of Reasonable Excuse

In affirming the grant of leave to file a late notice of claim in the absence of a reasonable excuse, the Second Department wrote:


           Here, the Fire Island Union Free School District (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose …. Immediately after the petitioner allegedly was injured in an accident at a school in the District, the petitioner told the school's custodian how the accident occurred, a District employee called emergency medical services, and the petitioner was transported to a hospital. An incident form was prepared by the District which indicated the time and place of the accident and the petitioner's injuries, and the petitioner's accident was discussed at a construction meeting attended by the school's superintendent. Since the District acquired timely knowledge of the essential facts constituting the petitioner's claim, the petitioner met his initial burden of showing a lack of prejudice …. The District's conclusory assertions of prejudice, based solely on the petitioner's delay in serving the notice of claim, were insufficient to rebut the petitioner's showing … 

While the petitioner's excuses for his failure to serve a timely notice of claim were not reasonable …, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and absence of prejudice …. Matter of Rodriquez v Woodhull Sch, 2013 NY Slip Op 02754, 2nd Dept, 4-24-13

Late Notice of Claim Should Not Have Been Allowed

The Second Department reversed the trial court’s deeming a late notice of claim as timely served nunc pro tunc.  The claim was against the New York Health and Hospitals Corporation (HHC) which is not the same as the City of New York for purposes of a notice of claim.  The Second Department wrote:

           The Supreme Court improvidently exercised its discretion in granting the plaintiff's motion. First, the plaintiff failed to demonstrate that the HHC had actual knowledge of the facts constituting the claim within 90 days after it arose or "within a reasonable time thereafter" (General Municipal Law s 50-e[5]). The fact that a police accident report was prepared by the New York City Police Department did not constitute notice to the HHC of the essential facts constituting the claim … .  * * *Moreover, the plaintiff's mistake as to the identity of the public corporation against which her claim should be asserted was not excusable. … Finally, the plaintiff failed to demonstrate that her delay did not prejudice the HHC in its defense on the merits. The plaintiff did not serve a notice of claim upon the HHC until eight months after the 90-day period expired and then did not move for two more months to have that late notice of claim deemed timely … .  Platt v New York City Health & Hosps Corp, 2013 NY Slip Op 02733, 2nd Dept, 4-24-13

Store Not Required to Continuously Mop Up Tracked-In Rain

In affirming the dismissal of a personal injury complaint the Second Department noted that defendant store-owners were “not required to cover all of [their] floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … . Valentin v Shoprite of Chester, 2013 NY Slip Op 02739, 2nd Dept, 4-24-13

Even Though Length of Merging Lane Was a Factor in Accident, It Was Not the Proximate Cause of the Accident

Plaintiff’s car was side-swiped by defendant’s van when the van was in a merging lane called a taper.  The taper was 100 feet shorter than required.  In affirming summary judgment to the defendants responsible for constructing the taper, the First Department determined the van was the sole proximate cause of the accident:

           The Supreme Court properly found that the alleged negligence of the DOE van’s driver was a proximate cause of the accident. Here, as the van was stopped next to plaintiff’s vehicle, the length of the taper, created by defendants Tully and Verizon, was entirely unrelated to the occurrence of the accident. As noted, the accident was caused by the alleged improper operation of the DOE vehicle. There is no evidence that the van was unable to safely merge, instead of merely trying to get to the front of the line of traffic moving through the construction zone. A jury would thus be required to speculate that the taper was a proximate cause of the accident. As a result, even assuming the taper in this case did not comply with …standards, and that it may have furnished the condition or occasion for the occurrence, it was not a proximate cause of it … . Collins v City of New York, 2013 NY Slip Op 02816, 1st Dept, 4-25-13

Accident Unforeseeable as a Matter of Law

The First Department reversed Supreme Court’s denial of summary judgment and held that the accident was unforeseeable as a matter of law.  The plaintiff fell off a “setback roof” which was accessible only by climbing through the window of plaintiff’s friend’s apartment:


            An accident is unforeseeable as a matter of law where the conduct or chain of events was so extraordinary that the defendant's duty did not extend to preventing it … . Here, given the nature and location of the setback, it was unforeseeable that individuals would choose to access it, and thus defendant had no duty to guard against such an occurrence … . Powers v 32 E 31 LLC, 2013 NY Slip Op 02846, 1st Dept, 4-25-13


Role of Appellate Court in Reviewing an Arbitral Award Which Has Been Confirmed in a Judgment Explained

In a full-fledged opinion by Justice Acosta (with a dissent), the First Department held that payment, by the respondent investment fund, of an arbitral award in stocks as opposed to cash required a hearing to determine the value of the stocks.  The First Department outlined its role where the satisfaction of an arbitral award which has been confirmed in a judgment is before them:

            As a threshold matter, we begin by observing that a party may oppose an arbitral award either by motion pursuant to CPLR 7511(a) to vacate or modify the award within 90 days after delivery of the award or by objecting to the award in opposition to an application to confirm the award notwithstanding the expiration of the 90-day period … . Here, respondent did neither. Indeed, it was petitioner who appealed the lower court's refusal to enforce the judgment. Under such circumstances, contrary to our dissenting colleague, we do not have the authority to grant a non-appealing party relief that it did not seek by vacating a judgment entered against it …. Moreover, we are not empowered to remit the matter to the arbitrator for clarification ….

             Where a dispute exists as to the meaning of an arbitration award that has been confirmed in a judgment, it becomes "the Court's function to determine and declare the meaning and intent of the arbitrator []" …. To that end, a court may review the text of the arbitrator's award in conjunction with whatever findings, if any, the arbitrator has made …. In so doing, a court should adopt the most reasonable meaning of the text by avoiding any potential interpretations of the award that would render any part of its language superfluous or lead to an absurd result .. . Furthermore, the award must be interpreted in the light most favorable to the prevailing party … .  Matter of Pine St Assoc, LP v Southridge Partners, LP, 2013 NY Slip Op 02854, 1st Dept, 4-25-13


Person May Have More that One Residence for Insurance Purposes

The Second Department determined Supreme Court erred by not holding a hearing to determine whether the respondent was an “insured” within the meaning of an automobile insurance policy. Noting that a person can have more than one residence for insurance purposes, the Second Department wrote:


           The endorsement defines an insured as, inter alia, any relative of the named insured while a resident of the same household as the named insured. While "[a] person can have more than one residence for insurance coverage purposes, residency in this context generally entails something more than mere temporary or physical presence, and requires some degree of permanence and intention to remain … . The petitioner submitted sufficient evidence with regard to the residence addresses of the respondent to raise a genuine issue regarding whether the respondent was a resident of her brother's household at the time of the subject accident … .   Matter of A Cent Ins Co v Williams, 2013 NY Slip Op 02774, 2nd Dept, 4-24-13

Material Misrepresentation Rendered Insurance Policy Void Ab Initio

In determining that a material misrepresentation (i.e., no roofing work would be done) allowed the rescission of an insurance policy, rendering the policy void ab initio, the Second Department wrote:


           "To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy" … . "A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented" (…see Insurance Law § 3105[b]…). " To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application'" … . " [M]aterial misrepresentations . . . if proven, would void the . . . insurance policy ab initio'" … .  Meah v A Aleem Constr, Inc, 2013 NY Slip Op 02727, 2nd Dept, 4-23-13


Undue Influence and Constructive Fraud Causes of Action Against Attorney Should Not Have Been Dismissed

The First Department reversed Surrogate’s Court’s dismissal of undue influence and constructive fraud causes of action against an attorney who was the beneficiary of a one million dollar trust account created by the decedent.  In finding questions of fact had been raised concerning both causes of action, in part concerning whether the attorney had misrepresented his financial condition to the decedent, the First Department wrote:

            Surrogate’s Court erred in dismissing the claim of undue influence as there were conflicting inferences of both undue influence and the lack thereof. For example, the evidence showed that, from September 2009 to January 2010, as decedent’s health continued to deteriorate, defendant repeatedly wrote and called decedent to request the creation of a $1 million trust account and suggested that he would suffer a financial crisis if he did not receive it, and decedent complained to plaintiff (his wife) that defendant would not stop asking him for money. … Under the circumstances presented, defendant failed to overcome the presumption of undue influence and failed to eliminate any triable issue of fact warranting dismissal of the count ….  * * *  The count of constructive fraud was also improperly dismissed. Defendant, who had a substantial net worth at the time of decedent’s death, nevertheless repeatedly represented that his savings were deteriorating and that he would suffer a financial crisis if decedent did not give him the $1 million. While decedent was aware of the salary paid to defendant over the years as counsel to decedent’s company, this alone did not amount to clear evidence to eliminate any triable issue of fact as to whether defendant had misrepresented his financial condition, and whether decedent relied upon it … .  Matter of Schneiderman, 2013 NY Slip Op 02687, 1st Dept, 4-23-13


NYC Department of Education Must Defend Employees Sued for Alleged Use of Corporal Punishment

The Court of Appeals, in a full-fledged opinion by Judge Smith, held that “employees of the [NYC] Department of Education who are sued for using corporal punishment are entitled to a defense provided by the City, even though the employees’ conduct violated a State regulation.”  Judge Smith wrote:

           …[W]e conclude that the authors of Education Law § 3028 intended to provide a defense even where an employee's use of corporal punishment violated regulations. Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases -- suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense.  Matter of Deborah Sagal-Cotler v Board of Education … Nos 73 & 74, CtApp, 4-25-13


Criteria for Evaluating County Bidding Process Explained

Rockland County sought bids for public bus transportation. The respondent, Brega Transportation Corporation [hereinafter “Brega”], protested the county’s bid specifications as exclusionary and discriminatory and Supreme Court agreed.  The Second Department reversed Supreme Court’s determination that Rockland County’s Invitation to Bid for Transit Operations and Maintenance [hereinafter “RFB”] violated Municipal Law 103.    After explaining the criteria for evaluation of a bidding process, the Second Department wrote:

            Where bid specifications are "not facially anticompetitive," courts apply "ordinary rational basis review" …. A "’spectral appearance of impropriety' is insufficient proof to disturb a [municipality's] determination under the competitive bidding statutes" … . Instead, a party challenging a procurement "has the burden to demonstrate actual' impropriety, unfair dealing or some other violation of statutory requirements"… .  Here, the Supreme Court improperly shifted the burden of proof from Brega to the county. Since Brega made only conclusory assertions and failed to demonstrate that the county's bid specifications were irrational or exclusionary, the court erred in invalidating the RFB on that basis… .  Brega Transp Corp b Brennan, 2013 NY Slip Op 02707, 2012-03188, Index No 498/12, 2nd Dept, 4-24-13


Damages for Breach Must Be Awarded Even if Amount Uncertain

The First Department determined the trial court erred when it did not award damages for breach of contract because the amount of damages was uncertain:

             Where, as here, "it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain" … .  Here, plaintiff's expert used an investment valuation analysis because he determined that there was no market for the 76th Street property, a conclusion with which the lower court agreed. Despite this agreement, the court, mistakenly believing that this Court's previous order required a market value analysis even if no such market existed, found that plaintiff failed to meet his burden of proof. This was error, especially where, as here, the court had the means to make a market value determination if it so desired.  Cole v Makclowe, 2013 NY Slip Op 02690, 604784/99, 1565, 1st Dept, 4-23-13


Jury’s Consulting a Dictionary Justified Mistrial

In upholding the trial court’s grant of a mistrial because the jury consulted a dictionary, the First Department wrote:

           …[The court properly determined that the jury's act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was "confused" about the term "substantial" and the court was unable to give curative instructions … .  However, because the jury's misconduct related only to the issue of liability, and there is no evidence that it affected the jury's determination on damages, we reinstate the verdict on damages … .  Olshantesky v New York City Tr Auth, 2013 NY Slip Op 02685, 1st Dept, 4-23-13


Copyright Infringement Action Re Pre-1972 Recordings Not Precluded by “Safe Harbor” Provision of Digital Millenium Copyright Act

In a full-fledged opinion by Justice Mazzarelli, the First Department determined that the “safe harbor” provisions in the Digital Millenium Copyright Act (DMCA) did not protect defendant, an Internet-based music streaming service, from a copyright infringement action based upon the uploading of recordings made prior to February 15, 1972.  In making this determination, the Second Department applied statutory interpretation principles to the relevant provisions of the DMCA and the Copyright Act.  UMG Recs, Inc v Escape Media Group, Inc, 2013 NY Slip Op 02702, 1st Dept, 4-23-13


Slander Per Se Complaint Not Based Upon “Serious Crime” (Trespass)

In affirming the dismissal of a complaint alleging slander per se based upon the accusation defendant had committed trespass, the Third Department explained:

            A statement will fall into one of the four categories of slander per se when  it is so noxious and injurious by nature that the law presumes that pecuniary damages will result and, thus, special damages need not be alleged ….  As relevant here, "slander per se" includes "statements . . . charging [a] plaintiff with a serious crime," but "the law distinguishes between  serious and  relatively minor offenses, and  only statements regarding the former are actionable without proof of damage" … .  * * *
In any event, even construing the complaint liberally and according plaintiff the benefit of every favorable inference, it does not set forth the allegedly defamatory statement with sufficient particularity to satisfy the requirement of CPLR  3016… .  Martin v Hayes, 515024, 3rd Dept, 4-25-13


Empire Zone Status Can Be Revoked/No Vested or Actionable Right

The petitioner, the owner of a shopping mall, was certified as an empire zone business enterprise in 2002, and was thereby afforded certain tax benefits.  In 2009 the Empire Zone Designation Board revoked petitioner’s certification.  On appeal from an Article 78 proceeding, the Third Department affirmed the lower court’s determination that the respondents were not estopped from revoking the empire zone status because tax legislation is not a governmental promise:

           Because “tax legislation is not a governmental promise,  [taxpayers  have]  no  vested  or  actionable right . . . to the benefit of a tax statute or regulation” … .   A claim of estoppel may only be asserted against a government agency in the rarest of situations and may not be invoked to prevent an agency from discharging its statutory duties … .  After the Legislature amended the Empire Zones Act, the Board discharged its statutory duty to review appeals of the … decisions to decertify empire zone business enterprises (see General Municipal Law §  959  [w]). Under these circumstances, where petitioner did not have  a vested right to continue receiving tax credits and  the Board  was  fulfilling its duty under the law, the court properly held that estoppel may not be invoked.  Matter of Greece Town Mall, LP v New York State, et al, 515207, 4-25-13


Verdict In Favor of Physician Set Aside in “Breach of Implied Covenant of Trust and Confidence” Case

The Third Department set aside a jury verdict in favor of defendant, plaintiff’s former physician.  The lawsuit alleged a cause of action for “breach of the implied covenant of trust and confidence inherent in the patient-physician relationship” based upon defendant’s breach of “her duty of confidentiality” when she reported the details of a hospital visit with plaintiff to plaintiff’s wife.  The confidential information apparently at least implied plaintiff posed a danger to plaintiff’s wife [Juric].  In setting aside the verdict, the Third Department wrote:

           In our view, the record does not contain proof establishing that defendant had a reasonable basis to believe that plaintiff posed an actual, current, imminent  threat to Juric as required to sustain her affirmative defense pursuant to Supreme  Court's jury charge [the affirmative defense was “justification”]. Thus, even according defendant every favorable inference and considering the facts in the light most favorable to her …, we agree with plaintiff that there was "no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence  presented  at trial" … Juric v Bergstraesser, 515333, 3rd Dept, 4-25-13


Denial of Benefits Affirmed In Spite of Conflicting Medical Evidence

In affirming the denial of (World Trade Center) accidental disability retirement benefits to a police officer, the Third Department explained how to deal with conflicting medical opinion.  Here the officer presented evidence he suffered from post traumatic stress disorder stemming from the World Trade Center attacks, and the state presented evidence he suffered from treatable mild depression:

           “In situations where, like here, there are conflicting opinions as to whether  petitioner is permanently  disabled, it is well  settled that  [the  Comptroller]  is vested with  the  authority to resolve conflicts in the medical evidence and to credit one expert’s opinion over that of another” ….   Inasmuch as the Retirement System’s expert provided a rational and fact-based opinion, founded upon an examination of petitioner and a review of his medical records, the Comptroller’s determination is supported by substantial evidence and will not be disturbed, despite evidence in the record that might support a contrary result … .  Matter of Cantelmo v NYS Comptroller, 515641, 3rd Dept, 4-25-13


Independent Reason for Incarceration Precludes Habeas Corpus Relief

In affirming the dismissal of a habeas corpus petition, the Third Department noted that even where the basis for the petition is valid (here there was no preliminary hearing for a parole violation) habeas relief is not available if there is an independent basis for continued incarceration (here an indictment for the offense underlying the parole violation):


Regardless of the merits of petitioner's claim that he was deprived of a preliminary hearing, an independent basis for his parole revocation exists given his conviction upon the count charged in the indictment (see Executive Law § 259-i [3] [d] [iii]…). Petitioner is thus not entitled to immediate release, rendering habeas corpus relief unavailable … .  People ex rel Wiggins v Schiff, 515008, 4-25-13

Conviction Reversed Because of Improper Cross-Examination by Prosecutor/Defendant Questioned About Boyfriend’s Criminal History and Her Employment History

The First Department reversed a conviction because of the prosecutor’s improper cross-examination of the defendant.  The defendant was accused of smuggling a knife to her boyfriend while he was incarcerated.  The defendant was cross-examined about her boyfriend’s gang membership and criminal history and defendant’s periods of unemployment (among other improper topics).  In addressing the cross-examination about defendant’s boyfriend’s criminal history, the First Department wrote:


            The criminal history of defendant’s boyfriend was irrelevant to whether defendant “knowingly and unlawfully introduce[d] any dangerous contraband into a detention facility” … . The fact that Wright was a gang member with an extensive criminal history has no bearing on whether or not defendant knew she was introducing dangerous contraband into the facility, and could only serve to inflame the jury and prejudice defendant. As defendant correctly argues, this evidence served “no purpose but to suggest that defendant was associated with a disreputable person” … . People v Bartholomew, 2013 NY Slip Op 02699, 1st Dept, 4-23-13

Failure to Follow Statutory Procedure Re: Notes Sent Out By Jury Is a “Mode of Proceedings” Error Requiring Reversal

In reversing a conviction because the trial court committed a “mode of proceedings” error (not requiring preservation) by not following the procedure mandated in Criminal Procedure Law 310.30 (re: notes sent out by the jury during deliberations), the Second Department explained:


          "Specifically, the Court of Appeals has held that whenever a substantive written jury communication is received by the Judge,' it should be read into the record in the presence of counsel,' and that, [a]fter the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses'" … . These requirements were not satisfied here. People v Fenton, 2013 NY Slip Op 02761, 2nd Dept, 4-24-13

Restitution Can Not Be Ordered When Not Addressed in Plea Agreement

The Second Department, in the interest of justice, determined the sentencing court should not have imposed restitution because restitution was not addressed in the plea agreement.  The matter was remitted for re-sentencing without restitution. People v Thompson, 2013 NY Slip Op 02770, 2nd Dept, 4-24-13

Fact that Defendant Was Seen With a .25 Caliber Handgun Two and a Half Months Before Charged Shooting Allowed In Evidence to Prove “Identity”

The defendant was convicted of shooting the victim with a .25 caliber handgun.  Under Molineux, the prosecution was allowed to present evidence that the defendant, two and a half months before, was seen brandishing a .25 caliber handgun.  The trial court determined this “prior crime” evidence was admissible to prove the identity of the shooter.  The Third Department affirmed with a strong dissent.  The quotation below, which is from the dissent, outlines one of the elements of a Molineux analysis of prior-crime evidence to prove identity:


           The mere fact that defendant was allegedly seen with a .25 caliber weapon on an occasion over two months prior to the crime does not reveal any unique and distinctive modus operandi, nor a "distinctive repetitive pattern"  … . The only behavior described was the act of pulling out a gun – there is nothing unique or distinctive about this act, standing alone – and the weapon was not fired during the alleged earlier incident. Defendant's mere presence in the same place twice is certainly not unusual, as other people were also present on both occasions. There was simply no evidence that might be considered "'so unique that the mere proof that . . . defendant had committed a similar act would be highly probative of the fact that he committed the one charged'" … .  People v Myers, 104004, 3rd Dept, 4-25-13

Convictions Based Entirely Upon Confession Reversed/Error to Allow Experiment in Evidence/Proof of Victim’s Helplessness Sufficient

In this sexual-crimes case, the Third Department discussed (among other issues): (1) the application of speedy trial rules when an initial indictment is dismissed and then charges stemming from the same incident are brought more than six months later in a second indictment; (2) the sufficiency of proof of the victim’s helplessness (intoxication); and (3) the inadmissibility of an experiment (opening a door with a credit card to demonstrate how defendant could have entered the house) which had nothing to do with the trial evidence.  All but two of the convictions were affirmed.  In reversing the two convictions which were based entirely on the defendant’s confession, the Third Department wrote:

           We find that defendant's convictions of criminal sexual act in the first degree must  be  reversed. "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged  has been  committed"  (CPL 60.50). While this additional proof "need  not corroborate every detail of the confession" …, both  of defendant's criminal sexual act convictions were based solely upon his uncorroborated admissions that he  performed  oral sex on the victim. Defendant's presence at the scene did not provide the necessary corroboration because the issue is not his identity or connection to the crime but, instead, whether  the crimes  occurred  at all. As there was no corroborating proof "of whatever weight," these charges must be dismissed… . People v Bjork, 104014, 3rd Dept, 4-25-13

SORA Proof Burdens Explained

The Third Department noted the different proof burdens for a SORA classification hearing versus a modification hearing:

           The People concede that defendant is entitled to a new hearing because Supreme Court treated the 2005 rehearing as one for modification, as opposed to classification (compare Correction Law § 168-n, with Correction Law § 168-o).   As the People now acknowledge, they bore the burden of establishing the determination sought by clear and convincing evidence … .  Inasmuch as the record here reflects that the burden was placed on defendant to demonstrate sufficient evidence warranting a departure from the risk level III classification (see Correction Law § 168-o [2]), we remit for a new hearing … . People v Middlemiss, 511311, 3rd Dept, 4-25-13

Admission in Evidence of Defendant’s Statements About Prior Murders Did Not Rise to a Constitutional Injury---Harmless Error Doctrine Applied

The Court of Appeals held that the admission at trial of statements made by the defendant indicating he had committed murders other than the murder with which he was charged “did not rise to the level of constitutional injury such as ineffectiveness of counsel or juror partiality.”  Therefore, the harmless error doctrine applied and, in light of the evidence against the defendant, the conviction was affirmed.  People v Byer, No 84, CtApp, 4-25-13


Misbehavior Report Did Not Supply Sufficient Notice of Alleged Offense

In annulling a disciplinary finding, the Third Department held the misbehavior report did not provide sufficient notice of the alleged offense:

           Petitioner contends that his due process rights were violated because the misbehavior report failed to comply with the particularity requirements of 7 NYCRR 251-3.1 (c). This regulation provides that a misbehavior report must set forth "the date, time and place of the offense, . . . the disciplinary rule alleged to have been violated and . . . the factual basis for the charge with enough particularity to enable the inmate to prepare a defense" (… 7 NYCRR 251-3.1 [c]). Here, the misbehavior report, which was prepared by the correction officer who tested the substance, simply stated that a substance given to him by another correction officer tested positive for marihuana. Significantly, it did not indicate that the officer who gave him the substance obtained it from petitioner's cell nor did it provide any details as to exactly where the substance was found.  To add to the confusion, the report listed the location of the incident as the "chart office."  Matter of Simmons v Fischer, 514873, 3rd Dept, 4-25-13


Mother Not Given Sufficient Opportunity to Substantiate Her Income

In finding Family Court did not have a sufficient basis to determine the mother failed to substantiate her income in a child support proceeding, the Second Department wrote:

           The Support Magistrate improperly awarded child support based on the needs of the child rather than the mother's income, upon concluding that the mother failed to substantiate her income (see Family Ct Act § 413[1][k]). The record reflects that, prior to the hearing at which the Support Magistrate issued the order, the mother had appeared before the Support Magistrate only twice and, on both occasions, the appearances were very brief. … Moreover, the Support Magistrate failed to advise the mother that her failure to fill out the financial disclosure affidavit would result in an award of support based on the child's needs, instead of the mother's income … . Accordingly, the matter must be remitted … for a new hearing on the petition and a new determination thereafter as to the mother's support obligation.  Matter of Anderson v Pappalardo, 2013 NY Slip Op 02745, 2nd Dept, 4-24-13

Best Interests of Child Allowed Mother’s Relocation

In reversing Family Court’s determination the best interests of the child did not permit the mother’s relocation, the Second Department wrote:


           After weighing the appropriate factors set forth in Matter of Tropea v Tropea …, we find that the mother established by a preponderance of the evidence that the children's best interests would be served by permitting the relocation … .

           The mother demonstrated that she could not meet the family's living expenses in New York and that the father did not make regular child support payments …. She also demonstrated that, if permitted to relocate, she would accept an offer of employment in her field of experience, and would receive financial assistance, including housing and a car, from extended family members … . The desires of the children, while properly considered, are not determinative … . Matter of Tracy A G v Undine J, 2013 NY Slip Op 02751, 2nd Dept, 4-24-13

Social Services Motion to Be Relieved of Obligation to Make Efforts to Return Child to Father Granted Even Though Neglect Finding Against Mother Only

Family Court granted a motion by social services to be relieved of its obligation to make further reasonable efforts to return the child to the father.  The child was in foster care after a neglect proceeding against the mother.  In holding that the motion was properly brought and granted, even though a finding of neglect had been made only against the mother, the Third Department wrote:

           A  social services agency may  move  to be  relieved of its obligation to undertake  reasonable efforts to return a child to his or her home  "[i]n conjunction with, or at any time subsequent to, the filing of" an abuse or neglect petition (Family Ct Act §  1039-b  [a]). Here, while a neglect petition was filed solely against the mother, contrary to the father's contention, nothing  in Family Ct Act §  1039-b  limits its scope to the respondent(s) named  in the underlying petition. Moreover, to infer such a limitation would undercut the purpose of the statute, which was intended to promote the health and safety of the child by expediting permanency planning… .  Matter of Jayden QQ., 513777, 3rd Dept, 4-25-13

Grant of Visitation to Grandmother Reversed

In reversing Family Court’s grant of visitation rights to the children’s grandmother (more than what the mother wanted to allow), the Third Department wrote:

           Where, as here, the parents of children are alive, Domestic Relations Law § 72 gives grandparents the right to seek visitation with their grandchildren where, as a threshold matter, they can establish circumstances in which "equity would see fit to intervene," i.e., that equitable circumstances exist (Domestic Relations Law § 72 [1]…). * * * Upon our review of the testimony, we conclude that petitioner  did  not  establish  equitable  circumstances  that  justify according her standing to force the mother to accept visitation outside parameters  within which  she is comfortable as a fit and responsible parent … .  “[C]ourts should  not  lightly intrude on  the family  relationship  against  a  fit parent's  wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one" …  Matter of Hill v Juhase, 514036, 3rd Dept, 4-25-13

“Depraved Indifference to Human Life” Defined Differently in Family Law, as Opposed to Criminal Law, Context

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the phrase “depraved indifference to human life” as it is used in Social Services Law 384-b(8)(a)(i) to define when a child has been “severely abused” does not have the meaning ascribed to the same phrase under the Penal Law.  In addition, the court clarified the statutory conditions which relieve a social services agency of the requirement to make diligent efforts to reunite the child with the abusive parent.  Judge Read wrote:


            Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life” (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference … [“[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim” … . Additionally, “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” …, whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute “circumstances evincing a depraved indifference to human life” refers to the risk intentionally or recklessly posed to the child by the parent’s abusive conduct.  Matter of Dashawn W …, No 71, CtApp, 4-25-13


Employee-Status Proven and Workers’ Compensation Exclusivity Provision Applied/Employee’s Jumping from Stalled Elevator Was Superseding Cause of Accident

The First Department determined the respondent, Plaza Residences, could assert the Workers’ Compensation defense even though petitioner believed he was working for a nonparty (Wavecrest Management, Inc) which directed and controlled his work:


           The Workers' Compensation exclusivity provision applies to those employers, and their agents, that exercise supervision and control over an employee …. Here, the evidence establishes that an actual employment relationship exited between plaintiff and Plaza Residences. Such evidence includes Plaza Residences' payroll records, state withholding tax and unemployment returns, plaintiff's own W-2 form, and copies of cancelled paychecks. Each of these documents identified Plaza Residences as plaintiff's employer, and the fact that Plaza Residences relinquished all authority to nonparty Wavecrest Management, Inc., which directed and controlled plaintiff's work, did not preclude Plaza Residences from asserting the Workers' Compensation defense.

The First Department also determined petitioner’s jumping from a stalled elevator was “an unforeseeable, superseding cause of his accident” and dismissal of his complaint was therefore warranted. Clifford v Plaza Hous Dev Fund Co, Inc, 2013 NY Slip Op 02695, 9871, 305519/08, 1st Dept, 4-23-13

Defendant Was Not Plaintiff’s “Special Employer”

In finding defendant was not plaintiff’s (Vasquez’) “special employer” (and therefore could not take advantage of the exclusive-remedy provision of the Workers’ Compensation Law), the First Department wrote:


           Defendant's motion for summary judgment, made on the ground that the complaint is barred by the exclusivity provision of the Workers' Compensation Law (see Workers' Compensation Law § § 11, 29[6] …, was properly denied. Defendant maintains that it was Vasquez's special employer because it hired all building employees, including Vasquez, and was also responsible for firing. However, plaintiff asserts the evidence establishes that defendant was not Vasquez's special employer. Specifically, the property owner, not defendant, paid and provided benefits to Vasquez. Defendant's evidence failed to establish as a matter of law that it "control[led] and direct[ed] the manner, details and ultimate result of" Vasquez's work …, and plaintiff acknowledges questions of fact exist on this issue. If the issue of defendant's status as a special employer is resolved in plaintiff's favor, plaintiff is entitled to partial summary judgment on liability on her Labor Law § 240(1) claim. Vasquez v Cohen Bros Realty Corp, 2013 NY Slip Op 02682, 1st Dept, 4-23-13



Construction Manager Not Liable Unless Delegated Authority of General Manager

In finding the action against a construction manager should have been dismissed because the construction manager had not been delegated the responsibilities of a general contractor, the Second Department wrote:


           "Although a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site . . . it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises" . " A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured”… . The defendant … made a prima facie showing of its entitlement to judgment as a matter of law by establishing, through the admission of construction documents and agreements and the deposition testimony of the parties, that it had not been delegated the authority and duties of a general contractor, and did not have supervisory control and authority over the work being done … . McLaren v Turner Constr Co, 2013 NY Slip Op 02726, 2nd Dept, 4-24-13


Class Certification in Landlord-Tenant Action Upheld

The First Department upheld Supreme Court’s grant of class certification in an action alleging defendant landlord charged market rents while accepting J-51 [tax incentive] benefits.  The First Department wrote:


             The issues of when defendant received J-51 benefits, whether defendant deregulated apartments while receiving those benefits, which tenants resided in those apartments during those time periods, and whether defendant wrongfully charged market rents while accepting J-51 benefits are common issues that "predominate," thereby meeting the commonality requirement of CPLR 902(a)(2)… . The need to conduct individualized damages inquiries does not obviate the utility of the class mechanism for this action, given the predominant common issues of liability … .

            Defendant's counterclaim for rent arrears does not cause plaintiff to be an atypical member of the class. Her claim is typical of the claims of all class members in that each flows from defendant's alleged unlawful deregulation of apartments while receiving J-51 benefits … . "[T]hat the underlying facts of each individual plaintiff's claim vary, or that [defendant's] defenses vary, does not preclude class certification" …. Defendant's counterclaim does not materially add to the complexity or difficulty of resolving plaintiff's individual claim, and defendant's suggestion that plaintiff might be inclined to settle her case to evade liability on the counterclaim is speculative.  Bordern v 400 East 55th Street Associates, LP, 2013 NY Slip Op 02315, 1st Dept, 4-25-13

Class Certification Should Have Been Granted/Plaintiffs Waived Statutory Treble Damages

            The First Department reversed the dismissal of a putative class action by tenants against a landlord alleging the landlord deregulated the apartments while receiving tax incentive benefits from the city.  Because the tenants waived the statutory treble damages provision, the First Department determined that the case no longer involved “penalties” and was therefore not precluded by CPLR 901.  In a full-fledged opinion by Justice Andrias, the First Department wrote:Pursuant to CPLR 901(b), "[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained in a class action." However, even where a statute creates or imposes a penalty, the restriction of CPLR 901(b) is inapplicable where the class representative seeks to recover only actual damages and waives the penalty on behalf of the class, and individual class members are allowed to opt out of the class to pursue their punitive damages. … . * * * Rent Stabilization Code (9 NYCRR) § 2520.13, which states that "[a]n agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void," does not require a different result. "[P]laintiffs are seeking to waive their entitlement to treble damages unilaterally, not through agreement. Thus, allowing the class action to proceed would not frustrate the RSC's purpose of [avoiding] situations whereby the landlord attempts to circumvent the [RSC's] benefits" … . Downing v First Lenox Terrace Assoc, 2013 NY Slip Op 02853, 1st Dept, 4-25-13

Class Certification Properly Granted/Rent Overcharge and Attorney’s-Fees Claims Did Not Seek “Penalties” In Violation of CPLR 901

The First Department affirmed the grant of class certification in a landlord-tenant action finding that plaintiff’s rent overcharge claim and attorney’s-fees claim did not seek “penalties” in violation of CPLR 901.  There was a dissent.  The First Department wrote:


           Although plaintiff did not waive her right to reimbursement for alleged overcharges and interest, these claims did not render her action an action for a penalty for purposes of CPLR 901(b), even though such recovery is denominated a penalty by the RSL [Rent Stabilization Law], because they lack a punitive, deterrent and litigation-incentivizing purpose ….


           Nor did the attorneys’ fees request seek a penalty, as the general right to attorneys’ fees in landlord-tenant proceedings (Real Property Law § 234) does not apply to administrative proceedings …, and the RSL provision should be understood as having the same nonpunitive purpose as the statute applicable to actions and summary proceedings. Notably, the reference in Rent Stabilization Code (9 NYCRR) § 2526.1(d) to attorneys’ fees as an “additional penalty,” while otherwise not dispositive, is absent from the attorney fee provision in the legislatively enacted RSL. Gudz v Jemrock Realty Co, LLC, 2013 NY SlipOp 02814, 1st Dept, 4-25-13


Product Warranty Does Not Extend Statute of Limitations

In finding that a 10-year warranty on windows and doors did not extend the relevant statute of limitations, the First Department wrote:


            Although initially it may seem somewhat unfair for defendant to have given plaintiffs a 10-year warranty and then argue that plaintiffs cannot sue for breach of warranty at any time during that 10-year period, the case law is clear on when this cause of action accrues …. Katopodis v Marvin Windows & Doors, 2013 NY Slip Op 02817, 1st Dept, 4-25-13

Question of Fact Raised by Verified Pleadings Re When Accident Happened


The Court of Appeals (with a dissent) held that a question of fact about when an accident occurred had been raised by plaintiff’s verified pleadings.  The defendant submitted evidence the accident occurred on February 5, making plaintiff’s action untimely.  Plaintiff’s verified pleadings stated the accident occurred on February 10, making plaintiff’s action timely.  In light of the question of fact raised by the verified pleadings, the Court of Appeals reversed the grant of summary judgment to the defendant.  Sanchez v National Railroad Passenger Corp, No 76, CtApp, 4-25-13

Proof Submitted in Reply Papers Not Considered

In finding plaintiffs’ claim for indemnification was not supported by proof plaintiffs had actually paid the debts for which they sought reimbursement, the Second Department noted that the debt-payment-proof submitted in reply papers could not be considered:

            With limited exceptions not applicable here, a cause of action seeking indemnification is not enforceable until payment is made or a loss is suffered by the party seeking indemnification …. Here, the plaintiffs failed to establish, prima facie, that they actually paid any of the debts … . The plaintiffs' proof on that issue, which was submitted for the first time in their reply papers, may not be considered for purposes of establishing their prima facie entitlement to judgment as a matter of law … .  Gamparo v Mathai, 2013 NY Slip Op 02711, 2nd Dept, 4-24-13


Contractual Shortened Statute of Limitations Okay

The Second Department held that a shortened statute of limitations agreed to in an employment contract was enforceable:

           “The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations” (…see CPLR 201…). “ Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … . Hunt v Raymour & Flanigan, 2013 NY Slip Op 02715, 2nd Dept, 4-24-13


Forum Selection Clause Upheld/Not Shown to Be Unreasonable

In upholding the validity of a contractual forum selection clause, 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" … . Lifetime Brands, Inc v Garden Ridge, LP, 2013 NY Slip Op 02721, 2nd Dept, 4-24-13



Consolidation of Trials Okay Even If Some Prejudice Results/Potential for Inconsistent Verdicts Eliminated by Consolidation

In a personal injury action, the fact that consolidation of two actions arising from the same accident will result in the jury learning of the existence of insurance did not warrant the denial of the motion to consolidate.  The Second Department wrote:

           The trial court has broad discretion in determining whether to order consolidation … . The interests of justice and judicial economy are better served by consolidation in those cases where the actions share material questions of law or fact … . A motion to consolidate should be granted absent a showing of prejudice to a substantial right by a party opposing the motion .. . Here, the appellants principally argued that they would be prejudiced if the two actions are tried before the same jury since it will bring to the jury's attention the existence of insurance in Action No. 1 …. However, even assuming that under the circumstances of this case, the appellants would be prejudiced by consolidation, any such prejudice is outweighed by the possibility of inconsistent verdicts if separate trials ensue … . Furthermore, the possibility of such prejudice to the appellants can be mitigated by appropriate jury instructions.  Hanover Ins Group v Mezansky, 2013 NY Slip Op 02713, 2nd Dept, 4-24-13


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