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April Page IV

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


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Declaratory Judgment Action Is the Appropriate Vehicle for Challenging a County Law---The Legislative Body Which Enacted the Law  Is a Necessary Party


In the course of determining an Article 78 petition which, in part, alleged that the Westchester County Human Rights Law violated state law, the Second Department noted that the challenge must be made in a declaratory judgment proceeding.  The court could not convert the proceeding to one for a declaratory judgment because it did not have jurisdiction over all of the necessary parties---specifically the legislative body which enacted the challenged law:


...[T]he petitioners are, in effect, seeking a declaration that certain sections of the Westchester County Human Rights Law violate State law. However, the petitioners are not entitled to such relief. "A declaratory judgment action is the proper vehicle for challenging the validity of a legislative enactment" ... . Pursuant to CPLR 103(c), this Court has the power to convert a proceeding into an action. However, that power is conditioned upon this Court having jurisdiction over all of the necessary parties ... . "In a declaratory judgment action challenging a local law or ordinance, the legislative body that enacted the challenged local law or ordinance is a necessary party" ... . Since the Westchester County Board of Legislators was not named as a party or joined in this proceeding, this Court cannot exercise its authority pursuant to CPLR 103(c) ... . Matter of Hoffmann Invs. Corp. v Ruderman, 2015 NY Slip Op 03361, 2nd Dept 4-22-15





Evidence Which Is "Material and Necessary" in the Context of Discovery Is Much Broader in Scope than Evidence Which Is Admissible at Trial


The First Department, over a two-justice dissent, determined that Supreme Court should have allowed discovery of documents relating to a prior steam pipe explosion (in Texas) in the instant proceeding, which also involves a steam pipe explosion. Defendant Con Ed sought the records of defendant Team Industrial Services, Inc. (Team), which applied pipe sealant where both explosions occurred, alleging that the pipe sealant application caused the explosions. The dissent felt the Appellate Division should defer to Supreme Court's finding, made after an extensive review of the Texas records, that the two incidents were not sufficiently similar to warrant discovery. The First Department explained that the criteria for the reach of discovery is broad and goes beyond what might be admissible at trial:


The words "material and necessary," as used in CPLR 3101(a) are "to be interpreted liberally to require disclosure . . . of any facts bearing on the controversy" ... . "The weight to be given evidence of other [lawsuits or claims] on the issues of notice and causation, and indeed the very admissibility of such evidence . . . are not of concern in the context of disclosure" ... .


In our view, the motion court applied too harsh a standard in determining that documents concerning the prior ... incident are not discoverable. We are not concerned with the ultimate admissibility of the evidence at trial, but with the discovery of information concerning the prior incident, as to which a more liberal standard applies ... . Matter of Steam Pipe Explosion at 41st St. & Lexington Ave., 2015 NY Slip Op 03269, 1st Dept 4-21-15




Providing 9000 Documents Without Indicating the Specific Discovery Demands to Which the Documents Related Was Improper


The Second Department determined Supreme Court upheld the Court Referee's determination that the plaintiff's response to discovery demands were not adequate.  Plaintiffs had provided a flash drive with 9000 documents and without any indication which of the documents related to the various demands.  The Court Referee ordered the plaintiffs to "provide their discovery responses in a manner that allows the defendants 'to know and understand' which documents apply to their separate discovery demands." H.P.S. Mgt. Co., Inc. v St. Paul Surplus Lines Ins. Co., 2015 NY Slip Op 03320, 2nd Dept 4-22-15





Allowing Testimony that Defendant's Name Was Mentioned in an Out-of-Court Conversation About the Underlying Assault Was (Harmless) Error/The Confrontation Clause Was Not Implicated Because the Hearsay Was Not Testimonial/Admission of the Hearsay Was Not Justified as "Completing the Narrative" or "Preventing Jury Confusion"


Although the admission of hearsay was deemed harmless error, the First Department determined that allowing the hearsay in evidence to "complete the narrative" or to "eliminate jury confusion" was improper.  The hearsay identified defendant as one of the assailants by indicating the defendant's name was one of the names mentioned in a phone call about the underlying assault.  The court noted that the Confrontation Clause was not implicated because the hearsay was not "testimonial,"  citing People v Gantt, 48 AD3d 59:


...[T]he hearsay nature of [the] testimony relating [an] out-of-court statement ... identifying defendant as [an] assailant — either by name or by an identifying description ...--- was not remedied by framing the query posed ... as seeking the "name mentioned ..." during the call.


We do not adopt the trial court's reasoning that the admission of this hearsay evidence was necessary to convey a coherent narrative of the relevant events or to eliminate the possibility of jury confusion ... .  People v Owens, 2015 NY Slip Op 03270, 1st Dept 4-21-15





Defendant's Hospital Records Properly Admitted---Physician-Patient Privilege Waived by Defense Counsel's Attempt to Show (During Cross-Examination of Police Officers) that Defendant's Conduct Was Related to a Medical Condition, Not Intoxication


The Second Department determined defendant's hospital records were properly admitted into evidence because the defendant waived the physician-patient privilege by placing his medical condition in issue.  During cross-examination of the police officers, defense counsel attempted to show defendant's conduct was the result of a medical condition, not intoxication. People v Williams, 2015 NY Slip Op 03391, 2nd Dept 4-22-15





Decision Whether to Submit a Lesser Included Offense to the Jury Is for the Attorney, Not the Defendant, to Make---Failure to Grant the Attorney's Request (Because the Defendant Objected) Reversible Error


The Second Department reversed defendant's conviction because Supreme Court followed the defendant's, rather than the defendant's attorney's, wishes re: the submission of a lesser included offense (here petit larceny) to the jury. The defendant did not want the lesser included offense submitted to the jury, but his attorney did. The Second Department explained that the decision whether to request a jury charge on a lesser included offense is a strategic one made by the attorney, not the defendant:


...[T]he decision whether to seek a jury charge on a lesser-included offense is a matter of strategy and tactics which is "for the attorney, not the accused to make" ... .


Contrary to the People's contention, the failure to submit the lesser-included offense to the jury constituted reversible error under the circumstances of this case. To be entitled to a charge on a lesser-included offense, a defendant must establish that (1) it was impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct, and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater (see CPL 300.50[1]...). The crime of petit larceny is a lesser-included offense of robbery in the first degree ... . People v Lowery, 2015 NY Slip Op 03385, 2nd Dept 4-22-15





Under the Facts, the Merger Doctrine Precluded Convictions on Both Kidnapping and Burglary Counts/Statements and Lineup Identification Made after Defendant Invoked His Right to Counsel Should Have Been Suppressed


The Second Department reversed defendant's convictions, dismissed the counts which violated the merger doctrine, and ordered a new trial on the remaining counts.  The merger doctrine precluded the kidnapping counts because the restraint of the complainants was inseparable from the burglary count of which defendant was convicted. Supreme Court should have suppressed statements made after defendant invoked his right to counsel and should not have allowed identification evidence stemming from a lineup about which defendant's attorney was not informed. On remand, the court must conduct an "independent source" hearing to determine if the witness can identify the defendant without reliance on the tainted lineup. The Second Department also noted that prior uncharged-crime evidence was improperly admitted to prove "identity:"


The defendant correctly contends that his conviction of four counts of kidnapping in the second degree must be vacated by virtue of the merger doctrine. Under the circumstances of this case, the merger doctrine precludes the convictions of kidnapping in the second degree because the restraint of the complainants was essentially incidental to and inseparable from the count of burglary of which the defendant was convicted ... . ...


...[T]he hearing court erred in denying those branches of his omnibus motion which were to suppress a statement that he made to law enforcement officials and lineup identification testimony. "A defendant's unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant" ... . The defendant, who was in custody, invoked his right to counsel prior to waiving his Miranda rights (see Miranda v Arizona, 384 US 436, 444) and giving a statement to law enforcement officials. Since the defendant gave a statement to those officials in the absence of counsel, and after the right to counsel had indelibly attached, the Supreme Court should have suppressed the statement.


Similarly, the defendant's right to counsel was also violated when police officers conducted a lineup without apprising the defendant's attorney and affording the attorney a reasonable opportunity to participate ... . Since there was no independent source hearing conducted in connection with an in-court identification of the defendant by one of the complainants, the Supreme Court must conduct a hearing, unless waived by the defendant, to determine whether there was an independent source for the in-court identification or, conversely, whether that identification was tainted by the improperly conducted lineup, and thereby rendered inadmissible ... . People v Garnes, 2015 NY Slip Op 03381, 2nd Dept 4-22-15






Show-Up Identification Should Have Been Suppressed---Defendant Was Only Person In the Street, Was In Hand-Cuffs, and Was Surrounded by Police


The Second Department determined the complainant's in-court and pre-trial identification of the defendant should have been suppressed. After the complainant identified the defendant in the show-up, the complainant told the police all the burglars were wearing masks.  The error, however, was deemed harmless.  Probable cause to arrest the defendant existed prior to the show-up:


Here, the hearing testimony demonstrated not only that the perpetrators' faces were covered during the entire time the complainant was with them, but also that the only description the complainant had previously provided to the police was that the perpetrators were black males. Under these circumstances, it cannot be said that the complainant's pretrial and in-court identification of the defendant was not founded on the fact that the defendant was the only person standing in the street, in handcuffs, surrounded by the police with high-beam headlights shining on his face, during the showup proceeding ... . Nevertheless, the error in admitting this identification evidence at trial was harmless since the other evidence of the defendant's guilt, including oral and written statements he gave to the police admitting to his participation in the burglary, was overwhelming, and there is no reasonable possibility that the error might have contributed to his conviction ... . People v Williams, 2015 NY Slip Op 03390, 2nd Dept 4-22-15






Statutory Presumption of Possession of Weapons Recovered from Vehicle Confers on Vehicle-Occupants Automatic Standing to Move to Suppress


The First Department determined the People were relying exclusively on the statutory presumption that weapons recovered from inside a vehicle are possessed by all the occupants.  Therefore, the defendant had standing to move to suppress the weapons:


In opposition to defendant's assertion that the weapon possession charges were based solely on the statutory presumption that weapons recovered from the interior of an automobile are deemed to be possessed by all its occupants (Penal Law § 265.15[3]), the People failed to "point to evidence reasonably tending to show the defendant's actual or constructive possession" of the two pistols ... . Instead, the People asserted that the statutory presumption did not apply, claiming erroneously that the two handguns at issue were recovered from the person of one of the car's passengers (see Penal Law § 265.15[3][a]). The People concede on appeal that this argument was incorrect, because the two pistols (unlike a revolver found on the person of a passenger) were in fact recovered from a box on the back seat. There is no indication that the motion court relied either on the grand jury minutes or the search warrant affidavit. Because the People failed to adequately demonstrate that the charges relating to the two pistols were not based entirely on the statutory presumption, defendant had automatic standing to challenge seizure of those weapons ... . People v Rivera, 2015 NY Slip Op 03396, 1st Dept 4-23-15





Action for a Declaratory Judgment Must Be Based Upon a Concrete Dispute, Not the Mere Possibility of Prejudice---Complaint Properly Dismissed


In finding that the action for a declaratory judgment was properly dismissed, the Second Department explained that a declaratory judgment must be based upon a concrete dispute and may not be based upon merely hypothetical prejudice to the plaintiff.  Without a concrete dispute, the action seeks an impermissible advisory opinion:


An action for a declaratory judgment must be supported by the existence of a justiciable controversy (see CPLR 3001...). There must be a genuine, concrete dispute between adverse parties, not merely the possibility of hypothetical, contingent, or remote prejudice to the plaintiff ... .


Contrary to the plaintiff's contention, it failed to allege the existence of a justiciable controversy in this case, relying instead upon a hypothetical injury which would be contingent upon the occurrence of events which may or may not come to pass at some point in the future. Accordingly, the plaintiff sought an impermissible advisory opinion, and the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint ... . Premier Restorations of N.Y. Corp. v New York State Dept. of Motor Vehicles, 2015 NY Slip Op 03339, 2nd Dept 4-22-15






Under Powers Reserved to the Town by an 1818 Law, the Town Cannot Regulate Shoreline Dune Reconstruction and Erosion Control Undertaken by a Village within the Town


The Second Department, reversing Supreme Court, determined laws enacted in the early 1800's prohibited the Town of Southampton from regulating shoreline activities such as dune restoration and erosion control undertaken by the Village (located within the Town):


The language of the 1818 Law "only relates to the use of the beach or shore, by taking seaweed from it and carting or transporting to and from or landing property on such shore" and "makes no reference to the management or regulation of the lands constituting the beach or shore . . . , but merely provides for the [Town's] management and regulation of the waters, fisheries, and taking of seaweed and the productions of the waters" ... . Accordingly, the Village was entitled to a judgment declaring, inter alia, that the [Town has] no lawful governmental or regulatory power to grant or deny permits in connection with (i) the placement and grading of sand and earth, and (ii) the development, construction, maintenance, and use of structures and lands located anywhere upon the ocean beaches situated within the boundaries of the Village. Semlear v Incorporated Vil. of Quogue, 2015 NY Slip Op 03345, 2nd Dept 4-22-15






Under the Facts, Family Court Should Not Have Terminated Father's Parental Rights---No Showing that Termination Would Increase Likelihood of Adoption


The Second Department determined Family Court should not have terminated father's parental rights. Father had made progress in strengthening his bond with his children and there was no showing terminating his rights would increase the likelihood of adoption:


The record indicates that the father made sufficient progress toward strengthening his relationship with the subject children ... . Furthermore, the older child is residing at a residential treatment center for children with emotional and behavioral issues, and there is no indication that he has any prospects for foster placement or adoption. Although the younger child resides with a foster family, the foster parents have indicated that they do not wish to adopt him out of concern that they could not handle him. Thus, on this record, there is no indication that termination of the father's parental rights would increase the subject children's opportunities for adoptive placement ... .


Under these circumstances, the Family Court's termination of the father's parental rights was not in the best interests of the children and, instead, the court should have suspended judgment for one year... . Matter of Javon J. (Antoine J.), 2015 NY Slip Op 03363, 2nd Dept 4-22-15





Pleading Requirements for Aiding and Abetting Fraud and Fraud Explained---Requirements Not Met Here


In finding that the cause of action for aiding and abetting fraud should have been dismissed, the Second Department explained the pleading requirements:


To plead a cause of action to recover damages for aiding and abetting fraud, a complaint must allege the existence of an underlying fraud, knowledge of the fraud by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the fraud ... . Here, the complaint failed to adequately allege the existence of an underlying fraud. A plaintiff asserting a cause of action alleging fraud must plead all of the following elements: (1) a material misrepresentation or a material omission of fact which was false and which the defendant knew to be false, (2) made for the purpose of inducing the plaintiff to rely upon it, (3) the plaintiff's justifiable reliance on the misrepresentation or material omission, and (4) injury ... . In addition, in any action based upon fraud, "the circumstances constituting the wrong shall be stated in detail" (... see CPLR 3016[b]). "[A]n essential element of any fraud [claim] is that there must be reasonable reliance, to a party's detriment, upon the representations made" by the defendant against whom the fraud claimed has been asserted ... . The plaintiff must show a belief in the truth of the representation and a change of position in reliance on that belief... .  Nabatkhorian v Nabatkhorian, 2015 NY Slip Op 03335, 2nd Dept 4-22-15






Strictly Construing the Policy, Falling Through a Defective Manhole (Located in the Parking Lot) Into the Building's Septic System Was Not Subject to the "Parking Lot" Exclusion from Coverage---The Claim Did Not Arise from the "Ownership, Maintenance or Use" of the Parking Lot, But Rather Arose from the "Operations Necessary or Incidental" to the Insured Building


The Second Department determined that the exclusion of a parking lot from a bodily injury insurance policy did not apply to the failure of a manhole cover in the parking lot.  Plaintiff's decedent drowned in the leaching pool below the manhole. The leaching pool and manhole cover were deemed to be part of the building's septic system.  Therefore the claim arose from operations necessary or incidental to the building, and not out of the "ownership, maintenance or use" of the parking lot:


The policy provided coverage for bodily injury "arising out of . . . [t]he ownership, maintenance or use of the premises . . . and operations necessary or incidental to those premises." The policy excluded coverage for claims "arising out of . . . [t]he ownership, maintenance or use of [a specified parking lot] or any property located on these premises; [or] Operations . . . necessary or incidental to the ownership, maintenance or use of those premises" (hereinafter the parking lot exclusion). * * *


Exclusions to coverage must be strictly construed and read narrowly, with any ambiguity construed against the insurer ... . "[T]o negate coverage by virtue of an exclusion, an insurer must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case'" ... . ...


Since the allegedly defective manhole cover and leaching pool into which the decedent fell were part of the building's septic system, the decedent's claim arose out of operations necessary or incidental to the building, and not out of the "ownership, maintenance or use" of the rear parking lot. Thus, strictly construing the parking lot exclusion and reading it narrowly, it does not apply ... . Lancer Indem. Co. v JKH Realty Group, LLC, 2015 NY Slip Op 03331, 2nd Dept 4-22-15






Insurer Did Not Demonstrate, as a Matter of Law, the Denials of Claims Were Timely and Properly Mailed---Summary Judgment In Favor of Insurer Should Not Have Been Granted


Supreme Court granted plaintiff insurer's motion for summary judgment, declaring that the plaintiff was not obligated to pay no-fault claims submitted by the defendant because the defendant was unable to verify the validity of the claims. The Second Department reversed, finding that the plaintiff did not demonstrate, as a matter of law, that the denials had been timely and properly mailed to the defendant. The relevant proof requirements were described:


Generally, "proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee" ... . " The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'" ... . However, in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a denial of claim is always properly addressed and mailed ... . "Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption" ... .


Here, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the denial of claim forms to the defendant. The affidavit of Joseph M. Andre ... asserted that ... all items were mailed through an automated system, and explained how documents were identified. However, Andre did not state, in his affidavit, how the envelopes were addressed so as to ensure that the address was correct or whether the envelope was addressed by the automated system or by an employee. He also did not state how and when the envelopes, once sealed, weighed, and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier or messenger service to be delivered. Therefore, Andre's affidavit was insufficient to establish, as a matter of law, that the denial of claim forms were timely and properly mailed to the defendant... . Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 2015 NY Slip Op 03340, 2nd Dept 4-22-15






Lessee Who Has Authority to Control the Work Is Liable Under the Labor Law


The Second Department reversed Supreme Court finding that plaintiff was entitled to summary judgment on his Labor Law 240 (1) claim. Plaintiff alleged that a ladder twisted out from under him when he was carrying materials to the roof and defendant (Sigma) did not raise a question of fact whether plaintiff's conduct was the sole proximate cause of his injuries. The court explained the circumstances under which a tenant, the defendant (Sigma) here, is liable under the Labor Law:


Labor Law § 240(1) applies to owners, contractors, and their agents (see Labor Law § 240[1]...). A party is deemed to be an agent of an owner or contractor under the Labor Law when it has the " ability to control the activity which brought about the injury'" ... . A lessee of real property that hires a contractor and has the right to control the work at the property is considered to be an owner within the meaning of the law ... . Moreover, a lessee of property may be liable as an "owner" when it "has the right or authority to control the work site, even if the lessee did not hire the general contractor" ... . The key question is whether the defendant had the right to insist that proper safety practices were followed ... . Here, the evidence established that Sigma was the lessee of the premises where the accident occurred and that the president of Sigma hired the injured plaintiff to perform the work and controlled his work. Seferovic v Atlantic Real Estate Holdings, LLC, 2015 NY Slip Op 03343, 2nd Dept 4-22-15



Questions of Fact Remained About Whether the Seller Was "Ready, Willing and Able to Close" and Whether the Seller Had Breached the Implied Covenant of Good Faith and Fair Dealing---Supreme Court Should Not Have Granted Summary Judgment to Seller


The First Department, in a full-fledged opinion by Justice Acosta, determined that summary judgment, entitling the seller of shares of a cooperative allocated to a penthouse to keep the plaintiff-buyer's $2.75 million deposit, should not have been granted. During the course of purchase negotiations a dispute arose about whether a terrace was exclusively for the use of the occupants of the penthouse or whether it was a common area which could be used by other residents. Supreme Court held the issue had been resolved in the plaintiff-buyer's favor. But the First Department held that the proof did not demonstrate the issue had been fully resolved such that the plaintiff could be sure of an exclusive right to the use of the terrace. Because the proof did not demonstrate the issue had been fully resolved, there were questions of fact whether the seller was "ready, willing and able to close" on the time-of-the-essence closing date and whether the plaintiff had a good reason not to attend the closing.  The First Department also found there were questions of fact about whether the seller had breached the implied covenant of good faith and fair dealing by trying the force the closing irrespective of whether the cooperative might later take steps to interfere with the plaintiff's exclusive use of the terrace:


Without the [cooperative's] Board's affirmative and unequivocal acknowledgment that the shareholders have no right to traverse the terrace, and that it would not take future action to revoke plaintiff's exclusive right to use that space, plaintiff lacked adequate assurances that his right of exclusivity (and the market value of the apartment) would remain undisturbed if he consummated the sale ... .


The [seller] has not shown that plaintiff was given these assurances and, consequently, it failed to demonstrate its ability to close ... . Moreover, absent a showing that plaintiff received unequivocal assurances that the Coop would not interfere with his right of exclusivity going forward, the [seller] cannot show that plaintiff lacked a lawful excuse to abstain from attending the closing ... . Pastor v DeGaetano, 2015 NY Slip Op 03307, 1st Dept 4-21-15






Statutory Three-Year Moratorium on Seeking a Lower Tax Assessment Applies to New Owner of the Property


The Second Department, in a full-fledged opinion by Justice Dillon, determined that the three-year moratorium on tax certiorari proceedings following a reduced assessment applied to a subsequent purchaser of the land. The seller of the land successfully won a reduced assessment of the land due to chemical contamination.  The purchaser of the land then sought a further reduction, based upon a much lower appraisal of the value of the land, within the three-year statutory moratorium period:


Central to this appeal is the language, purpose, and legislative intent of RPTL 727(1), which states, in relevant part, that


"where an assessment being reviewed pursuant to this article is found to be unlawful, unequal, excessive or misclassified by final court order or judgment, the assessed valuation so determined shall not be changed for such property for the next three succeeding assessment rolls prepared on the basis of the three taxable status dates next occurring on or after the taxable status date of the most recent assessment under review in the proceeding subject to such final order or judgment" (RPTL 727[1]). * * *


What distinguishes these matters from many tax certiorari proceedings is the change in the property's ownership ... . RPTL 727(2) sets forth certain circumstances under which property assessments may be challenged despite the three-year moratorium, mainly involving revaluations of all properties on a municipal entity's assessment rolls, physical changes to the property, zoning changes, and other recognized exceptions not relevant here (see RPTL 727[2][a-I]...). These recognized exceptions address situations where changes in circumstances defeat the statute's purpose of locking in judicially settled assessments to maintain the status quo, because the changed circumstances themselves upset the status quo ... .


A change in a property's ownership is not listed in the statute as an exception to the three-year moratorium of RPTL 727(1). Under the doctrine of expressio unius est exclusio alterius, the presence of exceptions in RPTL 727(2), without inclusion of a property sale exception among them, must be inferentially construed as the Legislature's intent not to except from the three-year moratorium circumstances where property is sold to a new owner... . Matter of ELT Harriman, LLC v Assessor of Town of Woodbury, 2015 NY Slip Op 03356, 2nd Dept 4-22-15






A Party Which Is Merely a Possible Beneficiary of a Charitable Trust Does Not Have Standing to Bring an Action to Enforce the Trust


The Second Department reversed Supreme Court finding that the plaintiff Historical Society did not have standing to bring an action seeking a declaratory judgment re: the intent of the grantor of a charitable trust.  At stake are trust assets of $81 million distributed to a charitable foundation (Foundation) set up by the grantor.  The Foundation was set up to sponsor and encourage historical societies. Plaintiff Historical Society sought a declaratory judgment that it was a beneficiary of the trust. The Second Department held that Supreme Court should have dismissed the complaint, explaining that the attorney general is responsible for representing charitable trust beneficiaries and there was no indication the plaintiff Historical Society was a party with a "special interest" entitling it to sue for enforcement on its own behalf:


In an action for the enforcement of a charitable trust, EPTL 8-1.1(f) provides that "[t]he attorney general shall represent the beneficiaries of such dispositions for religious, charitable, educational or benevolent purposes and it shall be his [or her] duty to enforce the rights of such beneficiaries by appropriate proceedings in the courts." A party with a special interest in the enforcement of the trust may have standing to commence such an action; however, "one who is merely a possible beneficiary of a charitable trust, or a member of a class of possible beneficiaries, is not entitled to sue for enforcement of the trust" ... . This "special interest" is found by looking to the trust's chartering documents to discern the purpose of the trust, and whether there is a class of intended beneficiaries that is entitled to a preference and is sharply defined and limited in number ... .


In support of their motion, the appellants submitted the Foundation's certificate of incorporation ... which states that the Foundation's purpose includes educating the public about state and local history and encouraging and sponsoring existing and future historical societies. That document does not name the Historical Society as a beneficiary, nor does it name any beneficiary. [The grantor's] will did not mention the Historical Society. Accordingly, the Historical Society was not part of a class of potential beneficiaries of the Foundation that is sharply defined and limited in number. Therefore, it lacked standing to commence this action ... . Sagtikos Manor Historical Socy., Inc. v Robert David Lion Gardiner Found., Inc., 2015 NY Slip Op 03342, 2nd Dept 4-22-15






Limousine Driver Properly Found to Be an Employee


The Third Department determined claimant was an employee of SUK, a limousine service, and therefore was entitled to unemployment insurance benefits.  The court noted that the Unemployment Insurance Appeal Board (Board) need not distinguish every arguably similar case it has previously decided:


"An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results," with control over the latter being more important ... .


Here, the record establishes that SUK assigned jobs to claimant and fielded complaints from its customers. Additionally, SUK imposed numerous restrictions upon claimant, including prohibiting him from working with its competitors, imposing detailed rules as to acceptable work dress and behavior and requiring him to drive a specific type of car. SUK also set the rate collected from the passengers and handled all voucher billing. ... ...[T]he Board need not "explicitly distinguish in its written decisions each and every arguably similar case that it previously has decided" and, hence, was not required to address the distinguishable cases relied upon by SUK ... . Matter of June-Il Kim (Suk Inc.--Commissioner of Labor)\, 2015 NY Slip Op 03438, 3rd Dept 4-23-15






Unemployment Insurance Appeal Board Has Jurisdiction Over Employment Within Federal Enclaves (Here Navy Ships at Sea)


The Third Department determined that the Unemployment Insurance Appeal Board (Board) had jurisdiction over employment within so-called federal enclaves.  Here claimant was employed by a company which sold cars to Navy personnel stationed on ships at sea.  The company, Priority Assist, argued the Board did not have jurisdiction over the employment at issue.  The court relied on a US Supreme Court case which indicated the exclusive jurisdiction of the United States could be modified by statute, and the federal statute which state employment on federal propery was not exempt from state unemployment compensation law:


Priority Assist initially asserts that claimant and others similarly situated performed work in federal enclaves — i.e., lands purchased by the federal government, with state consent, "for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings" — and that the Board accordingly lacked jurisdiction to hold it liable for unemployment insurance contributions (US Const, art I, § 8, cl 17). Even assuming that United States Navy vessels that have never been part of a state constitute federal enclaves, "exclusive jurisdiction over [such an] area . . . remains with the United States, except as modified by statute" (Howard v Commissioners of Sinking Fund of City of Louisville, 344 US 624, 627 [1953] [emphasis added]). Inasmuch as federal law provides that "[n]o person shall be relieved from compliance with a [s]tate unemployment compensation law on the ground that services were performed on land or premises owned, held, or possessed by the United States," the Board retained jurisdiction here (26 USC § 3305 [d]). Matter of Pickton (Priority Assist Inc.--Commissioner of Labor), 2015 NY Slip Op 03437, 3rd Dept 4-23-15






Court's Review Powers Re: a Zoning Board's Interpretation of an Ordinance Explained---Reviewing Court Need Not Defer to the Board's Ruling on a Purely Legal Issue/Here Zoning Board Properly Interpreted the Ordinance---Criteria Explained


Reversing Supreme Court, the Second Department determined the Zoning Board of Appeals (ZBA) had properly found that a "tire sales and automotive repair" business was a "conditional use," not a "permitted use," within the meaning of the Village Code. A "conditional use" requires a conditional use permit and site plan approval.  The court explained its review powers in this context and the statutory interpretation criteria it applied. The reviewing court need not defer to the agency's ruling on a purely legal question (here the meaning of the applicable code provisions). The ordinance must be read as a whole and no language should be rendered superfluous:


" In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion'" ... . "[Z]oning restrictions, being in derogation of common-law property rights, should be strictly construed, and any ambiguities are to be resolved in favor of the property owner" ... .


A zoning board's interpretation of its zoning ordinance is generally entitled to great deference ... . However, where, as here, "the issue involves pure legal interpretation of statutory terms, deference is not required" ... . Pursuant to our independent review of the law, we conclude that the ZBA's determination complied with applicable legal principles ... .


Under the Zoning Code, uses permitted as of right (hereinafter permitted uses) and conditional uses are set forth in accompanying zoning schedules. The uses listed in column A of the applicable schedules "are permitted by right," while the uses listed in column C "are permitted only on approval of the Planning Board, and are conditioned to [sic] special requirements that may be imposed to ensure compatibility with neighboring uses" (Code of the Village of Monroe § 200-15[B]). Zoning Schedule I-F is applicable to the GB District. The permitted uses enumerated in column A of the Table of Use Requirements of Zoning Schedule I-F include, among others, "retail sales" (Item 17) and "repair service, including automotive" (Item 16). However, column C lists "tire sales and service" (Item 4) among the conditional uses. Section 200-3 of the Code of the Village of Monroe provides that "[i]n the event of conflict in the terminology of any section or part thereof of this chapter, the more restrictive provisions shall control" ... . 


"A statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance" ... . Matter of Robert E. Havell Revocable Trust v Zoning Bd. of Appeals of Vil. of Monroe, 2015 NY Slip Op 03369, 2nd Dept 4-22-15









Failure to Give the "Missing Witness" Jury Instruction Required Reversal of Defense Verdict---Criteria Explained


The Second Department reversed a defense verdict in a slip and fall case. Chinsamy, the owner and operator of the defendant business which abutted the sidewalk where plaintiff slipped and fell, did not testify at trial.  He had given a deposition about his knowledge of the condition of the sidewalk, which was read to the jury by plaintiff's counsel.  Plaintiff's request for the missing witness jury instruction should not have been denied.  Plaintiff was entitled to the instruction even though Chinsamy's deposition testimony was placed in evidence. The court explained the relevant "missing witness charge" criteria:


A missing witness charge "instructs a jury that it may draw an adverse inference based on the failure of a party to call a witness who would normally be expected to support that party's version of events. . . The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control' of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party" ... .


Under the circumstances, and considering Chinsamy's unexplained failure to appear and testify at trial, the Supreme Court should have granted the plaintiff's request for a missing witness charge ... . In this regard, we note that the plaintiff's use of Chinsamy's deposition testimony does not constitute a waiver of her right to request a missing witness charge... . Alli v Full Serv. Auto Repair, LLC, 2015 NY Slip Op 03308, 2nd Dept 4-22-15








Admissions In Hospital Records Which Contradicted Plaintiff's Trial Testimony Properly Admitted/Seat Belt Defense Should Not Have Been Submitted to the Jury---Insufficient Foundation/"Missing Witness" Jury-Instruction Request Not Supported by a Showing the Testimony Would Be "Material" and "Noncumulative"


The Second Department determined the plaintiff's admission, contained in the hospital records, that he was not wearing a seat belt at the time of the collision was properly admitted at trial.  Although the statement was not relevant to diagnosis or treatment, it was admissible because it contradicted plaintiff's trial testimony (plaintiff testified he was wearing a seat belt at the time of the accident). However, Supreme Court should not have submitted the seat belt defense to the jury because there was no foundational testimony explaining precisely how wearing a seat belt would have minimized plaintiff's injuries.  The Second Department also noted plaintiff's request for a missing witness jury instruction was properly denied because there was no showing the witness would have provided material, noncumulative testimony:


A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule only if the entry is germane to the diagnosis or treatment of the patient ... . However, if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is "evidence connecting the party to the entry" ... . At trial, the plaintiff testified that he was using a seat belt at the time of the accident. The hospital records containing the challenged entries clearly indicated that the plaintiff was the source of the information contained therein ... . Accordingly, the challenged entries were properly admitted into evidence.


Although the Supreme Court properly declined to redact the hospital record as requested by the plaintiff, the court nonetheless erred in submitting the seat belt defense to the jury, since the defendants failed to demonstrate, by competent evidence, that the plaintiff's injuries would have been minimized had he been wearing a seat belt at the time of the accident ... . At trial, both of the plaintiff's treating physicians testified in general terms that use of a seat belt can reduce the risk of injury. This evidence was insufficient to satisfy the defendants' burden of proof ... . Robles v Polytemp, Inc., 2015 NY Slip Op 03341, 2nd Dept 4-22-15





Landlord Failed to Demonstrate Assault on Tenant Was Not Foreseeable---Landlord's Summary Judgment Motion Properly Denied


The Second Department determined Supreme Court properly denied landlord's motion for summary judgment in an action stemming from an assault on a tenant at the landlord's premises.  The assault took place when the lone security guard took his regular lunch break, leaving the premises unguarded. The defendant did not demonstrate a lack of notice of the same or similar criminal conduct and therefore failed to demonstrate the assault was not foreseeable:


A landlord is not the insurer of the safety of its tenants ... . Nevertheless, landlords have a duty to take reasonable precautions to protect tenants and visitors from foreseeable harm, including foreseeable criminal conduct by third parties ... . To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location ... .


Here, on its motion for summary judgment, [the landlord] failed to establish, prima facie, that it lacked notice of the same or similar criminal activity occurring on the premises. Karim v 89th Jamaica Realty Co., L.P., 2015 NY Slip Op 03329, 2nd Dept 4-22-15






Hospital Employees, Working With a Non-Employee Attending Physician, Were Not Independently Negligent and Were Not Asked to Follow Orders Which Were Contrary to Normal Practice---Summary Judgment Dismissing Complaint Against Hospital Should Have Been Granted


The Second Department determined defendant hospital (Good Samaritan) was entitled to summary judgment dismissing the complaint. The hospital was not concurrently liable re: conduct of a non-employee attending physician (Schneider) because there was no showing hospital employees acted negligently independently or followed orders made by the attending physician which were contrary to normal practice:


"In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence" ... . "However, a hospital can be held concurrently liable with a private attending physician if its employees commit independent acts of negligence or the attending physician's orders are contraindicated by normal practice" ... . Here, the evidence submitted by Good Samaritan established, prima facie, that there were no independent acts of medical judgment on the part of Good Samaritan or its employees apart from following the orders of Schneider, who was the plaintiff's private attending physician. Nor were Schneider's orders contraindicated by normal practice, such that ordinary prudence required inquiry into the correctness of those orders. Tomeo v Beccia, 2015 NY Slip Op 03350, 2nd Dept 4-22-15








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