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August Page II

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


Click on the Case Name to View Full Decision



County Clerk Not Authorized to Enter Judgment Where the Underlying Stipulation Required Notice Prior to Entry and Extrinsic Evidence Was Required to Calculate the Amount


The Second Department vacated a clerk's judgment which had been entered based upon defendant's alleged violation of a stipulation requiring monthly installments to pay off a judgment. The stipulation allowed the entry of judgment only "upon ten (10) days notice" and extrinsic evidence was necessary to calculate the amount of the judgment:


... [T]he ... County Clerk did not have authority to enter a clerk's judgment against Wielgus pursuant to CPLR 3215(i)(1). This statute states, in relevant part, that "[w]here . . . a stipulation of settlement is made, providing, in the event of failure to comply with the stipulation, for entry without further notice of a judgment in a specified amount, . . . the clerk shall enter judgment on the stipulation and an affidavit as to the failure to comply with the terms thereof, together with a complaint or a concise statement of the facts on which the claim was based" (CPLR 3215[i][1] [emphasis added]). Although the stipulation provided that [plaintiff bank] could enter a money judgment against [defendant] in the event of a default, it permitted entry of such a judgment only "upon ten (10) days notice" to [defendant]. Thus, the stipulation was not one which provided for entry of a judgment upon default "without further notice." Moreover, the stipulation did not provide for entry of a judgment "in a specified amount." Rather, it provided that the judgment to be entered upon [defendant's] default would be calculated so as to "credit [defendant] for all payments made on account." The stipulation thus did not specify the exact principal sum of the judgment that [plaintiff bank] would have the right to enter based on a default ... under the stipulation; rather, it provided for a formula that required reference to extrinsic proof ... .


Furthermore, as a general rule, a clerk's judgment should not be entered where, as here, the amount of the judgment can be determined only by reference to extrinsic proof ... . Generally, a judgment should be entered on application to the clerk only where "there can be no dispute as to the amount due"... . Under these circumstances, HSBC was required to apply to the court, rather than to the clerk, for an order enforcing the stipulation and granting leave to enter an appropriate judgment ... . HSBC Bank USA, N.A. v Wielgus, 2015 NY Slip Op 06494, 2nd Dept 8-12-15






International Bank With a Branch in New York Was Required to Comply with an Information Subpoena---"Separate Entity Rule" Which Prevents New York Courts from Enforcing Restraining Notices and Turnover Orders Directed to Branches of Foreign Banks Located Outside New York, Does Not Prevent New York Courts from Directing the New York Branch of a Foreign Bank to Comply with an Information Subpoena, Even though the Information Sought Relates to Foreign Branches--The Information Sought Is Available Through Electronic Searches Made by the New York Branch of the Bank


The First Department, in a full-fledged opinion by Justice Acosta, determined that defendant international bank, Mega (based in Taiwan with branches in 14 countries), was required to comply with an information subpoena issued to its New York branch. The essence of the action is the collection of a $39 million judgment. It was alleged that Mega was aiding the judgment debtor in preventing collection. Because the information requested was available to Mega through electronic searches conducted from the New York branch, and because Mega had consented to the necessary regulatory oversight in return for permission to operate in New York, Mega was directed to comply with the information subpoena:


The issue is whether the separate entity rule bars New York courts from compelling Mega's New York branch to produce information pertaining to Mega's foreign branches.


The separate entity rule is that "each branch of a bank is a separate entity, in no way concerned with accounts maintained by depositors in other branches or at the home office" ... . The continuing validity of this arcane rule was recently upheld by the Court of Appeals ... , solely with respect to restraining notices and turnover orders affecting assets located in foreign branch accounts  * * *. ... [T]he rule does not bar the court's exercise of jurisdiction over Mega to compel a full response to the information subpoena.


Moreover, public policy interests and innovations in technology support such an exercise of jurisdiction. ... "[B]road post-judgment discovery in aid of execution is the norm in federal and New York state courts" ... , and "New York law entitles judgment creditors to discover all matters relevant to the satisfaction of a judgment" ... . * * *


"The information requested by the Information Subpoena can be found via electronic searches performed in [the bank's] New York office, and [is] within this jurisdiction" ... . Matter of B&M Kingstone, LLC v Mega Intl. Commercial Bank Co., Ltd., 2015 NY Slip Op 06482, 1st Dept 8-11-15







Objections to a Verdict on the Ground of Inconsistency Must Be Made Before the Jury Is Discharged---Defense Verdict Was Against the Weight of the Evidence


The Second Department determined the defense verdict in a personal injury action was against the weight of the evidence, requiring a new trial. Of the three defendants, the jury found only one, Port Authority, negligent with respect to a door which came off its hinges, injuring the plaintiff. Because the only reasonable view of the evidence was that a defendant's negligence was the proximate cause of the injury, finding that the Port Authority was negligent, but that the negligence was not the proximate cause of plaintiff's injuries, was against the weight of the evidence. The court noted plaintiff's argument that the verdict was inconsistent as a matter of law was not preserved for appeal because objections to a verdict on the ground of inconsistency must be made before the jury is discharged:


"Objections to a verdict on the ground of inconsistency must be raised before the jury is discharged, at which time corrective action may be taken by resubmitting the matter to the jury"... .


A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence ... . "Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors" ... . Where the only reasonable view of the evidence presented at trial was that a defendant's negligence was a proximate cause of the plaintiff's injuries, a verdict finding that the defendant's negligence was not a proximate cause of the plaintiff's injuries must be set aside as contrary to the weight of the evidence ... .


Here, in light of the jury's finding that neither [of the other two defendants] was negligent, the jury's determination that the Port Authority was negligent but that its negligence was not a substantial factor in causing the subject accident was not supported by a fair interpretation of the evidence ... . Ahmed v Port Auth. of N.Y. & N.J., 2015 NY Slip Op 06485, 2nd Dept 8-12-15







Evidence of Shooting Committed by Defendant's Twin Brother Was Highly Prejudicial and Had No Bearing Upon Defendant's Guilt---Murder Conviction Reversed


The Second Department determined defendant's murder convictIon must be reversed because evidence of a shooting committed by defendant's twin brother should not have been admitted. This highly prejudicial evidence had no bearing on defendant's culpability:


"Evidence of uncharged crimes or crimes committed by a person other than the defendant is generally inadmissible because it is highly prejudicial with little probative value" ... . Here, the evidence of the unrelated shooting was admitted in response to evidence introduced by the defense to show that the defendant and his uncharged accomplices exhibited a calm demeanor shortly after the shooting at the garage and that such a demeanor was inconsistent with the People's contention that they had been recently involved in a violent crime. The People argued that evidence of the unrelated shooting was relevant to this case on the ground that it showed that the defendant's identical twin brother had similarly exhibited a calm demeanor after he shot an individual at a bar on a prior occasion.


Evidence that the defendant's identical twin brother had perpetrated a separate shooting less than two months prior to the shooting in this case was highly prejudicial to the defendant and had no bearing whatsoever on the defendant's culpability for the crimes charged ... . This evidence "served no purpose other than to raise an inference of guilt by association" ... . People v Grigoroff, 2015 NY Slip Op 06517, 2nd Dept 8-12-15







Odor of Marihuana Provided Probable Cause to Search Defendant's Car and Person


The Second Department determined the odor of marihuana coming from inside defendant's car provided the police with probable cause to search defendant's car and person:


... [T]he police had probable cause to search the defendant's vehicle and his person. An officer testified at the suppression hearing that he detected the odor of marihuana emanating from inside the vehicle through the open front windows. He further testified that he had been trained in the detection of marihuana and had made hundreds of drug arrests. Contrary to the defendant's contention, "[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause" to search a vehicle and its occupants.. . People v McLaren, 2015 NY Slip Op 06522, 2nd Dept 8-12-15




Sexual Harassment Findings Affirmed


The Third Department affirmed the State Division of Human Rights' (SDHR's) determination that respondent corrections officer had been subjected to sexual harassment (creating a hostile work environment) and was entitled to economic and noneconomic damages. The court noted that its review powers were "narrow" and were confined to whether the Commissioner of Human Rights' rulings were rational in light of the evidence. The court further noted that the Commissioner should not have offset the award based upon past and future workers' compensation benefits, and the commissioner should have considered respondent's loss of pension benefits. In explaining its review criteria, the court wrote:


When reviewing a determination made by the Commissioner in a matter such as this one, our purview is "extremely narrow" and must focus not on whether we would have reached the same result as did the Commissioner, but instead on whether the Commissioner's determination was rational in light of the evidence presented ... . Such deference is due given SDHR's expertise in evaluating discrimination claims ... . A violation of Executive Law § 296 based on a hostile work environment must be supported by proof that the "workplace [was so] permeated [by a] discriminatory" atmosphere that it "alter[ed] the conditions of the [complainant's] employment" ... . "Where, as here, there is a finding of a hostile work environment as a result of sexual harassment, the evidence in the record must establish the pertinent elements, including proof that the discriminatory conduct occurred due to the complainant's gender"... . Matter of Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 2015 NY Slip Op 06551, 3rd Dept 8-13-15






Even Though the Insured Was Faultless, the "Additional Insureds" Endorsement Was Triggered---The Endorsement Covered Acts or Omissions by the Insured Which "Caused" the Underlying Injury Without Any Requirement that the "Cause" Entail Negligence---Here the Insured Was Not Negligent, but the Injury Was "Caused" by Insured's Non-Negligent Acts---Therefore the Additional Insureds Were Covered Under the Policy


The First Department, in a full-fledged opinion by Justice Friedman, determined that the "additional insureds" endorsement in plaintiff-insurer's policy did not have a "negligence trigger." Therefore, even though it was demonstrated that the company insured under plaintiff-insurer's policy was not negligent, the endorsement covered the "additional insureds" because there was a causal relationship between the insured's acts and the underlying injury to a worker. The insured company, Breaking Solutions, was hired by the New York City Transit Authority (NYCTA) and the Metropolitan Transit Authority (MTA) to break up concrete for a subway construction project. Plaintiff-insurer, Burlington Insurance Co. insured Breaking Solutions.  The NYCTA and MTA were additional insureds under the policy. It was NYCTA's responsibility to identify the location of electric cables and to shut off the power in the areas where Breaking Solutions was working. NYCTA failed to identify and shut off the power to a cable which was struck by Breaking Solutions' excavation equipment resulting in an explosion. The plaintiff in the underlying personal injury action, an NYCTA employee, was injured by the explosion. The issue came down to the language of the "additional insureds" endorsement which referred only to injuries "caused" by the acts or omissions of the insured. Even though the probable intent of the drafters of the policy was to cover only "negligent" acts or omissions by the insured which "caused" the injury, the language of the endorsement could only be enforced as written. Because the worker's injuries were "caused" by the (non-negligent) acts of the insured, the additional insureds (NYCTA and MTA) were covered under the terms of the policy:


While it is true that, because NYCTA had not warned the Breaking Solutions' operator of the cable's presence, Breaking Solutions' "act[]" did not constitute negligence, this does not change the fact that the act of triggering the explosion, faultless though it was on Breaking Solutions' part, was a cause of [the worker's] injury. The language of the relevant endorsement, on its face, defines the additional insured coverage afforded in terms of whether the loss was "caused by" the named insured's "acts or omissions," without regard to whether those "acts or omissions" constituted negligence or were otherwise actionable. Burlington Ins. Co. v NYC Tr. Auth., 2015 NY Slip Op 06481, 1st Dept 8-11-15







Proof of Inability to Control Sexual Behavior (Over and Above Proof of Antisocial Personality Disorder [ASPD]), Deemed Sufficient to Justify Confinement as a Dangerous Sex Offender


After the Court of Appeals determined that Antisocial Personality Disorder (ASPD) was not a sufficient ground for a finding of a "mental abnormality" requiring confinement pursuant to the Mental Hygiene Law, Supreme Court vacated its prior adjudication that respondent was a dangerous sex offender requiring confinement. The Third Department, in a full-fledged opinion by Justice Devine, over a two-justice dissent, reversed Supreme Court and reinstated the confinement. The majority concluded there was sufficient evidence of mental disorders (over and above ASPD) which rendered respondent unable to control his sexual behavior. The dissenters found the evidence insufficient. Both the majority and the dissent went through the evidence in detail. The majority explained the general analytical criteria:


In order "[t]o demonstrate that respondent is a dangerous sex offender requiring civil confinement, petitioner was required to prove 'by clear and convincing evidence that . . . respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control [his] behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility'" ... . Respondent takes issue with the finding that he suffered from a mental abnormality, i.e., "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him . . . to the commission of conduct constituting a sex offense and that results in [his] having serious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03 [i]...).


Substantive due process requires that evidence of a mental abnormality reflect a "serious difficulty in controlling behavior" that, "when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, . . . [is] sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him [or her] to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case" ... . As such, "the New York statutory structure does not run afoul of substantive due process because it requires [petitioner] to prove that the individual is dangerous, and the dangerousness must be coupled with a mental abnormality, which — by definition — incorporates the additional requirement that the offender have serious difficulty with behavioral control" ... . The Court of Appeals has determined that a diagnosis of ASPD, without more, does not meet that requirement, as it "establishes only a general tendency toward criminality, and has no necessary relationship to a difficulty in controlling one's sexual behavior" ... . Matter of State of New York v Richard TT., 2015 NY Slip Op 06557, 3rd Dept 8-13-15








Where the State Is a Potential Joint Tortfeasor Which Cannot Be Joined In the Supreme Court Action with the Other Defendant (Because the State Must Be Sued in the Court of Claims), the Jury in the Supreme Court Trial Should Be Allowed, If Appropriate, to Apportion Damages Between the Defendant and the State


Plaintiff was injured when a tree limb fell and struck her car while she was driving on a state highway. Plaintiff sued both the defendant (the property owner) and the state. However, the state could be sued only in the Court of Claims, so two separate actions were brought against the two potential tortfeasors. The Third Department, in a case of first impression, in a full-fledged opinion by Justice McCarthy, over a partial dissent, determined that evidence of both the defendant's and the state's liability could be presented in the Supreme Court trial and the jury should, if appropriate, be allowed to apportion damages between the defendant and the state:


"Under CPLR article 16, a joint tortfeasor whose culpability is 50% or less is not jointly liable for all of [a] plaintiff's noneconomic damages, but severally liable for its proportionate share" ... . The provision was promulgated as a modification of the common-law theory of joint and several liability, the purpose of which was to "remedy the inequities created by joint and several liability on low-fault, 'deep pocket' defendants" ... . However, where potential tortfeasors are not joined in an action, the culpability of a nonparty tortfeasor may be imposed upon the named defendant if the plaintiff can show that he or she is unable to obtain jurisdiction over the nonparty tortfeasor (see CPLR 1601 [1]). Here, plaintiffs do not face a jurisdictional limitation in impleading the State as a codefendant, but instead cannot do so due to the doctrine of sovereign immunity ... . Plaintiffs' only recourse against the State is to pursue an action in the Court of Claims (see Court of Claims Act §§ 8, 9). Likewise, if defendant is found liable in Supreme Court, it could seek indemnification from the State relative to its share of actual culpability as an additional claimant in the subsequent Court of Claims action ... .


CPLR 1601 (1) is silent in regard to whether the State's proportionate share of liability should be considered in calculating a defendant's culpability in an action like the one at bar, and we have never decided the issue. * * *


Although we recognize the possibility of inconsistent verdicts as to the apportionment of fault in Supreme Court and in the Court of Claims, we note that this risk arises regardless of whether or not the jury is entitled to apportion liability between defendant and the State ... . Given the statutory purpose of CPLR 1601 (1) to "limit[] a joint tortfeasor's liability for noneconomic losses to its proportionate share, provided that it is 50% or less at fault" ..., we find that juries in this scenario should be given the option to, if appropriate, apportion fault between defendant and the State. Artibee v Home Place Corp., 2015 NY Slip Op 06556, 3rd Dept 8-13-15








Although Plaintiff Limited Liability Company's Articles of Incorporation Were Not Filed When It Took Title to Real Property---It May Have Validly Taken Title Pursuant to the "De Facto Corporation Doctrine"


The Second Department determined the defense motion to dismiss based upon documentary evidence was properly denied. Plaintiff limited liability company was able to demonstrate that it may be entitled to a declaration that it was the fee simple owner of property under the "de facto corporation doctrine." When plaintiff limited liability company took title, the company was not yet "in legal existence" because all the necessary documents had not been filed. Under the "de facto corporation doctrine" the limited liability company could be deemed to have taken title if (1) a law existed under which it might be organized, (2) there was an attempt to organize, and (3) there was an exercise of corporate powers thereafter:


Here, the documentary evidence submitted by [defendants] in support of their motion demonstrated that the plaintiff's articles of organization had not been filed with the New York State Department of State prior to the conveyance to the plaintiff of the subject property. However, in opposition to the motion, the plaintiff submitted the affidavit of its sole member, which demonstrated the applicability of the de facto corporation doctrine ... . Specifically, the affidavit of the plaintiff's sole member demonstrated that there was a law under which the LLC might be organized (see Limited Liability Law §§ 203, 209), that the plaintiff made a "colorable attempt" to comply with the statutes governing the formation of an LLC, including the filing requirement, and that the plaintiff exercised its powers as an LLC thereafter... . Lehlev Betar, LLC v Soto Dev. Group, Inc., 2015 NY Slip Op 06496, 2nd Dept 8-12-15








Petition Sufficiently Alleged the Town's Restrictive Covenant Was Invalid (1) Because It Sought to Regulate the Owner of Land Rather than the Use of the Land, (2) Because It No Longer Could Accomplish Its Purpose, and (3) Because It Effected an Unconstitutional Taking of Petitioner's Land


The Second Department determined petitioner had stated causes of action contesting the validity and enforceability of a restrictive covenant promulgated by the town requiring that condominiums built by petitioner be sold rather than leased. Petitioner had sufficiently alleged (1) the restrictive covenant was invalid because it regulated the person who owned the land (petitioner) rather than the use of the land, (2) the restrictive covenant was not enforceable because its purpose could not be accomplished, and (3) the restrictive covenant amounted to an unconstitutional taking. The court explained the applicable legal principles:


The power to zone "is not a general police power, but a power to regulate land use" ... . "It is a fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it'" ... . Furthermore, " a zoning ordinance will be struck down if it bears no substantial relation to the police power objective of promoting the public health, safety, morals or general welfare'" ... .


"[R]estrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy" ... . However, even the " [p]urchase of property with knowledge of [a] restriction does not bar the purchaser from testing the validity of the zoning ordinance [because] the zoning ordinance in the very nature of things has reference to land rather than to owner'" ... . 


...[Petitioner] sufficiently alleged that the restrictive covenant is improper because it regulates [petiioner's] ability as the owner of the property to rent the units rather than the use of the land itself. [Petitioner] has further alleged that, particularly in light of the provision permitting future owners to lease units in the development, the restrictive covenant "bears no substantial relation to . . . the public health, safety, morals or general welfare"... .


"Pursuant to RPAPL 1951(1), a restrictive covenant shall not be enforced if, at the time enforceability of the restriction is brought into question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason'" . Here, assuming that there is a benefit to be obtained by requiring the units to be sold rather than rented, [petitioner] has alleged that, because the rental restriction imposed by the restrictive covenant applies only to it and not to any subsequent owner of any of the units in the planned development, it is of no substantial benefit to the Town or its citizens. In support of its motion to dismiss, the Town has offered no explanation as to why this is not so. ... * * *


With respect to the third cause of action, which alleged an unconstitutional taking based upon "denial of development, as opposed to excessive exactions" ..., the test set forth by the United States Supreme Court in Agins v City of Tiburon (447 US 255) applies ... . Pursuant to this test, "a zoning law effects a regulatory taking if either: (1) the ordinance does not substantially advance legitimate state interests' or (2) the ordinance denies an owner economically viable use of his land'" ... . However, "[a] reasonable land use restriction imposed by the government in the exercise of its police power characteristically diminishes the value of private property, but is not rendered unconstitutional merely because it causes the property's value to be substantially reduced, or because it deprives the property of its most beneficial use" ... . Thus, a court must examine "(1) [t]he economic impact of the regulation on the claimant'; (2) the extent to which the regulation has interfered with distinct investment-backed expectations'; and (3) the character of the governmental action'"... . Blue Is. Dev., LLC v Town of Hempstead, 2015 NY Slip Op 06488, 2nd Dept 8-12-15




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