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August Part III

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



Motion for Summary Judgment in Lieu of Complaint Should Have Been Denied---Question of Fact Re: Whether Spanish Document Was a Judgment


The First Department determined that a motion brought pursuant to CPLR 3213 to enforce a Spanish court’s award of damages against the defendant should not have been granted.  Experts disagreed about whether the Spanish document was an enforceable judgment.  The First Department explained the criteria for recognizing foreign decrees (CPLR 5302) and for determining a motion for summary judgment in lieu of a complaint (CPLR 3213):


A motion for summary judgment in lieu of a complaint (CPLR 3213) is based on an "instrument for the payment of money only or upon any judgment." The statute allows a plaintiff an expedited procedure for entry of a judgment by filing and service of a summons and a set of motion papers that contain sufficient evidentiary detail for the plaintiff to establish entitlement to summary judgment (see David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3213:8). 


CPLR 5302 provides that New York will recognize foreign decrees that are "final, conclusive and enforceable where rendered even though an appeal therefrom is pending." Here, the parties' Spanish law experts disagree as to whether the document here, denominated a "ruling" ("auto" in Spanish), is enforceable as a judgment. *  *  *


The conflicting evidence as to whether the ruling is final, conclusive and enforceable in Spain precludes plaintiff from obtaining an accelerated judgment pursuant to CPLR 3213.  Sea Trade Mar Corp v Coutsodontis, 2013 NY Slip Op 05599, 1st Dept 8-13-13




Intervention Not Available to Vacate a Default Judgment—Default Judgment is Not on the Merits and Therefore Has No Res Judicata Effect on Putative Intervenors


The First Department determined a motion to intervene in an action which ended in a default judgment should not have been granted.  Plaintiff sued defendant, which defaulted. Defendant had transferred its assets to the parties seeking to intervene to vacate the default.  Plaintiff had sued the intervenors alleging the transfer of assets from the defendant to the intervenors was fraudulent (the “supplemental proceeding”). The First Department explained:


"[T]he potentially binding nature of the judgment on the proposed intervenor is the most heavily weighted factor in determining whether to permit intervention" … .Here, however, intervenors cannot intervene by arguing that the default judgment has a res judicata effect on the supplemental proceeding and adversely affects their rights in that proceeding. The default judgment has no res judicata effect on intervenors because a default is not a determination on the merits as is necessary to invoke that doctrine … . Likewise, intervenors were not parties to the default action … .  Further, plaintiffs did not obtain the default judgment through fraud or through any other wrongdoing… .  Intervenors' right to act for defendant ended with the 2007 sale---an event that occurred four years before the clerk entered the default judgment against [defendant].  Amalgamated Bank v Helmsley-Spear, Inc, 2013 NY Slip Op 05600, 1st Dept 8-13-13





Dismissal of Federal Action Precluded Related Action in State Court---Res Judicata, Privity under Res Judicata Doctrine, Effect of Initial Forum Choice, and “First-in-Time” Rule Discussed


In a full-fledged opinion by Justice Moskowitz, the First Department determined that Supreme Court should have dismissed the state complaint because the dismissal of the related federal complaint controlled under the doctrine of res judicata.  The lawsuit was brought by the insurer (Syncora) of mortgage-backed securities issued by the defendant (JP Morgan [formerly known as Bear Stearns]). Syncora first sued in federal court where the action was dismissed based on the findings that the fraud allegations Syncora sought to add to the complaint were untimely and Syncora did not have standing because it was neither a buyer or a seller of the relevant securities.  Syncora then filed the state action asserting the same claims rejected as untimely by the federal court.  The opinion addresses several distinct issues: (1) the flexibility of the concept of “privity” in applying the doctrine of res judicata to the parties and “those in privity” with the parties; (2) a finding of “privity” can be based upon the plaintiff’s allegations about the relationship between a party and another entity; (3) a party which makes a strategic decision to first bring an action in one jurisdiction “is bound by the effects of the path it charted…”; and (4) dismissal of the complaint pursuant to CPLR 3211(a)(4) in favor of the earlier-filed federal action was warranted under New York’s “first-in-time” rule.  Syncora Guar Inc v JP Morgan Sec LLC, 2013 NY Slip Op 05602, 1st Dept, 8-13-13



Court Has No Power to Dismiss for Failure to Prosecute in Absence of 90-Demand to File and Serve Note of Issue


The Second Department noted that a court does not have the power to dismiss a complaint based on the doctrine of laches, or failure to prosecute, where plaintiff has not been served with a 90-day demand to serve and file a note of issue (CPLR 3216).  Baxter v Javier, 2013 NY slip Op 05605, 2nd Dept 8-14-13



Law Office Failure Was Valid Excuse for Default---Answer Deemed Served in Absence of Cross Motion


The Second Department determined law office failure constituted a valid excuse for a defendant’s default and defendant’s answer, which was attached to the papers submitted in opposition to plaintiff’s motion for a default judgment, would be deemed served in the absence of a cross motion seeking leave to file a late answer:


In its discretion, the court may accept law office failure as an excuse (see CPLR 2005;… . The claim of law office failure should, however, be supported by a "detailed and credible" explanation of the default or defaults at issue … . Law office failure should not be excused where allegations of law office failure are conclusory and unsubstantiated…. The Supreme Court providently exercised its discretion in accepting the defendant's excuse of law office failure, as the defendant provided detailed affidavits of personnel explaining the delay in timely serving an answer.  Blake v United States of Am, 2013 NY Slip 05609, 2nd Dept 8-14-13



Criteria for Disclosure from Nonparty Witness


The Second Department explained the criteria for disclosure from a nonparty witness:


A party seeking disclosure from a nonparty witness must demonstrate that the disclosure sought is material and necessary, and must set forth the "circumstances or reasons" why disclosure is "sought or required" from such nonparty witness (CPLR 3101[a][4]…). Here, the plaintiff failed to demonstrate that additional testimony from the nonparty witnesses or the information sought would be material and necessary to the prosecution of this case (see CPLR 3101[a]…).  Dicenso v Wallin, 2013 NY Slip Op 05612, 2nd Dept 8-14-13



Criteria for Avoiding Dismissal After Failure to Comply with 90-Day Notice to Serve and File Note of Issue Explained


The Second Department explained the criteria for avoiding dismissal for failure to comply with a 90-day notice to serve and file a note of issue:


Here, the defendant … did not serve a 90-day demand, but relied instead on an order dated June 13, 2008, which instructed the plaintiffs that the failure to serve and file a note of issue within 90 days would result in dismissal of the action pursuant to CPLR 3216. This order had the same effect as a valid 90-day notice pursuant to CPLR 3216 … .To avoid the sanction of dismissal, the plaintiffs were initially required to comply with the order dated June 13, 2008, either by serving and filing a timely note of issue or by moving, before the default date, to vacate the order or to extend the 90-day period pursuant to CPLR 2004 … . Having failed to pursue either of the foregoing options, the plaintiffs were obligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid the sanction of dismissal (see CPLR 3216[e]…).  Griffith v Wray, 2013 NY Slip Op 05615, 2nd Dept 8-14-13



“Law of the Case” Doctrine Did Not Apply---Dismissal of Affirmative Defense Did Not Constitute Full Litigation of the Issue


In a property-line dispute, the Second Department reversed Supreme Court ruling that the location of the fence on plaintiff’s property was the “law of the case.”  The “law of the case” doctrine was imposed by Supreme Court based on the dismissal of the title insurance company’s affirmative defense which claimed the fence was on defendant’s land.  The Second Department wrote:


"The doctrine of the law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" …  The doctrine "applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision" …, "and to the same questions presented in the same case" … . "Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a full and fair' opportunity to litigate the initial determination" … .  Contrary to the determination of the Supreme Court, the prior order …which granted [the] motion pursuant to CPLR 3211 to dismiss …, did not necessarily resolve the issue of whether the fence was located on the plaintiffs' property or the defendants' property, as the parties did not have an opportunity to fully litigate that issue… . Ramanathan v Aharon, 2013 NY slip Op 05621, 2nd Dept 8-14-13




Amendment of Bill of Particulars After Four Years of Discovery Should Not Have Been Allowed


The Second Department determined Supreme Court should not have allowed plaintiff to amend his bill of particulars to include aggravation of a preexisting condition because the request came after four years of discovery during which plaintiff had affirmatively stated his injuries did not include aggravation of preexisting condition:


Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” (…see CPLR 3025[b]…). “However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious’” … .Under the circumstances of this case, including the fact that, during four years of discovery, the plaintiff affirmatively maintained that his injuries did not include the aggravation of a pre-existing condition, as well as the lateness of his request for leave to amend, the prejudice to the defendants, and the lack of any reasonable excuse for the delay, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion for leave to amend his bill of particulars … .  Rodgers v New York City Tr Auth, 2013 NY Slip Op 05623, 2nd Dept 8-14-13






Work Accident and Auto Accident Cases Should Be Consolidated Because Plaintiff Alleged Auto Accident Injuries Exacerbated by Work-Related-Accident Injuries


The Second Department determined two actions should be consolidated.  Plaintiff was injured in an auto accident and alleged that those injuries were exacerbated by a work-related accident:


Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the … . In view of [plaintiff's] allegations that certain injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly… . Cieza v 20th Ave Realty Inc, 2013 NY Slip Op 05610, 2nd Dept 8-14-13






Criteria for Determining Whether Relocation of Custodial Parent is in Best Interests of the Children Explained


The Second Department explained the criteria for determining whether relocation of the custodial parent would be in the best interests of the children as follows:


In determining whether relocation is appropriate, the court must consider a number of factors, including the child's relationship with each parent, the effect of the move on contact with the noncustodial parent, and each parent's motives for seeking or opposing the move … . In assessing these factors, "no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome" … . "In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests" … . 


…The Family Court found credible the mother's testimony at trial that, if she were permitted to relocate with the children to Florida, the children's quality of life would be significantly improved on a day-to-day basis because the cost of living would be less than it is in New York, where she was struggling financially, and the mother would have several close family members in the vicinity of her new home to offer her support. Significantly, it was undisputed that the mother was the children's primary caregiver, and that the father was minimally involved in the children's lives.  Matter of Davis v Ogden, 2013 NY Slip Op 05626, 8-14-13




Three-Step Analysis for Child Support Under Child

Support Standards Act


The Second Department explained the three step analysis for the determination of child support obligations pursuant to the Child Support Standards Act (the parents in this case had a combined annual income of more than $700.000.00):


Under the first step of the analysis, a court must determine the parties' combined parental income … . …Under the second step of the analysis, pursuant to Domestic Relations Law § 240(1-b)(c)(1), we multiply so much of the combined parental income up to $80,000.00---which was the "statutory cap" in effect on the date of the 2008 Judgment …---by the applicable statutory child support percentage, or 29% for the parties' three children (see Domestic Relations Law § 240 [1-b][c][2]…). We then allocate the resulting amount … between the parties according to their pro rata share of the combined parental income (see Domestic Relations Law § 240 [1-b][c][2]). The third step in the analysis applies where, as here, the combined parental income exceeds the applicable statutory limit of $80,000.00. In this situation, "courts [have] the discretion to apply the [sub]paragraph (f)' factors, or to apply the statutory percentages, or to apply both in fixing the basic child support obligation on parental income over $80,000" … . As applicable here, the subparagraph (f) factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed had the marriage or household not been dissolved (see Domestic Relations Law § 240[1-b][f][1][3]). These factors further the objectives of the CSSA, which include "the assurance that both parents would contribute to the support of the children" and that the court consider "the total income available to the parents and the standard of living that should be shared with the child" … .  Beroza v Hendler, 2013 NY Slip Op 05607, 2nd Dept 8-14-13





Teacher’s Unsatisfactory Performance Evaluation Annulled---No Supporting Documentation


In an Article 78 proceeding, the First Department reversed the Board of Education’s denial of a teacher’s petition to annul an unsatisfactory performance evaluation because there was no longer any documentation substantiating any instances of corporal punishment in the teacher’s file.  Disciplinary letters concerning allegations of corporal punishment had previously been removed from the teacher’s file by stipulation.  The First Department explained the relevant rules as follows:


It is undisputed that Part 2(I) of DOE's Human Resources Handbook "Rating Pedagogical Staff Members" provides (1) that a teacher's evaluation must be supported by documentation in his/her personnel file; (2) that documentation removed from a file through grievance procedures is inadmissible in performance reviews; and (3) that documentation not addressed directly to a teacher is inadmissible in performance reviews, unless it is attached to and part of another document appropriately placed in the teacher's file. Moreover, materials placed in a teacher's personnel file must include a signature and date line for the teacher, evidencing that she has read the material and understands that it will be placed in the file, as well as a signature and date line for a witness; unsigned documents are inadmissible in evaluation reviews.  Matter of Friedman v Board of Educ of the City Sch Dist of the City of New York, 2013 NY Slip Op 05598, 1st Dept 8-13-13






Extrinsic Evidence Properly Considered to Determine Intent of Parties Re: Ambiguous Deed


In an action to quiet title, the Second Department determined a deed was ambiguous on its face and extrinsic evidence was therefore admissible to ascertain the intent of the parties:


Real Property Law § 240(3) provides that "[e]very instrument creating [or] transferring . . . real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." Where the language used in a deed is ambiguous such that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances … . Moreover, " courts may as a matter of interpretation carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear . . . However, such an approach is appropriate only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part'" … .  Here, …the 1989 deed purporting to convey the subject property to IDI was ambiguous on its face. Under such circumstances, it was proper for the court to look to extrinsic evidence in order to effectuate the intent of the parties.  Al’s Atl Inc v Shatma, LLC, 2013 NY Slip Op 05604, 2nd Dept 8-14-13






Consolidation and Assignment of Mortgages Does Not Affect Validity of Original Mortgages


The Second Department explained that the consolidation and assignment of mortgages did not affect the validity of the original mortgages:


In the instant matter, the plaintiff increased the outstanding balance of the first mortgage by borrowing the second mortgage loan and executing the CEMA [Consolidation, Extension and Modification Agreement].  Although the CEMA  created a single mortgage lien, "[a] consolidation of outstanding loans is a device intended for the convenience of only the contracting parties" and "cannot impair liens in favor of parties that are not the contracting parties, which retain their independent force and effect" … . Where, as here, balances of first mortgage loans are increased with second mortgage loans and CEMAs are executed to consolidate the mortgages into single liens, the first notes and mortgages still exist and may be assigned to other lenders … . Further, an assignment of a loan obligation means that the obligation has been transferred, not paid in full and, thus, contrary to the plaintiff's allegation, does not render the obligation satisfied and discharged.  Benson v Deutsche Bank Natl Trust Inc, 2013 NY Slip Op 05606, 2nd Dept 8-14-13







Police Officer Not Injured by “Recognized Hazard”---No Recovery Under Municipal Law/Labor Law---Officer Injured by Suspect After Mace Canister Failed


In dismissing a Municipal Law/Labor Law cause of action brought by a police officer against the city after she was injured by a suspect when her mace canister failed, the Second Department explained:


Although Labor Law § 27-a(3) may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law § 205-e …, the plaintiff failed to allege that her injuries resulted from a "recognized hazard[ ]" within the meaning of the Labor Law (Labor Law § 27-a[3][a][1]…).  Blake v City of New York, 2013 NY Slip Op 05608, 2nd Dept 8-14-13






Erroneous Admission of Hearsay and Expert Testimony

Re: ANSI Standards Required Reversal of Million Dollar Verdict in Slip and Fall Case


In reversing a million dollar verdict in a slip and fall case, the Second Department determined that a hearsay statement (“oh my God, someone else fell”) and expert testimony about the floor mats not complying with American National Standards Institute [ANSI] standards should not have been admitted:


…[T]he security guard's statement did not qualify as a present sense impression or an excited utterance. The statement was not admissible as a present sense impression because it is clear that the statement was not made as the security guard perceived the happening of the accident, and there was no evidence that corroborated his statement… . Regarding the excited utterance exception, the plaintiff was required to demonstrate that "at the time of the statement the declarant was under the stress of excitement caused by an external event sufficient to still [his] reflective faculties and had no opportunity for deliberation"… . Here, the plaintiff failed to meet that burden. Therefore, it was error to admit the hearsay testimony concerning the out-of-court statement of the security guard. 


The Supreme Court also erred in allowing the plaintiff's expert to testify, in effect, that the defendants' conduct regarding the placement of mats was negligent because it allegedly did not comply with regulations promulgated by the American National Standards Institute (hereinafter ANSI). "[ANSI] standards do not constitute statutes, ordinances, or regulations"… . Although the court did not charge the jury regarding ANSI standards, by permitting such testimony, it allowed the jury to improperly speculate that the defendants' conduct should be measured against a higher standard of care than is required under the common law… . Gonzalez v City of New York, 2013 NY slip Op 05614, 2nd Dept 8-14-13






“Missing Witness Rule” Properly Applied in Bench-Trial Proceeding to Determine Whether Antipsychotic Medication Should Be Administered to Involuntarily Committed Patient Over Patient’s Objection---Treating Psychiatrist Not Called by Facility


In a full-fledged opinion by Justice Angiolillo, the Second Department determined the “missing witness rule” was properly applied in a civil, bench-trial proceeding for permission to administer antipsychotic medication to an involuntarily committed patient over his objection. The psychiatric center which brought the proceeding did not call the treating psychiatrist as a witness and relied exclusively upon the testimony of a psychiatrist who had reviewed the records. The trial court determined the failure to call the treating psychiatrist gave rise to an inference adverse to the position of the psychiatric center and, under the facts which indicated there may have been disagreement with the reviewing psychiatrist’s findings, the dismissal of the psychiatric center’s petition was warranted.  In explaining the relevant procedures and the applicability of the “missing witness rule,” the Second Department wrote:


The procedures for administering treatment over the objection of an involuntarily committed patient are set forth in detailed regulations promulgated by the Commissioner of the New York State Office of Mental Health, pursuant to Mental Hygiene Law § 7.09(b) (see 14 NYCRR 501.1[a], 501.2[b]). A facility must follow stringent procedures prior to filing a petition seeking court authorization to administer the treatment (see 14 NYCRR 527.8[c][4]). The process requires a series of clinical evaluations of the patient, all of which must be completed within 24 hours (see 14 NYCRR 527.8[c][4][ii]). 


First, the patient's treating physician must determine that the treatment is in the patient's best interests in light of all relevant circumstances, including the risks, benefits, and alternatives to treatment, and that the patient lacks the capacity to make a reasoned decision concerning treatment. The treating physician must forward the evaluation and findings to the clinical director with a request for further review, and notify, in writing, the patient, Mental Hygiene Legal Services (hereinafter MHLS), and any other representative of the patient (see 14 NYCRR 527.8[c][4][ii][a]). 


Second, the clinical director must appoint a physician to review the patient's record, and personally examine the patient, to evaluate whether the proposed treatment is in the patient's best interests and whether the patient has the capacity to make a reasoned decision concerning treatment. If the reviewing physician determines that treatment over objection is appropriate, the physician must personally inform the patient of that determination (see 14 NYCRR 527.8[c][4][ii][b][1]). Alternatively, if there is a substantial discrepancy between the opinions of the treating physician and the reviewing physician regarding the patient's capacity or best interests, the clinical director may appoint a third physician to conduct an evaluation (see 14 NYCRR 527.8[c][4][ii][b][2]). 


Finally, if, after completion of the evaluation by the reviewing physician (or physicians), the patient continues to object to the proposed treatment, the clinical director must make a determination on behalf of the facility. If the director finds that the patient lacks capacity, and that treatment over objection is in the patient's best interests, the director may apply for court authorization to administer the treatment and so notify the patient, MHLS, and any other patient representative. However, if the director makes the opposite determination, the patient's objections must be honored (see 14 NYCRR 527.8[c][4][ii][b][3]). * * *


"A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party" … . Where one or more of these elements is absent, the movant is not entitled to the charge … .Moreover, the missing witness rule may be applied in a nonjury civil trial, where the trial court, as finder of fact, is permitted to draw a negative inference against a party failing to call a witness … .The missing witness rule is related to the broader principle that "[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding" … Matter of Adam K, 2013 NY Slip Op 05631, 2nd Dept 8-14-13








Although Arbitrator in Statutorily-Required Arbitration Proceeding Properly Found Teacher Engaged in Misconduct, Teacher’s Actions Were Protected by First Amendment


Teachers demonstrated in front of a school while negotiations for a new collective bargaining agreement were on-going.  On a rainy day, some teachers parked their cars in front of the school, displaying signs inside the cars.  Because the teachers were parked where children are usually dropped off by their parents, children were being dropped off in the street. The board of education brought a disciplinary charge against petitioner pursuant to Education Law 3020-a alleging the creation of a health and safety risk.  The matter went to statutorily-required arbitration and the arbitrator found the petitioner had created a health and safety risk.  Petitioner challenged the ruling in this Article 78 proceeding. The Second Department explained the court’s role in reviewing a statutorily-required arbitration, found that the arbitrator’s ruling was supported by the evidence, but determined petitioner’s activity was protected by the First Amendment:


Where, as here, arbitration is statutorily required, "judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record" … . "The award must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78" … . "Due process of law requires . . . that the [arbitrator's determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]" … . … In this proceeding… the evidence at the hearing provided a rational basis for the arbitrator's decision, and the award was not arbitrary and capricious … .Nonetheless, we hold …that the petition should have been granted. The petitioner's expressive activity regarding collective bargaining issues indisputably addressed matters of public concern …, and the District failed to meet its burden of demonstrating that the petitioner's exercise of her First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline… .  Matter of Lucia v Board of Educ of E Meadow Union Free Sch Dist, 2013 NY Slip Op 05633, 2nd Dept 8-14-13



Child Properly Found to Be a Vulnerable Witness and Properly Allowed to Testify Outside the Presence of the Defendant in a Sexual -Offense Trial


In a full-fledged opinion by Justice Hinds-Radix, the Second Department determined the seven-year-old witness (who was the alleged victim of sexual offenses by the defendant) was properly declared a vulnerable witness pursuant to CPL 65.20 and was properly allowed to testify outside the presence of the defendant over closed circuit television.


…[W]e find that the Supreme Court properly declared the child to be a vulnerable witness. Since the child was seven years old at the time of the trial, she was "particularly young" …. Further, the defendant occupied a position of authority, since he was the child's great uncle by marriage, the child regarded him as a family member …, he was responsible for the care of the child at the time the crime occurred, and he had frequent contact with her …. Thus, two of the factors set forth in CPL 65.20(10) were established by clear and convincing evidence … . It is also clear from the record that the emotional trauma the child experienced when she attempted to testify in open court about the crime substantially impaired her ability to communicate with the jury. Under all of the circumstances, the Supreme Court's determination that the child was a vulnerable witness is supported by clear and convincing evidence in the record … . 


Furthermore, the child was properly permitted to testify outside of the physical presence of the defendant. The Supreme Court's observations of the child when she was questioned in the courtroom, and the hearing testimony of the social worker, provided clear and convincing evidence that the cause of the child's severe emotional upset was the defendant's presence in the room …. Accordingly, the record supports the requisite specific finding that placing the defendant and the child in the same room during the testimony of the child would contribute to the likelihood that the child would suffer "severe mental or emotional harm" (CPL 65.20[11]).  People v Beltran, 2013 NY Slip Op 05638, 2nd Dept 8-14-13




Failure to Include Restitution in Plea Negotiations Precluded Imposing Restitution at Sentencing


The Second Department vacated defendant’s sentence because, although restitution was not part of the plea promise, restitution was imposed at sentencing:


At the sentencing proceeding, the defendant did not have a sufficient opportunity to object to the imposition of restitution. The court made a brief reference to "RJOs," apparently referring to restitution judgment orders. After pronouncing the sentence, the court stated: "With respect to any and all surcharges, given the fact there's significant restitution judgment order obligations here, I'm going to waive the surcharges." Under these circumstances, the defendant's contention will be addressed on the merits … . 


Although a court is free to reserve the right to order restitution as part of a plea bargain, the plea minutes in this case do not indicate that the pleas of guilty were negotiated with terms that included restitution … . At sentencing, the defendant should have been "given an opportunity either to withdraw his plea[s] or to accept the enhanced sentence[s] that included both restitution and a prison sentence" …, or for the court to impose the sentences agreed upon at the plea proceedings. People v Pettress, 2013 NY Slip Op 05645, 2nd Dept 8-14-13



In Sex-Offense Trial, Discovery of the Victim’s Psychiatric Records Properly Denied and Cross-Examination About Psychiatric History Properly Prohibited


In a sexual-offense case, the Fourth Department affirmed the trial court’s refusal to allow the defense access to the victim’s psychiatric records and the court’s preculsion of cross-examination of the victim about her psychiatric history:


Mental health records are discoverable “where a defendant can demonstrate a good faith basis for believing that the records contain ‘data relevant and material to the determination of guilt or innocence,’ a decision which will rest ‘largely on the exercise of a sound discretion by the trial court’ ”… ..  Here, the court reviewed the records in camera before ruling that defendant was not entitled to any portion of that victim’s mental health counseling records, and the court did not abuse its discretion in reaching that conclusion. 


We reject defendant’s further contention that the court abused its discretion by precluding cross-examination of the same victim regarding her psychiatric history.  “A defendant has a constitutional right to confront the witnesses against him through cross-examination.  With respect to the psychiatric condition of a witness, ‘the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition’ ”… .  Here, defendant was permitted to question that victim about any medications that she was presently taking and whether those medications impaired her memory or affected her testimony.  However, defendant failed to show that her psychiatric history “would bear upon her credibility or otherwise be relevant”  … .  Peopl v Tirado, 486, 4th Dept 8-15-13






Failure to Provide Cover Sheet Fatal to Designating Petition


In reversing Supreme Court and granting the petition to invalidate a designating petition and removing the candidate from the ballot, the Second Department determined that the failure provide a cover sheet for the petition in accordance with the Election Law and regulations was fatal to the petition:


We are mindful that the provisions of Election Law § 6-134 "shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud" (Election Law § 6-134[10]; see 9 NYCRR 6215.6[a]) in order to avoid the disenfranchisement of voters. However, although certain "[c]over sheet deficiencies may be corrected by the filing of an amended cover sheet" …, a candidate may not "amend" a cover sheet which was never filed in the first place, as was the case here. 


"The three-day cure provision for designating petitions (Election Law § 6-134[2]) is available for technical violations of the regulations" …. In the instant case, however, the candidate's initial failure to file a cover sheet was not a mere technical defect subject to cure pursuant to Election Law § 6-134(2) … . To the contrary, the absence of a cover sheet, especially where, as here, the designating petition contained multiple volumes that were unbound, constituted a complete failure to comply with the requirements set forth in 9 NYCRR 6215.1, which may not be cured pursuant to Election Law § 6-134(2) and 9 NYCRR 6215.6 … . Such failure undermines procedural safeguards against both fraud and confusion … .  Matter of Armwood v McCloy, 2013 NY Slip Op 05654, 2nd Dept, 8-15-17




Filing Petition Four Hours Late Was Fatal Defect


The Second Department determined that the filing of a petition for an opportunity to ballot more than four hours after the deadline was a fatal defect:


Election Law § 1-106 provides that papers shall be filed with the relevant board of elections between the hours of 9:00 a.m. and 5:00 p.m. Moreover, the “failure to file any petition or certificate relating to the designation or nomination of a candidate for party position or public office . . . within the time prescribed by the provisions of this chapter shall be a fatal defect” (Election Law § 1-106[2]). “[T]he case law interpreting Election Law § 1-106(2) and its predecessor, Election Law former § 143(12) (as amended by L 1969, ch 529, § 1), makes it clear that such time limitations are mandatory in nature, and the judiciary is oreclose[ed] . . . from fashioning exceptions, however reasonable they might be made to appear’”… .  Matter of Rhoades v Westchester County Bd of Elections, 2013 NY Slip Op 05656, 2nd Dept 8-15-13




Failure to Comply with Service Method in Order to Show Cause Required Dismissal


In a proceeding under the Election Law to invalidate a petition designating a candidate, the Second Department determined dismissal was appropriate based upon the failure to comply the service method prescribed in an order to show cause:


"The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" … . Service within the statutory period by means other than those authorized by the order to show cause does not bring a respondent within the court's jurisdiction … . Here, the subject order to show cause provided that service thereof and of "the papers upon which it [was] granted" upon the candidate Ivy Reeves was to be effectuated by (1) "sending the same by overnight, next-day delivery by UPS, FEDEX or the U.S. Postal Service on or before the 22nd day of July, 2013"; "or" (2) "by personal delivery of the same to [Ivy Reeves] on or before July 23, 2013, no later than 7:00 p.m." It is undisputed that the petitioners did not attempt to personally deliver the papers to Reeves, and that copies of both the order to show cause and petition to invalidate were not delivered to Reeves's address until July 24, 2013. The petitioners submitted evidence that, at 9:30 p.m. on July 22, 2013, they deposited a prepaid United States Postal Service "Priority Mail Express" envelope containing these documents in a mail slot located inside a publicly accessible vestibule of a post office, after the post office itself had closed. The record established that an envelope deposited at that time would not have been collected, scanned, and prepared for delivery by postal employees until 7:00 a.m. on the following day. Matter of Rotanelli v Board of Elections of Westchester County, 2013 NY Slip Op 05657, 2nd Dept 8-15-13



Mistake in Name of Party Did Not Warrant Striking Candidate’s Name from Ballot


The Second Department reversed Supreme Court’s striking of a candidate’s name from the ballot.  Supreme Court determined the identification of the party as the “Working Family Party” rather than the “Working Families Party” was fatal because the “Working Family Party” is not a registered or recognized political party. The Second Department wrote:


Although it is undisputed that the designating petition contained an error in the naming of the political party …, a petition should not be invalidated where "there is no proof of any intention on the part of the candidate or of those who have solicited signatures on his [or her] behalf to mislead or confuse, and no evidence that the inaccuracy did or would lead or tend to lead to misidentification or confusion on the part of those invited to sign the petition" … . Here, there has been no showing of any intention to mislead or confuse, and no showing that the inaccuracy in the designating petition did or would lead or tend to lead to misidentification or confusion on the part of those invited to sign the petition. Inasmuch as no such showing was made, the designating petition was improperly invalidated… . Matter of  Cohn v Suffolk County Bd of Elections, 2013 NY Slip Op 05625, 2nd Dept 8-14-13



Validating Petition Not Sufficiently Particularized


In determining a proceeding to validate a petition designating a candidate for county executive should have been dismissed, the Second Department wrote:


"A validating petition must specify the individual determinations of a board of elections that the candidate claims were erroneous, including the signatures that the candidate claims were improperly invalidated" … . Here, the validating petition was not sufficiently particularized to give notice of which determinations were claimed to be erroneous or which signatures … were improperly invalidated … . Matter of Lacorte v Cytryn, 2013 NY slip Op 05623, 2nd Dept 8-14-13



“Technical Irregularities” Did Not Preclude

Allowing Opportunity to Ballot


The Third Department applied the concept of “technical irregularities” to signatures rendered invalid by problems with two subscribing witnesses.  In spite of the invalidation of the signatures, because there was no fraud and no indication the voters were not entitled to sign the petition, the opportunity to ballot was properly allowed:


The record establishes that one of the subscribing witnesses, a commissioner of deeds, failed to inform any of "the signers that, by signing the petition, they affirmed the truth of the matter to which they subscribed" … . While the signatures collected by him were rendered invalid as a result, under the circumstances presented here his failure constituted nothing more than a "technical irregularity”… .The second subscribing witness, Horan, mistakenly executed the statement intended for a notary public or commissioner of deeds rather than that meant for party members.  While Horan is in fact a notary public, he did not identify himself as such in the witness statement (see Election Law § 6-132…).  The signatures that Horan witnessed were rendered invalid as a result, but his failure to indicate his position was a technical defect that did "not call into serious question the existence of adequate support among eligible voters" … .  Absent any indication that fraud was involved or that the voters who signed the invalid pages were not entitled to sign the petition, Supreme Court properly directed an opportunity to ballot for the offices… .  Matter of Hall v Dussault…, 517199, 3rd Dept 8-15-13



Opportunity to Ballot Should Not Have

Been Allowed—Criteria Explained


The Third Department reversed Supreme Court’s granting of the opportunity to ballot where the designating petition did not have the required number of valid signatures and there was no evidence of the reason(s) some of the signatures were deemed invalid (no hearing was held).  The Third Department explained the procedure for determining whether the opportunity to ballot should be granted:


"The 'opportunity to ballot' remedy . . . was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office"… .  The case law makes clear, however, that this discretionary remedy …"was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law" … .  Accordingly, a court should grant an opportunity to ballot "only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters" ….  Such a determination, in turn, typically occurs following a hearing, at which the specific reasons for invalidating the affected signatures may be established … .  Notably, a challenge directed to an individual's eligibility to sign a candidate's designating petition in th e first instance implicates a substantive – as opposed to technical – defect … .  Matter of Roberts v Work…, 517208, 3rd Dept 8-15-13




Misspellings Did Not Render Signatures Invalid


The Third Department affirmed Supreme Court’s ruling that misspellings in the petition did not create confusion about the party and person referred to and, therefore, the relevant signatures were valid:


…[T]he term "Democratic" appears on various sheets of the petition as "Demoratic," "Demotatic" and "Demacatic."  These minor misspellings, however, would not tend to confuse the signatories as to the political party involved and nothing in the record indicates an intent to do so … .  Similarly, although petitioner's last name is spelled on one sheet of the petition as "Mannaurino" and on another as "Mannano," there has been no showing of any intention to mislead or confuse, nor is there any evidence that the inaccuracy would or did tend to mislead signatories as to the identity of the candidate… .  Matter of Mannarino v Goodbee, 517215, 3rd Dept 8-15-13



Candidate’s Failure to File Certificate of Declination Re: His Accepted Candidacy for Town Councilman Precluded His Running for County Legislator


The Fourth Department, over a substantial dissent, reversed Supreme Court and determined a candidate (Irish) for town council was disqualified from running for county legislator.  Irish was first designated a candidate for town council but later was designated a candidate for the county legislature when a vacancy opened up. No certificate of declination of for the town council position was filed by Irish. The Fourth Department explained its role in overseeing election matters and the appropriate review under Article 78.  The court wrote:


It is firmly settled that we “cannot interfere unless there is no rational basis for [respondent’s] exercise of discretion or the action complained of is arbitrary and capricious” …and, here, we conclude that respondent had a rational basis for voting to certify a ballot naming Irish as a candidate for Town Councilman.  We note, first, that the failure of Irish to file a declination of the designation as a candidate for Town Councilman within the time prescribed by Election Law § 6-158 (2), is a “fatal defect” (Election Law § 1-106 [2]..,.).  Thus, his name must remain on the ballot as a candidate for that position … . Second, contrary to petitioner’s contention and the view of our dissenting colleague, we conclude that Irish was not disqualified from the designation for Town Councilman by virtue of his subsequent designation for County Legislator.  Indeed, “[a] candidate who ‘seeks to disqualify himself or herself . . . must present a legal basis for doing so’ ” … and Irish has presented no such legal basis here.  Moreover, petitioner has presented no authority for his position that the subsequent designation of Irish as a candidate for County Legislator disqualified him from being designated as a candidate for Town Councilman.  Rather, we conclude that, based on the designation of Irish as a candidate for Town Councilman, he was ineligible to be designated by the Committee as a candidate for County Legislator (see § 6-122; see generally County Law § 411).  We agree with the Second Department’s conclusion … that, “[d]espite the unique circumstances of this case, ‘the judiciary is foreclosed from fashioning any exceptions to th[at] requirement, however reasonable they might appear’ ” … .  We conclude that there was a rational basis for respondent’s refusal to certify the ballot naming Irish as a candidate for County Legislator, and that such action was not arbitrary and capricious … . Matter of Ward v Mohr, 821, 4th Dept 8-16-13



Conservative Party’s Executive Committee Had Authority to Designate Candidates for County Executive and County Clerk in Chautauqua County


The Fourth Department rejected the argument that the Conservative Party’s Executive Committee did not have the authority to designate candidates for county executive and county clerk in Chautauqua County:


It is undisputed that, pursuant to the Election Law, the County Committee is the default “party committee” empowered to issue … certificates for the county offices at issue (Election Law § 6-120 [3]…) .  Petitioner, however, contends that the rules and regulations of the County Committee of the Conservative Party (County Committee rules) did not effectively delegate that authority to the Executive Committee and thus that the Executive Committee lacked the power to issue the …certificates.  We reject that contention and conclude that, under these circumstances, the County Committee rules delegated to the Executive Committee the power to authorize the designation of the Unenrolled Candidates as candidates for the relevant county offices in the upcoming Conservative Party primary election… . Matter of Bankoski v Green, 820, 4th Dept 8-15-13



Rules Prohibited Interim County Organization of Erie County
Independence Party from Authorizing the Designation of Candidates


The Fourth Department determined the applicable rules stripped the power to authorize the designation of candidates from the Interim County Organization (ICO) of the Erie County Independence Party:


Election Law § 6-120 permits a county committee to exercise the powers of nomination and designation “unless the rules of the party provide for another committee” (§ 6-120 [3]…).  Here, inasmuch as the Executive Committee is vested “with the authority to issue authorizations in Erie County,” we agree …that the ICO is “thereby stripp[ed] .. . of that authority”… .  Matter of NYS Committee of the Indepence Party v Mohr, 822, 4th Dept 8-15-13







Local Law Purporting to Limit Term of County District Attorney Preempted by New York Constitution and State Law


The Second Department determined that the local law which limited the term of the county district attorney to 12 years was preempted by the New York Constitution and state law, thereby allowing the sitting district attorney (who had served for 12 years) to run for another term.  The court reasoned:


…[T]he County's attempt to place a term limit on the office of District Attorney is impermissible. Since the office of District Attorney is not a local office falling within the ambit of NY Const, article IX, § 2(c)(1) or Municipal Home Rule Law § 10 (1)(ii)(a), the County had no authority to place restrictions on the District Attorney's terms of office. Further, even if the District Attorney is a local office falling within NY Const, article IX, § 2(c)(1) and Municipal Home Rule Law § 10(1)(ii)(a), the New York Constitution and state law, together, so expansively and comprehensively regulate the office, that a county government's ability to place restrictions on a District Attorney's terms of office has been preempted. *  *  *


Pursuant to the maxim of statutory construction "expressio unius est exclusio alterius," "where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240…). Here, in light of the fact that the New York Constitution and state law speak to the duration and term of office of the District Attorney, there is an irrefutable inference that the imposition of any limit on the duration of that office was intended to be omitted or excluded (see McKinney's Cons Laws of NY, Book 1, Statutes § 240…). Indeed, regarding County Court judges, the New York Constitution provides for a 10-year term (see NY Const, art VI, § 10[b]) and a maximum duration to age 70 (see NY Const, art VI, § 25[b]). That the Constitution imposed a durational limit on County Court judges, but not on District Attorneys, who are also "constitutional officers," indicates that the omission was intentional and that it was intended that there be no durational limit on District Attorneys. Matter of Hoerger v Spota, 2013 NY slip Op 05661, 2nd Dept 8-16-13




Choice of Law Criteria Re: Insurance Contracts Explained


The Second Department, in reversing Supreme Court’s finding that New York, not New Jersey, law applied to a disclaimer of insurance coverage based on late notice, explained the relevant choice of law principles:


The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved"…. Here, there is a clear conflict inasmuch as New Jersey law requires insurers asserting a disclaimer based on late notice to show that they were prejudiced by the untimely notice…, while, with respect to an identical disclaimer made under an insurance policy that, like the one in dispute here…, New York law does not …. 


In contract cases, the court then applies a "center of gravity" or "grouping of contacts" analysis in order to determine which State has the most significant relationship to the transaction and the parties … . The court considers significant contacts such as the place of contracting, the place of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties … ."In the context of liability insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties' will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk . . . unless with respect to the particular issue, some other [jurisdiction] has a more significant relationship' “…. Where the covered risks are spread over multiple states, "the state of the insured's domicile should be regarded as a proxy for the principal location of the insured risk" … . Jimenez v Monadnock Constr Inc, 2013 NY Slip Op 05616, 2nd Dept 8-14-13






Employment Contract Deemed Hiring

“At Will”---No Fixed Duration


The Second Department affirmed the dismissal of a breach of contract cause of action which alleged defendant breached an employment contract when the position which was the subject of the contract was withdrawn. In finding the agreement described a hiring “at will,” the court described the applicable principles as follows:


"New York adheres to the traditional common-law rule that absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party" … . In support of their motion to dismiss the complaint, the defendants submitted the … employment contract, setting forth the terms of the employment relationship. The … employment contract contained a merger clause reciting that the writing encompassed the entire agreement between the parties. Contrary to the plaintiffs' contention, the …employment contract did not provide for a fixed or definite term of employment, as it expressly provided that [plaintiff] was to be employed "for an indefinite period of time." Moreover, the …employment contract provided that either party could, without notice, terminate the employment relationship with immediate effect during the first two months after its execution, and thereafter with certain notice. Further, the plaintiffs themselves alleged in the complaint that, pursuant to the … employment contract, [plaintiff’s] employment was "to continue without any specific date for termination." Thus, [plaintiff] was presumptively an at-will employee …. The plaintiffs failed to allege facts that would rebut the at-will presumption or limit [defendants’] right to freely terminate [plaintiff’s] employment.  Minovici v Belkin BV, 2013 NY Slip Op 05618, 2nd Dept 8-14-13






Counsel Should Have Been Disqualified Based On Conflict of Interest---Criteria Explained


In reversing Supreme Court and determining that counsel representing the town must be disqualified for a conflict of interest, the Second Department explained the operative principles:


"The disqualification of an attorney is a matter that rests within the sound discretion of the court" … . A party seeking disqualification of its adversary's counsel based on counsel's purported prior representation of that party must establish: "(1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse" … . "A party's entitlement to be represented in ongoing litigation by counsel of [its] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted" … . * * *


There is a rebuttable presumption that "where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation" … . That presumption may be rebutted by proof that "any information acquired by the disqualified lawyer is unlikely to be significant or material in the [subject] litigation" … . Proof must also be presented that the law firm properly screened the disqualified lawyer from dissemination and receipt of information subject to the attorney-client privilege … .  Matter of Town of Oyster Bay v 55 Motor Ave Co LLC, 2013 NY Slip Op 05636, 2nd Dept 8-14-13

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