JUST RELEASED

October Page III

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

 

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COURT OF APPEALS

CIVIL PROCEDURE (CAPACITY TO SUE, LEGISLATIVELY CREATED INSURANCE LAW ADVISORY ASSOCIATION DID NOT HAVE THE CAPACITY TO SUE AN INSURER FOR FEES THE ASSOCIATION WAS AUTHORIZED TO RECEIVE (CT APP))/INSURANCE LAW  (CAPACITY TO SUE, LEGISLATIVELY CREATED INSURANCE LAW ADVISORY ASSOCIATION DID NOT HAVE THE CAPACITY TO SUE AN INSURER FOR FEES THE ASSOCIATION WAS AUTHORIZED TO RECEIVE (CT APP))/CAPACITY TO SUE (INSURANCE LAW,  LEGISLATIVELY CREATED INSURANCE LAW ADVISORY ASSOCIATION DID NOT HAVE THE CAPACITY TO SUE AN INSURER FOR FEES THE ASSOCIATION WAS AUTHORIZED TO RECEIVE (CT APP))

 

CIVIL PROCEDURE, INSURANCE LAW.

 

LEGISLATIVELY CREATED INSURANCE LAW ADVISORY ASSOCIATION DID NOT HAVE THE CAPACITY TO SUE AN INSURER FOR FEES THE ASSOCIATION WAS AUTHORIZED TO RECEIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined Excess Line Association of New York (ELANY) — a legislatively created advisory association under the supervision of the Department of Financial Services (DFS) — does not have the capacity to sue its members to recover fees that it is statutorily authorized to receive. ELANY was set up to handle the paperwork that goes along with excess line insurance policies. ELANY collects stamping fees from the insurers based upon the premium amounts. The DFS entered a settlement with an insurer but did not seek payment of the stamping fees. ELANY then attempted to sue the insurer for the stamping fees:

While section 2130 [of the Insurance Law] does designate ELANY as the recipient of the stamping fees, we reject ELANY's contention that capacity to sue for recovery of such fees can be inferred as a "necessary implication" from its responsibilities ... . Critically, ELANY is both supervised by DFS and required to "perform its functions" pursuant to a plan of operation approved by DFS ... . That plan expressly establishes a method of enforcing the payment of stamping fees — the relief that ELANY seeks here — by providing that, when such fees go unpaid, ELANY's remedy is to report the matter to DFS. In other words, DFS has not authorized ELANY to seek recovery of unpaid stamping fees through a plenary action. Instead, the plan of operation — which governs the scope of ELANY's authorized activities — limits ELANY's remedy to reporting violations to DFS, further supporting the conclusion that ELANY does not have implied capacity to sue for the relief sought.

 

Finally, the legislative history of the statute creating ELANY demonstrates that the legislature characterized ELANY as an "advisory association," not a regulator ... . Nor does the plan of operation indicate that DFS has found it necessary, in order for ELANY to carry out its advisory function, to "accord[] [ELANY] the right to [enforce the payment of stamping fees] through a plenary judicial proceeding" ... . In short, the authority that ELANY urges this Court to recognize is negated by the nature of the responsibilities conferred upon ELANY, as established by the statutory structure, legislative history, and ELANY's plan of operation. Therefore, the courts below correctly concluded that capacity to sue cannot be inferred here. Excess Line Assn. of N.Y. (ELANY) v Waldorf & Assoc., 2017 NY Slip Op 07301, CtApp 10-19-17

 

CONTRACT LAW (ANTICIPATORY REPUDIATION, LAWSUIT SEEKING RESCISSION OR REFORMATION OF A REAL ESTATE PURCHASE AND SALE AGREEMENT DID NOT CONSTITUTE AN ANTICIPATORY BREACH OF THE CONTRACT, APPELLATE DIVISION REVERSED (CT APP))/ANTICIPATORY REPUDIATION (CONTRACT LAW, ANTICIPATORY REPUDIATION, LAWSUIT SEEKING RESCISSION OR REFORMATION OF A REAL ESTATE PURCHASE AND SALE AGREEMENT DID NOT CONSTITUTE AN ANTICIPATORY BREACH OF THE CONTRACT, APPELLATE DIVISION REVERSED (CT APP))

 

CONTRACT LAW.

LAWSUIT SEEKING RESCISSION OR REFORMATION OF A REAL ESTATE PURCHASE AND SALE AGREEMENT DID NOT CONSTITUTE AN ANTICIPATORY BREACH OF THE CONTRACT, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the appellate division, determined plaintiff-buyer's lawsuit seeking rescission or reformation of a real property purchase and sale agreement did not constitute an anticipatory breach of the agreement, The original contract had been amended several times to push forward the final closing date because of remedial waterfront work required by the state. The lawsuit, in part, sought to nullify the amendments and reinstate the original agreement:

For an anticipatory repudiation to be deemed to have occurred, the expression of intent not to perform by the repudiator must be "positive and unequivocal"... . We have taught that the party harmed by the repudiation must make a choice either to pursue damages for the breach or to proceed as if the contract is valid ... . We have also clarified that "a wrongful repudiation of the contract by one party before the time for performance entitles the nonrepudiating party to immediately claim damages for a total breach" ... . * * *

 

This action is one based on the terms under which the amendments to the contract were entered, and essentially seeks to nullify those terms. ... [I]n this context — specifically, where the amended complaint seeks ... reformation of the amendments to the contract and specific performance of the original agreement — there was no "positive and unequivocal" repudiation ... . There is no material difference between this action and a declaratory judgment action. At bottom, both actions seek a judicial determination as to the terms of a contract, and the mere act of asking for judicial approval to avoid a performance obligation is not the same as establishing that one will not perform that obligation absent such approval ... . Princes Point LLC v Muss Dev. L.L.C., 2017 NY Slip Op 07298, CtApp 10-19-17

 

CRIMINAL LAW (EVIDENCE, DNA, CRIMINALIST'S TESTIMONY ABOUT THE DNA EVIDENCE PURPORTEDLY LINKING DEFENDANT TO THE BURGLARY SCENES WAS ENTIRELY HEARSAY, RIGHT TO CONFRONT WITNESSES VIOLATED, NEW TRIAL ORDERED (CT APP))/EVIDENCE (CRIMINAL LAW, DNA, CRIMINALIST'S TESTIMONY ABOUT THE DNA EVIDENCE PURPORTEDLY LINKING DEFENDANT TO THE BURGLARY SCENES WAS ENTIRELY HEARSAY, RIGHT TO CONFRONT WITNESSES VIOLATED, NEW TRIAL ORDERED (CT APP))/DNA (CRIMINAL LAW, EVIDENCE, CRIMINALIST'S TESTIMONY ABOUT THE DNA EVIDENCE PURPORTEDLY LINKING DEFENDANT TO THE BURGLARY SCENES WAS ENTIRELY HEARSAY, RIGHT TO CONFRONT WITNESSES VIOLATED, NEW TRIAL ORDERED (CT APP))/HEARSAY (CRIMINAL LAW, DNA, CRIMINALIST'S TESTIMONY ABOUT THE DNA EVIDENCE PURPORTEDLY LINKING DEFENDANT TO THE BURGLARY SCENES WAS ENTIRELY HEARSAY, RIGHT TO CONFRONT WITNESSES VIOLATED, NEW TRIAL ORDERED (CT APP))/CONFRONT WITNESSES, RIGHT TO (DNA, CRIMINALIST'S TESTIMONY ABOUT THE DNA EVIDENCE PURPORTEDLY LINKING DEFENDANT TO THE BURGLARY SCENES WAS ENTIRELY HEARSAY, RIGHT TO CONFRONT WITNESSES VIOLATED, NEW TRIAL ORDERED (CT APP))

 

CRIMINAL LAW, EVIDENCE.

CRIMINALIST'S TESTIMONY ABOUT THE DNA EVIDENCE PURPORTEDLY LINKING DEFENDANT TO THE BURGLARY SCENES WAS ENTIRELY HEARSAY, RIGHT TO CONFRONT WITNESSES VIOLATED, NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DeFiore, with a concurring opinion by Judge Garcia, determined the hearsay testimony by a criminalist about DNA test results violated defendant's right to confront the witnesses against him. A new trial was ordered. The criminalist had no first-hand knowledge of any of the DNA testing:

... [I]n order to satisfy the Confrontation Clause, defendant was entitled to cross-examine the analyst who either "performed, witnessed or supervised the generation of the critical numerical DNA profile" or who "used his or her independent analysis on the raw data" to arrive at his or her own conclusions ... . As we recently held, "it is the generated numerical identifiers and the calling of the alleles at the final stage of the DNA typing that effectively accuses defendant of his role in the crime charged" ... . The trial transcript plainly establishes that the criminalist had no such role here. Although the criminalist may have had some level of involvement in OCME's handling of some of the 2009 crime scene swabs, he had no role whatsoever in the testing of defendant's post-accusatory buccal swab. His testimony was, therefore, merely "a conduit for the conclusions of others" ... .

 

On the whole, the criminalist's testimony was nothing more than a parroting of hearsay statements, made by other analysts and of which he had no personal knowledge. There is no question that his testimony as to the findings and conclusions of the nontestifying witnesses was elicited in order to prove the truth of those extrajudicial assertions — primarily, identifying defendant as the burglar ... . People v Austin, 2017 NY Slip Op 07300, Ct App 10-19-17

EMPLOYMENT LAW (NEW YORK CITY HUMAN RIGHTS LAW DOES NOT PROTECT FROM DISCRIMINATION EMPLOYEES MISTAKENLY PERCEIVED BY THEIR EMPLOYER TO SUFFER FROM ALCOHOLISM (CT APP))/HUMAN RIGHTS LAW (NYC) (EMPLOYMENT DISCRIMINATION, NEW YORK CITY HUMAN RIGHTS LAW DOES NOT PROTECT FROM DISCRIMINATION EMPLOYEES MISTAKENLY PERCEIVED BY THEIR EMPLOYER TO SUFFER FROM ALCOHOLISM (CT APP))/DISABILITIES (EMPLOYMENT DISCRIMINATION, NEW YORK CITY HUMAN RIGHTS LAW DOES NOT PROTECT FROM DISCRIMINATION EMPLOYEES MISTAKENLY PERCEIVED BY THEIR EMPLOYER TO SUFFER FROM ALCOHOLISM (CT APP))/DISCRIMINATION (EMPLOYMENT DISCRIMINATION, NEW YORK CITY HUMAN RIGHTS LAW DOES NOT PROTECT FROM DISCRIMINATION EMPLOYEES MISTAKENLY PERCEIVED BY THEIR EMPLOYER TO SUFFER FROM ALCOHOLISM (CT APP))/ALCOHOLISM (EMPLOYMENT DISCRIMINATION, NEW YORK CITY HUMAN RIGHTS LAW DOES NOT PROTECT FROM DISCRIMINATION EMPLOYEES MISTAKENLY PERCEIVED BY THEIR EMPLOYER TO SUFFER FROM ALCOHOLISM (CT APP))

 

EMPLOYMENT LAW, HUMAN RIGHTS LAW.

NEW YORK CITY HUMAN RIGHTS LAW DOES NOT PROTECT FROM DISCRIMINATION EMPLOYEES MISTAKENLY PERCEIVED BY THEIR EMPLOYER TO SUFFER FROM ALCOHOLISM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined that the New York City Human Rights Law (NYCHRL) did not protect from discrimination two New York City police officers who were sent to counseling based upon the employer's perception the officers were abusing alcohol, when in fact the officers were not alcoholics. The law was deemed, by its plain language, to protect only recovering or recovered alcoholics from discrimination, not those erroneously perceived by an employer to suffer from alcoholism:

... [T]he Administrative Code does not consider a mistaken perception of alcoholism to be a disability covered by the NYCHRL. As the Second Circuit noted, there is no ambiguity about the plain language of the NYCHRL, which is only open to one reasonable interpretation: the disability of alcoholism "shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse" ... . Indeed, by its plain language, the NYCHRL does not regulate employer actions motivated by concern with respect to the abuse of alcohol. Rather, the NYCHRL covers circumstances in which employers unfairly typecast alcoholics who have sought treatment and who are not presently abusing alcohol, so as to ensure that such persons are afforded a fair opportunity at recovery. Said differently, the NYCHRL provides that, with respect to alcoholism, a person is considered to be disabled (so as to trigger the protections of that law) only when he or she "is recovering or has recovered" and "currently is free of such abuse" ... . Makinen v City of New York, 2017 NY Slip Op 07208, Ct App 10-17-17

FREEDOM OF INFORMATION ACT (FOIL) (DOCUMENTS RELATING TO AUDITS OF SPECIAL EDUCATION PROGRAMS PROPERLY REDACTED TO EXCLUDE INFORMATION ABOUT LAW ENFORCEMENT PROCEDURES, PETITIONER ENTITLED TO ATTORNEY'S FEES (CT APP))/EDUCATION LAW (FREEDOM OF INFORMATION ACT, DOCUMENTS RELATING TO AUDITS OF SPECIAL EDUCATION PROGRAMS PROPERLY REDACTED TO EXCLUDE INFORMATION ABOUT LAW ENFORCEMENT PROCEDURES, PETITIONER ENTITLED TO ATTORNEY'S FEES (CT APP))/ATTORNEYS (FREEDOM OF INFORMATION LAW, DOCUMENTS RELATING TO AUDITS OF SPECIAL EDUCATION PROGRAMS PROPERLY REDACTED TO EXCLUDE INFORMATION ABOUT LAW ENFORCEMENT PROCEDURES, PETITIONER ENTITLED TO ATTORNEY'S FEES (CT APP))/SPECIAL EDUCATION PROGRAMS (FREEDOM OF INFORMATION LAW, DOCUMENTS RELATING TO AUDITS OF SPECIAL EDUCATION PROGRAMS PROPERLY REDACTED TO EXCLUDE INFORMATION ABOUT LAW ENFORCEMENT PROCEDURES, PETITIONER ENTITLED TO ATTORNEY'S FEES (CT APP))

FREEDOM OF INFORMATION LAW (FOIL), EDUCATION LAW, ATTORNEYS.

DOCUMENTS RELATING TO AUDITS OF SPECIAL EDUCATION PROGRAMS PROPERLY REDACTED TO EXCLUDE INFORMATION ABOUT LAW ENFORCEMENT PROCEDURES, PETITIONER ENTITLED TO ATTORNEY'S FEES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Department of Education (DOE) properly redacted documents relating to the auditing of special education programs. The redactions fell under exemptions in the Public Officers Law for (1) information compiled for law enforcement purposes and (2) disclosures that would interfere with law enforcement investigations. The audits were were aimed at rooting out fraud and overcharging by special education providers. The Court of Appeals further held that the petitioner had substantially prevailed in her Freedom of Information Law (FOIL) request and was therefore entitled to attorney's fees:

The propriety of the Department's redactions of the disclosed records, therefore, turns on whether the redacted portions qualify for exemption under Public Officers Law § 87 (2) (e) (i). This requires us to address both prongs of the exemption: (1) whether the records were compiled for law enforcement purposes; and (2) whether disclosure of the records would interfere with law enforcement investigations or judicial proceedings. We conclude that, under the circumstances presented here, both of these prongs are satisfied and the records were properly redacted.

 

As to the first prong, we are persuaded that the records at issue were compiled for law enforcement purposes. The phrase "law enforcement purposes" is not defined in the FOIL statutes ... . * * * It is undisputed that the Department lacks jurisdiction to punish criminal violations of the law. However ... the term "law enforcement" is "not limited to the enforcement of criminal laws" ... . * * *

Turning to the second inquiry, we agree with the courts below that the redactions made by the Department were necessary to prevent interference with a law enforcement investigation ... . Here, the Executive Coordinator for Special Education explained that the Department's redactions were imperative because releasing specific methods and procedures used by auditors in particular counties would supply providers subject to audit with "a roadmap to avoid disclosure of inappropriate costs" and would enable such providers to more effectively conceal fraudulent and criminal activities, thereby undermining the audit process. Matter of Madeiros v New York State Educ. Dept., 2017 NY Slip Op 07209, CtApp 10-17-17

MUNICIPAL LAW (POLICE DISCIPLINARY PROCEDURES ARE NOT SUBJECT TO COLLECTIVE BARGAINING (CT APP))/EMPLOYMENT LAW (MUNICIPAL LAW, POLICE, POLICE DISCIPLINARY PROCEDURES ARE NOT SUBJECT TO COLLECTIVE BARGAINING (CT APP))/POLICE (DISCIPLINARY PROCEDURES, COLLECTIVE BARGAINING, POLICE DISCIPLINARY PROCEDURES ARE NOT SUBJECT TO COLLECTIVE BARGAINING (CT APP))/COLLECTIVE BARGAINING (MUNICIPAL LAW, POLICE DISCIPLINARY PROCEDURES ARE NOT SUBJECT TO COLLECTIVE BARGAINING (CT APP))/SECOND CLASS CITIES LAW (POLICE DISCIPLINARY PROCEDURES ARE NOT SUBJECT TO COLLECTIVE BARGAINING (CT APP))/TAYLOR LAW (POLICE DISCIPLINARY PROCEDURES ARE NOT SUBJECT TO COLLECTIVE BARGAINING (CT APP))

MUNICIPAL LAW, EMPLOYMENT LAW.

POLICE DISCIPLINARY PROCEDURES ARE NOT SUBJECT TO COLLECTIVE BARGAINING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined that Schenectady's police disciplinary procedures were not subject to collective bargaining. The Second Class Cities Law, which provides for local government control over police discipline, is not superseded by the Taylor Law, which expresses a strong public policy in support of municipalities engaging in collective bargaining:

The Second Class Cities Law has not been expressly repealed or superseded by the legislature nor was it implicitly repealed by the enactment of the Taylor Law in 1967. "The repeal of a statute by implication is not favored by law, for when the legislature intends to repeal an act it usually says so expressly" ... . "Generally, a statute is deemed impliedly repealed by another statute only if the two are in such conflict that it is impossible to give some effect to both. If a reasonable field of operation can be found for each statute, that construction should be adopted" ... . The Second Class Cities Law and the Taylor Law are not irreconcilable. Article 9 of the Second Class Cities Law governs disciplinary procedures for police officers in cities of the second class, whereas the Taylor Law generally requires public employers to negotiate but does not specifically require police disciplinary procedures to be a mandatory subject of collective bargaining. There is no express statutory conflict between the two laws; the only conflict is in the policies that they represent, and this Court has already resolved that policy conflict in favor of local control over police discipline ... . Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 07210, CtApp 10-17-17

APPELLATE DIVISION

ATTORNEYS (LAWSUIT BROUGHT BY AN ATTORNEY WHO DID NOT HAVE A IN-STATE OFFICE WAS A NULLITY (FIRST DEPT))/JUDICIARY LAW (ATTORNEYS, IN-STATE OFFICE, LAWSUIT BROUGHT BY AN ATTORNEY WHO DID NOT HAVE A IN-STATE OFFICE WAS A NULLITY (FIRST DEPT))/LAW OFFICES (IN-STATE, (LAWSUIT BROUGHT BY AN ATTORNEY WHO DID NOT HAVE A IN-STATE OFFICE WAS A NULLITY (FIRST DEPT))

 

ATTORNEYS.

 

LAWSUIT BROUGHT BY AN ATTORNEY WHO DID NOT HAVE AN IN-STATE OFFICE WAS A NULLITY (FIRST DEPT).

The First Department determined a lawsuit started by an attorney who did not have a New York office was a nullity:

The record supports the court's determination that plaintiff's counsel failed to maintain an in-state office at the time he commenced this action, in violation of Judiciary Law § 470 ... . Plaintiff's subsequent retention of co-counsel with an in-state office did not cure the violation, since the commencement of the action in violation of Judiciary Law § 470 was a nullity ... . The court properly permitted defendants to make a second dispositive motion to dismiss since at the time of the first motion defendants had no reason to suspect that plaintiff's counsel may have violated Judiciary Law § 470 ... . Arrowhead Capital Fin., Ltd. v Cheyne Specialty Fin. Fund L.P., 2017 NY Slip Op 07219, First Dept 10-17-17

 

CIVIL PROCEDURE (WITNESS PRIVILEGE DID NOT PRECLUDE COUNTERCLAIMS WHICH WERE SUPPORTED BY THE WITNESS'S TRIAL TESTIMONY BUT WHICH WERE NOT BASED UPON THE TRIAL TESTIMONY (THIRD DEPT))/PRIVILEGE (WITNESS PRIVILEGE DID NOT PRECLUDE COUNTERCLAIMS WHICH WERE SUPPORTED BY THE WITNESS'S TRIAL TESTIMONY BUT WHICH WERE NOT BASED UPON THE TRIAL TESTIMONY (THIRD DEPT))/WITNESS PRIVILEGE (WITNESS PRIVILEGE DID NOT PRECLUDE COUNTERCLAIMS WHICH WERE SUPPORTED BY THE WITNESS'S TRIAL TESTIMONY BUT WHICH WERE NOT BASED UPON THE TRIAL TESTIMONY (THIRD DEPT))

 

CIVIL PROCEDURE, PRIVILEGE.

WITNESS PRIVILEGE DID NOT PRECLUDE COUNTERCLAIMS WHICH WERE SUPPORTED BY THE WITNESS'S TRIAL TESTIMONY BUT WHICH WERE NOT BASED UPON THE TRIAL TESTIMONY (THIRD DEPT).

The Third Department, modifying Supreme Court, determined counterclaims which were not based upon the expert witness's trial testimony were not prohibited by the witness privilege. Plaintiff is an expert witness hired by defendant law firm. After a mistrial was declared because plaintiff failed to disclose a basis for his opinion, defendant refused to pay the rest of plaintiff's fee. Plaintiff then sued to recover his fee. Although the counterclaims alleging plaintiff failed to adequately prepare for trial and failed to disclose the basis for his opinion were supported by plaintiff's trial testimony, they were not based on his trial testimony. Therefore those counterclaims were not precluded by the witness privilege:

A "witness at a judicial or quasi-judicial proceeding enjoys an absolute privilege with respect to his or her testimony," as long as the statements made are material to the issues to be resolved therein ... . The purposes of this privilege are to further the truth-seeking process at trial and encourage cooperation of witnesses, particularly with regard to expert witnesses, so that they can discharge their public duty freely "with knowledge that they will be insulated from the harassment and financial hazard of subsequent litigation" ... . ...

 

We conclude that a party cannot hold its own expert liable for the content of his or her testimony in prior litigation, but may pursue claims for negligence, professional malpractice, breach of contract or similar causes of action due to the expert's alleged failure to properly prepare for the trial or to perform agreed-upon litigation-related services. Although an expert may not be held liable for the substance of his or her prior testimony or the opinions expressed therein, such testimony may be used as evidence in connection with these other types of causes of action. As the Court of Appeals recently stated when addressing the witness privilege in another context, "[t]he test is 'whether the plaintiff can make out the elements of his [or her] . . . claim without resorting to the . . . testimony. If the claim exists independently of the . . . testimony, it is not "based on" that testimony . . . [but] if the claim requires the . . . testimony, the defendant enjoys absolute immunity'" .... Stated otherwise, a plaintiff may not assert a claim that is entirely based on the expert's prior testimony — and nothing more — but may assert a claim that is viable apart from, but supported by, that testimony ... . Toaspern v Laduca Law Firm LLP, 2017 NY Slip Op 07374, Third Dept 10-19-17

 

CONTRACT LAW (INDEMNIFICATION AGREEMENT, THE INDEMNIFICATION PROVISIONS OF THE CONTRACT DID NOT INCLUDE INDEMNIFICATION FOR ATTORNEY'S FEES (SECOND DEPT))/ATTORNEYS (FEES. (INDEMNIFICATION AGREEMENT, THE INDEMNIFICATION PROVISIONS OF THE CONTRACT DID NOT INCLUDE INDEMNIFICATION FOR ATTORNEY'S FEES (SECOND DEPT))/INDEMNIFICATION AGREEMENTS (THE INDEMNIFICATION PROVISIONS OF THE CONTRACT DID NOT INCLUDE INDEMNIFICATION FOR ATTORNEY'S FEES (SECOND DEPT))

 

CONTRACT LAW, ATTORNEYS.

THE INDEMNIFICATION PROVISIONS OF THE CONTRACT DID NOT INCLUDE INDEMNIFICATION FOR ATTORNEY'S FEES (SECOND DEPT).

The Second Department determined Supreme Court properly held that the indemnification agreement did not include reimbursement for legal fees:

Here, the relevant indemnification language of the contract between R & L and Truck-Rite provides that Truck-Rite shall indemnify R & L and hold it harmless against "any and all claims asserted against [R & L] arising from the actions, omissions or negligence of [Truck-Rite's] employees, agents or servants," as well as any "claim of injury or damage" arising out of the agreement "unless such injury or damage is caused by [R & L]." This language is not sufficiently specific to require the reimbursement of legal expenses incurred by R & L, either in the defense of the main action ... , or in the prosecution of R & L's cause of action seeking contractual indemnification from Truck-Rite ... .The agreement contains no provision requiring Truck-Rite to assume the defense of indemnified third-party claims, a circumstance that might have provided some evidence to support Truck-Rite's broad interpretation of the indemnification language ... . Furthermore, in describing R & L's rights in the event of a material breach by Truck-Rite, the agreement expressly provided that "[i]f [R & L] prevails in an action against [Truck-Rite] for breach of this Agreement,[R & L] shall be entitled to payment of reasonable attorney fees and costs associated with prosecuting or defending such action." The inclusion of a specific contract provision addressing the recovery of costs and expenses associated with prosecuting or defending a claim, including attorneys' fees, in the context of a material breach by Truck-Rite, but not in the context of indemnification, leads to the conclusion that the parties did not agree to obligate Truck-Rite to reimburse the legal expenses incurred by R & L, either in the defense of the main action or in the prosecution of R & L's cause of action seeking contractual indemnification from Truck-Rite. Lawson v R&L Carriers, Inc., 2017 NY Slip Op 07245, Second Dept 10-18-17

CRIMINAL LAW (MOTION COURT DENIED SUPPRESSION AFTER APPLYING THE WRONG STANDARD TO THE STREET STOP, SUPPRESSION GRANTED AND INDICTMENT DISMISSED (SECOND DEPT))/STREET STOPS (CRIMINAL LAW, SUPPRESSION, MOTION COURT DENIED SUPPRESSION AFTER APPLYING THE WRONG STANDARD TO THE STREET STOP, SUPPRESSION GRANTED AND INDICTMENT DISMISSED (SECOND DEPT))/SUPPRESS, MOTION TO (STREET STOPS, MOTION COURT DENIED SUPPRESSION AFTER APPLYING THE WRONG STANDARD TO THE STREET STOP, SUPPRESSION GRANTED AND INDICTMENT DISMISSED (SECOND DEPT))

 

CRIMINAL LAW.

MOTION COURT DENIED SUPPRESSION AFTER APPLYING THE WRONG STANDARD TO THE STREET STOP, SUPPRESSION GRANTED AND INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing defendant's conviction and dismissing the indictment, determined the trial court applied the wrong standard to analyzing whether the street stop of the defendant was valid. Because the wrong standard (founded suspicion criminal activity afoot) was applied and the People did not argue the correct standard (reasonable suspicion defendant had committed a crime) was met, the motion to suppress was granted on appeal:

... Police Officer Evan Murtaugh was on patrol ... in a marked police vehicle when he noticed a car parked on the right side of the road. The car's engine was running and the headlights were on, but the taillights were off. After pulling over behind the car, Officer Murtaugh approached the driver's side of the car and observed the defendant, who was alone in the vehicle and either asleep or unconscious, behind the wheel. Officer Murtaugh banged on the window with his hands and flashlight to get the defendant's attention. After between 30 and 45 seconds, the defendant awakened, looked in Officer Murtaugh's direction, and "floored the accelerator," causing the engine to increase the speed of its revolutions. The defendant then attempted to shift the car into gear, at which point Officer Murtaugh opened the car door, which was unlocked, leaned inside, and turned off the ignition. After Officer Murtaugh asked the defendant "where he was coming from, where he was going," Officer Murtaugh detected the "overwhelming odor of alcohol" and he observed that the defendant's eyes were "bloodshot glassy." ... 

The Supreme Court denied [the motion to suppress] on the ground that, after the defendant tried to move the vehicle, the officer had a "founded suspicion" that criminal activity was afoot, and that he had the right to open the car door and turn off the ignition for that reason and for his own safety.

 

By reaching into the defendant's vehicle and turning off the ignition, Officer Murtaugh forcibly stopped the defendant, thus implicating the constitutional protections against unreasonable searches and seizures. A forcible stop is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime ... . People v Noble, 2017 NY Slip Op 07280, Second Dept 10-18-17

 

CRIMINAL LAW (DEFENDANT DID NOT INTEND TO COMMIT ASSAULT AT THE TIME HE REFUSED TO LEAVE HIS WIFE'S HOME, BURGLARY CONVICTION VACATED (FIRST DEPT))/BURGLARY (DEFENDANT DID NOT INTEND TO COMMIT ASSAULT AT THE TIME HE REFUSED TO LEAVE HIS WIFE'S HOME, BURGLARY CONVICTION VACATED (FIRST DEPT))

 

CRIMINAL LAW

DEFENDANT DID NOT INTEND TO COMMIT ASSAULT AT THE TIME HE REFUSED TO LEAVE HIS WIFE'S HOME, BURGLARY CONVICTION VACATED (FIRST DEPT).

The First Department, vacating defendant's burglary conviction, determined there was no evidence defendant intended to commit a crime (assault) when he refused to leave his wife's home. Defendant had stayed the night with his wife's permission but refused to leave the next day. The assault occurred after defendant refused to leave:

A person is guilty of burglary in the first degree when he or she "knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein" and "[c]auses physical injury to any person who is not a participant in the crime" ... .

 

"The purpose of the burglary statute is to protect against the specific dangers posed by entry into secured premises of intruders bent on crime" ... . The " remains unlawfully' language" was "principally intended to address circumstances involving an unauthorized remaining in a building after lawful entry'"... .

Here, the evidence, viewed in the light most favorable to the People, does not support the inference that defendant harbored the intent to assault the complainant when she ordered him to leave. Rather, a reasonable inference to be drawn from the events surrounding the assault is that defendant spontaneously committed violence, which does not fall within the intended scope of the burglary statute ... . People v Swinson, 2017 NY Slip Op 07302, First Dept 10-19-17

 

CRIMINAL LAW (TRIAL IN ABSENTIA, ALTHOUGH DEFENDANT HAD BEEN PROPERLY WARNED OF THE CONSEQUENCES OF NOT APPEARING FOR TRIAL, COUNTY COURT DID NOT TAKE ADEQUATE STEPS TO ATTEMPT TO SECURE DEFENDANT'S PRESENCE, CONVICTION REVERSED (THIRD DEPT))/ABSENTIA, TRIAL IN (CRIMINAL LAW,  ALTHOUGH DEFENDANT HAD BEEN PROPERLY WARNED OF THE CONSEQUENCES OF NOT APPEARING FOR TRIAL, COUNTY COURT DID NOT TAKE ADEQUATE STEPS TO ATTEMPT TO SECURE DEFENDANT'S PRESENCE, CONVICTION REVERSED (THIRD DEPT))/ABSENCE FROM TRIAL (CRIMINAL LAW, ALTHOUGH DEFENDANT HAD BEEN PROPERLY WARNED OF THE CONSEQUENCES OF NOT APPEARING FOR TRIAL, COUNTY COURT DID NOT TAKE ADEQUATE STEPS TO ATTEMPT TO SECURE DEFENDANT'S PRESENCE, CONVICTION REVERSED (THIRD DEPT))/PARKER WARNINGS (TRIAL IN ABSENTIA, ALTHOUGH DEFENDANT HAD BEEN PROPERLY WARNED OF THE CONSEQUENCES OF NOT APPEARING FOR TRIAL, COUNTY COURT DID NOT TAKE ADEQUATE STEPS TO ATTEMPT TO SECURE DEFENDANT'S PRESENCE, CONVICTION REVERSED (THIRD DEPT))

 

CRIMINAL LAW.

ALTHOUGH DEFENDANT HAD BEEN PROPERLY WARNED OF THE CONSEQUENCES OF NOT APPEARING FOR TRIAL, COUNTY COURT DID NOT TAKE ADEQUATE STEPS TO ATTEMPT TO SECURE DEFENDANT'S PRESENCE, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant's conviction, determined the trial court did not take adequate steps to secure defendant's presence at trial before holding the trial in defendant's absence. The court had properly admonished the defendant about the consequences of his failure to appear, but erroneously relied on hearsay during its inquiry into the reasons for defendant's absence and did not make an adequate effort to execute a bench warrant:

"Even where, as here, 'a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized.' Rather, it must also appear from the record that the trial court considered 'all appropriate factors' before proceeding in [the] defendant's absence, 'including the possibility that [the] defendant could be located within a reasonable period of time, the difficulty of rescheduling the trial and the chance that evidence will be lost or witnesses will disappear.' As the Court of Appeals has instructed, 'in most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile'" ... . * * *

 

In making its determination to try defendant in absentia, County Court improperly considered the hearsay statements made by the individuals interviewed by [a police investigator] as direct evidence of defendant's unavailability. Moreover, the record demonstrates that County Court failed to properly consider the appropriate factors. The fact that the trial commenced only five days after issuance of the bench warrant — two of which were weekend days during which no active effort was made to locate defendant — "demonstrates only a minimal effort to locate defendant prior to trial" ... , and no consideration was given to the likelihood that defendant could be located within a reasonable period of time ... . The record contains no evidence that any difficulty would result from rescheduling the trial, and there was little chance that an adjournment would cause evidence to be lost or witnesses to disappear because the primary witnesses were law enforcement officers and the evidence included defendant's admission to possession of the firearms that were seized. There also was no proof that further efforts to locate defendant would have been futile. In short, there was no reason not to take the "simple expedient" of adjourning the trial pending execution of the bench warrant ... . People v Atkins, 2017 NY Slip Op 07342, Third Dept 10-19-17

 

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, EVIDENCE OF PRIOR BAD ACTS INVOLVING A DIFFERENT VICTIM NOT ADMISSIBLE (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, EVIDENCE OF PRIOR BAD ACTS INVOLVING A DIFFERENT VICTIM NOT ADMISSIBLE (THIRD DEPT))/JUSTIFICATION DEFENSE  (JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, EVIDENCE OF PRIOR BAD ACTS INVOLVING A DIFFERENT VICTIM NOT ADMISSIBLE (THIRD DEPT))/MOLINEUX EVIDENCE (JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, EVIDENCE OF PRIOR BAD ACTS INVOLVING A DIFFERENT VICTIM NOT ADMISSIBLE (THIRD DEPT))/PRIOR BAD ACTS (MOLINEUX, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, EVIDENCE OF PRIOR BAD ACTS INVOLVING A DIFFERENT VICTIM NOT ADMISSIBLE (THIRD DEPT))

 

CRIMINAL LAW, EVIDENCE.

JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, EVIDENCE OF PRIOR BAD ACTS INVOLVING A DIFFERENT VICTIM NOT ADMISSIBLE (THIRD DEPT).

The Third Department, reversing defendant's conviction, determined the jury should have been instructed on the justification defense and evidence of prior bad acts not involving the victim were not admissible as Molineux evidence:

A justification charge is required when there is any reasonable view of the evidence — whether presented by the People or the defendant ... — that could lead a jury to conclude that the defendant reasonably believed that the victim was using or was about to use deadly physical force and that the defendant could not safely retreat, or was under no duty to retreat ... . A defendant has no duty to retreat when he or she is within his or her own home and is not the initial aggressor ... . If the defendant requests a justification charge and the evidence, viewed in the light most favorable to the defendant, supports the defense, the failure to give the charge constitutes reversible error ... . ... In both of her written statements to the police, which were admitted into evidence, as well as her oral statements during the 911 call and at the scene, which were testified to by the 911 dispatcher and responding officers, defendant maintained that the victim had been the initial aggressor, having entered the apartment and attacked her with a knife. Defendant consistently stated that she reacted in self-defense and out of fear for her life and that she had "a black out moment" when she repeatedly struck the victim with the bat and stabbed him with the knife. In one of her statements, she asserted that she delivered the final stab wounds after the victim stated something that sounded like "'I'll get you.'" In addition, as testified to by the officers involved and as evidenced by one of her written statements, defendant claimed that the victim had previously perpetrated acts of physical, sexual and emotional abuse against her. She further stated that the victim had threatened to kill her during a fight a few days earlier. Significantly, in assessing whether a defendant reasonably believed that the victim was using or about to use deadly physical force, consideration may be given to "any relevant knowledge the defendant had about [the victim]," including incidents of past violence ... . People v Ball, 2017 NY Slip Op 07341, Third Dept 10-19-17

 

CRIMINAL LAW (HEARSAY NOT ADMISSIBLE AS BACKGROUND INFORMATION TO EXPLAIN THE REASON FOR A SEARCH, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, HEARSAY NOT ADMISSIBLE AS BACKGROUND INFORMATION TO EXPLAIN THE REASON FOR A SEARCH, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS (THIRD DEPT))/HEARSAY (CRIMINAL LAW, HEARSAY NOT ADMISSIBLE AS BACKGROUND INFORMATION TO EXPLAIN THE REASON FOR A SEARCH, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS (THIRD DEPT))/IMPEACHMENT (CRIMINAL LAW, HEARSAY NOT ADMISSIBLE AS BACKGROUND INFORMATION TO EXPLAIN THE REASON FOR A SEARCH, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS (THIRD DEPT))

 

CRIMINAL LAW, EVIDENCE.

HEARSAY NOT ADMISSIBLE AS BACKGROUND INFORMATION TO EXPLAIN THE REASON FOR A SEARCH, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS (THIRD DEPT).

The Third Department, reversing defendant's conviction, determined hearsay statements from two witnesses (Jones and Grierson) about the presence of a gun in the defendant's apartment were not admissible as background information to explain why the police searched the apartment. The court further found that the People should not have been allowed to impeach their own witness:

... [A]lthough general and cursory testimony by one of the officers would have sufficed to explain why they began to search for a weapon, County Court permitted all four officers to testify in detail that Jones and Grierson stated that defendant had a gun and also allowed the People to elicit further information from two of the officers as to Jones' and Grierson's description of the gun. In light of the repetitive and detailed nature of the testimony, we find that it exceeded the permissible scope of explanatory background information ... . ...

Compounding this error, County Court improperly allowed the People to impeach Grierson, their own witness, with her prior grand jury testimony. A party may impeach its own witness with a prior contradictory statement when the "witness gives testimony upon a material issue or fact which 'tends to disprove the party's position or affirmatively damages the party's case'" ... . Although Grierson testified before the grand jury that she told the police officers about her previous conversation with defendant concerning a gun and her belief based upon that conversation that defendant might have a gun in the apartment, at trial she denied that she made those statements to the officers. She did admit, however, that she had the previous conversation with defendant. In our view, Grierson's trial testimony did not tend to disprove the People's position that defendant constructively possessed the gun, nor did it affirmatively damage their case. Rather, Grierson's trial testimony merely failed to corroborate or bolster the officers' explanatory background testimony. Accordingly, the People should not have been permitted to impeach Grierson with her grand jury testimony ... . People v Grierson, 2017 NY Slip Op 07344, Third Department 10-19-17

 

CRIMINAL LAW (SEALING, RECORD OF DEFENDANT'S DISORDERLY CONDUCT CONVICTION COULD NOT BE UNSEALED BY THE DISTRICT ATTORNEY'S OFFICE IN AN EVICTION PROCEEDING BASED UPON THE UNDERLYING DRUG CHARGE, DISTRICT ATTORNEY'S OFFICE WAS NOT ACTING AS A LAW ENFORCEMENT AGENCY IN THE EVICTION PROCEEDING WITHIN THE MEANING OF THE SEALING STATUTE (FIRST DEPT))/LANDLORD-TENANT (CRIMINAL LAW, EVICTION,  RECORD OF DEFENDANT'S DISORDERLY CONDUCT CONVICTION COULD NOT BE UNSEALED BY THE DISTRICT ATTORNEY'S OFFICE IN AN EVICTION PROCEEDING BASED UPON THE UNDERLYING DRUG CHARGE, DISTRICT ATTORNEY'S OFFICE WAS NOT ACTING AS A LAW ENFORCEMENT AGENCY IN THE EVICTION PROCEEDING WITHIN THE MEANING OF THE SEALING STATUTE (FIRST DEPT))/SEALING (CRIMINAL RECORDS, RECORD OF DEFENDANT'S DISORDERLY CONDUCT CONVICTION COULD NOT BE UNSEALED BY THE DISTRICT ATTORNEY'S OFFICE IN AN EVICTION PROCEEDING BASED UPON THE UNDERLYING DRUG CHARGE, DISTRICT ATTORNEY'S OFFICE WAS NOT ACTING AS A LAW ENFORCEMENT AGENCY IN THE EVICTION PROCEEDING WITHIN THE MEANING OF THE SEALING STATUTE (FIRST DEPT))/UNSEALING (CRIMINAL RECORDS, RECORD OF DEFENDANT'S DISORDERLY CONDUCT CONVICTION COULD NOT BE UNSEALED BY THE DISTRICT ATTORNEY'S OFFICE IN AN EVICTION PROCEEDING BASED UPON THE UNDERLYING DRUG CHARGE, DISTRICT ATTORNEY'S OFFICE WAS NOT ACTING AS A LAW ENFORCEMENT AGENCY IN THE EVICTION PROCEEDING WITHIN THE MEANING OF THE SEALING STATUTE (FIRST DEPT))/EVICTION (CRIMINAL LAW, UNSEALING OF RECORDS, RECORD OF DEFENDANT'S DISORDERLY CONDUCT CONVICTION COULD NOT BE UNSEALED BY THE DISTRICT ATTORNEY'S OFFICE IN AN EVICTION PROCEEDING BASED UPON THE UNDERLYING DRUG CHARGE, DISTRICT ATTORNEY'S OFFICE WAS NOT ACTING AS A LAW ENFORCEMENT AGENCY IN THE EVICTION PROCEEDING WITHIN THE MEANING OF THE SEALING STATUTE (FIRST DEPT))/RECORDS (CRIMINAL CONVICTION, UNSEALING, RECORD OF DEFENDANT'S DISORDERLY CONDUCT CONVICTION COULD NOT BE UNSEALED BY THE DISTRICT ATTORNEY'S OFFICE IN AN EVICTION PROCEEDING BASED UPON THE UNDERLYING DRUG CHARGE, DISTRICT ATTORNEY'S OFFICE WAS NOT ACTING AS A LAW ENFORCEMENT AGENCY IN THE EVICTION PROCEEDING WITHIN THE MEANING OF THE SEALING STATUTE (FIRST DEPT))

 

CRIMINAL LAW, LANDLORD-TENANT.

RECORD OF DEFENDANT'S DISORDERLY CONDUCT CONVICTION COULD NOT BE UNSEALED BY THE DISTRICT ATTORNEY'S OFFICE IN AN EVICTION PROCEEDING BASED UPON THE UNDERLYING DRUG CHARGE, DISTRICT ATTORNEY'S OFFICE WAS NOT ACTING AS A LAW ENFORCEMENT AGENCY IN THE EVICTION PROCEEDING WITHIN THE MEANING OF THE SEALING STATUTE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, determined defendant's sealed record, associated with a plea to disorderly conduct in satisfaction of a drug charge, could not be unsealed in an eviction action under the Real Property Actions and Proceedings Law (RPAPL). The eviction action was based upon the underlying drug charge. Although the Criminal Procedure Law allows a record of a criminal proceeding to be unsealed by a "law enforcement agency," the First Department held that the district attorney's office, in assisting in a post-conviction eviction proceeding, was not acting as "a law enforcement agency" within the meaning of the sealing statute:

... [U]nsealing records pursuant to  [Criminal Procedure Law]160.50(1)(d)(ii) [is] limited to instances in which the People [act] in an investigatory capacity, and, even then, [is] only available before the commencement of a criminal proceeding.

 

* * * ... [A] court's authority to make sealed records available to a prosecutor depend[s] on whether or not a criminal proceeding ha[s] commenced. Thus, in order to qualify as a "law enforcement agency," as used in CPL 160.50(1)(d)(ii), not only must the District Attorney's Office be acting in its investigatory capacity, but, also, it must be doing so before the commencement of a criminal proceeding. Here, the District Attorney's Office sought to unseal defendant's records so that a third party could use them in a civil proceeding against defendant and his fellow tenants. This runs counter to the Legislature's intent in drafting the sealing statutes and their narrow exceptions. People v F.B., 2017 NY Slip Op 07232, First Dept 10-17-17

FAMILY LAW (GRANDPARENT'S VISITATION PETITION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, PETITION ALLEGED MOTHER PROHIBITED GRANDPARENT'S FROM SEEING THE CHILDREN (THIRD DEPT))/VISITATION (FAMILY LAW, GRANDPARENT'S VISITATION PETITION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, PETITION ALLEGED MOTHER PROHIBITED GRANDPARENT'S FROM SEEING THE CHILDREN (THIRD DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, GRANDPARENT'S VISITATION PETITION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, PETITION ALLEGED MOTHER PROHIBITED GRANDPARENT'S FROM SEEING THE CHILDREN (THIRD DEPT))

 

FAMILY LAW.

GRANDPARENTS' VISITATION PETITION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, PETITION ALLEGED MOTHER PROHIBITED GRANDPARENTS FROM SEEING THE CHILDREN (THIRD DEPT).

The Third Department, reversing Family Court, determined the grandparents had submitted enough information to demonstrate standing to seek visitation with the grandchildren. Family Court should have conducted a hearing. Because it was alleged mother prohibited the grandparents from seeing the children, the fact that the grandparents had not developed a relationship with the children could not be the basis for denying the visitation petition without a hearing:

As relevant here, when the parents of the subject children are alive, a grandparent may acquire standing to seek visitation of the children by demonstrating that "conditions exist which equity would see fit to intervene" ... . The grandparents "must establish a sufficient existing relationship with their grandchild[ren], or in cases where [such a relationship] has been frustrated . . ., a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention" ... . The sufficiency of the grandparents' efforts in this regard "must always be measured against what they could reasonably have done under the circumstances" ... . ...

On the sparse record before us, we find that the proof adduced in support of the grandparents' petition to be sufficient to confer standing to seek visitation with their grandchildren ... . Significantly, the circumstances indicate that the mother has made deliberate and immediate efforts to preclude the grandparents from having and/or developing any significant relationship with the subject children — since the very day they were born — without any stated reasonable justification for doing so ... . Further, given the young ages of the children and the brief amount of time that has elapsed between their respective births and the disruption of the grandparents' visitation, equity dictates that we not allow the lack of an established relationship be used as a pretext to prevent the grandparents from otherwise exercising their right to seek visitation ... , particularly where, as here, their efforts, to date, have proved futile. We further note that, on appeal, the father does not oppose the relief sought by the grandparents. Matter of Monroe v Monroe, 2017 NY Slip Op 07358, Third Dept 10-19-17

FAMILY LAW (CHILD SUPPORT STANDARDS ACT, DIVORCE SUPPORT STIPULATION WHICH DEVIATED FROM THE PROVISIONS OF THE CHILD SUPPORT STANDARDS ACT WAS INVALID FROM THE OUTSET, PRIMARILY BECAUSE THE STIPULATION DID NOT INCLUDE THE STATUTORILY REQUIRED RECITALS (THIRD DEPT))/CHILD SUPPORT (CHILD SUPPORT STANDARDS ACT, DIVORCE SUPPORT STIPULATION WHICH DEVIATED FROM THE PROVISIONS OF THE CHILD SUPPORT STANDARDS ACT WAS INVALID FROM THE OUTSET, PRIMARILY BECAUSE THE STIPULATION DID NOT INCLUDE THE STATUTORILY REQUIRED RECITALS (THIRD DEPT))/CHILD SUPPORT STANDARDS ACT (DIVORCE SUPPORT STIPULATION WHICH DEVIATED FROM THE PROVISIONS OF THE CHILD SUPPORT STANDARDS ACT WAS INVALID FROM THE OUTSET, PRIMARILY BECAUSE THE STIPULATION DID NOT INCLUDE THE STATUTORILY REQUIRED RECITALS (THIRD DEPT))

 

FAMILY LAW.

DIVORCE SUPPORT STIPULATION WHICH DEVIATED FROM THE PROVISIONS OF THE CHILD SUPPORT STANDARDS ACT WAS INVALID FROM THE OUTSET, PRIMARILY BECAUSE THE STIPULATION DID NOT INCLUDE THE STATUTORILY REQUIRED RECITALS (THIRD DEPT).

The Third Department, reversing Family Court, determined the divorce stipulation, which included child support calculations which deviated from the provisions of the Child Support Standards Act (CSSA), was invalid from the outset, primarily because the stipulation did not include the statutorily required recitals:

... [A]ll child support stipulations seeking to deviate from the CSSA must "include a provision stating that the parties have been advised of the provisions of [the CSSA] and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded"... . "The purpose of such recitals is to ensure that the parties have a basic understanding of the CSSA and that agreements deviating from the presumptively correct amount under the CSSA are entered into knowingly" ... . Notably, such provision may not be waived by either party or counsel ... , and the failure to include such recitals in a stipulation agreeing to deviate from the CSSA guidelines will render it "invalid and unenforceable" ... .

 

The mother was unrepresented by counsel in 2009 when the parties entered into their stipulation and settlement agreement and opted to deviate from the CSSA. The agreement states that the parties reviewed the provisions of the CSSA, understood them and were aware that, absent their agreement to deviate therefrom, the CSSA would govern the determination of the noncustodial parent's basic child support obligation. The agreement then indicates that the amount of child support to be paid by the mother, as the noncustodial parent, pursuant to the CSSA would be $79 per week. The mother's basic child support obligation, however, was miscalculated. Although, standing alone, such a miscalculation would be insufficient to invalidate the agreement ... , here, the parties' stipulation also fails to demonstrate that the parties were apprised that the application of the CSSA "would presumptively result in the correct amount of child support to be awarded" ... . Matter of Hardman v Coleman, 2017 NY Slip Op 07373, Third Dept 10-19-17

FAMILY LAW (OBJECTIONS TO SUPPORT MAGISTRATE FINDINGS, FAMILY COURT ABUSED ITS DISCRETION WHEN IT FAILED TO CONSIDER OBJECTIONS TO RULINGS BY A SUPPORT MAGISTRATE FILED THE MORNING AFTER THE 30 DAY DEADLINE (THIRD DEPT))/CIVIL PROCEDURE (FAMILY LAW, 30 DAY PERIOD FOR FILING OBJECTIONS TO SUPPORT MAGISTRATE'S RULINGS, OBJECTIONS TO SUPPORT MAGISTRATE FINDINGS, FAMILY COURT ABUSED ITS DISCRETION WHEN IT FAILED TO CONSIDER OBJECTIONS TO RULINGS BY A SUPPORT MAGISTRATE FILED THE MORNING AFTER THE 30 DAY DEADLINE (THIRD DEPT)/OBJECTIONS (FAMILY LAW, OBJECTIONS TO SUPPORT MAGISTRATE FINDINGS, FAMILY COURT ABUSED ITS DISCRETION WHEN IT FAILED TO CONSIDER OBJECTIONS TO RULINGS BY A SUPPORT MAGISTRATE FILED THE MORNING AFTER THE 30 DAY DEADLINE (THIRD DEPT))

 

FAMILY LAW, CIVIL PROCEDURE.

FAMILY COURT ABUSED ITS DISCRETION WHEN IT FAILED TO CONSIDER OBJECTIONS TO RULINGS BY A SUPPORT MAGISTRATE FILED THE MORNING AFTER THE 30 DAY DEADLINE (THIRD DEPT).

The Third Department, reversing Family Court, determined the 30 day period for the filing of objections to rulings by a support magistrate in a child support matter is not as rigid as the 30 day period for the filing of an appeal. Under the facts, Family Court abused its discretion by refusing to consider objections filed the morning of the day after the deadline, where the filing deadline was missed because of inaccurate online information about the court's hours of operation:

"Unlike the nonwaivable and jurisdictional time period for filing a notice of appeal, the courts need not require strict adherence" to this filing deadline ... . "Family Court has discretion to overlook a minor failure to comply with the statutory requirements regarding filing objections and address the merits" ... . Matter of Alberino v Alberino, 2017 NY Slip Op 07370, Third Dept 10-19-17

 

 

FAMILY LAW (ORDER OF PROTECTION, WHERE VIOLATION OF AN ORDER OF PROTECTION RESULTS IN JAIL TIME, THE VIOLATION MUST BE PROVED BEYOND A REASONABLE DOUBT (THIRD DEPT))/ORDER OF PROTECTION (FAMILY LAW, WHERE VIOLATION OF AN ORDER OF PROTECTION RESULTS IN JAIL TIME, THE VIOLATION MUST BE PROVED BEYOND A REASONABLE DOUBT (THIRD DEPT))/CONTEMPT (FAMILY LAW, VIOLATION OF ORDER OF PROTECTION, WHERE VIOLATION OF AN ORDER OF PROTECTION RESULTS IN JAIL TIME, THE VIOLATION MUST BE PROVED BEYOND A REASONABLE DOUBT (THIRD DEPT))

 

FAMILY LAW, CRIMINAL LAW.

WHERE VIOLATION OF AN ORDER OF PROTECTION RESULTS IN JAIL TIME, THE VIOLATION MUST BE PROVED BEYOND A REASONABLE DOUBT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, affirming Family Court, noted that when the violation of an order of protection results in jail time with not opportunity to purge the contempt, the standard of proof is beyond a reasonable doubt. Here respondent's violation of the order of protection was proved beyond a reasonable doubt. The order required that respondent stay away from mother. Respondent allegedly walked past mother and threatened to kill her:

As a general rule, a finding that an individual has willfully violated a court order within the context of Family Ct Act article 10 must be supported by clear and convincing evidence ... . However, in a case arising within the context of a Family Ct Act article 8 proceeding, this Court has recently held that in certain circumstances such violations must, instead, be found beyond a reasonable doubt. This higher standard applies where the violator is committed to a period of incarceration as a punitive remedy "with no avenue to shorten the term by acts that extinguish the contempt" ... . The requisite level of proof was elevated in recognition of the fact that imposition of such a remedy renders the proceeding one involving criminal, rather than civil, contempt ... .

 

Significantly, both Family Ct Act §§ 1072 and 846-a employ identical language requiring that a court be "satisfied by competent proof" before committing a violator to jail for a period not to exceed six months ... . Accordingly, we now hold that where, as here, a definite term of incarceration is imposed pursuant to Family Ct Act § 1072, as a punitive remedy and without the possibility of purging the contempt, the requisite finding that a willful violation of a court order has occurred must be established beyond a reasonable doubt ... . Matter of Cori Xx., 2017 NY Slip Op 07354, Third Dept 10-19-17

FAMILY LAW (CUSTODY PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING, FAMILY COURT'S RELIANCE ON OFF THE RECORD DISCUSSIONS FRUSTRATED APPELLATE REVIEW (THIRD DEPT))/EVIDENCE (APPEALS, FAMILY LAW, CUSTODY PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING, FAMILY COURT'S RELIANCE ON OFF THE RECORD DISCUSSIONS FRUSTRATED APPELLATE REVIEW (THIRD DEPT))/APPEALS (FAMILY LAW, CUSTODY PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING, FAMILY COURT'S RELIANCE ON OFF THE RECORD DISCUSSIONS FRUSTRATED APPELLATE REVIEW (THIRD DEPT))

 

FAMILY LAW, EVIDENCE, APPEALS.

CUSTODY PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING, FAMILY COURT'S RELIANCE ON OFF THE RECORD DISCUSSIONS FRUSTRATED APPELLATE REVIEW (THIRD DEPT).

The Third Department, reversing Family Court, determined father's modification of custody petition should not have been dismissed without a hearing. The court noted that Family Court's reliance on off the record discussions with mental health professionals frustrated review on appeal:

Family Court erred in dismissing the petitions without holding a hearing. The father's modification and violation petitions set forth sufficient allegations "that, if established at an evidentiary hearing, could support granting the relief sought" ... .Generally, where a facially sufficient petition has been filed, "modification of a Family Ct Act article 6 custody order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard" ... . The Court of Appeals recently reaffirmed the principles "that, as a general matter, custody determinations should be rendered only after a full and plenary hearing," and "should be based on admissible evidence" ... . Courts should not make custody determinations based on inadmissible hearsay statements, information provided at court appearances by persons not under oath or conclusions of experts or professionals "whose opinions and credibility were untested by either party" ... .

 

In rendering its decision here, Family Court relied on such information — namely, the statements of the mental health providers given during the off-the-record conference from which the parties were excluded — rather than admissible evidence. This procedure frustrated appellate review by preventing us from examining what Family Court relied upon in making its decision. Further, this procedure deprived the father of his due process right to a hearing at which he could cross-examine the mental health providers and submit his own proof ... . Matter of Buck v Buck, 2017 NY Slip Op 07368, Third Dept 10-19-17

 

FORECLOSURE (MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT))/APPEALS (PRESERVATION, FORECLOSURE, MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT))/EVIDENCE (FORECLOSURE, RPAPL MAILING REQUIRMENTS, MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, MAILING REQUIREMENTS, MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT))/HOME LOAN (FORECLOSURE, MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT))/COMMERCIAL PROPERTY (FORECLOSURE, HOME LOAN, MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, PROOF OF MAILING, MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT))/HEARSAY (FORECLOSURE, PROOF OF MAILING, MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT))

 

FORECLOSURE, APPEALS, EVIDENCE.

MORTGAGE ON COMMERCIAL PROPERTY WAS NOT A HOME LOAN AND WAS THEREFORE NOT SUBJECT TO THE NOTICE REQUIREMENTS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), HOME LOAN ISSUE COULD BE RAISED FOR THE FIRST TIME ON APPEAL, MAILING REQUIREMENTS OF THE RPAPL MAY BE PROVED BY EVIDENCE OTHER THAN AN AFFIDAVIT OF SERVICE (SECOND DEPT).

The Second Department, over a dissent, determined the mortgage on an apartment house where the owner did not reside was not a "home loan" and therefore was not subject to the foreclosure notice requirements of the Real Property Actions and Proceedings Law (RPAPL). Although the "not a home loan" argument was not raised below, the Second Department held it could be considered on appeal because the issue involved a matter of law the lower court would have been required to address had it been raised the dissent disagreed). The court further found that the mailing requirements of the RPAPL, although not proved by an affidavit of service, were proved by admissible non-hearsay evidence:

... [T]he specific contention that this mortgage loan was not a "home loan" for purposes of RPAPL 1304 may be reached because it involves a question of law that is apparent on the face of this record and could not have been avoided by the court if it had been brought to its attention ... . ...

... [T]he record shows that the subject property is a multi-unit apartment building with several tenants, the defendant did not reside at the property at the time he signed the mortgage or at the time the action was commenced, and the deed transferring the property to the defendant was a commercial property deed. The defendant does not refute that this was a commercial property and that he lived elsewhere. Thus, the record reflects that this was not a "home loan" subject to the notice requirements of RPAPL 1304. * * *

... "[T]here is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon" ... . Thus, mailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518 ... . HSBC Bank USA, N.A. v Ozcan, 2017 NY Slip Op 07242, Second Dept 10-18-17

 

INSURANCE LAW (PLAINTIFF ENTITLED TO DISCLOSURE OF INSURER'S PRE-DENIAL FILE, CAUSES OF ACTION FOR BREACH OF CONTRACT AGAINST THE INSURER (DENIAL OF THE CLAIM) AND THE UNDERLYING NEGLIGENCE ACTION AGAINST THE INSURED MUST BE SEVERED (THIRD DEPT))/CIVIL PROCEDURE (INSURANCE LAW, DISCLOSURE, SEVERANCE, PLAINTIFF ENTITLED TO DISCLOSURE OF INSURER'S PRE-DENIAL FILE, CAUSES OF ACTION FOR BREACH OF CONTRACT AGAINST THE INSURER (DENIAL OF THE CLAIM) AND THE UNDERLYING NEGLIGENCE ACTION AGAINST THE INSURED MUST BE SEVERED (THIRD DEPT))/DISCLOSURE (INSURANCE LAW, PLAINTIFF ENTITLED TO DISCLOSURE OF INSURER'S PRE-DENIAL FILE, CAUSES OF ACTION FOR BREACH OF CONTRACT AGAINST THE INSURER (DENIAL OF THE CLAIM) AND THE UNDERLYING NEGLIGENCE ACTION AGAINST THE INSURED MUST BE SEVERED (THIRD DEPT))/SEVERANCE (CIVIL PROCEDURE, PLAINTIFF ENTITLED TO DISCLOSURE OF INSURER'S PRE-DENIAL FILE, CAUSES OF ACTION FOR BREACH OF CONTRACT AGAINST THE INSURER (DENIAL OF THE CLAIM) AND THE UNDERLYING NEGLIGENCE ACTION AGAINST THE INSURED MUST BE SEVERED (THIRD DEPT))

 

INSURANCE LAW, CIVIL PROCEDURE.

PLAINTIFF ENTITLED TO DISCLOSURE OF INSURER'S PRE-DENIAL FILE, CAUSES OF ACTION FOR BREACH OF CONTRACT AGAINST THE INSURER (DENIAL OF THE CLAIM) AND THE UNDERLYING NEGLIGENCE ACTION AGAINST THE INSURED MUST BE SEVERED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined plaintiff was entitled to the insurer's pre-denial (of coverage) file and the insurance action (breach of contract, denial of claim) and the underlying tort action against the insured should be severed. The causes of action stemmed from property damage caused by a subcontractor (Rugar) working for plaintiff and the subcontractor's insurer's (Utica First's) denial of the related claim:

"The payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding whether to pay or reject a claim are made in the regular course of its business"... . As such, "[r]eports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are not privileged and are discoverable" ... . Notably, all the documents set forth in the subject privilege log were prepared prior to Utica First's May 9, 2012 disclaimer of coverage. We find no merit, meanwhile, to Rugar and Utica First's contention that plaintiff's August 2, 2011 letter constituted anything other than a timely filed notice of claim received in Utica First's regular course of business. The affidavit of Susan Wheaton, Utica First's Vice President of Claims, was conclusory and failed to demonstrate that the materials derived from Utica First's investigation were collected solely in anticipation of litigation ... . Since Utica First failed to establish that the withheld documents were prepared solely in anticipation of litigation, the burden did not shift to plaintiff to demonstrate an undue hardship justifying disclosure of the pre-denial claim file  ... . ...

Generally speaking, "even where common facts exist, it is prejudicial to insurers to have the issue of insurance coverage tried before the jury that considers the underlying liability claims" ... .  Here, there is no question that, absent severance, the jury in the negligence action against Rugar will discover the existence of liability insurance as a result of the breach of contract action against Utica First. Accordingly, we find that Supreme Court improvidently denied the motion for severance ... . Cascade Bldrs. Corp. v Rugar, 2017 NY Slip Op 07375, Third Dept 10-19-17

LABOR LAW-CONSTRUCTIVE LAW (FAILED DEVICE WAS NOT A SAFETY DEVICE WITHIN THE MEANING OF LABOR LAW 240 (1) AND WAS NOT COVERED BY THE INDUSTRIAL CODE (LABOR LAW 241 (6)), HOWEVER THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/SAFETY DEVICE (LABOR LAW-CONSTRUCTION LAW, FAILED DEVICE WAS NOT A SAFETY DEVICE WITHIN THE MEANING OF LABOR LAW 240 (1) AND WAS NOT COVERED BY THE INDUSTRIAL CODE (LABOR LAW 241 (6)), HOWEVER THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

LABOR LAW-CONSTRUCTION LAW.

FAILED DEVICE WAS NOT A SAFETY DEVICE WITHIN THE MEANING OF LABOR LAW 240 (1) AND WAS NOT COVERED BY THE INDUSTRIAL CODE (LABOR LAW 241 (6)), HOWEVER THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the Labor Law 240 (1) and 241 (6) causes of action were properly dismissed. But the Labor Law 200 cause of action should have survived summary judgment. Apparently two panels which were part of an exhibition booth fell on plaintiff because a pin and bracket securing the panels failed. The pin and bracket were not safety devices within the meaning of Labor Law 240 (1) because they were part of the booth after construction was complete. The pin and bracket were not covered by any industrial code provision (Labor Law 241 (6)). But there was a question of fact about the safety of the work site (Labor Law 200):

... [T]he Supreme Court erred in granting, upon renewal, that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 200. Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work ... . Where, as here, the injured plaintiff's accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, liability for a violation of Labor Law § 200 will be imposed if the general contractor had control over the work site and either created the dangerous condition or had actual or constructive notice of it ... .

 

Contrary to the defendant's contention and the Supreme Court's conclusion, the defendant failed to establish, prima facie, that it did not serve as a general contractor or agent with control over the work site. Further, the defendant failed to demonstrate, prima facie, that it did not create the dangerous condition or have constructive notice of it. Honeyman v Curiosity Works, Inc., 2017 NY Slip Op 07241, Second Dept 10-18-17

 

NEGLIGENCE (REAR-END COLLISION, BASES FOR DEFENSE EXPERT'S OPINION THAT PLAINTIFF'S INJURIES COULD NOT HAVE BEEN CAUSED BY THE REAR-END COLLISION WERE NOT SUFFICIENTLY DESCRIBED, NEW DAMAGES TRIAL ORDERED (SECOND DEPT))/EVIDENCE (INJURIES, EXPERT OPINION, BASES FOR DEFENSE EXPERT'S OPINION THAT PLAINTIFF'S INJURIES COULD NOT HAVE BEEN CAUSED BY THE REAR-END COLLISION WERE NOT SUFFICIENTLY DESCRIBED, NEW DAMAGES TRIAL ORDERED (SECOND DEPT))/EXPERT OPINION (INJURIES, EXPERT OPINION, BASES FOR DEFENSE EXPERT'S OPINION THAT PLAINTIFF'S INJURIES COULD NOT HAVE BEEN CAUSED BY THE REAR-END COLLISION WERE NOT SUFFICIENTLY DESCRIBED, NEW DAMAGES TRIAL ORDERED (SECOND DEPT))/TRAFFIC ACCIDENTS (INJURIES, EXPERT OPINION, BASES FOR DEFENSE EXPERT'S OPINION THAT PLAINTIFF'S INJURIES COULD NOT HAVE BEEN CAUSED BY THE REAR-END COLLISION WERE NOT SUFFICIENTLY DESCRIBED, NEW DAMAGES TRIAL ORDERED (SECOND DEPT))/REAR-END COLLISIONS (INJURIES, EXPERT OPINION, BASES FOR DEFENSE EXPERT'S OPINION THAT PLAINTIFF'S INJURIES COULD NOT HAVE BEEN CAUSED BY THE REAR-END COLLISION WERE NOT SUFFICIENTLY DESCRIBED, NEW DAMAGES TRIAL ORDERED (SECOND DEPT))/CAUSATION (INJURIES, EXPERT OPINION, BASES FOR DEFENSE EXPERT'S OPINION THAT PLAINTIFF'S INJURIES COULD NOT HAVE BEEN CAUSED BY THE REAR-END COLLISION WERE NOT SUFFICIENTLY DESCRIBED, NEW DAMAGES TRIAL ORDERED (SECOND DEPT))

 

NEGLIGENCE, EVIDENCE.

BASES FOR DEFENSE EXPERT'S OPINION THAT PLAINTIFF'S INJURIES COULD NOT HAVE BEEN CAUSED BY THE REAR-END COLLISION WERE NOT SUFFICIENTLY DESCRIBED, NEW DAMAGES TRIAL ORDERED (SECOND DEPT).

The Second Department determined the defendants' expert (Bowles) should not have been allowed to testify plaintiff's knee injuries could not have been caused by the rear-end collision. The bases of the expert's opinion were not sufficiently described:

Here, the defendants did not sustain their burden of establishing that Bowles's opinion that the force generated by the accident could not have caused the plaintiff's knee injuries was based on generally accepted principles and methodologies ... or that there was a proper foundation for the admission of that opinion ... . The expert disclosure notice simply stated that Bowles analyzed "the medical and engineering aspects of the accident." While the defendants cited to three works in opposition to the motion in limine, they did not identify the authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff's knees to come into contact with the vehicle dashboard. Under these circumstances, the Supreme Court should have granted the plaintiff's motion to the extent of precluding Bowles from offering his opinion testimony that the force generated by the accident could not have caused the plaintiff's knee injuries ... . Accordingly, we reverse the judgment and remit the matter to the Supreme Court, Suffolk County, for a new trial on the issue of damages. Dovberg v Laubach, 2017 NY Slip Op 07238, Second Dept 10-18-17

 

 

NEGLIGENCE (COMPLAINT AGAINST STATE TROOPER BASED UPON INJURY TO A DOCTOR BY A VIOLENT PATIENT BROUGHT TO THE HOSPITAL BY THE TROOPER DISMISSED ON GOVERNMENTAL IMMUNITY GROUNDS (THIRD DEPT))/IMMUNITY (GOVERNMENTAL, COMPLAINT AGAINST STATE TROOPER BASED UPON INJURY TO A DOCTOR BY A VIOLENT PATIENT BROUGHT TO THE HOSPITAL BY THE TROOPER DISMISSED ON GOVERNMENTAL IMMUNITY GROUNDS (THIRD DEPT))/POLICE (NEGLIGENCE, IMMUNITY, COMPLAINT AGAINST STATE TROOPER BASED UPON INJURY TO A DOCTOR BY A VIOLENT PATIENT BROUGHT TO THE HOSPITAL BY THE TROOPER DISMISSED ON GOVERNMENTAL IMMUNITY GROUNDS (THIRD DEPT))/SPECIAL RELATIONSHIP (NEGLIGENCE, IMMUNITY, POLICE, COMPLAINT AGAINST STATE TROOPER BASED UPON INJURY TO A DOCTOR BY A VIOLENT PATIENT BROUGHT TO THE HOSPITAL BY THE TROOPER DISMISSED ON GOVERNMENTAL IMMUNITY GROUNDS (THIRD DEPT))

 

NEGLIGENCE, IMMUNITY.

COMPLAINT AGAINST STATE TROOPER BASED UPON INJURY TO A DOCTOR BY A VIOLENT PATIENT BROUGHT TO THE HOSPITAL BY THE TROOPER DISMISSED ON GOVERNMENTAL IMMUNITY GROUNDS (THIRD DEPT).

The Third Department determined the Court of Claims should have dismissed the action against a state trooper as prohibited by governmental immunity. A doctor was injured by a violent patient brought to the hospital by the trooper. The Court of Claims held there was a question of fact whether a special relationship existed between the trooper and the doctor. The Third Department disagreed:

... [W]e agree with defendant that it was entitled to summary judgment dismissing the entirety of the claim on the basis of governmental immunity. Feeney v State of New York, 2017 NY Slip Op 07359, Third Dept 10-19-17

 

NEGLIGENCE (FUTURE PAIN AND SUFFERING, NONTREATING PHYSICIAN WHO SAW PLAINTIFF ONCE CAN TESTIFY ABOUT FUTURE PAIN AND SUFFERING, TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND FUTURE PAIN AND SUFFERING SHOULD HAVE BEEN CONSIDERED BY THE JURY (SECOND DEPT))/EVIDENCE (PAIN AND SUFFERING, FUTURE PAIN AND SUFFERING, NONTREATING PHYSICIAN WHO SAW PLAINTIFF ONCE CAN TESTIFY ABOUT FUTURE PAIN AND SUFFERING, TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND FUTURE PAIN AND SUFFERING SHOULD HAVE BEEN CONSIDERED BY THE JURY (SECOND DEPT))/NONTREATING PHYSICIAN (FUTURE PAIN AND SUFFERING, NONTREATING PHYSICIAN WHO SAW PLAINTIFF ONCE CAN TESTIFY ABOUT FUTURE PAIN AND SUFFERING, TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND FUTURE PAIN AND SUFFERING SHOULD HAVE BEEN CONSIDERED BY THE JURY (SECOND DEPT))/EXPERT OPINION (FUTURE PAIN AND SUFFERING, NONTREATING PHYSICIAN WHO SAW PLAINTIFF ONCE CAN TESTIFY ABOUT FUTURE PAIN AND SUFFERING, TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND FUTURE PAIN AND SUFFERING SHOULD HAVE BEEN CONSIDERED BY THE JURY (SECOND DEPT))/PAIN AND SUFFERING (FUTURE PAIN AND SUFFERING, NONTREATING PHYSICIAN WHO SAW PLAINTIFF ONCE CAN TESTIFY ABOUT FUTURE PAIN AND SUFFERING, TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND FUTURE PAIN AND SUFFERING SHOULD HAVE BEEN CONSIDERED BY THE JURY (SECOND DEPT))

 

NEGLIGENCE, EVIDENCE.

NONTREATING PHYSICIAN WHO SAW PLAINTIFF ONCE CAN TESTIFY ABOUT FUTURE PAIN AND SUFFERING, TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND FUTURE PAIN AND SUFFERING SHOULD HAVE BEEN CONSIDERED BY THE JURY (SECOND DEPT).

The Second Department, ordering a new trial on damages for future pain and suffering, held that a nontreating physician (Lubliner) who met with the plaintiff once could testify about future pain and suffering. The trial court should not have precluded that testimony and should not have refused to submit the determination of damages for future pain and suffering to the jury:

... [A] nontreating physician is not precluded from testifying as to a relevant medical opinion ... . A physician who sees the plaintiff once can testify as to the plaintiff's future prognosis, even if the witness does not provide treatment ... . Further, a nontreating physician can testify as to future pain and suffering ... . Thus, Lubliner was improperly precluded from testifying as to future pain and suffering. The weight to be given his testimony was a consideration for the jury. Further, the issue of damages for future pain and suffering should have been submitted to the jury. Accordingly, the plaintiff is entitled to a new trial on the issue of damages for future pain and suffering. Knight v Barsch, 2017 NY Slip Op 07244, Second Dept 10-18-17

 

NEGLIGENCE (MUNICIPAL LAW, SIDEWALK SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW SHE WAS ENTITLED TO THE NYC ADMINISTRATIVE CODE EXEMPTION FROM LIABILITY FOR A SIDEWALK SLIP AND FALL, DEFENDANT HAD TWO OTHER HOMES (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, SIDEWALK SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW SHE WAS ENTITLED TO THE NYC ADMINISTRATIVE CODE EXEMPTION FROM LIABILITY FOR A SIDEWALK SLIP AND FALL, DEFENDANT HAD TWO OTHER HOMES (FIRST DEPT))/SLIP AND FALL  (MUNICIPAL LAW, SIDEWALK SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW SHE WAS ENTITLED TO THE NYC ADMINISTRATIVE CODE EXEMPTION FROM LIABILITY FOR A SIDEWALK SLIP AND FALL, DEFENDANT HAD TWO OTHER HOMES (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW SHE WAS ENTITLED TO THE NYC ADMINISTRATIVE CODE EXEMPTION FROM LIABILITY FOR A SIDEWALK SLIP AND FALL, DEFENDANT HAD TWO OTHER HOMES (FIRST DEPT))

NEGLIGENCE, MUNICIPAL LAW (NYC).

DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW SHE WAS ENTITLED TO THE NYC ADMINISTRATIVE CODE EXEMPTION FROM LIABILITY FOR A SIDEWALK SLIP AND FALL, DEFENDANT HAD TWO OTHER HOMES (FIRST DEPT).

The First Department determined defendant property-owner, Herbst, did not demonstrate as a matter of law that she was entitled to the New York City Administrative Code's owner-occupied exemption from liability for a sidewalk slip and fall. Defendant had homes in Israel and New Hampshire where she received mail when she was in the US:

Plaintiff alleges that she tripped and fell over a misleveled sidewalk slab between properties owned by Herbst and by appellants. Herbst moved for summary judgment dismissing the complaint and cross-claims as against her on the ground that she is exempt from personal liability for failure to maintain the sidewalk because her property is a "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" ... .

The [Administrative Code provision] does not expressly contain a primary residence requirement as part of the owner-occupied exemption ... , but the term "owner occupied" generally is used to mean that the owner regularly occupies the property as a residence. Further, the legislative history shows that the exemption recognizes "the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair" ... .

 

* * * ... Herbst did not demonstrate prima facie that she regularly occupies the New York property as a residence, so as to be entitled to the benefit of the exemption provided by Administrative Code § 7-210 as a matter of law ... . Kalajian v 320 E. 50th St. Realty Co., 2017 NY Slip Op 07225, First Dept 10-17-17

WORKERS' COMPENSATION LAW (MEMBER OF A JOINT VENTURE, INJURED ON THE JOB, COULD NOT SUE ANOTHER MEMBER OF THE JOINT VENTURE UNDER THE LABOR LAW, WORKERS' COMPENSATION WAS HIS EXCLUSIVE REMEDY (FIRST DEPT))/EMPLOYMENT LAW (MEMBER OF A JOINT VENTURE, INJURED ON THE JOB, COULD NOT SUE ANOTHER MEMBER OF THE JOINT VENTURE UNDER THE LABOR LAW, WORKERS' COMPENSATION WAS HIS EXCLUSIVE REMEDY (FIRST DEPT))/LABOR LAW-CONSTRUCTION LAW  (MEMBER OF A JOINT VENTURE, INJURED ON THE JOB, COULD NOT SUE ANOTHER MEMBER OF THE JOINT VENTURE UNDER THE LABOR LAW, WORKERS' COMPENSATION WAS HIS EXCLUSIVE REMEDY (FIRST DEPT))/JOINT VENTURES (WORKERS' COMPENSATION LAW, MEMBER OF A JOINT VENTURE, INJURED ON THE JOB, COULD NOT SUE ANOTHER MEMBER OF THE JOINT VENTURE UNDER THE LABOR LAW, WORKERS' COMPENSATION WAS HIS EXCLUSIVE REMEDY (FIRST DEPT))

WORKERS' COMPENSATION LAW, EMPLOYMENT LAW, LABOR LAW-CONSTRUCTION LAW.

MEMBER OF A JOINT VENTURE, INJURED ON THE JOB, COULD NOT SUE ANOTHER MEMBER OF THE JOINT VENTURE UNDER THE LABOR LAW, WORKERS' COMPENSATION WAS HIS EXCLUSIVE REMEDY (FIRST DEPT).

The First Department determined plaintiff, who fell while he was working within the scope of his employment, as a member of a joint venture  which included his employer (a construction company) and the defendant, Skanska, could not maintain actions against Skanska under Labor Law 240 (1) and 241 (6). Plaintiff's only remedy against Skanska was under the Workers' Compensation Law:

To the extent plaintiff argues that the exclusivity provisions do not apply here because Skanska purportedly owed him a duty independent of its capacity as a member of the joint venture, the Court of Appeals has rejected this argument as "fundamentally unsound" ... . "[A]n employer remains an employer in his relations with his employees as to all matters arising from and connected with their employment. He may not be treated as a dual legal personality, a sort of Dr. Jekyll and Mr. Hyde'" ... . Cortes v Skanska USA Civ. Northeast, Inc., 2017 NY Slip Op 07307, First Dept 10-19-17