JUST RELEASED

May Page I

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

 

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COURT OF APPEALS

CRIMINAL LAW (JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)/JURY INSTRUCTION (CRIMINAL LAW, JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)

CRIMINAL LAW.

JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR.

The Court of Appeals, reversing defendant's conviction, in a very brief memorandum, determined the trial judge's decision not to charge the jury with constructive possession and then giving the charge was not harmless error:

Although we reject defendant's contention that the evidence presented at trial did not support a charge of constructive possession, we nevertheless conclude that defendant is entitled to a new trial. The trial court erred in that it agreed to the People's request at the charge conference not to charge the jury on constructive possession, but then ultimately provided a constructive possession charge to the jury, resulting in prejudice to defendant ... . People v Smalling, 2017 NY Slip Op 03442, CtApp 5-2-17

CRIMINAL LAW (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/EVIDENCE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/AGENCY DEFENSE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/MOLINEUX EVIDENCE (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)

CRIMINAL LAW, EVIDENCE.

EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT.

The Court of appeals, in a full-fledged opinion by Judge DiFiore, determined that even though defendant relied solely on the prosecution's evidence to raise the agency defense to the charged drug sale, Molineux evidence of defendant's prior conviction for a drug sale was admissible in the People's direct case to prove intent:

... [D]efendant plainly raised the issue of his intent and particular role in the drug sale as a salesman based on his arguments to the jury at trial, his cross-examination of the People's witnesses, and his specific request for an agency charge to the jury. The trial court then conducted the proper balancing analysis, determining that it would permit introduction of only one of defendant's prior convictions. Under these circumstances, the People were properly permitted by the trial court to use the admissible evidence of defendant's prior drug sale conviction on the issue of intent in their case-in-chief ... . People v Valentin, 2017 NY Slip Op 03444, CtApp 5-2-17

CRIMINAL LAW (WARRANTLESS SEARCH OF A PAROLEE'S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SEARCH AND SEIZURE (WARRANTLESS SEARCH OF A PAROLEE'S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SUPPRESSION (CRIMINAL LAW, (WARRANTLESS SEARCH OF A PAROLEE'S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE'S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/PAROLEES (REDUCED EXPECTATION OF PRIVACY, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE'S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)

CRIMINAL LAW, EVIDENCE.

WARRANTLESS SEARCH OF A PAROLEE'S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the warrantless search of a parolee's empty car and seizure of a firearm by police officers was lawful. Defendant parolee argued only a parole officer, not a police officer, could conduct a lawful search. The Court of Appeals held that a parolee's reduced expectation of privacy applied irrespective of whether a parole or police officer conducted the search:

In Huntley [43 NY2d 175, 181 ...] we distinguished between parole officers and police officers, noting that searches that may be reasonably justified if undertaken by a parole officer are not necessarily constitutional if undertaken by a police officer ... . Nevertheless, we concomitantly observed that, "in any evaluation of the reasonableness of a particular search or seizure," whether undertaken by parole or police officers, "the fact of defendant's status as a parolee is always relevant and may be critical" ... .

 

On the facts presented here, Huntley does not compel the conclusion that the search was unconstitutional ... . The detectives had a high degree of individualized suspicion based on a tip from a known individual — who correctly identified defendant's vehicle and its location — indicating that defendant had a firearm in his vehicle, the recent arrival of which was corroborated by the absence of the vehicle during the detectives' earlier visit and the warmth of the hood. In light of this tip, taken together with defendant's reduced expectation of privacy, there is support in the record for the conclusion that the search of defendant's vehicle was lawful and reasonable ... . People v McMillan, 2017 NY Slip Op 03446, CtApp 5-2-17

CRIMINAL LAW (ALTHOUGH HEARSAY VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/EVIDENCE (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/HEARSAY (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/CONFRONTATION, RIGHT OF (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)

CRIMINAL LAW, EVIDENCE.

ALTHOUGH HEARSAY VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that, although testimony by a detective about a phone conversation with defendant's wife (who had since recanted and avoided testifying) violated defendant's right to confront witnesses, the diluted strength of the phone-call evidence coupled with the striking of the detective's testimony preserved the fairness of the trial. Defendant's wife was a witness to the stabbing of the victim. The victim knew the defendant and identified him as the attacker. Defendant's wife first told the police defendant was the attacker but later recanted and she could not be found at the time of trial. The detective's testimony did not identify the wife as the person he talked to on the phone but the jury could have inferred it was she and that she identified the defendant as the attacker. However, since the detective had also talked to the victim, the jury could also have inferred it was the victim's statement that led the detective to the defendant:

Here, the detective did not expressly state that the wife was a witness and that she had identified defendant as the attacker. While the testimony supported an inference to that effect, there was another countervailing inference —— as discussed above, the detective may have identified defendant as a suspect based on information provided by the victim to the police at the hospital and passed on to the detective once he took the case, but before the detective spoke to the wife. This inference also flowed logically from the victim's testimony that the wife was with the victim when he was attacked by defendant, particularly because the jury heard this testimony immediately before the detective testified. As such, the jury could reasonably infer that the police knew about the wife from the victim and that his statements, relayed to the detective during the briefing from the Night Watch Unit, led the police to treat defendant as a suspect. Given this context, the testimony was neither powerfully incriminating nor, as the defendant argues, did it alone transform the entire case from that in which the People presented a single eyewitness to a case with two eyewitnesses identifying defendant as the perpetrator. People v Stone, 2017 NY Slip Op 03559, CtApp 5-4-17

CRIMINAL LAW (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE'S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/EVIDENCE (CRIMINAL LAW, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE'S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/SEARCH AND SEIZURE RUNNING A DMV DATABASE SEARCH FOR A VEHICLE'S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/SUPPRESSION (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE'S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/STREET STOPS (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE'S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/REGISTRATION NUMBER (VEHICLES, CRIMINAL LAW, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE'S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/DEPARTMENT OF MOTOR VEHICLES (DATABASE CHECK OF VEHICLE REGISTRATION NUMBER, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE'S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)

CRIMINAL LAW, EVIDENCE.

RUNNING A DMV DATABASE SEARCH FOR A VEHICLE'S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that a police officer's observation of a license plate and running the registration number through the Department of Motor Vehicles' (DMV's) database is not a search. Here the officer did not observe any violation that warranted stopping defendant's car. When the officer ran the plate number he learned defendant's registration had been suspended due to unpaid parking tickets. The stop was for that reason alone. The officer ultimately arrested the defendant for Driving While Intoxicated:

As defendant concedes, a driver does not have any reasonable expectation of privacy in the license plate number itself, nor would any expectation in such publicly exposed information be recognized as reasonable by society. We now conclude that a driver has no expectation of privacy in the DMV database information associated with a license plate number. Our Vehicle and Traffic Law provides a comprehensive set of requirements for lawfully operating a vehicle in the State of New York.  * * *

While "a police officer may [not] stop an automobile, arbitrarily chosen from the stream of traffic on a public highway only because of the unusual but irrelevant appearance of the vehicle, solely to examine the motorist's license and registration" ... , defendant's freedom of movement was never "stopped" until after the officer ran his license plate and obtained probable cause to believe the vehicle was being operated with a suspended registration. We prohibit arbitrary traffic stops because they constitute unreasonable "seizures" of persons in violation of the constitution ... . But here, the stop of defendant's car occurred only after the check had supplied the officer a reason to do so. And while we are mindful of the concerns about license plate checks, "the possibilities of database error and police officer abuse, while real, do not create a legitimate expectation of privacy where none existed before. Government actions do not become Fourth Amendment searches simply because they might be carried out improperly. If an officer does go outside the proper bounds of a license plate search, it is that misconduct that might give rise to a constitutional or statutory violation" ... .  People v Bushey, 2017 NY Slip Op 03560, CtApp 5-4-17

EMPLOYMENT LAW (DISCRIMINATION, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/CRIMINAL LAW (EMPLOYMENT LAW, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)

EMPLOYMENT LAW, HUMAN RIGHTS LAW.

HUMAN RIGHTS LAW PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissenting opinion, answered three certified questions from the Second Circuit. Plaintiffs were movers employed by Astro which contracted with Allied (located out of state) . Most of Astro's work came from Allied. Plaintiffs had been convicted of sex offenses involving young children. After a criminal record screening ordered by Allied, plaintiffs were fired. Plaintiffs then sued Allied under Human Rights Law 296 alleging discrimination based upon their criminal convictions.  The Court of Appeals held: (1) Human Rights Law 296 applies only to discrimination by employers; (2) employers are those who directly control the work of employees; and (3) the provision of Human Rights Law 296 which prohibits aiding and abetting discrimination applies to out-of-state non-employers:

... [W]e need look no further than our own lower courts to determine who is an employer under the Human Rights Law. ... In State Div. of Human Rights v GTE Corp., the Appellate Division identified four relevant factors: "'(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant's conduct'" ... . ... [The]"'... really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter'"  ... . * * *

Section 296 (6) [prohibiting aiding and abetting discrimination] applies to any "person." ... [N]othing in the statutory language or legislative history limits the reach of this provision to employers. Indeed, the purpose of subdivision (6) was "to bring within the orbit of the bill all persons, no matter what their status, who aid or abet any of the forbidden practices of discrimination or who attempt to do so," as well as "to furnish protection to all persons, whether employers, labor organizations or employment agencies, who find themselves subjected from any source to compulsion or coercion to adopt any forbidden employment practices" ... . Griffin v Sirva, Inc., 2017 NY Slip Op 03557, CtApp 5-4-17

FRAUD (NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/CONTRACT LAW (FRAUDULENT INDUCEMENT, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/FRAUDULENT INDUCEMENT (CONTRACT LAW, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/EMPLOYMENT LAW (FRAUDULENT INDUCEMENT, CONTRACT LAW, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)

FRAUD, CONTRACT LAW, EMPLOYMENT LAW.

NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined plaintiff chef's failure to allege out-of-pocket loss in this fraudulent inducement action required dismissal of the complaint for failure to state a cause of action. Plaintiff was hired by defendant restaurant (Chipotle) to develop a ramen restaurant chain. Plaintiff was an at will employee by the terms of his contract. All went well until plaintiff was told defendant had contracted with another chef for the same service, the deal had fallen apart, and the other chef would sue upon the opening of the ramen restaurant. Plaintiff was fired after confronting defendant about the deal with the other chef. Plaintiff alleged he was fraudulently induced to contract with Chipotle in that he never would have entered the agreement had he been informed of the failed deal with the other chef:

In New York, as in multiple other states, "'[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong' or what is known as the 'out-of-pocket' rule" ... . Under that rule, "[d]amages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained . . . . [T]here can be no recovery of profits which would have been realized in the absence of fraud" ... . Moreover, this Court has "consistent[ly] refus[ed] to allow damages for fraud based on the loss of a contractual bargain, the extent, and indeed . . . the very existence of which is completely undeterminable and speculative" ... . Connaughton v Chipotle Mexican Grill, Inc., 2017 NY Slip Op 03445, CtApp 5-2-17

 

JUDGES (RULE THAT RETIRED JUDGES WHO RETURN TO THE BENCH CANNOT RECEIVE BOTH A SALARY AND RETIREMENT BENEFITS IS NEITHER ILLEGAL NOR UNCONSTITUTIONAL)

 

JUDGES.

RULE THAT RETIRED JUDGES WHO RETURN TO THE BENCH CANNOT RECEIVE BOTH A SALARY AND RETIREMENT BENEFITS IS NEITHER ILLEGAL NOR UNCONSTITUTIONAL.

The Court of Appeals, reversing the Appellate Division, determined the rule that retired judges who return to the bench cannot receive both a salary and retirement benefits was neither illegal nor unconstitutional. Matter of Loehr v Administrative Bd. of the Cts. of the State of New York, 2017 NY Slip Op 03558, CtApp 5-4-17

APPELLATE DIVISION

ATTORNEYS (LEGAL MALPRACTICE, ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS'S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)/NEGLIGENCE (LEGAL MALPRACTICE, ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS'S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)/LEGAL MALPRACTICE (ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS'S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)

ATTORNEYS, NEGLIGENCE, LEGAL MALPRACTICE.

ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS'S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE.

The First Department, reversing Supreme Court, determined plaintiff had alleged a valid cause of action for legal malpractice. Plaintiff alleged defendants' failure to refresh the eyewitness's recollection of the appearance of the truck which fled the hit-and-run accident scene led to erroneous testimony by the witness and the loss of the case:

In this legal malpractice action, plaintiff, the victim of a hit-and-run accident, alleges that defendants, who represented him in the underlying personal injury action, were negligent in failing to prepare and present the testimony of the sole eyewitness; that defendants' negligence caused a verdict against him; and that he sustained actual damages. Specifically, plaintiff alleges that, prior to the eyewitness's deposition testimony two years after the accident, defendants failed to refresh the eyewitness's memory by showing him the police record of a phone call he made shortly after the accident, in which he described the hit-and-run vehicle as a green garbage truck with a flat front. The eyewitness then testified to the contrary at his deposition, stating that the garbage truck he remembered fleeing the scene had a round front, not a flat front. Plaintiff alleges that but for defendants' negligence in handling the key witness in his case, he would have prevailed, as the driver operated a green garbage truck with a flat front, and the driver had already admitted to a route that would have placed him at the scene on the day and time of the accident. These allegations are sufficient to survive a CPLR 3211(a)(1) and (7) motion to dismiss, as nothing in the record conclusively establishes a defense as a matter of law  ... . Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 2017 NY Slip Op 03607, 1st Dept 5-4-17

CIVIL PROCEDURE (CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)/DISCLOSURE (ORIGINAL DOCUMENTS, CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)/FORENSIC ANALYSIS OF ORIGINAL DOCUMENTS (CIVIL PROCEDURE, CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)

CIVIL PROCEDURE.

CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE.

The Second Department determined plaintiff's motion to compel disclosure original documents in this medical malpractice action for forensic analysis was properly denied (albeit for the wrong reason). The court explained the deficiencies in the plaintiff's motion:

As to the motion to produce original records for forensic analysis, the plaintiff failed to establish that the proposed testing was not destructive, and failed to adequately indicate the extent to which the testing would alter or destroy the original records ... . Moreover, the plaintiff failed to establish adequate justification for the testing ... . Freely v Donnenfeld, 2017 NY Slip Op 03490, 2nd Dept 5-3-17

CIVIL PROCEDURE (NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/SUMMARY JUDGMENT (NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/REPLY PAPERS (SUMMARY JUDGMENT, FORECLOSURE, NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/FORECLOSURE (SUMMARY JUDGMENT, NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)

CIVIL PROCEDURE, FORECLOSURE.

NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT.

The Second Department, in finding plaintiff bank had established standing to bring the foreclosure action, explained when a court may consider new information in a reply affidavit (re: a motion for summary judgment):

... [I]t was not error for the Supreme Court to consider the reply affidavit, which was submitted in reply to the appellant's opposition. A party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply ... . However, there are exceptions to this general rule, including when the evidence is submitted in response to allegations raised for the first time in the opposition papers or when the other party is given an opportunity to respond to the reply papers... . Further, "[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant" ... . 

 

Here, the Supreme Court properly considered the reply affidavit because the affidavit was offered in response to the appellant's allegation in opposition to the motion that the plaintiff never had possession of the note, and merely clarified the plaintiff's initial submissions as to its possession of the note at the time of commencement ... . Central Mtge. Co. v Jahnsen, 2017 NY Slip Op 03474, 2nd Dept 5-3-17

CIVIL PROCEDURE (AMEND PLEADINGS TO CONFORM TO THE PROOF, PLAINTIFF'S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, MOTION TO CONFORM TO PROOF (PLAINTIFF'S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, AMENDMENT OF (PLAINTIFF'S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, PLAINTIFF'S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF'S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)

CIVIL PROCEDURE, NEGLIGENCE, MEDICAL MALPRACTICE.

PLAINTIFF'S MOTION TO AMEND THE PLEADINGS TO CONFORM TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined plaintiff's motion to conform the pleadings to the proof should have been granted in this medical malpractice action. Defendants submitted proof on the relevant issues (the treatment of plaintiff by defendant Slavin on January 26, 2009) and did not demonstrate amending the pleadings would result in any prejudice to them:

As the parties opposing such amendment, defendants had the burden of establishing that they had been prejudiced, that is that they "ha[d] been hindered in the preparation of [their] case or ha[d] been prevented from taking some measure in support of [their] position" ... . That burden cannot be met when the difference between the original pleading and the evidence results from "'proof admitted at the instance or with the acquiescence of [the opposing] party'"... . * * *

... [A]s defendants acquiesced to the introduction of the evidence of Slavin's negligence on January 26, 2009, they could not meet their burden when they later opposed plaintiff's cross motion to conform the pleadings to the proof adduced at trial ... . Even if this were not the case, defendants failed to meet their burden of establishing prejudice. Defendants' contentions that they had been unprepared for cross-examination of plaintiff's expert was conclusory, as defendants failed to offer a single example as to the manner in which the introduction of evidence that Slavin was negligent on January 26, 2009 hindered their cross-examination. Morever, defendants' claims that they were prejudiced by the introduction of the January 26, 2009 negligence were unsupported by specific examples or proof in the record. More generally, the record establishes that plaintiffs had plainly notified defendants by their bills of particulars that plaintiff had been treated by Slavin on January 26, 2009 and that Slavin's negligence included his failure to recognize, from imaging studies, the need to perform a closed reduction on plaintiff's injured leg. Noble v Slavin, 2017 NY Slip Op 03578, 3rd Dept 5-4-17

CONTACT LAW (CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU'S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED)/AMBIGUITY (CONTRACT LAW, CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU'S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED)

CONTRACT LAW.

CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU'S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED.

The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissenting opinion, reversing Supreme Court, determined the terms of a contract between New York University (NYU) and a pharmaceutical company were ambiguous. Therefore NYU's complaint seeking royalties for its role in the development of a cancer-inhibiting drug should not have been dismissed. The language of the contract is too technical to fairly summarize here. New York Univ. v Pfizer Inc., 2017 NY Slip Op 03464, 1st Dept. 5-2-17

CONTRACT LAW (CAUSE OF ACTION FOR MONEY HAD AND RECEIVED SHOULD NOT HAVE BEEN DISMISSED)/MONEY HAD AND RECEIVED (CAUSE OF ACTION FOR MONEY HAD AND RECEIVED SHOULD NOT HAVE BEEN DISMISSED)/STATUTE OF FRAUDS CAUSE OF ACTION FOR MONEY HAD AND RECEIVED SHOULD NOT HAVE BEEN DISMISSED)

CONTRACT LAW.

CAUSE OF ACTION FOR MONEY HAD AND RECEIVED SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, reversing (modifying) Supreme Court, determined the cause of action for money had and received should not have been dismissed. Plaintiff alleged he gave the proceeds of an annuity to his sister (defendant) for safe-keeping (in her bank account) until he decided how to dispose of it. The agreement was oral but the cause of action was in the nature of quasi-contract (unjust enrichment) and was therefore not barred by the statute of frauds:

"The essential elements of a cause of action for money had and received are (1) the defendant received money belonging to the plaintiff, (2) the defendant benefitted from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money. The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it" ... .

 

Here, the plaintiff alleged sufficient facts to assert a cause of action for money had and received. The complaint alleges that the defendant received a benefit when she received the proceeds of the plaintiff's surrendered annuity, with the understanding that the defendant would keep those proceeds safe while the plaintiff determined how he wanted to dispose of the funds ... . Contrary to the defendant's contention, a plaintiff need not allege malice to state a cause of action for money had and received ... . Litvinoff v Wright, 2017 NY Slip Op 03501, 2nd Dept 5-3-17

 

 

CONTRACT LAW (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)/NEGLIGENCE (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)/RELEASES (RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER)

 

CONTRACT LAW, NEGLIGENCE.

RELEASE REFERRED ONLY TO INJURIES SUFFERED BY DEFENDANT AND THEREFORE DID NOT PRECLUDE A SUIT STEMMING FROM INJURIES TO ANOTHER.

The Third Department, reversing Supreme Court, determined a release referred only to claims arising from injuries suffered by defendant, and not injuries suffered by another:

In March 2013, third-party defendant John Salewski, while operating a tractor trailer owned by his employer and third-party defendant Werner Enterprises, Inc., was involved in a collision with a tractor trailer operated by defendant. Plaintiff is Salewski's wife and was a passenger in the vehicle operated by Salewski at the time of the accident. Defendant commenced a personal injury action against Salewski and Werner for damages allegedly sustained in that accident. That action was settled in June 2014, and, in connection therewith, defendant executed a general release in favor of Salewski and Werner. In April 2015, plaintiff commenced this action against defendant for damages that she allegedly sustained as a result of the accident. Defendant answered and thereafter commenced a third-party action for contribution and indemnification against Salewski and Werner. Instead of answering, Salewski and Werner moved to dismiss the third-party complaint pursuant to CPLR 3211 (a) (5) on the ground of release. Supreme Court granted the motion, holding that the plain language of the release barred the third-party action. * * * 

 

Here, the release clearly defines the incident, the claim and the lawsuit. The fact that there are multiple references to the term "injuries" indicates an unambiguous intention to limit the release's application only to the personal injuries suffered by defendant in the incident. We further find this language to be a clear and unambiguous expression of the parties' intention that the release applies only to claims related to defendant's injuries. As such, and giving full meaning and effect to its material provisions, the release plainly manifests an intent to release Salewski and Werner for any and all claims related to defendant's personal injuries, and not to claims for contribution and indemnification for injuries allegedly suffered by another party — here, plaintiff ... . Salewski v Music, 2017 NY Slip Op 03582, 3rd Dept 5-5-17

 

CRIMINAL LAW (A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT'S REFUSING TO SIGN THE WRITTEN WAIVER)/APPEALS (CRIMINAL LAW, WAIVER, A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT'S REFUSING TO SIGN THE WRITTEN WAIVER)/WAIVER OF APPEAL (CRIMINAL LAW, A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT'S REFUSING TO SIGN THE WRITTEN WAIVER)

 

CRIMINAL LAW, APPEALS.

A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT'S REFUSING TO SIGN THE WRITTEN WAIVER.

The Fourth Department noted that the sentencing court did not have the power to enhance defendant's sentence for refusing to sign a waiver of appeal because the plea agreement did not call for a written waiver:

While waiving the right to appeal was a condition of the plea bargain, the execution of a written waiver was not, and thus the court was not empowered to enhance the sentence on that ground ... . We therefore modify the judgment by reducing the term of imprisonment from a determinate term of 25 years to a determinate term of 20 years, and the period of postrelease supervision from 5 years to 2½ years, in accordance with the plea agreement. People v Days, 2017 NY Slip Op 03632, 4th Dept 5-5-17

CRIMINAL LAW (DEFENDANT'S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/APPEALS (CRIMINAL LAW, DEFENDANT'S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/EVIDENCE (CRIMINAL LAW, DEFENDANT'S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/SUPPRESSION (STATEMENTS, DEFENDANT'S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/SPONTANEOUS STATEMENTS (CRIMINAL LAW, DEFENDANT'S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)

CRIMINAL LAW, APPEALS, EVIDENCE.

DEFENDANT'S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION.

The Fourth Department held the case in reserve to allow County Court to rule on other issues raised in opposition to defendant's suppression motion, but specifically found County Court's ruling the statement was admissible as "spontaneous" was error:

"Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and [the statements were] not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed' " ... . Such statements must be proven to be "spontaneous in the literal sense of that word as having been made without apparent external cause, . . . [and] it must at least be shown that they were in no way the product of an interrogation environment' " ... . "Rather, [the statement] must satisfy the test for a blurted out admission, a statement which is in effect forced upon the officer" ... .

 

Here, defendant's statement was provoked or encouraged by the presentation or discussion of evidence suggestive of his criminal conduct, and we thus conclude that it cannot be deemed "spontaneous in the literal sense of that word as having been made without apparent external cause" ... . "Although there may be other reasons to justify the denial of defendant's motion, the only issues that we may consider on this appeal are those that may have adversely affected the appellant' " ... . We therefore hold this case, reserve decision, and remit the matter to County Court to rule upon any other issues raised by the People in opposition to the motion. People v Ibarrondo, 2017 NY Slip Op 03643, 4th Dept 5-5-17

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, FAILURE TO OBJECT TO EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/APPEALS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/PRIOR BAD ACTS (FAILURE TO OBJECT TO EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Fourth Department, in the interest of justice, reversed defendant's conviction based upon prosecutorial misconduct and ineffective assistance of counsel (failure to object to the prosecutor's remarks in summation and failure to object to evidence of defendant's prior bad acts for which no admissibility ruling was sought):

Here, the prosecutor engaged in misconduct during her closing statement by repeatedly appealing to the jury's sympathy, asking the jury to do justice and protect the victim by convicting defendant, bolstering the victim's credibility and injecting the prosecutor's personal opinions into the trial. Perhaps most egregiously, in arguing that the jury should reject defendant's testimony that he confessed falsely to the police because he needed to use the bathroom, the prosecutor gave her personal opinion regarding defendant's credibility by stating that she would sit in her own urine rather than falsely admit that she committed a crime. "We can only conclude herein that the prosecutor's inflammatory [comments had] a decided tendency to prejudice the jury against the defendant' "... . Consequently, we conclude that the cumulative effect of the prosecutorial misconduct, which substantially prejudiced defendant's rights ... , requires reversal.

 

Furthermore, "[i]n light of the foregoing, we agree with defendant's related contention that he was denied effective assistance of counsel owing to defense counsel's failure to object to the prosecutor's misconduct during summation" ... . Defense counsel also failed to object when the prosecutor introduced evidence of prior bad acts despite having failed to seek a ruling regarding the admissibility thereof, most notably the testimony of a sheriff's deputy that, months before this incident, defendant stole the victim's truck and was arrested for driving it while intoxicated while on the way to attack a person with whom he believed the victim was having an affair. Defense counsel also failed to object when the prosecutor cross-examined defendant regarding that issue. Thus, reversal is also required because defense counsel was ineffective in "fail[ing] to object to prejudicial evidence of prior uncharged crimes and bad acts introduced by the prosecutor" ... . People v Case, 2017 NY Slip Op 03638, 4th Dept 5-5-17

CRIMINAL LAW (IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT)/APPEALS (CRIMINAL LAW, IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT)/SUPPRESSION (CRIMINAL LAW, IDENTIFICATION, IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT)/IDENTIFICATION (CRIMINAL LAW, (IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT)

CRIMINAL LAW, APPEALS.

IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT. 

The Fourth Department, reserving on the appeal until County Court rules on other issues related to the suppression of the identification of the defendant, determined County Court erred when it concluded the identification of the defendant by a parole officer viewing a surveillance video was not an unduly suggestive procedure. The Fourth Department first noted that the issue was not preserved for appeal by the motion papers, but was appealable because County Court considered the issue in its findings. The Fourth Department held the procedure unduly suggestive because the parole officer was told who the police were seeking to identify before viewing the video:

... [W]e agree with defendant that, contrary to the court's determination that "[t]here was no influence or suggestion" by the investigator, the evidence establishes that the investigator suggested to the parole officer prior to her identification that the person depicted committing the robbery on the surveillance video was defendant ... . Instead of requesting the parole officer's assistance in identifying someone from the video without preemptively disclosing the subject of his investigation, the investigator engaged in a conversation "about her being a parole officer for [defendant]." During the conversation, the investigator "asked [the parole officer] if she was familiar with [defendant]." The parole officer responded that she had "lots of contact" with defendant, so the investigator proceeded to ask her to "come down and view a video." The investigator subsequently met with the parole officer at the police department and asked her to view the video to determine if she recognized anyone, and the parole officer identified defendant as the person committing the robbery. We conclude that the investigator, by contacting the parole officer and inquiring about her familiarity with defendant prior to the parole officer's viewing of the video, engaged in ... undue suggestiveness ... inasmuch as his comments improperly suggested to the parole officer that the person she was about to view was a particular acquaintance of hers, i.e., defendant ... . People v Gambale, 2017 NY Slip Op 03658, 4th Dept 5-5-17

CRIMINAL LAW (AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, ACCESSORY LIABILITY, AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/ACCOMPLICE, ACCESSORY LIABILITY (AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)

CRIMINAL LAW, EVIDENCE.

AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES.

The Fourth Department, after conducting a weight of the evidence analysis, determined the proof was not sufficient to demonstrate beyond a reasonable doubt that defendant shared the intent of his son who stabbed the victim eight times. Therefore the assault first conviction was reversed. The proof indicated the defendant may have been away from the victim, looking for his dog, when his son stabbed the victim:

Although "all of the elements [of the crime] and necessary findings are supported by some credible evidence," we conclude that an acquittal would not have been unreasonable ... . We therefore must "independently assess all the proof; substitute [our] own credibility determinations for those made by the jury [if necessary]; determine whether the verdict was factually correct; and acquit . . . defendant if [we] are not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt"... . Here, defendant was charged as an accessory, and thus the People had to "prove beyond a reasonable doubt that [defendant] acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such crime"  ... . We conclude that the People failed to prove beyond a reasonable doubt that defendant acted with the requisite mental culpability to commit assault in the first degree by causing serious physical injury to the victim by the use of a dangerous instrument, or that he solicited, requested, commanded, importuned or intentionally aided his son in committing the offense ... . People v Farley, 2017 NY Slip Op 03634, 4th Dept 5-5-17

EMPLOYMENT LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/ADMINISTRATIVE LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/CIVIL SERVICE LAW (EMPLOYMENT LAW, ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/COLLECTIVE BARGAINING AGREEMENT (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)

EMPLOYMENT LAW, ADMINISTRATIVE LAW.

ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW.

The Third Department determined the action pursuant to the Civil Service Law was not precluded because an action based on the same facts was still pending under the grievance procedure of the collective bargaining agreement (CBA). The Civil Service Law action was not dependent in any way on the CBA action. The petition challenged the hiring of Walsh as a part-time university police officer (UPO) by the State University of New York (SUNY):

... [T]he petition before us does not challenge any grievance determination by SUNY, nor does it cite a breach of any provision of the CBA as a basis for relief ... . Instead, it challenges the appointment of Walsh on the ground that it violated Civil Service Law § 64. Although the remedies sought include an award of back pay for lost overtime assignments, available only under the CBA, counsel for petitioner confirmed, at oral argument of this appeal, that petitioner was no longer seeking such an award. Because petitioner does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA's grievance procedure ... . Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA [7.1 (a)]; second, concerning a term or condition of employment [7.1 (b)]; and third, concerning a claim of improper or unjust discipline [7.1 (c)]. None of these provisions can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY. Since these provisions are inapplicable, use of the grievance process to challenge the appointment on statutory grounds would have been futile ... . Given that the appointment of Walsh is final, is alleged to have resulted in an actual, concrete injury to petitioner and because the question presented is "purely legal," we find that the matter is ripe for judicial review ... . Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, 3rd Dept 5-4-17

ENVIRONMENTAL LAW (PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/ZONING (STATE ENVIRONMENTAL QUALITY REVIEW ACT, PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/NEGATIVE DECLARATION (STATE ENVIRONMENTAL QUALITY REVIEW ACT, PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)

ENVIRONMENTAL LAW, ZONING.

PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING.

The Fourth Department, reversing Supreme Court, determined that the negative declaration by the City of Rochester Director of Planning and Zoning under the State Environmental Quality Review Act [SEQRA] should have been annulled. The Fourth Department first held that the parties had standing to contest the negative declaration because of their proximity to the subject construction site. In the face of the acknowledged contamination of the soil at the site, the negative declaration did not set forth or document the underlying reasoning:

We ... agree with petitioners that the negative declaration did not contain a " reasoned elaboration' of the basis for [the] determination" ... . "It is well settled that SEQRA's procedural mechanisms mandate strict compliance, and anything less will result in annulment of the lead agency's determination of significance" ... . The lead agency must "set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation" ... . The purpose of that regulation "is to focus and facilitate judicial review and . . . to provide affected landowners and residents with a clear, written explanation of the lead agency's reasoning at the time the negative declaration is made" ... . Here, despite the undisputed presence of preexisting soil contamination on the project site, the negative declaration set forth no findings whatsoever with respect to that contamination. The document containing the purported reasoning for the lead agency's determination of significance, which was prepared subsequent to the issuance of the negative declaration, does not fulfill the statutory mandate ... . Contrary to respondents' contention, the developer's promise to remediate the contamination before proceeding with construction did not absolve the lead agency from its obligations under SEQRA ... . Matter of Rochester Eastside Residents for Appropriate Dev., Inc. v City of Rochester, 2017 NY Slip Op 03665, 4th Dept 5-5-17

FAMILY LAW (PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT'S AWARD OF CUSTODY TO AN AUNT REVERSED)/CUSTODY (NON-PARENT, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT'S AWARD OF CUSTODY TO AN AUNT REVERSED)/NEGLECT (FILTHY LIVING CONDITIONS, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT'S AWARD OF CUSTODY TO AN AUNT REVERSED)/NON-PARENTS (CUSTODY, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT'S AWARD OF CUSTODY TO AN AUNT REVERSED)

FAMILY LAW.

PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT'S AWARD OF CUSTODY TO AN AUNT REVERSED.

The Third Department, reversing Family Court, determined petitioner, the maternal aunt, did not meet the heavy burden of demonstrating extraordinary circumstances warranting the removal of the child from the parents' custody and the award of custody to petitioner. Temporary custody was awarded to petitioner on the basis of an abuse allegation that was deemed unfounded. The decision to remove the child from the parents' custody was made after an investigation revealed the parents' home was filthy, with feces on the floor and walls and a flea infestation. However, after the home was cleaned up and the parents moved back in the condition of the home remained acceptable. The parents arranged to move in with grandparents and the grandparents agreed to supervise and help the parents:

The ground of persistent neglect warranting disruption of parental custody rights at issue here requires a showing "that the parents engaged in gross misconduct or other behavior evincing an utter indifference and irresponsibility" relative to the parental role ...  . This Court has previously held that "allowing . . . children to live in squalor" is among the parental behaviors that, considered together with other undesirable conduct, may constitute gross misconduct rising to the level of extraordinary circumstances ... . At the outset, it bears noting that we are sympathetic to Family Court's determination. The evidence at the fact-finding hearing revealed no mitigating explanation for respondents' failure to maintain minimum sanitary standards in their home; both were unemployed during the time period before the inspection, and there was no evidence that either was hampered by any illness or disability. Joblessness and poverty undeniably lead to significant difficulties in maintaining adequate housing and hardships in raising children, but are not any cause for subjecting children to feces-strewn homes; such conditions result solely from lack of care. Nevertheless, ... based upon all of the record evidence, we cannot find that petitioner satisfied her "heavy burden" to establish the existence of extraordinary circumstances ... , and are thus constrained to reverse.

The record reveals that respondents immediately corrected the unsanitary conditions when directed to do so, such that child protective authorities permitted the younger children to return to live there. A caseworker testified that the house "exceeded minimal standards" after this intervention, and that respondents cooperated with child protective authorities throughout the investigation and followed through on everything that was asked of them. The father acknowledged that the previous conditions in the home were unacceptable, and both he and the mother testified that they would not let this happen again. The record does not reveal any further problems or complaints about respondents' care of their children after the initial home visit. No further child protective actions were taken, the child was permitted to return to respondents' home for regular visits during the pendency of the fact-finding hearing, and the younger children remained in respondents' custody without interruption. Matter of Jennifer BB. v Megan CC., 2017 NY Slip Op 03576, 3rd Dept 5-4-17

FORECLOSURE (CONDOMINIUMS, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CIVIL PROCEDURE (FORECLOSURE, MANDATORY SETTLEMENT CONFERENCE, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CONDOMINIUMS (FORECLOSURE, MANDATORY FORECLOSURE SETTLEMENT CONFERENCE, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)

FORECLOSURE, CIVIL PROCEDURE, CONDOMINIUMS.

DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE.

The First Department determined the defendant in this condominium foreclosure action was not entitled to a mandatory mortgage foreclosure settlement conference. The court had ordered settlement conferences in the past and defendant had refused to participate:

The express language of the condominium's bylaws permitted the appointment of a receiver, without notice, to collect unpaid common charges in this foreclosure action. Further, the record demonstrates that while defendant, an owner of an apartment in the condominium, paid maintenance arrears after plaintiff board filed a notice of lien and commenced the action to foreclose on the lien, she still owed plaintiff for assessments, late fees and associated attorney's fees. Accordingly, plaintiff was entitled to seek judgment for these fees, which constitute common charges under the bylaws... . We reject defendant's claim that she was entitled to a mandatory mortgage foreclosure settlement conference, particularly since the court directed the parties to engage in settlement conferences to resolve this matter, and it appears that defendant, for the most part, refused to participate. Board of Mgrs. of St. James's Tower Condominium v Kutler, 2017 NY Slip Op 03605, 1st Dept 5-4-17

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/EVIDENCE (FORECLOSURE, STANDING, BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/HEARSAY (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)

FORECLOSURE, EVIDENCE.

BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET.

The Second Department determined plaintiff bank failed to demonstrate standing to bring the foreclosure action because the criteria for the business records exception to the hearsay rule were not met:

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Kelly Thompson, an Assistant V.P., Operations Team Manager, at Bank of America, N.A. (hereinafter BANA), the servicer of the defendant Juliet Willis's loan on behalf of the plaintiff. Thompson averred, in relevant part, that her affidavit was based upon her review of BANA's business records, and that upon review of such records, the note was physically transferred to the plaintiff "in or about March 2007." The plaintiff failed to demonstrate that the records relied upon by Thompson were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thompson, an employee of BANA, did not attest that she was personally familiar [*2]with the plaintiff's recordkeeping practices and procedures ... . Bank of N.Y. v Willis, 2017 NY Slip Op 03468, 2nd Dept 5-3-17

 

 

INSURANCE LAW (LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION)/DISCLAIMER (INSURANCE LAW, LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION)

INSURANCE LAW.

LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION.

The Second Department noted that an insured's failure to timely notify the insurer of an action does not relieve the insurer of the obligation to timely disclaim. Whether a disclaimer is timely is determined by when the insurer first learned of the action, not when the insured notified it of the action:

... [The] "failure of an insured to timely notify the insurer of a claim does not excuse the insurer's failure to timely disclaim coverage" ... . "The timeliness of an insurer's disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage" ... . In opposition to the cross motion, [the insured] raised triable issues of fact as to whether the plaintiff acquired knowledge of the commencement of the underlying action in April 2012, or, at the latest, October 2012, and thus, whether it timely disclaimed coverage in March 2013, on the basis of, inter alia, late receipt of a copy of the summons and complaint. Evanston Ins. Co. v P.S. Bruckel, Inc., 2017 NY Slip Op 03489, 2nd Dept 5-3-17

INSURANCE LAW (INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED TO SATISFY DEFAULT JUDGMENT AGAINST THE INSURED)

INSURANCE LAW.

INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED TO SATISFY DEFAULT JUDGMENT AGAINST THE INSURED.

The Second Department determined the injured party (Glanz) did not timely notify the insurer (New York Marine) of the claim against the insured. Therefore, the insurer was not obligated to satisfy the default judgment entered against the insured:

"Insurance Law § 3420(a)(2) expressly permits an injured party to recover any unsatisfied judgment against an insured, directly from the insurer" ... . Insurance Law § 3420(a)(3) requires the injured party to demonstrate that he or she acted diligently in attempting to ascertain the identity of the insurer, and thereafter expeditiously notified the insurer ... . "In determining the reasonableness of an injured party's notice, the notice required is measured less rigidly than that required of the insureds" ... . "The injured person's rights must be judged by the prospects for giving notice that were afforded him [or her], not by those available to the insured" ...  "What is reasonably possible for the insured may not be reasonably possible for the person he [or she] has injured. The passage of time does not of itself make delay unreasonable" ... .

 

Here, New York Marine made a prima facie showing that Glanz failed to act diligently in attempting to ascertain New York Marine's identity and in expeditiously notifying it of his claim ... . In opposition, Glanz failed to raise a triable issue of fact ... . Glanz v New York Mar. & Gen. Ins. Co., 2017 NY Slip Op 03494, 2nd Dept 5-3-17

INSURANCE LAW (INSURED'S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED)/DISCLAIMER (INSURANCE LAW, REFUSAL TO COOPERATE IN DEFENSE, INSURED'S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED)

INSURANCE LAW.

INSURED'S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED.

The Second Department, reversing Supreme Court's judgment after a bench trial, determined defendant insurer demonstrated the insured refused to cooperate with the insurer's defense in this oil-spill case, relieving the insurer of liability for the default judgment against the insured:

An insurer that seeks to disclaim coverage based on its insured's alleged noncooperation is required to demonstrate that "it acted diligently in seeking to bring about its insured's cooperation, that its efforts were reasonably calculated to obtain its insured's cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of willful and avowed obstruction'" ... . The insurer has a "heavy" burden of proving lack of cooperation ... . The inference of noncooperation must be "practically compelling" ... .

 

Based on the evidence adduced at trial, we find that American States met its heavy burden of proving that its insured breached the subject policy by failing to cooperate in the defense of the underlying action. American States made diligent efforts, through written correspondence, numerous telephone calls, and a visit to the insured's home, that were reasonably calculated to bring about the insured's cooperation. Further, its insured's attitude, after his cooperation was sought, was one of willful and avowed obstruction. Among other trial evidence, there was testimony from an investigator who met with the insured at the insured's home. The investigator testified that the investigator told the insured that the insured risked losing coverage under the policy if the insured refused to cooperate. The insured, while acknowledging that he knew that he had attorneys defending him and that a default judgment could be entered against him if he failed to appear at a deposition, made statements to the effect that he would cooperate only if he were paid for certain work he claimed to have performed, and that the plaintiff could "just get in line" were it to obtain a judgment against him. West St. Props., LLC v American States Ins. Co., 2017 NY Slip Op 03555, 2nd Dept 5-3-17

 

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR)/STILTS (LABOR LAW-CONSTRUCTION LAW, ABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR)

 

LABOR LAW-CONSTRUCTION LAW.

LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR.

The Fourth Department determined defendant's motion for summary judgment in this Labor law 240 (1) action should not have been granted. Plaintiff was using stilts to work on a ceiling when a stilt contacted a conduit on the floor, causing him to fall:

Even assuming, arguendo, that defendant established its entitlement to judgment on the theory that plaintiff's fall was caused solely by stepping on the conduit, i.e., a "separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place" ... , we nevertheless conclude that plaintiff raised an issue of fact sufficient to defeat the motion ... In his affidavit submitted in opposition to defendant's motion, plaintiff clarified his deposition testimony with respect to why and how he fell ... . Plaintiff was installing the last of eight ceiling tiles in a room. He explained in his deposition and in his affidavit that his work was obstructed by electrical wiring and conduit in the ceiling that had not been properly secured, thereby leaving limited space in which to install the tile, which measured two feet by four feet. With his arms fully extended overhead while attempting to move and secure the electrical wiring and conduit, he lost his balance and was forced to step backwards, at which point his right stilt came into contact with the conduit and he fell. Thus, plaintiff raised an issue of fact whether his "injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant height differential" while he was attempting to secure the electrical wiring and conduit in the ceiling in order to install the ceiling tile ... , and were not solely caused by the presence of the conduit on the floor ... . Piche v Synergy Tooling Sys., Inc., 2017 NY Slip Op 03673, 4th Dept 5-5-17

LABOR LAW-CONSTRUCTION LAW (ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS' HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)/NEGLIGENCE (LABOR LAW 200, ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS' HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)/SLIP AND FALL (LABOR LAW 200, ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS' HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)

 

LABOR LAW-CONSTRUCTION LAW, NEGLIGENCE.

ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS' HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED.

The Second Department determined the homeowners, who were living out-of-state while their home was being renovated, did not meet their burden of proof for summary judgment in this slip and fall case brought under Labor Law 200. Plaintiff, an electrician, alleged he slipped and fell on ice in the defendants' driveway. The defendants didn't demonstrate when the driveway was last inspected or what the condition of the driveway was when plaintiff fell, so the motion was denied without reference to plaintiff's responding papers:

The Supreme Court properly determined that the homeowners had a duty to keep their property in a reasonably safe condition and provide workers with a safe place to work, even though they were residing out of state at the time of the accident ... . In addition, contrary to the homeowners' contention, the plaintiff's alleged injuries stem from a dangerous condition on the premises ... , and not from the manner in which work was performed ... . Further, the court properly concluded that the homeowners failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition in the driveway ... . The evidence submitted in support of the homeowners' motion, which included transcripts of the plaintiff's and their own deposition testimony, failed to establish when they or the company they contracted with to provide snow removal on the driveway last inspected the driveway, or what the driveway looked like on the day of the accident ... . DeFelice v Seakco Constr. Co., LLC, 2017 NY Slip Op 03481, 2nd Dept 5-3-

 

NEGLIGENCE (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)/TRAFFIC ACCIDENTS (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)/REAR-END COLLISIONS (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)

NEGLIGENCE.

ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE.

The Second Department determined defendant driver's allegation that plaintiff stopped suddenly was not enough to defeat plaintiff's motion for summary judgment in this rear-end collision case:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence ... . To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault ... . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law through the submission of her own affidavit, in which she averred that her vehicle was stopped on Northern Boulevard at its intersection with 157th Street, when it was struck in the rear by the defendants' vehicle. This affidavit demonstrated, prima facie, that Veliz was negligent and that she was not comparatively at fault in the happening of the subject accident.

 

In opposition, the defendants failed to raise a triable issue of fact. The evidence submitted by the defendants that the plaintiff stopped her vehicle suddenly was insufficient to raise a triable issue of fact as to whether the plaintiff's actions contributed to the happening of the accident, and it did not provide the defendants with a nonnegligent explanation for the rear-end collision ... . Nikolic v City-Wide Sewer & Drain Serv. Corp., 2017 NY Slip Op 03524, 2nd Dept 5-3-17

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF'S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (PLAINTIFF'S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/EXPERT OPINION  (MEDICAL MALPRACTICE, PLAINTIFF'S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF'S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

 

NEGLIGENCE, MEDICAL MALPRACTICE.

PLAINTIFF'S EXPERT, AN ANESTHESIOLOGIST, DID NOT DEMONSTRATE HOW HE WAS FAMILIAR WITH THE ACCEPTED STANDARD OF CARE FOR AN ORTHOPEDIC SURGEON, THE SURGEON'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department determined defendant orthopedic surgeon's (McGrath's) motion for summary judgment in this medical malpractice/wrongful death case should have been granted. Defendant's detailed affidavit established he did not deviate from the applicable standard of care and plaintiff's expert, an anesthesiologist, did not raise a question of fact:

McGrath met his burden by submitting a detailed affirmation establishing that his care and treatment of decedent in recommending and performing surgery was consistent with the accepted standard of care ... . The burden then shifted to plaintiff to raise an issue of fact by submitting a physician's affidavit establishing both a departure from the accepted standard of care and proximate cause ... . Plaintiff failed to meet that burden inasmuch as he submitted the affirmation of an anesthesiologist who failed to establish how he was familiar with the accepted standard of care for an orthopedic surgeon. Although a medical expert need not be a specialist in a field to offer an opinion concerning the accepted standards of care in that field, a physician offering an opinion outside his or her particular field must lay a foundation to support the reliability of that opinion ... . Chillis v Brundin, 2017 NY Slip Op 03646, 4th Dept 5-5-17

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, STATUTE OF LIMITATIONS,  QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

NEGLIGENCE, MEDICAL MALPRACTICE, CIVIL PROCEDURE.

QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the statute of limitations in this medical malpractice action was tolled by the continuous treatment doctrine:

"Under the continuous treatment doctrine, the 2½ year period does not begin to run until the end of the course of treatment, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'" ... . The doctrine "applies when further treatment is explicitly anticipated by both physician and patient," which is generally "manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, . . . for the purpose of administering ongoing corrective efforts for the same or a related condition" ...  Further "[i]ncluded within the scope of continuous treatment' is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment" ,,, , 

In the present case, [defendant doctor] testified at his deposition that when he discussed treatment options with the plaintiff, he advised the plaintiff that a new treatment process was available outside the United States and that he was cautiously optimistic that, at some time in the foreseeable future, he could offer it to the plaintiff in New York. The plaintiff, who was aware that the treatment process was the subject of a study aimed at obtaining FDA approval, testified at his deposition that he was waiting for the new treatment process to become available. After being told, in November 2008, that his only options were to wait for the new treatment or seek treatment outside the country, the plaintiff returned to the defendants for treatment of the same condition on March 9, 2011, and, in fact, received treatment for the same condition from the defendants continuing until December 2012. Freely v Donnenfeld, 2017 NY Slip Op 03491, 2nd Dept 5-3-17

NEGLIGENCE (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER'S DISCRETIONARY ACTS)/MUNICIPAL LAW (IMMUNITY, STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER'S DISCRETIONARY ACTS)/IMMUNITY (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER'S DISCRETIONARY ACTS)/GOVERNMENTAL IMMUNITY (STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER'S DISCRETIONARY ACTS)

NEGLIGENCE, MUNICIPAL LAW, IMMUNITY.

STATE TROOPER IMMUNE FROM A PERSONAL INJURY SUIT BASED UPON THE TROOPER'S DISCRETIONARY ACTS.

The Third Department, reversing (modifying) Supreme Court, determined a state trooper, defendant Begeal, was entitled to summary judgment in this personal injury case because he was immune from suit for his actions, which were discretionary. Plaintiff physician assistant was injured by a patient (Lacey) brought into the hospital by law enforcement officers, including Begeal. Plaintiff was kicked by the patient and alleged Begeal negligently failed to restrain the patient's legs:

Although Begeal had access to plastic leg restraints, the undisputed evidence established that, at the time that he left the examination room, Lacey was still handcuffed, was "extremely calm" and had allowed a nurse to remove pieces of glass from his feet without kicking or otherwise resisting the nurse's efforts. Begeal thus made a "reasoned judgment" not to utilize the leg restraints ... . Accordingly, "[t]he decision to employ [only handcuffs] was a discretionary one . . ., and [Begeal] may not be held liable for that determination" ... . ... 

Begeal's decision to leave the examination room to permit the medical personnel to examine Lacey in private was likewise discretionary. Although Lacey was combative when he first arrived at the hospital, Begeal did not leave the examination room until approximately 20 minutes after that time and only after ensuring that Lacey had calmed down. Based on these circumstances, Begeal "did not feel that [the hospital personnel and Feeney] were in any immediate danger" and concluded that he could safely leave the room and go to the main area in order to, among other things, wash off Lacey's blood from his clothes. While Begeal's judgment call proved to be incorrect, "it is not for courts to second-guess the wisdom of discretionary governmental choices, troubling though they may sometimes seem in the glaring clarity of hindsight" ... . Feeney v County of Del., 2017 NY Slip Op 03583, 3rd Dept 5-4-17

 

NEGLIGENCE (DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)/TOXIC TORTS (LEAD PAINT, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)/LEAD PAINT (DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)

 

NEGLIGENCE, TOXIC TORTS.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department determined the landlord's motion for summary judgment in this lead paint poisoning case should not have been granted:

"In order [t]o establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition' " ... . Where, as here, there is no evidence that the landlord had actual notice, plaintiffs may establish that the landlord had constructive notice of such condition by demonstrating that the landlord "(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" ... .  Here, it is undisputed that decedent retained a right of entry and assumed a duty to make repairs, but the remaining ... factors are in dispute.

 

By submitting the deposition testimony of plaintiffs' mother, wherein she testified that she told [defendant] that she would be living at the residence with her young children, [defendants] raised a triable issue of fact on the fifth ... factor. Similarly, [defendant's] own deposition testimony raised a triable issue of fact on the second ... factor inasmuch as he testified that the subject residence was old, that lead was taken out of gasoline in 1970, and he "must have known" that laws regarding lead started to come out in the 1970s ,,, . Even assuming, arguendo, that [defendants] met their initial burden on the third and fourth ... factors, we conclude that plaintiffs raised triable issues of fact by submitting " evidence from which it may be inferred that [defendant] knew that paint was peeling on the premises' . . . , and evidence from which a jury could infer that [defendant] knew or should have known of the dangers of lead paint to children' " ... . Rodrigues v Lesser, 2017 NY Slip Op 03669, 4th Dept 5-5-17

 

PRODUCTS LIABILITY (HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/TOXIC TORTS (ASBESTOS, PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/ASBESTOS (PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/COKE OVENS (PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)

PRODUCTS LIABILITY, TOXIC TORTS.

HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED.

The Fourth Department, reversing Supreme Court, determined the asbestos-related causes of action against Honeywell as the manufacturer of coke ovens used in a steel plant did not sound in products liability. The huge coke ovens were deemed to be part of the realty, not products in the stream of commerce. Therefore the products liability causes of action should have been dismissed:

We begin our analysis by noting that, in Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N.Y . (16 NY2d 222, 226-227), the Court of Appeals concluded, when discussing the nature of these coke oven batteries, that "[t]here is no doubt that, by common-law standards, these structures would be deemed real property. Their magnitude, their mode of physical annexation to the land and the obvious intention of the owner that such annexation be permanent would, indeed, compel that conclusion."

 

Using the construction of Battery No. 9 as an example, Honeywell's submissions established that the construction of a coke oven battery was a multistage process that took place over approximately 18 months. The overall construction of the battery would have taken approximately 1,460,000 hours of labor to complete over six phases. * * *

.. .[W]e conclude that service predominated the transaction herein and that it was a contract for the rendition of services, i.e., a work, labor and materials contract, rather than a contract for the sale of a product ... . We further conclude that a coke oven, installed as part of the construction of the "great complex of masonry structures" at Bethlehem ... , permanently affixed to the real property within a coke oven battery, does not constitute a "product" for purposes of plaintiff's products liability causes of action ... . Terwilliger v Beazer E., Inc., 2017 NY Slip Op 03629, 4th Dept 5-5-17

WORKERS' COMPENSATION LAW (SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT'S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM)/SPECIAL FUND (WORKERS' COMPENSATION LAW, SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT'S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM)

 

WORKERS' COMPENSATION LAW.

SPECIAL FUND LIABLE FOR CLAIM MADE AFTER THE 2014 CUTOFF FOR NEWLY REOPENED CLAIMS, DECEDENT'S CLAIM WAS TRANSFERRED TO THE SPECIAL FUND IN 2002 AND HIS DEATH WAS CAUSALLY RELATED TO THE 2002 CLAIM.

The Third Department determined the Special Fund was responsible for the decedent's Workers' Compensation claim. Decedent's claim had been transferred to the Special Fund in 2002. The fact that decedent died after the 2014 cutoff for newly reopened claims was irrelevant:

The Special Fund argues that it is not liable because the consequential death claim is a new claim and, since it was filed after the January 1, 2014 cutoff for newly reopened claims against the Special Fund, liability against it is precluded (see Workers' Compensation Law § 25-a [1-a]). The Special Fund is correct that "a claim for death benefits . . . is a separate and distinct legal proceeding brought by the beneficiary's dependents and is not equated with the beneficiary's original disability claim" ... . Indeed, there are separate statutory provisions for disability and death benefits (compare Workers' Compensation Law § 15, with Workers' Compensation Law § 16). However, where, as here, liability for a claim has already been transferred from the carrier to the Special Fund and the employee thereafter dies for reasons causally related to the original claim, the Special Fund remains liable for the claim for death benefits ... . Thus, under these circumstances, claimant need not obtain another transfer of liability to the Special Fund upon decedent's death, as liability had already been transferred. In that regard, Workers' Compensation Law § 25-a (1-a), which closed the Special Fund to newly reopened cases as of January 1, 2014, has no bearing on the Special Fund's liability for a claim for which liability was transferred to it in 2000 ,,, . This result is consistent with the purpose of Workers' Compensation Law § 25-a, which "is to shift the liability for paying stale claims to the [Special] Fund" ... . Matter of Misquitta v Getty Petroleum, 2017 NY Slip Op 03585, 3rd Dept 5-4-17