ACCOUNT STATED

 

Partial Payment of Monthly Bills Supported Account Stated Cause of Action

 

The First Department determined the acceptance of monthly bills and partial payment entitled plaintiff to summary judgment on the cause of action for an account stated:

 

An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them … . "An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account" … . Here, in support of its motion for summary judgment the plaintiff submitted monthly billing statements from January 2007 through March 2008, and an affidavit from a document control officer who averred that the billing statements were sent to the defendant at his home address, that the defendant accepted and retained those statements without objection, and that he made partial payments on the account until on or about December 2007 when payments ceased. This evidence was sufficient to establish the plaintiff's entitlement to judgment as a matter of law on the cause of action for an account stated … . Citibank (South Dakota) NA v Cutler, 2013 NY Slip Op 08042, 2nd Dept 12-4-13

 

ADMINISTRATIVE LAW/EVIDENCE

 

Hearsay Insufficient to Support Revocation of Substance Abuse Counselor Credential

 

The Third Department determined the hearsay evidence used to justify the revocation of petitioner’s credential as a Credentialed Alcoholism and Substance Abuse Counselor (CASAC) was insufficient:

 

Substantial evidence has long been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… .  In this regard, an administrative determination may be based entirely upon hearsay evidence …– provided such evidence is "sufficiently relevant and probative" … or "sufficiently reliable" … and is not otherwise "seriously controverted" … . * * *

 

Although we have no doubt that the investigator conducted thorough interviews with many of those involved and accurately related – in both his report and his corresponding testimony – the specific information gleaned therefrom, we cannot say – given the particular facts of this case – that the hearsay proof adduced at the hearing was "the kind of evidence on which responsible persons are accustomed to rely in serious affairs"… .  Matter of Doctor v NYS Office of Alcoholism and Substance Abuse Services…, 516209, 3rd Dept 12-5-13

 

 

APPEALS

 

Trial Court Can Not Deviate from Terms of Remittitur Imposed by Appellate Court

 

The Second Department determined Supreme Court did have the power to deviate from the terms of the remittitur issue pursuant to an earlier appeal.  The matter had been sent back for a determination of attorney’s fees:

 

" A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court'" … . Accordingly, an order or judgment entered on remittitur " must conform strictly to the remittitur'" … . Thus, although an award of an attorney's fee normally lies within the sound discretion of the Supreme Court …, in this case, the Supreme Court's award must also be judged by its conformity to this Court's decision and order deciding the prior appeal … .

 

In this Court's prior decision and order, the Supreme Court was instructed to "calculat[e] . . . the award of an attorney's fee and costs associated with litigating the cause of action alleging a violation of Labor Law § 741" … . However, a review of the record makes clear that the Supreme Court's award encompassed work performed after the … dismissal of the cause of action alleging a violation of Labor Law § 741. Because all litigation after that date must perforce have related either to the cause of action alleging a violation of Labor Law § 740 or the defendants' own motion for an award of an attorney's fee and costs, the Supreme Court's award exceeded the mandate of this Court's remittitur … .  Tomo v Episcopal Health Servs Inc, 2013 NY Slip Op 08070, 2nd Dept 12-4-13

 

 

CIVIL PROCEDURE

 

Preliminary Injunction Should Not Have Been Granted---Petitioners Did Not Show a Likelihood of Success on the Merits

 

The First Department, in a full-fledged opinion by Justice Andrias, over a dissent, reversed Supreme Court’s grant of a preliminary injunction in favor of the petitioners.  Petitioners were elected members of the Patrolmen’s Benevolent Association of the City of New York.  They had been issued Release Time certificates by the Office of Labor Relations (OLR) pursuant to Mayor’s Executive Order #75 (EO 75) which approved full-time leave with pay and benefits.  After the Release Time certificates were issued, the petitioners were indicted for alleged involvement in a ticket-fixing scheme.  The OLR rescinded the Release Time certificates.  Supreme Court granted a preliminary injunction reinstating the certificates pending arbitration.  The First Department determined the preliminary injunction should not have been granted because the petitioners failed to demonstrate a likelihood of success on the merits:

 

CPLR 7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending ... but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief." The party seeking the preliminary injunction must also demonstrate a probability of success on the merits, danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in their favor … . Applying these standards, even assuming that petitioners established that an award in their favor would be rendered ineffectual without provisional relief, as required by CPLR 7502(c), they have failed to make the requisite showing of a likelihood of success on the merits, and therefore have not established their entitlement to injunctive relief… . * * *

 

Enforcement of EO 75 is committed to the OLR Commissioner, who may issue implementing rules and regulations. The indictments of the individual petitioners on charges related to a ticket-fixing scheme that include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation constitute a sufficient basis for the City to determine that the individual petitioners did not "at all times conduct themselves in a responsible manner" … . Accordingly, OLR was entitled to unilaterally rescind the Release Time certificates. Matter of Patrolmen’s Benevolent Assn of the City of New York, Inc v City of New York, 2013 NY Slip Op 08033, 1st Dept 12-3-13

 

 

CIVIL PROCEDURE/BANKING LAW/CONSTITUTIONAL LAW/DEBTOR-CREDITOR

 

Failure to Provide Pre-Restraint Notice to a Judgment Debtor as Required by the Exempt Income Protection Act Violates Due Process

 

In a full-fledged opinion by Justice Hall, the Second Department determined that the failure of the judgment debtor’s bank to provide the notice required by the Exempt Income Protection Act (CPLR 5222-a) before restraining the debtor’s account violated due process:

 

…[T]he statutory mechanism requires the attorney for the judgment creditor to serve a judgment debtor's banking institution with a copy of the restraining notice, an exemption notice, and two exemption claim forms (see CPLR 5222-a[b][1]). The statute then requires the banking institution, within two business days after receipt of such documents, to serve upon the judgment debtor a copy of the restraining notice, the exemption notice, and the two exemption claim forms (see CPLR 5222-a[b][3]). In this action, the attorney for the judgment creditor properly sent the required documents to the judgment debtor's bank, but the bank did not timely send the documents to the judgment debtor. As a result, the judgment debtor's bank account was restrained without any notice to her or any opportunity to claim that certain funds in the account were exempt from debt collection. We conclude that this constituted a violation of the judgment debtor's due process rights, and, as a remedy, afford the judgment debtor the opportunity to claim exemptions before any funds in her account are turned over. Distressed Holdings LLC v Ehrler, 2013 NY Slip Op 08044, 2nd Dept 12-4-13

 

 

CIVIL PROCEDURE/ENVIRONMENTAL LAW/ADMINISTRATIVE LAW

 

Regulations Promulgated by Administrative Bodies Are Quasilegislative Acts---Any Challenge to the Regulations Must Be Brought in an Article 78 Proceeding Alleging the Regulations to Be Arbitrary and Capricious

 

The Third Department assumed, without deciding, that the plaintiffs, three New York residents and electricity ratepayers, had standing to bring an action challenging the Regional Greenhouse Gas Initiative (RGGI) which implemented a carbon-dioxide-emission cap and trade program for New York power plants.  The challenged RGGI regulations had been promulgated by the Department of Environmental Conservation (DEC) and the New York State Energy Research and Development Authority (NYSERDA). The court determined the complaint was properly dismissed because, although couched in terms of a request for a declaratory judgment, the action should have been brought as an Article 78 proceeding subject to the four-month statute of limitations:

 

Although declaratory judgment actions are typically governed by a six-year statute of limitations (see CPLR 213 [1]), "a court must look to the underlying claim and the nature of the relief sought and determine whether such claim could have been properly made in another form" …. "Where, as here, governmental activity is being challenged, the immediate inquiry is whether the challenge could have been advanced in a CPLR article 78 proceeding" … .  "While it is well established that a challenge to the validity of legislation may not be brought under [CPLR] article 78, this principle does not apply to the quasilegislative acts and decisions of administrative agencies," which are subject to a four-month statute of limitations … . 

 

Here, plaintiffs' first three causes of action challenge the validity of the RGGI regulations promulgated by DEC and NYSERDA pursuant to the statutory authority granted to those respective administrative bodies pursuant to the Environmental Conservation Law and the Public Authorities Law.  The enactment of such regulations was "quasi-legislative" and, as such, plaintiffs' challenges thereto were capable of being reviewed in the context of a CPLR article 78 proceeding … .  Although at times couched in terms of constitutional infirmity and illegality, the essence of plaintiffs' claims against DEC and NYSERDA is that the RGGI regulations are "arbitrary and capricious" and that the decision to promulgate such regulations was "affected by an error of law" (CPLR 7803 [3]…).  Thrun v Cuomo, 516556, 3rd Dept 12-5-13

 

 

 

CRIMINAL LAW

 

Presumption in Favor of Resentencing (re: the New Scheme for Drug Offenses) Not Rebutted---Supreme Court Should Not Have Denied Motion for Resentencing

 

The Second Department determined the factors relied upon by the resentencing court were not sufficient to overcome the presumption in favor of resentencing under Criminal Procedure Law 440.46:

 

The Supreme Court improvidently exercised its discretion in denying the defendant's motion to be resentenced pursuant to CPL 440.46. Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by the Supreme Court in denying the motion--the defendant's criminal history, disciplinary infractions, and parole violations--are insufficient to overcome the statutory presumption. The defendant served more than 14 years in prison for a low-level drug crime committed when he was 19 years old. The defendant's criminal history included only larcenous and low-level drug crimes, all committed before he was 20 years old. While the defendant violated his parole by failing to abide by certain parole rules, including, inter alia, by breaking curfew and by traveling to Georgia to be reunited with his family, he has never committed another crime or had a positive drug test. Under all of the circumstances presented here, "the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted"… . People v Simmons, 2013 NY Slip Op 08103, 2nd Dept 12-4-13

 

 

 

CRIMINAL LAW

 

One Party’s Video-Recording of Consensual Sexual Activity Without the Other Party’s Knowledge and Consent Violates the Unlawful Surveillance Statute

 

In a full-fledged opinion by Justice Stein, the Third Department affirmed defendant’s conviction for violating New York’s Unlawful Surveillance statute (Penal Law 250.45).  This “first impression” case involved the defendant’s recording of his sexual activities with two women without the women’s knowledge or consent. The statute was found to apply to the video recording of consensual sexual activity by one of the parties involved in that activity.  Defendant was sentenced to a term in prison.  The relevant portions of the statute at issue provide:

 

"A person is guilty of unlawful surveillance in the second degree when:

1.         For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

2.         For his or her own, or another person's sexual arousal or sexual gratification, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

3.         (a) For no legitimate purpose, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person's knowledge or consent" (Penal Law § 250.45 [1], [2], [3] [a]).  People v Puznarksi, 105460, 3rd Dept 12-5-13

 

 

 

 

CRIMINAL LAW

 

“Strangulation” Conviction Affirmed

 

In a full-fledged opinion by Justice Garry, the Third Department affirmed defendant’s conviction for strangulation in the second degree (as well as assault in the third degree).  The victim of domestic abuse alleged the defendant choked her with one hand and shoved a piece of pizza in her face with the other.  The court explained the statutory strangulation offenses as follows:

 

In 2010, the Legislature enacted several criminal statutes to address choking, strangling, and other forms of intentional interference with a victim's breathing or circulation (see Penal Law art 121; William C. Donnino, Practice Commentaries McKinney's Cons Laws of NY, Book 39, Penal Law § 121.11, 2013 Pocket Part at 38).  At the time of enactment, the Legislature stated that domestic abusers use strangulation as "a form of power and control [that] has a devastating psychological effect on victims and a potentially fatal outcome" (Senate Mem in Support, Bill Jacket, L 2010, ch 405, 2010 McKinney's Session Laws of NY at 1977) and noted that strangulation can be challenging to prosecute as it may not cause obvious injuries, thus allowing the crime to go unpunished (see Assembly Mem in Support, Bill Jacket, L 2010, ch 405).  In the statutory scheme, the severity of the offense is measured by the degree of the consequent harm.  A person commits the misdemeanor of criminal obstruction of breathing or blood circulation when, "with intent to impede the normal breathing or circulation of the blood of another person, he or she a. applies pressure on the throat or neck of such person; or b. blocks the nose or mouth of such person," with no resulting injury (Penal Law § 121.11).  Such acts resulting in "stupor, loss of consciousness for any period of time, or any other physical injury or impairment" constitute the felony of strangulation in the second degree (Penal Law § 121.12); strangulation in the first degree involves "serious physical injury" (Penal Law § 121.13).  People v Carte, 105808, 3rd Dept 12-5-13

 

 

DISCIPLINARY HEARINGS (INMATES)/EVIDENCE

 

Hearsay Evidence from Confidential Informant Insufficiently Detailed to Allow Independent Assessment of Credibility and Reliability

 

The Third Department annulled certain charges against the petitioner because the hearsay evidence was inadequate:

 

Hearsay in the form of confidential information may provide substantial evidence to support a determination of guilt when it is sufficiently detailed and probative to permit the Hearing Officer to make an independent assessment of its credibility and reliability … .Here, however, the correction officer's description of the sources' statements did not indicate that they had been threatened or had personal knowledge of any threats, nor did the officer provide details regarding the basis of their knowledge or whether they personally witnessed any conduct or statements by petitioner.  The testimony was insufficiently detailed and specific to enable the Hearing Officer to independently assess the credibility or reliability of the confidential information, and it appears that he impermissibly relied on the correction officer's assessment that the sources were truthful… .  Matter of Rosa v Fischer, 515981, 3rd Dept 12-5-13

 

 

DISCIPLINARY HEARINGS (INMATES)

 

 

Hearing Officer Failed to Investigate Why Petitioner’s Witness Refused to Testify

 

The Third Department determined the hearing officer failed to properly investigate the reason why the inmate witness called by the petitioner refused to testify. The petitioner specifically asked the hearing officer why the witness had changed his mind, which constituted a request that the hearing officer investigate the matter. The hearing determination was reversed and a new hearing was ordered:

 

The record before us reveals that at least one of petitioner's requested witnesses changed his mind with regard to testifying.  Contrary to respondent's assertion, petitioner's inquiry as to why the subject inmate had changed his mind constituted a timely request that the Hearing Officer investigate the matter further … . Moreover, the requested inmate gave no reason for his refusal beyond that he did "not care to get involved," which did not absolve the Hearing Officer of his obligation to personally ascertain the reasons for the inmate's unwillingness to testify … .  The Hearing Officer's failure to do so violated petitioner's conditional right to call that witness and, as such, we must remit for a new hearing … .  In light of this conclusion, we need not address petitioner's claims regarding the other requested witnesses. Matter of Joseph v LaClair, 516270, 3rd Dept 12-5-13

 

 

FAMILY LAW/LEGAL MALPRACTICE/APPEALS/NEGLIGENCE

 

Parent Ordered to Pay Attorney’s Fees for Attorney Appointed to Represent the Children Has Standing to Raise Legal Malpractice Defense

 

In a full-fledged opinion by Justice Saxe, the First Department determined that father, who had been ordered to pay the attorney’s fees for the attorney appointed to represented the children, had standing to raise the defense of legal malpractice:

 

…[A] parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised.  Venecia V v August V, 2013 NY Slip Op 08140, 1st Dept 12-5-13