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December Page I

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


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Court's Limited Arbitration-Review Powers Described---Collateral Estoppel Precluded the District from Raising the "Faithless Servant Doctrine" in a Related Lawsuit Because the Arbitrator Concluded the Doctrine Did Not Apply


The Third Department affirmed the arbitrator's decision that the school district employee, who had attempted to retire after allegations that she stole school district property surfaced, was entitled to health benefits.  The court determined, given that the faithless servant doctrine was litigated fully during the arbitration and deemed inapplicable, and given the arbitrator's conclusion the employee was entitled to her contractual health benefits, the school district was collaterally estopped from amending its complaint in the related court proceedings to include the faithless servant doctrine:


...Vacatur of the arbitration award is not warranted. "It is well established that an arbitrator's award is largely unreviewable" ... . Vacatur of an arbitration award is only appropriate where "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" ... . "Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where 'an arbitrator has made an error of law or fact'" ... . Union-Endicott Cent Sch Dist v Peters, 2014 NY Slip Op 08533, 3rd Dept 12-4-14





When a Party Does Not Object to Errors in a Verdict Sheet, the Jury Charge Becomes the Law Applicable to the Case---Only "Fundamental" Errors Will Be Reviewed on Appeal (No Fundamental Error Here)---"Fundamental Error" In this Context Briefly Defined


The First Department explained its review powers with respect to errors in a verdict sheet that were not preserved by objection:


The record reflects that the jury charge correctly advised that loss of enjoyment of life was a component of pain and suffering ... . Defendant argues that the verdict sheet was inconsistent with this instruction. However, defendant concedes that it failed to object to the verdict sheet. Thus, defendant failed to preserve the issue of the error in the verdict sheet for review by this Court ... .


Where a party fails to object to errors in a verdict sheet, the charge becomes the law applicable to the determination of the case, and on appeal, this Court will review only if the error was "fundamental" ... . We find that the alleged conflict between the jury charge and the verdict sheet was not fundamental since it did not confuse or create doubt as to the principle of law to be applied, or improperly shift fault, such that the "jury was prevented from fairly considering the issues at trial" ... . Grace v NYC Tr Auth, 2014 NY Slip Op 08362, 1st Dept 12-2-14





No Appeal Lies from an Ex Parte, Sua Sponte, Judgment/Order


In affirming the dismissal of an inmate's action seeking to challenge the computation of his sentence (dismissal was based upon the inmate's failure to comply with the service requirements in an order to show cause), the Third Department noted that no appeal lies from an ex parte order, including an order entered sua sponte.  Apparently the remedy is a motion to vacate pursuant to CPLR 5015:


...[T]here is "no right of appeal from an ex parte [judgment/order], including [one] entered sua sponte," such as Supreme Court's dismissal of the petition here ... . Under the circumstances presented here, we decline to treat the notice of appeal from that judgment as an application for leave to appeal (see CPLR 5701 [c]...). Petitioner sought renewal pursuant to CPLR 2221 and, while perhaps more properly viewed as one to vacate pursuant to CPLR 5015, the judgment denying that motion presents the salient issues for review. Matter of Martin v Annucci, 2014 NY Slip Op 08539, 3rd Dept 12-4-14






Appellant, Who Was Only Mentioned in the Complaint As the Holder of a Second Mortgage, Properly Appeared in the Action by Serving a Notice of Appearance Which Entitled Appellant to Be Kept Informed of the Progress of the Proceeding---There Is No Filing Requirement for a Notice of Appearance 


The Second Department explained that appellant properly appeared in the foreclosure action by the service of a notice of appearance because the complaint did not allege anything that appellant, who held a second mortgage, would be required to defend against.  Service of the notice of appearance, which did not need to be filed, entitled appellant to be kept informed of the progress of the action:


...[T]he appellant was not required to serve an answer where the complaint did not set forth any allegations that the appellant was required to defend against (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C320:1 at 130; 2—R320 Weinstein-Korn Miller, N.Y. Civ. Prac. ¶ 320.03). "A defendant who has no defense, and therefore serves no pleading, might nevertheless serve a notice of appearance so as to be kept apprised of the progress of the proceeding" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C320:1 at 130). Such was the situation here. The complaint contained no allegations about the appellant, except to state that he had a second mortgage on the property. Thus, the appellant properly proceeded by serving a notice of appearance only and was entitled to be kept apprised of the proceedings.


Contrary to the plaintiffs' further contention, the appellant was not required to file his notice of appearance with the Supreme Court. There is no statutory or other requirement that a notice of appearance, timely served upon a plaintiff, must also be filed with the clerk of the relevant court in order for a defendant to appear in the action ... . Tsionis v Eriora Corp, 2014 NY Slip Op 08421, 2nd Dept 12-3-14





There Is No "Imminent Litigation" Requirement for the Application of the "Common-Interest Privilege"---Documents Generated During Merger Negotiations Among Two Corporations and Their Counsel May, Therefore, Be Protected by the Privilege, Which Is an Exception to the Rule that the Presence of a Third Party at a Communication Between Counsel and Client Destroys the Privilege


The First Department, in a full-fledged opinion by Justice Moskowitz, determined that the "common-interest privilege" may apply to documents created during merger negotiations among two corporations and their counsel.  The court found there is no requirement that litigation be imminent for the application of the privilege.  The underlying lawsuit was brought by a financial-guaranty insurer (Ambac) which alleged it was fraudulently induced by Countrywide to insure residential mortgage backed securities. Ambac sought discovery of documents relating to a merger between Countrywide and Bank of America Corporation (the subject of secondary claims by Ambac) which, it was alleged, would demonstrate Bank of America Corporation was on notice about Countrywide's alleged fraud. The First Department held that the merger-related documents could be protected by the common-interest privilege and sent the matter back to the motion court to determine whether particular documents are protected:


As noted above, the common-interest privilege is an exception to the rule that the presence of a third party at a communication between counsel and client will render the communication non-confidential ... . The doctrine, a limited exception to waiver of the attorney-client privilege, requires that: (1) the communication qualify for protection under the attorney-client privilege, and (2) the communication be made for the purpose of furthering a legal interest or strategy common to the parties ... . This Court has never squarely decided whether there is a third requirement: that the communication must affect pending or reasonably anticipated litigation. We answer that question today in the negative. Ambac Assur Corp v Countrywide Home Loans Inc, 2014 NY Slip Op 08510, 1st Dept 12-4-14





Pleading Requirements for Piercing the Corporate Veil Described in Some Detail


The First Department determined questions of fact concerning whether the corporate veil should be pierced (alter-ego theory) had been raised.  The court explained the analytical criteria:


In order to state a claim for alter-ego liability plaintiff is generally required to allege "complete domination of the corporation [here PFLLC] in respect to the transaction attacked" and "that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury" ... . Because a decision to pierce the corporate veil in any given instance will necessarily depend on the attendant facts and equities, there are no definitive rules governing the varying circumstances when this power may be exercised ... .


If plaintiff prevails in proving that PFLLC owes it a debt ..., the further allegations in the complaint are sufficiently pleaded to support plaintiff's claim that defendant is an alter-ego of PFLLC. The complaint asserts that with respect to the transaction at issue, defendant dominated and controlled the negotiations on behalf of PFLLC and actually provided the erroneous information which persuaded plaintiff to enter into the agreement. The allegations ... sufficiently frame factual issues about whether defendant, as the parent company of PFLLC, commingled funds and disregarded corporate formalities ... .


In addition, the allegations that defendant, through its domination of PFLLC, misrepresented the value of the assets sold and then caused PFLLC to become judgment proof, are also sufficient to support claims that defendant perpetrated a wrong or injustice against plaintiff, thus warranting intervention by a court of equity ... . Wrongdoing in this context does not necessarily require allegations of actual fraud. While fraud certainly satisfies the wrongdoing requirement, other claims of inequity or malfeasance will also suffice ... . Allegations that corporate funds were purposefully diverted to make it judgment proof or that a corporation was dissolved without making appropriate reserves for contingent liabilities are sufficient to satisfy the pleading requirement of wrongdoing which is necessary to pierce the corporate veil on an alter-ego theory ... . Baby Phat Holding Co LLC v Kellwood Co, 2014 NY Slip Op 08364, 1st Dept 12-2-14




Trial Court Abused Its Discretion When It Disqualified Defense Counsel Over Defendant's Objection on Conflict of Interest Grounds---The Fact that a Co-Defendant Had Been Represented by Another Attorney from the New York County Defender Services (NYCDS) Did Not Create a Conflict for Defendant's NYCDS Attorney---Defendant's Attorney Did Not Have Access to Any Information Provided by the Co-Defendant (Who Had Already Pled Out)---Client Confidences Are Not Generally Shared by Attorneys Within a Large Institution Like the NYCDS, As They Might Be Within a Private Law Firm


The First Department, in a full-fledged opinion by Justice Kapnick, over a dissent, determined that the fact that a co-defendant (Stephens) had been represented by a New York County Defender Services (NYCDS) attorney did not create a conflict requiring the disqualification of defendant's trial attorney (Fisher), who also worked for the NYCDS.  The court noted that Fisher was not privy to any confidences of Stephens (who had pled out shortly after arraignment) and there was little danger attorneys within a large institution like the NYCDS would share their clients' confidential information.  Therefore Fisher could effectively cross-examine Stephens should he be called to testify (the People did not intend to call Stephens). The defendant did not want Fisher disqualified and was willing to waive any conflict:


As both the United States Supreme Court and the Court of Appeals have explained, the Sixth Amendment encompasses a right to select and be represented by one's preferred counsel. However, that right is not absolute ..., and it must be balanced with the right to effective assistance of counsel ... . Thus, trial courts are given "substantial latitude in refusing waivers of conflicts of interests not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses" ... . ...


Here ... defendant not only challenges the trial court's refusal to accept his waiver of the potential conflict of interest, but also questions whether there was even a potential conflict of interest, in the first instance, where Fisher, who is a staff attorney at an institutional defense organization, never personally represented Stephens. It is crucial to recognize that here, unlike in other right to counsel cases, the proper initial inquiry is not whether defendant's waiver should have been accepted, but whether there was even a conflict or potential conflict of interest to waive in the first place. The court need only reach the issue of whether the waiver was properly accepted or denied after it has been established that there was a conflict or potential conflict of interest to waive. I find that on this record, no conflict or potential conflict of interest existed. * * *


Here, defendant and Stephens were arrested in connection with the same incident, but Stephens's case was already concluded by the time of Fisher's disqualification and, again, there was no evidence or suggestion that information concerning Stephens was ever shared with Fisher. Indeed, Fisher acknowledged that he would be barred from viewing his office's file on Stephens or using the address on file to try to locate Stephens; similarly no other attorney would have had access to NYCDS's file either. Thus ... it cannot be said that the prior representation of Stephens by the same public defense organization created a potential conflict of interest. Although this Court is aware that the trial court's "discretion is especially broad" when balancing the right to counsel of a criminal defendant's choosing and the right to effective assistance of counsel free of conflicts ... , under the specific circumstances here, we find that the trial court abused its discretion in disqualifying defendant's counsel. People v Watson, 2014 NY Slip Op 08383, 1st Dept 12-2-14





Superior Court Information Jurisdictionally Defective---It Did Not Include Any Offense (or Any Lesser-Included) Which Was in the Original Felony Complaint


The Second Department determined the superior court information to which defendant pled guilty after waiving indictment was jurisdictionally defective because it did not include at least one offense that was in the original felony complaint (or a lesser-included offense):


The defendant was charged, by felony complaint, with criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), a class B felony. He waived indictment by a grand jury and pleaded guilty under a superior court information to attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1), a class C felony. As the defendant contends and the People correctly concede, the judgment of conviction must be reversed, the plea vacated, and the superior court information dismissed.


The single count in the superior court information was not an "offense for which the defendant [had been] held for action of a grand jury" (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint ... . Attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1) is not a lesser included offense of criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), because the former crime contains the element "with intent to sell" that is not an element of the latter crime (Penal Law § 220.16[1]; see CPL 1.20[37]...). Thus, it is clear that the superior court information upon which the defendant's plea was based did not "include at least one offense that was contained in the felony complaint" or a lesser-included offense of an offense charged in the felony complaint ..., and the superior court information was jurisdictionally defective ... . This defect survives the defendant's failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal ... . People v Nemnon, 2014 NY Slip Op 08460, 2nd Dept 12-3-14






Statute of Limitations Defense Waived If Not Raised in a Timely Motion to Dismiss


The Second Department noted that the statute of limitations defense to misdemeanors is waived if not raised in a timely motion to dismiss.  The misdemeanor convictions therefore are valid:


The defendant waived his claim that the two misdemeanor counts of which he was convicted were barred by the statute of limitations by not making a timely motion to dismiss on that ground ... . People v Sylvestre, 2014 NY Slip Op 08464, 2nd Dept 12-3-14





The Arresting Officer's Stepping in Front of the Appellant As the Appellant Walked Away Was Not a Seizure But Rather Was a Continuation of the Officer's Common-Law Right to Inquire


The Second Department determined the police officer who followed appellant as appellant walked away from him and then stepped in front of appellant acted properly.  Suppression of the handgun seized from appellant after a pat down search, therefore, was not required. The arresting officer responded to a call describing a disturbance at a restaurant.  The officer saw the appellant leave the restaurant and noticed a bulge in appellant's jacket pocket.  The officer then began following the appellant and eventually caught up to him (and stepped in front of him).  The court found that the officer's stepping in front of the appellant was not a seizure, but rather was a continuation of the officer's common-law right to inquire:


Contrary to the appellant's contention, the totality of the circumstances gave the officers a founded suspicion that criminal activity was afoot, which gave rise to the officers' common-law right to inquire ... . While the appellant is correct that, initially, he had a constitutional right " to be let alone' and to refuse to respond to police inquiry" ..., under the circumstances presented here, the arresting officer's conduct in following and stepping in front of the appellant in an attempt to engage him was a continuation of the officer's own common-law right to inquire, not a seizure ... . Hence, the conduct of the arresting officer in this regard was not improper.


Moreover, although the appellant continued to walk away from the arresting officer, the arresting officer kept pace with him, and ultimately approached him until they were only an arm's length away from each other. As such, it was proper for the officer to request that the appellant make his hands visible as a reasonable precautionary measure ... . Additionally, from this close proximity, the officer observed what appeared to be the outline of a firearm in the appellant's right jacket pocket, which appeared to be pointed at the officer, placing him in fear for his safety. The officer thus properly conducted a limited pat-down search to determine if the bulge was a weapon ... . Matter of Shariff H, 2014 NY Slip Op 08435, 2nd Dept 12-3-14





Gun Found In Juvenile's Shoe (After Juvenile Was Told to Remove His Shoes) Should Have Been Suppressed---Juvenile Could Not Be Arrested and Detained for a Violation (Disorderly Conduct Is Not a Crime) and Nothing More than a Frisk Is Justified During a Temporary Detention Pending the Arrival of a Juvenile's Parents


The Second Department, over a two-justice dissent, determined that the search of the 15-year-old appellant (Jamal) was illegal and the gun found in appellant's shoe should have been suppressed.  The appellant, who had already been searched twice, was being wrongfully detained on a disorderly conduct charge (a violation, not a crime) at the time he was told to take off his shoes:


CPL 140.10 permits a police officer to arrest a person for any "offense" that is committed in the officer's presence. The term "offense" is broadly defined to include conduct for which a sentence to a term of imprisonment or a fine is provided by state or local law (see Penal Law § 10.00 [1]). Family Court Act § 305.2(2), however, provides that "[a]n officer may take a child under the age of sixteen into custody without a warrant in cases in which he [or she] may arrest a person for a crime . . . ." The term "crime" includes only misdemeanors and felonies, not violations (see Penal Law § 10.00[6]). Accordingly, a search may be conducted where a juvenile is taken into custody for conduct which, if committed by an adult, would constitute a crime ... . As disorderly conduct is not a crime, Family Court Act § 305.2(2) prohibited Jamal's warrantless arrest for that offense ... . Based on this record, it is clear that upon learning that Jamal was a juvenile the police nonetheless kept him under arrest with no statutory authority for doing so. * * *


...[W]hen Jamal was being held pending his parents' arrival, he was under temporary detention as opposed to arrest. "A temporary detention justifies only a frisk, not a full-fledged search" ... . The removal of Jamal's shoes was far more intrusive than a frisk or a patdown ... . We find no merit to the presentment agency's argument that safety required the removal of Jamal's shoes. "The touchstone of the Fourth Amendment is reasonableness . . ." ... . Considerations of safety provide no justification in this case where Jamal was continuously in police custody and had been searched twice before being directed to remove his shoes. It is of no moment that Jamal was directed to remove his shoes pursuant to an alleged standard procedure. "[A]n unreasonable search is not somehow rendered reasonable, and therefore constitutionally permissible, by the mere fact that a departmental procedure was followed" ... . The standard of reasonableness still applies ... . We recognize that in appropriate cases law enforcement officers are authorized to employ reasonable measures to guard against detainees' self-infliction of harm. Such reasonable measures may include the removal of belts and shoelaces ... . Nonetheless, the removal of Jamal's shoes cannot be justified as a protective measure where, as noted above, he had been twice searched by police officers who had no reason to expect that he had "anything on him" or otherwise posed a danger. Matter of Jamal S, 2014 NY Slip Op 08470, 1st Dept 12-4-14





Grand Larceny 4th and Criminal Possession of Stolen Property 4th, as Those Statutes Relate to Credit/Debit Cards, Require the Theft and Possession of the Physical Card Itself, Not Merely the Unauthorized Use of the Credit/Debit Card Number---Other Offenses in the Penal Law Criminalize the Unauthorized Use of Credit/Debit Card Numbers


The Second Department, in a full-fledged opinion by Justice Balkin, determined that the crimes of grand larceny (4th degree) and criminal possession of stolen property (4th degree), as they relate to credit/debit cards, require the theft and possession of the physical card, not simply the use of the card number to make a purchase.  [The First Department recently reached the opposite conclusion.]  Here the juvenile (Luis) used his grandfather's debit card number to purchase sneakers.  The Second Department noted that there are provisions of the penal law which criminalize the unauthorized use of credit/debit card numbers (without physical possession of the card), but those crimes were not charged here:


...[G]iven the text of the provisions at issue, the context of the law and its development over the years, we agree with Luis and the Presentment Agency that "debit card" as used in Penal Law §§ 155.30(4) and 165.45(2) means the physical card, not the intangible account information associated with it. We also agree that, at bottom, this case involves errors made when the petition was drafted. Luis's acts undoubtedly violated provisions of the Penal Law, but not the provisions charged in the petition.


A person who appropriates account information is not immune from punishment. The legislature has enacted laws to protect account information, in addition to the laws relating to the cards themselves. Specifically, in chapter 619 of the Laws of 2002, the legislature amended or added sections to various statutes in order to address the problem of people who engage in identity theft or use other people's personal information without authorization. That legislation added the crimes of identity theft in the third, second, and first degrees (Penal Law §§ 190.78, 190.79, and 190.80), as well as unlawful possession of personal identification information in the third, second, and first degrees (Penal Law §§ 190.81, 190.82, and 190.83). Later, the legislature added "aggravated identity theft" (Penal Law § 190.80-a; see L 2008, ch 226, § 2). These provisions, similar to the provisions at issue in this case, make the criminal possession of account information a completed crime; no proof is required that the information was actually used.


One of the crimes added in 2002, unlawful possession of personal identification information in the third degree (Penal Law § 190.81), directly proscribes what Luis did in this case when he used his grandfather's debit card number, without permission, to buy sneakers * * *:


Thus, just as the legislature added credit cards to the penal provisions of the law when the use of credit cards became widespread, and added debit cards when the use of debit cards became widespread, it also added provisions related to the unauthorized possession of the intangible account information when technology demanded.


We also note that crimes relating to the theft or possession of cards or account information are distinct from the crimes committed when the cards or account information are subsequently misused; the subsequent misuse is an additional crime, distinct from the taking of the card or the obtaining of the numbers ... . Matter of Luis C, 2014 NY Slip Op 08428, 2nd Dept 12-3-14





Failure to Timely Raise a Late-Notice Defense to Coverage May Constitute a Waiver of the Defense


The First Department determined there existed a triable issue of fact whether the insurer of a gas plant operated by Long Island Light Company (LILCO) waived a late-notice-based disclaimer of coverage.  Under the common law, the failure to assert a known policy defense may constitute a waiver:


Waiver is the voluntary relinquishment of a known right and must be predicated upon knowledge of the facts upon which the existence of the right depends ... . The failure to assert a known policy defense may constitute a waiver ... . "Whether an insurer has waived the defense of late notice is ordinarily a question of fact, which is proved by evidence that the insurer intended to abandon that defense" ... .


The evidence supports an inference that defendants knew of facts supporting a late notice defense long before disclaiming coverage in their answers. Long Is Light Co v American Re-Insurance Co, 2014 NY Slip Op 08363, 1st Dept 12-2-14




Exclusion from Uninsured Motorist Coverage and Related Coverage Limitations In Policy Issued in Ohio Not Valid in New York


The Second Department, reversing Supreme Court, determined that the provision in a policy issued in Ohio to an Ohio resident which purported to exclude uninsured motorist coverage was invalid and unenforceable in New York:


The respondent, Robert Johnson, was involved in a motor vehicle accident in which the car he was driving collided with another vehicle that failed to stop at a stop sign. The car he was driving was owned by Johnson's sister, who lived in Ohio and was insured under a personal automobile liability policy issued in that state by the proposed additional respondent, State Farm Mutual Automobile Insurance Company (hereinafter State Farm). The policy contained an endorsement for uninsured motorist coverage, which provided for liability limits of $100,000 per person and $300,000 per accident, but excluded from the definition of an insured any person who is insured for uninsured motor vehicle coverage under another vehicle policy.


When Johnson eventually made a claim for uninsured motorist benefits under the State Farm policy, State Farm disclaimed coverage on the ground that, inasmuch as records showed that Johnson had uninsured motor vehicle coverage available through a policy issued to him by the petitioner Government Employees Insurance Company (hereinafter GEICO), he did not meet the definition of an insured for purposes of uninsured motor vehicle coverage under the State Farm policy. * * *


GEICO's counsel argued that the exclusion in the State Farm uninsured motorist endorsement is not valid in New York and, therefore, the State Farm policy should be deemed to have the full complement of coverage mandated by New York to make the State Farm coverage primary. ...


"[I]nsurance policies, like all contracts, should be enforced according to their terms unless they are prohibited by public policy, statute or rule" ... . "If an attempted exclusion is not permitted by law, the insurer's liability under the policy cannot be limited" ... . Here, the exclusion contained in the uninsured motorist coverage endorsement of State Farm's personal automobile liability policy is not permitted by law. "Insurance Law § 3420(f)(1) requires that every automobile insurance policy contain an uninsured motor vehicle endorsement. Neither that statute nor any regulations applicable to it mentions any exclusions" ... . Since the exclusion is "without the approval or protection of the law" ..., it should not be given effect ... .


Further, where, as here, the policy does not contain a term stating that coverage is limited to the statutory minimum, if such exclusion is found to be invalid, no such limitation will be read into the policy ... .  Consequently, State Farm's policy must be read as affording liability up to its full limits. Matter of Government Employees Ins Co v Johnson, 2014 NY Slip Op 08433, 2nd Dept 12-3-14




Criteria for an "Open and Obvious" Defense and an "Intervening or Superseding Cause" Defense Described---Effect of Plaintiff's Intoxication and Lack of Memory Re: the Accident Discussed 


The First Department determined a lawsuit stemming from plaintiff's fall from a roof into an unprotected airshaft could go forward.  The roof was accessed through an apartment window.  The Court of Appeals had reversed the First Department's dismissal of the action (on the ground the accident was not foreseeable).  On remand, the First Department addressed the defendant's arguments that the condition was open and obvious, that plaintiff's climbing onto the roof while intoxicated was the intervening, superseding or sole proximate cause of the accident, and the effect of the facts that no one witnessed the accident and plaintiff has no memory of it:


To establish an open and obvious condition, a defendant must prove that the hazard "could not reasonably be overlooked by anyone in the area whose eyes were open" ... . However, "even visible hazards do not necessarily qualify as open and obvious" because the "nature or location of some hazards, while they are technically visible, make them likely to be overlooked" ... . The burden is on the defendant to demonstrate, as a matter of law, that the condition that caused the plaintiff to sustain injury was readily observable by the plaintiff employing the reasonable use of his senses ... . Furthermore, "whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case" ... .


Viewing the evidence in the light most favorable to plaintiff, we find that a triable issue of fact exists whether the unguarded opening from the setback roof to the air shaft was an open and obvious condition that was not inherently dangerous. * * *


"An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant" ... . "[L]iability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" ... . To establish that a plaintiff's conduct was the sole proximate cause of his or her injuries, a defendant must show that the plaintiff engaged in reckless, unforeseeable or extraordinary conduct, i.e. that the plaintiff recognized the danger and chose to disregard it ... .


On the record before us, defendants have not established as a matter of law that plaintiff's act of walking out onto the setback roof was a superseding or intervening cause that severed the causal connection between his injuries and any negligence on their part. Plaintiff had never been to the building before the night in question, and defendants did not establish that plaintiff either knew, or should have known, that his conduct was dangerous, notwithstanding that he apparently fell during his second trip onto the setback roof. The fact that plaintiff was legally intoxicated does not alone render his actions a superseding cause ... .


Defendants argue that plaintiff cannot make out a case of proximate cause because the accident was unwitnessed, and plaintiff does not recall what happened, and thus there can be no showing that a parapet or railing would have prevented the accident. However, plaintiff need not exclude every possible cause of his fall other than the premises defects alleged ... . Regardless of whether plaintiff slipped, tripped, or fell, an issue of fact exists whether his fall down into the air shaft was, at least in part, attributable to the fact that the setback roof was open to the unguarded shaft. Powers v 31 E 31 LLC, 2014 NY Slip Op 08382, 1st Dept 12-2-14




Operative Principles Re: a Collision Where Plaintiff Has the Right-of-Way Explained


In finding that plaintiff was entitled to summary judgment, the Second Department explained the law surrounding a collision where plaintiff had the right-of-way:


A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws which require them to yield (see Vehicle and Traffic Law § 1141...). Since there can be more than one proximate cause of an accident, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative fault ... . "Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" ... . Smith v Omanes, 2014 NY Slip Op 08418, 2nd Dept 12-3-14





Question of Fact Whether Structure on a Sports Field (Pole Vault Box) Was Open and Obvious Such that No Protection or Warning Was Required for Pedestrians


The Second Department determined a question of fact had been raised about whether the school district had a duty to protect or warn pedestrians concerning a "pole vault box" on a sports field.  Plaintiff was injured when she tripped and fell over the box. Plaintiff thought she was using a walkway but she was on the pole vault runway:


To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it ... . A defendant has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous ... . The issue of whether a dangerous condition is open and obvious is fact specific, and thus usually a question for the jury ... . Whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances ... . A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted ... .


Here, the Supreme Court properly determined that the defendant submitted sufficient evidence to establish its prima facie entitlement to judgment as a matter of law on the ground that the pole vault box was not inherently dangerous and was readily observable to individuals employing the reasonable use of their senses ... .


In opposition, the plaintiffs raised a triable issue of fact as to whether the condition, while open and obvious, constituted a trap for the unwary. In this regard, the plaintiff submitted photographs of the pole vault area and the affidavit of the injured plaintiff, wherein she stated that she had never been to this area of the athletic fields of the high school before, believed she was walking on a walkway, and was speaking to her daughter trying to determine which field to go to ... . Julianne Oldham-Powers v Longwood Cent School Dist, 2014 NY Slip Op 08411, 2nd Dept 12-3-14





Wood Which Fell From a Shelf When Plaintiff Inadvertently Moved It Was the Condition for the Occurrence of the Event, But Not the Cause


In reversing Supreme Court, the Second Department determined the defendant school was entitled to summary judgment in a personal injury action brought by a student.  The student had been injured when he inadvertently caused wood stored on a shelf to fall on him.  The Second Department determined the wood on the shelf was the condition for occurrence of the event but not the cause:


"In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ... . "It is true that whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide" ... . "However, summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous" ... .


Here, the defendants established prima facie that there was no evidence of a dangerous or defective condition that caused the injured plaintiff's accident. The injured plaintiff testified at the General Municipal Law § 50-h hearing that he, in effect, inadvertently pushed the two two-by-four pieces of wood off the shelving unit with the stick. Under these circumstances, the presence of the two-by-fours resting atop the shelving unit "merely furnished the condition or occasion for the occurrence of the event," but was not one of its causes... . Rant v Locust Val High School, 2014 NY Slip Op 08415, 2nd Dept 12-3-14




"Expert" Affidavit  Did Not Address the Affiant's Qualifications for Rendering an Opinion Re: the Safety of a Curb and Sidewalk---Affidavit Should Not Have Been Relied Upon by the Motion Court


In finding that defendant's motion for summary judgment in a slip and fall case should have been denied, the Third Department noted that the expert affidavit should not have been relied upon by the motion court because it failed to include sufficient information to qualify the affiant as an expert:


Defendant ... submitted the affidavit of an alleged expert engineer who opined that the sidewalk and curb complied with all state and local building and fire codes and the sidewalk was in a good state of repair. A precondition to the admissibility of expert testimony is that the proposed expert is "possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" ... . Defendant's proffered expert affidavit does not include the information necessary to permit a court to reach such a determination. In his affidavit, defendant's proffered expert listed the initials "P.E." after his name, stated that he is a principal in a specific engineering firm, and stated his opinion based on his inspection, review of codes and his "experience as an engineer." While the "P.E." would indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did not explicitly state whether he is licensed in any particular state. He also did not mention anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical), or any experience he may have that would be relevant to the design and maintenance of curbs and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some or all of that information ... .


Even assuming from the "P.E." designation that this person is licensed as a professional engineer somewhere, merely stating that a person is a licensed engineer is insufficient to qualify that person as an expert in a particular case, absent any proof that he or she had any specialized training, personal knowledge or practical experience related to the subject at issue ... . Flanger v 2461 Elm Realty Corp, 2014 NY Slip Op 08532, 3rd Dept 12-4-14





Criteria for a Legal Malpractice Action Re: the Attorney's Performance In a Criminal Trial Explained---Here Plaintiff's Conviction Was Reversed and Plaintiff Made a Colorable Claim of Innocence


The Third Department determined a legal malpractice action brought by a client represented by the defendant-attorney in a criminal trial properly survived summary judgment.  The defendant's conviction had been overturned by the Third Department and he was not reprosecuted.  Deficiencies in defendant's representation were noted in the reversal-decision:


In a legal malpractice claim, proximate cause is established by demonstrating that "but for the attorney's negligence, [the plaintiff] would have prevailed in the underlying matter or would not have sustained any ascertainable damages"... . Stated differently, "[t]he test is whether a proper defense would have altered the result of the prior action" ... which, in the context of a criminal action, requires proof that the criminal defendant would not have been convicted ... . Further, "[f]or malpractice actions arising from allegations of negligent representation in a criminal matter, the plaintiff must have at least a colorable claim of actual innocence" ... . We find that a colorable claim has been demonstrated here based upon plaintiff's expressed assertions of innocence, together with our reversal of the judgment of conviction, as well as the District Attorney's decision not to reprosecute plaintiff and the consequent dismissal of the indictment ... . * * *


Contrary to defendant's argument, plaintiff has sufficiently alleged pecuniary damages ..., i.e., damages that "compensate the victim for the economic consequences of the injury" ... . Arnold v Devane, 2014 NY Slip Op 08534, 3rd Dept 12-4-14





Bicyclist Assumed Risk of Injury While Jumping His Bicycle Off a Dirt Mound on a Dirt Bike Trail In a Park


The Second Department determined plaintiff-bicyclist assumed the risk of injury while jumping his bicycle off a dirt mound on a dirt bike trail in a park:


Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting or recreational activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in and arise out of the nature of the activity ... . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation ... . "If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty" by making the conditions as safe as they appear to be ... . This includes risks associated with the construction of the playing surface and any open and obvious condition on it ... .


In support of their motion, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risk of his injuries by voluntarily jumping his bicycle from the subject dirt mound, and that the plaintiff was fully aware of the condition of the mound at the time of the accident, as he successfully jumped off the mound twice prior to the accident... . Mamati v City of New York Parks & Recreation, 2014 NY Slip Op 08406, 2nd Dept 12-3-14



Condition Which Resulted in Plaintiff's Injury Was Not the Cause of the Injury


The Second Department determined a personal injury action was properly dismissed because the condition which led to plaintiff's injury (a five-foot drop from the top of a retaining wall to the sidewalk) was not the cause of the accident.  Infant plaintiff lost control of her bicycle, left the path, and was injured when she went over the top of the retaining wall and fell to the sidewalk:


Although the issue of proximate cause is generally one for the finder of fact ..., "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" ... .


Here, the evidence submitted in support of the defendant's motion, which included a transcript of the deposition testimony of the infant plaintiff, demonstrated that the accident was proximately caused by the infant plaintiff's failure to control her bicycle and the failure of the bicycle's brakes ... . The retaining wall, which was erected a considerable distance from the portion of the paved pedestrian path from which the infant plaintiff deviated, merely furnished the condition or occasion for the infant plaintiff's accident, and was not one of its causes ... . Any alleged negligence in the design, maintenance, or management of the retaining wall did not proximately cause the subject accident ... . Rattray v City of New York, 2014 NY Slip Op 08416, 2nd Dept 12-3-14



Succinct Description of Principles of Governmental Function Immunity


The principles of governmental function immunity were succinctly stated by the Second Department:


Under the doctrine of governmental function immunity, " [g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general'" ... .


Here, the defendants Town of Clarkstown Police Department and Town of Clarkstown ... established their prima facie entitlement to judgment as a matter of law by demonstrating that the allegedly negligent acts of the police officers were discretionary and not ministerial ... . Rodriguez v Town of Clarkston Police Dept, 2014 NY Slip Op 08417, 2nd Dept 12-3-14





Where There Is a Surviving Partner and No Agreement to the Contrary, the Representative of a Deceased Partner Cannot Participate in the Winding Up of the Partnership and Has No Legal Right to the Partnership's Assets, Books, Records or Business


The Second Department noted that the power to wind up a partnership (here BDF) is held by the surviving partner (here 6D) and cannot be exercised by the representative of a deceased partner (here Mrs. Benedict):


Under Partnership Law § 68, "[u]nless otherwise agreed the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; provided, however, that any partner, his [or her] legal representative, or his [or her] assignee, upon cause shown, may obtain winding up by the court." Further, on the death of a partner, "his [or her] right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his [or her] right in such property vests in his [or her] legal representative" (Partnership Law § 51[2][d]...). The representative of a deceased partner is not entitled to participate in or interfere with the continuation of or winding up of partnership business by the surviving partner ... .


Based on this authority, the Supreme Court correctly determined that, upon Mrs. Benedict's death, 6D was the only entity with a legal right to wind up BDF's business affairs because 6D was the only surviving partner. Moreover, upon Mrs. Benedict's death, the estate had no legal right to BDF's assets, books, records, or business. Rather, all rights to such property vested immediately in 6D, which was the only entity authorized to wind up BDF's business.  Neilson v 6D Farm Corp, 2014 NY Slip Op 08409, 2nd Dept 12-3-14




The Public Administrators of Two Counties Claimed the Authority and Jurisdiction for Letters of Administration Re: the Estate of an Incapacitated Person---In Resolving the Dispute the Appellate Court Discussed the Authority of a Public Administrator As Well As Surrogate's Court's Jurisdiction and the Decedent's Domicile


The Second Department dealt with many issues which resulted from the public administrators in two counties applying for letters of administration re: the estate of an incapacitated person, a resident of Kings County who had moved from a nursing home in Kings County to a nursing home in Richmond County, where she died.  The administrator to whom the letters were issued first (Stein in Kings County) prevailed.  The court was asked to resolve many questions concerning a public administrator's authority, as well as questions concerning jurisdiction and domicile (not all of which are mentioned here):


Stein has exclusive authority to administer the decedent's estate pursuant to SCPA 704. That section provides, in part, that "[a] person who applies in good faith therefor, and to whom letters are first issued from a court having jurisdiction to issue them, has exclusive authority under the letters until they are revoked" (SCPA 704 [emphasis added]). Here, letters of administration were first issued to Stein by the Surrogate's Court, Kings County, and the record supports Stein's assertion that he had applied in "good faith" for letters of administration, without notice or knowledge of the petition filed in Richmond County (SCPA 704). Further, the Surrogate's Court, Kings County, did not lack jurisdiction to issue letters of administration to Stein. Since the decedent was a domiciliary of New York State at the time of her death, the Surrogate's Court, Kings County, possessed subject-matter jurisdiction over the decedent's estate (see SCPA 205 [1]).


...[T]he Surrogate's Court, Kings County, did not lack personal jurisdiction over certain alleged distributees of the decedent. Pursuant to SCPA 1003(2), "[e]very eligible person who has a right to administration prior or equal to that of the petitioner and who has not renounced must be served with process upon an application for letters of administration" (emphasis added). However, "[w]here the right of the applicant for letters of administration is superior to the right of other persons interested in the estate, process need not issue and letters will be granted upon a proper petition and due qualification" (1-13 NY Practice Guide: Probate & Estate Admin § 13.08; see Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA 1003 at 46-47). Further, SCPA 1001 mandates the issuance of letters of administration to the public administrator where the only known distributees of a decedent are "issue of grandparents, other than aunts or uncles, on only one side" (SCPA 1001[1][f][ii]). * * *


...[T]he county in which the decedent was domiciled at the time of her death is not determinative here. Since Stein had "exclusive authority" to administer the decedent's estate under the letters of administration issued by the Surrogate's Court, Kings County, "until they are revoked" (SCPA 704 [emphasis added]), improper venue would not be a valid ground for revocation of those letters of administration. "Since domicile is a waivable and nonjurisdictional concept, if a court mistakenly, without objection, exercises jurisdiction over the estate of a domiciliary of another county, its decree is not vulnerable to direct or collateral attack for lack of subject matter jurisdiction" (...1-2 Warren's Heaton on Surrogate's Court Practice § 2.12).


In any event, the Surrogate's Court, Kings County, correctly determined that the decedent was domiciled in Kings County at the time of her death. The Surrogate's Court Procedure Act defines domicile as "[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return" (SCPA 103[15]). " The determination of an individual's domicile is ordinarily based on conduct manifesting an intent to establish a permanent home with permanent associations in a given location'" ... . "The law is well settled that an existing domicile continues until a new one is acquired," and "[i]t is incumbent upon the party seeking to prove a change of domicile to demonstrate such a change by clear and convincing evidence" ... . "To meet this burden, the movant must establish the decedent's intention to effect a change of domicile from her [or his] acts, statements, and conduct" (id.), and " [t]he element of intent is essential'" ... . Thus, generally, "an incapacitated person's admission into a health-care facility does not cause a change of domicile if the incapacitated person is unable to express an intention to establish a new domicile" ... . Here, [the Richmond County public administrator] failed to meet his burden of demonstrating, by clear and convincing evidence, that the decedent changed her domicile from Kings County to Richmond County, inasmuch as the record reveals that the decedent lacked the capacity to express an intention to change her domicile ... . Further, the mere fact that [the guardian of decedent's person was] given the authority to choose the decedent's "place of abode," does not warrant the conclusion that [guardian] had any authority to change the decedent's domicile ... . Matter of Bonora, 2014 NY Slip Op 08425, 2nd Dept 12-3-14





Psychiatrist Deemed an Employee of a Counseling Center


The Third Department determined a psychiatrist was an employee of the New York Psychotherapy and Counseling Center (NYPCC) and was therefore entitled to unemployment insurance benefits:


"Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record" ... . Further, "[w]here, as here, medical professionals are involved, the pertinent inquiry is whether the purported employer exercised overall control over the work performed" ... .


Here, evidence was presented that NYPCC referred the patients to claimant and scheduled their initial appointments. NYPCC paid claimant an hourly wage for the time he treated the patients and NYPCC would bill the patients. Claimant was paid whether or not NYPCC was reimbursed by the patients or their health plans. Claimant worked in an office provided by NYPCC on NYPCC's premises — for which he only paid a nominal weekly fee of $9.87 — and would generate a treatment record that is accessed by NYPCC's doctors and staff. Matter of Lustgarten..., 2014 NY Slip Op 08538, 3rd Dept 12-4-14



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