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December Page II

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





Workers’ Compensation Board’s Finding Re: Extent of Disability Should Not Be Given Collateral-Estoppel Effect in Related Negligence Action


The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that collateral-estoppel effect should not be given to a finding by the Workers’ Compensation Board in a related negligence action.  Plaintiff, a delivery person, had been struck by a piece of plywood which fell from a building under construction in 2003.  The Workers’ Compensation Board found that plaintiff’s disability from the accident ceased as of January, 2006. In the related negligence action, the defendant sought to limit plaintiff’s proof of disability to the period prior to January, 2006.  The court held “that there is no identity of issue and that collateral estoppel therefore should not be applied:”


…[D]efendants have failed to meet their burden of establishing that the issue decided in the workers’ compensation proceeding was identical to that presented in this negligence action.  We have observed that the Workers’ Compensation Law “is the State’s most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties” … .  The purpose of awarding such benefits is to provide funds on an expedited basis that will function as a substitute for an injured employee’s wages … .  We have observed that the term "disability," as used in the Workers' Compensation Law, "generally refers to inability to work" … .  In addition, the Board uses the term "disability" in order to make classifications according to degree (total or partial) and duration (temporary or permanent) of an employee's injury … .  The focus of the act, plainly, is on a claimant's ability to perform the duties of his or her employment.


By contrast, a negligence action is much broader in scope.  It is intended to make an injured party whole for the enduring consequences of his or her injury -- including, as relevant here, lost income and future medical expenses. Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff's lifetime.  Although there is some degree of overlap between the issues being determined in the two proceedings, based on the scope and focus of each type of action, it cannot be said that the issues are identical. Auqui v Seven Thirty One Limited Partnership, 212, Ct App 12-10-13





Possession of a Controlled Substance May Be Proved Circumstantially/Permissible Inference that Possessors Know What They Possess


The Court of Appeals determined the accusatory instrument charging attempted criminal possession of a controlled substance was sufficient.  The police officer observed defendant drop a glass pipe which contained cocaine “residue.” The court noted that “possession of a controlled substance ‘may be proven circumstantially,’ and ‘possession suffices to permit the inference that possessors know what they possess.’ ”  People v Jennings, 256, Ct App 12-10-13






Hearing Required to Determine If Criminal Investigation of Defense Counsel Affected the Conduct of the Defense (Re: CPL 440.10 Motion to Vacate the Conviction)


The Court of Appeals determined defendant was entitled to a hearing on his motion to vacate his conviction.  Defendant’s attorney was the subject of a criminal investigation by the district attorney’s office during defendant’s trial.  The investigation of the attorney was not related to the charges against the defendant.  Therefore an automatic reversal was not required.  A hearing was necessary to determine if the conduct of the defense was affected by a conflict of interest (the district attorney’s investigation of defendant’s lawyer):


We reject defendant's request to require automatic reversal anytime the defense attorney is under investigation or being prosecuted by the same district attorney's office that is trying his client.  Indeed, in People v Konstantinides (14 NY3d 1, 13 [2009]), we declined to adopt such a per se rule in a case where a defense attorney was accused of criminal misconduct (witness tampering, bribery and suborning perjury) in relation to a witness in his client's case.  An actual conflict would exist where a defense attorney was implicated in the crimes for which his client stood trial, but that was not the situation in Konstantinides and is certainly not the case here.  Accordingly, to obtain relief, defendant must demonstrate at a hearing on his 440.10 application that "the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation" … .  People v Payton, 232, Ct App 12-12-13








No Preservation Required to Review Validity of Guilty Plea and Immediate Sentencing In Absence of the Waiver of the Rights to a Jury Trial, to Confront Witnesses and to Avoid Self-Incrimination


In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed two convictions because the defendant entered a guilty plea and was immediately sentenced without any discussion of the “Boykin” rights waived by the plea (trial by jury, confront accusers, avoid self-incrimination). The court determined that, under the facts, it was not possible or practical to preserve the error by motion:


…[I]n Lopez we carved out a narrow exception to the preservation requirement for the "rare case" in which "the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" (Lopez, 71 NY2d at 666).  We also recognized a limited exception in Louree, concluding that a defendant can raise a …claim on direct appeal because of "the actual or practical unavailability of either a motion to withdraw the plea" or a "motion to vacate the judgment of conviction" (Louree, 8 NY3d at 546; …).


Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant's claims as implicating rights of a constitutional dimension directed to the heart of the proceedings -- i.e., a mode of proceedings error for which preservation is not required -- defendant's Boykin claims are reviewable on direct appeal. People v Tyrell, 230, 231, Ct App 12-12-13






Resentencing to a Sentence Technically Different from the Sentence Agreed to in a Plea Bargain Okay—Resentence Comported With Defendant’s Reasonable Expectations


In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the defendant was properly resentenced even though the sentence imposed was technically different from the sentence agreed to in the plea bargain.  The defendant had agreed to a sentence of 25 years and five years for the two crimes, with the sentencing court retaining the option to sentence consecutively, which it did.  It turned out that the five-year sentence was illegal (it had to be a minimum of ten). The defendant was resentenced to the two crimes, but this time concurrently.  Effectively, therefore, the defendant’s original sentence was 30 years, but he was resentenced to 25:


"[A] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored" … .  "The choice rests in the discretion of the sentencing court" and "there is no indicated preference for one course over the other" … .


The sentencing court may have good reason to reject a defendant's request to withdraw his plea.  Where, as here, years have gone by since the original plea, it may be difficult for the People to locate witnesses, obtain their renewed cooperation and proceed to trial on the "then stale indictment[]" … .  Under these circumstances, allowing a defendant to withdraw his plea would give him "more than he was entitled" to under the bargain he struck … .  Thus, the People "can hold a defendant to an agreed sentence rather than allow vacation of the plea when it would otherwise be prejudiced" … .


Moreover, specific performance of a plea bargain does not foreclose "technical divergence from the precise terms of the plea agreement" so long as the defendant's reasonable expectations are met … .  * * *


Thus, if the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant's legitimate expectations.  Again, "the reasonable understanding and expectations of the parties, rather than technical distinctions in semantics, control the question of whether a particular sentence imposed violates a plea agreement"… .  People v Collier, 228, Ct App 12-12-13






Penal Law 70.85, Which Allows Resentencing without a Period of Post-Release Supervision to Remedy a Defective Sentence, Is Constitutional


In a full-fledged opinion by Judge Rivera, the Court of Appeals determined Penal Law 70.85 is constitutional.  Section 70.85 allows the resentencing of a defendant who was not informed about post-release supervision to a sentence that does not include post-release supervision.  The statute was enacted to provide a remedy, other than vacation of the guilty plea, when a plea was entered in the absence of an explanation of the post-release supervision part of the sentence:


By now it is well established that the State Constitution requires a trial court to ensure that a defendant has a "full understanding of what the plea connotes and its consequences" … .  A guilty plea made without notification from the court about the direct consequence of a PRS term violates the Constitution because it could not have been "a voluntary and intelligent choice among the alternative courses of action"… . * * *


Mindful of the constitutional rights at issue…, we find that section 70.85 is a constitutionally permissible legislative remedy for the defectiveness of the plea.  Defendant's plea was knowing and voluntary because the Legislature has changed the sentencing laws governing pleas vulnerable to …challenge.  Section 70.85 ensures that defendant, who is no longer subject to PRS, pleaded guilty with the requisite awareness of the direct consequences of his plea.  People v Pignataro, 213, Ct App 12-12-13





Defense Counsel Should Have Been Allowed to Refresh Witness’s Recollection With a Prior Statement/Conviction Reversed


In a full-fledged opinion by Judge Smith, the Court of Appeals reversed defendant’s conviction because the trial judge refused to permit defense counsel to refresh a witness’s recollection with the witness’s prior statement.  Defendant had the victim in a headlock during a fight. The victim subsequently died.  A central issue at trial was how long defendant held the victim in a headlock.  One witness (Flynn) gave a statement indicating the headlock lasted 6 to 10 seconds.  The People did not call her.  The defense called her and she testified the headlock could have lasted “a minute or so.”  Defense counsel then attempted to refresh her recollection with her prior statement.  The trial court didn’t allow it, saying the witness had “given no indication she needs her memory refreshed:”


When a witness, describing an incident more than a year in the past, says that it "could have" lasted "a minute or so," and adds "I don't know," the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the "a minute or so" testimony -testimony damaging to the defense, from a defense witness's own lips -- while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was "an effort to impeach your own witness," but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness's recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant's right to a fair trial (Chambers v Mississippi, 410 US 284 [1973]). People v Oddone, 236, Ct App 12-12-13





“Evidentiary Fact” Resolved In Favor of Defendant by a Jury In the First Trial May Not Be Contradicted by Evidence Presented in the Second Trial


In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined the doctrine of collateral estoppel prohibited the introduction of evidence a firearm was displayed in the course of a robbery.  In the first trial, the defendant was acquitted of First Degree Robbery (which requires display of a firearm) and convicted of Second Degree Robbery (display of a weapon is not an element of Second Degree Robbery). The conviction was reversed on appeal.  In the second trial (for Second Degree Robbery only), the People presented evidence a weapon was displayed.  The court found the People were collaterally estopped from presenting evidence of the display of a weapon in the second trial:


This case is controlled by our holding in People v Acevedo (69 NY2d 478, 480 [1987]) that "the doctrine of collateral estoppel can be applied to issues of 'evidentiary' fact."  As we explained in Acevedo, in the analysis of collateral estoppel issues, facts essential to the second judgment are considered "ultimate" facts; other facts are only "evidentiary" (id. at 480 n 1).  Under Acevedo, when an issue of evidentiary fact has been resolved in a defendant's favor by a jury, the People may not, at a later trial, present evidence that contradicts the first jury's finding.  People v O’Toole, 233, Ct App 12-10-13





Language of Collective Bargaining Agreements Entitled Retirees to the Same Health Benefits As Were In Effect at the Time of Retirement


In a full-fledged opinion by Judge Lippman, the Court of Appeals determined the language used in successive collective bargaining agreements established a vested right to a continuation of the same health coverage in effect at the time of an employee’s retirement:


We hold that the contracts establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.  However, because issues of fact remain as to the intended scope of plaintiffs' right, remittal for further factual development is required to determine whether the challenged increases in co-pays for prescription drugs amount to a breach of contract. Kolbe… v Tibbetts…, 235, Ct App 12-12-13





Determination Town Justice Should Be Removed from Office Sustained


The Court of Appeals, over a dissent, sustained the State Commission on Judicial Conduct’s finding of misconduct and the determination the non-lawyer town court justice should be removed from office. The essence of the alleged misconduct was that the judge presided over matters involving his friends and relatives without disclosing the relationships. With respect to the judge’s presiding over a traffic-ticket proceeding (seatbelt violation) against a long-time friend and business associate (Johnson), the court wrote:


Although the charge against Johnson was relatively minor, petitioner's decision to hear a case involving a friend and former employer without even disclosing the existence of the personal relationship to the District Attorney was, under the circumstances presented here, no small matter.  The Rules Governing Judicial Conduct direct that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned" (22 NYCRR § 100.3[E][1]).  A judge's perception of the nature or seriousness of the subject matter of the litigation has no bearing on the duty to recuse or disclose a relationship with a litigant or attorney when necessary to avoid the appearance of bias or favoritism.  Indeed, although petitioner denies giving Johnson preferential treatment, he does not defend his decision to sit on the case and acknowledges in his brief that he made the "wrong choice."  Matter of George, 249, Ct App 12-10-13





Subpoena Which Could Result In Compelling a New York Reporter to Reveal Her Sources in an Out-of-State Proceeding Should Not Have Been Issued by a New York Court


In a full-fledged opinion by Judge Graffeo, with three dissenting judges, the Court of Appeals reversed the Appellate Division and held that a New York reporter (Winter) could not be subpoenaed to testify in Colorado.  Under Colorado law, it was likely the reporter would have been compelled to reveal her sources for a story about a notebook provided by James Holmes to his psychiatrist.  Holmes was the shooter in a mass shooting in a movie theater in Aurora, Colorado, during a midnight showing of a “Batman” movie.  The court determined that the public policy underlying New York’s Shield Law would be violated if the subpoena were issued and, therefore, issuance of the subpoena was prohibited:


…New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news -- and their confidential sources -- that has been recognized as the strongest in the nation.  And safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York's journalistic privilege, as is evident from our colonial tradition, the constitutional text and the legislative history of the Shield Law.  * * *


It is therefore evident based on the New York Constitution, the Shield Law and our precedent that a New York court could not compel Winter to reveal the identity of the sources that supplied information to her in relation to her online news article about Holmes' notebook.  Holmes does not argue otherwise but relies on our decision in Matter of Codey (Capital Cities, Am. Broadcasting Corp.) (supra, 82 NY2d 521) for the proposition that, when New York functions as the "sending state" in relation to a CPL 640.10(2) application, issues concerning testimonial privilege -- including the applicability of the absolute privilege afforded by the Shield Law -- simply cannot be considered by a New York court.  …


CPL 640.10(2) is New York's codification of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, which has been adopted by all 50 states. * * *


We … conclude that an order from a New York court directing a reporter to appear in another state where, as here, there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy -- a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world.  Matter of Holmes v Winter, 245, Ct App 12-10-13





Purported Lack of Standing Is Not a Jurisdictional Defect/Sua Sponte Dismissal of Complaint Reversed


In reversing Supreme Court, the Second Department noted that a court’s power to dismiss a complaint sua sponte should rarely be used and further noted that a purported lack of standing is not a jurisdictional defect warranting sua sponte dismissal:


The Supreme Court improvidently exercised its discretion in, sua sponte, directing the dismissal of the complaint. " A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'" … . Here, there were no extraordinary circumstances warranting sua sponte dismissal of the complaint. Moreover, the defendants, having failed to answer the complaint or make pre-answer motions to dismiss the complaint, waived the defense of lack of standing … . "Furthermore, a party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court"… .  Onewest Bank FSB v Fernandez, 2013 NY Slip Op 08233, 2nd Dept 12-11-13





Defendant Understood the Reference to the “Appellate Division” Was a Reference to a Higher Court---Waiver of Appeal Was Therefore Valid


The Second Department, over a dissent, determined that the defendant’s waiver of appeal was knowingly, voluntarily and intelligently made.  The defendant was asked by the prosecutor if he understood he was waiving the right to appeal his conviction and sentence to “the Appellate Division, Second Department.”  Because the defendant was 27 years old, had prior contact with the criminal justice system, had filed a notice of appeal pro se, and had requested appellate counsel, the court concluded the defendant understood the reference to the “appellate division” was a reference to a higher court. People v Sanders, 2013 NY Slip Op 08276, 2nd Dept 12-11-13





Witness’s Hearsay Statement Should Have Been Admitted as a Statement Against Penal Interest/No Need for Declarant to Be Aware of Specific Violation of Law


In a full-fledged opinion by Justice Acosta, over a dissent, the First Department determined a (hearsay) statement by a witness indicating she (not the defendant) was driving when the property-damage accident occurred should have been admitted as a statement against penal interest.  The central question was whether the declarant was aware she was admitting to a violation of law when the statement was made:


The decision whether to admit a declaration against penal interest as an exception to the hearsay rule requires, among other factors, that the declarant be aware at the time of its making that the statement was contrary to his or her penal interest. The issue in this case is whether a statement in which an individual admits to conduct constituting an offense is a statement against penal interest, where the individual believes that the conduct may be illegal but does not know whether it is or not. It arose in the context of a DWI case where the defense was that defendant, who was intoxicated, was not the driver of the car, but a passenger. Specifically, the driver, a 19-year-old woman with no prior criminal history and only a learner's permit, who met defendant approximately eight hours earlier, made a statement to a defense investigator indicating that she, and not defendant, was driving defendant's car at the time it collided with a parked car, but refused to testify at trial on Fifth Amendment grounds. We find that the statement was a declaration against penal interest notwithstanding that some of the witness's apprehension in making the statement was based on her fear that her parents would learn of her involvement with defendant or that, as the court noted, her exposure to criminal liability was relatively minor. The court therefore erred in keeping the statement out. * * *


…[W]e hold that regardless of whether [the witness] was specifically aware that the conduct she admitted constituted a violation of Vehicle and Traffic Law § 600, which prohibits an operator of a motor vehicle who causes property damage from leaving the scene, or whether she was specifically aware that she faced a penalty of up to 15 days' imprisonment and a fine for that offense, the evidence established that her statement satisfied this hearsay exception. Her expressions, at the time of or immediately after her statement, of apprehension that she could get in trouble for her conduct, including repeated inquiries about consulting with a lawyer, sufficed to satisfy the requirement that "the declarant must be aware at the time of its making that the statement was contrary to his [or her] penal interest"… . People v Soto, 2013 NY Slip Op 08217, 1st Dept 12-10-13





Tenured Teacher Can Not Be Compelled to Testify In a Proceeding Where Such Testimony Would Be Admissible in a Subsequent Department-of-Education Disciplinary Proceeding


In a full-fledged opinion by Justice Freedman, the First Department determined a tenured teacher could not be compelled to testify in the New York City School District’s “Special Commission of Investigation” (SCI) proceeding.  The testimony would be admissible in a Department of Education (DOE) disciplinary hearing.  Education Law 3020(1) and 3020-a provides that tenured employees shall not be required to testify at any disciplinary hearing:


Based on the above cited Education Law provisions, the Third Department has held that requiring testimony of a tenured teacher in an SCI proceeding conflicted with Education Law § 3020-a because testimony or evidence obtained at such a hearing would be admissible in a DOE disciplinary hearing. That court said, "no local legislative body is empowered to enact laws or regulations which supersede State statutes, particularly with regard to the maintenance, support or administration of the educational system'" … . * * *


Accordingly, the judgment of the Supreme Court …which … denied the petition to compel respondent to comply with a subpoena ad testificandum and dismissed the proceeding … should be affirmed…  .  Matter of Condon v Sabater, 2013 NY Slip Op 08368, 1st Dept 12-12-13





Petitioners’ Properties Not Close Enough to Proposed Development to Confer Standing to Allege Violations of the State Environmental Quality Review Act (SEQRA)


The Second Department determined petitioners did not have standing to bring an action alleging violations of the State Environmental Quality Review Act (SEQRA) because petitioners’ properties were not sufficiently close to the location of the development project:


To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA … . An injury in fact may be inferred from a showing of close proximity of the petitioner's property to the proposed development … . Generally, the relevant distance is the distance between the petitioner's property and the actual structure or development itself, not the distance between the petitioner's property and the property line of the site … . Here, the individual petitioners' properties were not located in sufficient proximity to the proposed development to give rise to standing … . Matter of Tuxedo Land Trust Inc v Town Bd of Town of Tuxedo, 2013 NY Slip Op 08255, 2nd Dept 12-11-13





Court Erred In Applying the “15% Increase in Income” Criteria for Support Modification to an Order Which Predated the 2010 Effective Date of the “15% Increase” Statutory Amendment/the 2008 Order Was Incorporated But Not Merged Into a 2012 Judgment


The Third Department determined Family Court erred in modifying child support based upon the father’s income having increased by 15%.  The 2008 child support order at issue pre-dated the 2010 effective date of the “15% increase” statutory amendment and the order was not merged with the 2012 judgment of divorce:


Family Court erred in finding that child support should be modified based on a 15% change in the father's income.  Family Ct Act § 451 (2) (b) (ii) allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party's gross income has changed by 15% or more since the order was entered or modified.  When that provision was added to the statute through a 2010 amendment, however, the Legislature provided that "if the child support order incorporated without merging a valid agreement or stipulation of the parties, the amendments [to section 451] shall only apply if the incorporated agreement or stipulation was executed on or after [October 13, 2010]" (L 2010, ch 182, § 13).  The 2008 order was based upon the parties' agreement, incorporated into the 2012 judgment of divorce and entered prior to the effective date of the statute's 2010 amendments.  Accordingly, the amendments did not apply to a modification of this order, and Family Court should not have relied on the father's 15% increase in income as the basis for modification.


For agreements executed prior to the effective date of the amendments to Family Ct Act § 451, the standard for modifying an order based on the parties' agreement is whether the petitioning party has demonstrated "an unanticipated and unreasonable change in circumstances" or that the children's needs are not being met … .  The mother's generalized testimony that the costs of food, health care and clothing for the children had increased, as had the father's income, was insufficient to meet her burden under that standard … .  Matter of Zibell v Zibell, 516324, 3rd Dept 12-12-13





Service Upon Opposing Party of Objections to Support Magistrate’s Order Is a Condition Precedent to Consideration of the Objections and Appellate Review


Failure to properly serve opposing party with objections to Support Magistrate’s order precludes a consideration of the merits of the objections and appellate review:


Family Court Act § 439 provides, in pertinent part, that "[a] party filing objections shall serve a copy of such objections upon the opposing party," and that "[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal." Here, given the mother's evidence that she did not live at the address to which the father had mailed the objections, coupled with the father's conceded failure to mail the objections to the correct address, and where "no rebuttal to the objections had been filed by the mother" … ,"the father failed to fulfill a condition precedent to filing timely written objections to the Support Magistrate's order and, thus, failed to exhaust the Family Court procedure for review of [his] objections" … . Consequently, "the Family Court lacked jurisdiction to consider the merits of the objections, and the father waived his right to appellate review" … . Matter of Hamilton v Hamilton, 2013 NY Slip Op 08246, 2nd Dept 12-11-13





Numerous Core Issues Discussed in Complicated Case Stemming from Mold in a Complex of Apartments Which Necessitated Termination of All the Leases


In perhaps the most complicated decision this writer has ever read, the Second Department reversed many of Supreme Court’s rulings and sorted out the defense and indemnification responsibilities for an astounding array of insurance companies.  The lawsuits arose from the intrusion of water and mold into a complex of rental apartments causing the termination of all the leases. The general contractor and a large number of subcontractors all had insurance policies issued by many different companies. Among the issues addressed: (1) “[C]ontract language that merely requires the purchase of insurance will not be read as also requiring that a contracting party be named as an additional insured”…; (2) Whether damage from water intrusion and mold is an “occurrence” within the meaning of the policy-language; (3) Whether the law of the insured’s domicile should apply; (4) The use of extrinsic evidence to determine an insurer’s duty to defend; and (5) Disclaimer based upon late notice.  QBE Ins Corp v Adjo Contr Corp, 2013 NY Slip Op 08238, 2nd Dept 12-11-13





Cutting Trees to Expand a Parking Lot Not a Covered Activity Under Labor Law 240 (1)


The Third Department determined defendant was entitled to summary judgment dismissing the Labor Law 240 (1) cause of action.  Plaintiff was injured while cutting trees to expand a parking lot:


In order to recover under Labor Law § 240 (1), plaintiff is obliged to show that he was injured in the course of "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (emphasis added).  A tree is a naturally occurring object that is "clearly not a 'building' or a 'structure' within" the meaning of the statute … .  Plaintiff argues that he is nevertheless entitled to recover under Labor Law § 240 (1) because he was employed in "duties ancillary to" work encompassed by the statute, namely, the expansion of the parking lot … .  His argument is unavailing for the simple reason that construction work, as here, involving only a parking area or highway and nothing more, "does not constitute work on a [building or] structure for purposes of Labor Law § 240 (1)"… . Juett v Lucente…, 517075, 3rd Dept 12-12-13





Garagekeeper’s Lien Ineffective Against Owner of Leased Vehicle/Lessee Did Not Have Apparent Authority to Consent to Vehicle Repair and Storage on Owner’s Behalf


A leased vehicle was damaged by hail and the lessee brought the car to respondent’s garage for repairs.  When no one picked up the car or paid for the repairs, the garage served a garagekeeper’s lien on the owner (lessor) of the vehicle.  The Third Department determined the lien was not effective against the owner, who never consented to the repairs or storage of the vehicle, and the lessee did not have apparent authority to consent on the owner’s behalf:


Supreme Court properly held that respondent failed to establish the validity of its garagekeeper's lien.  A garage owner is entitled to such a lien if he or she establishes that the garage is duly registered as a repair shop as required by statute, is the bailee of a motor vehicle, performed garage services or storage with the vehicle owner's consent, and the parties had agreed upon a price or – absent such agreement – the charges were reasonable … .  The dispositive issue here is whether respondent provided repair services and storage with the owner's consent.  It is undisputed that respondent never had any communication with petitioner, the title owner, until well after the repairs were performed.  …


While a lessee may be considered an owner for purposes of Lien Law § 184 if he or she has apparent authority …, "[a]pparent authority will only be found where words or conduct of the principal – not the agent – are communicated to a third party, which give rise to a reasonable belief and appearance that the agent possesses authority to enter into the specific transaction at issue" … .  Respondent does not indicate that it undertook any steps to determine the scope of the [lessee’s]  authority… .  Petitioner's actions in allowing [lessee] to register the vehicle in New Jersey and … to obtain insurance on the vehicle do not constitute permission to enter into a transaction that would allow a lien to attach to the vehicle.  Respondent does not point to any other words or actions of petitioner…that could create a reasonable belief that [the lessee] had authority to enter into a transaction as an owner, so as to permit the creation of a garagekeeper's lien.  Matter of Daimler Trust…v SG Autobody LLC, 516792, 3rd Dept 12-12-13







Itemization of Mechanic’s Lien Not Necessary/Contract Adequately Apprised Owner of Lienor’s Claim


The Third Department determined that plaintiff was not required to provide an itemized list of labor and materials to substantiate its claim under the Lien Law (mechanic’s lien).  The lienor need only supply an itemized list when itemization is necessary to apprise the owner of the details of the lienor’s claim.  Here there was a construction contract which plaintiff alleged was performed in full. Itemization would therefore be “superfluous:”


Lien Law § 38 states that a lienor "shall, on demand in writing, deliver to the owner or contractor making such demand a statement in writing which shall set forth the items of labor and/or material and the value thereof which make up the amount for which he [or she] claims a lien, and which shall also set forth the terms of the contract under which such items were furnished."  While that language "appears to confer an unrestricted right to an itemization of labor and materials, such is not the case" … .  Itemization is instead required only when it is necessary "to apprise the owner of the details of the lienor's claim" … .


Turning to the case at hand, plaintiff asserts that it performed the 2011 construction contract in full, and its claim with regard to that contract "is based on an express contract for a specific sum" … .  Defendants do not dispute that they were fully aware of the terms of that contract and, indeed, they attached a copy of the written contract to their answer. Associated Building Services Inc v Pentecostal Faith Church, 516897, 3rd Dept 12-12-13





Foreclosure On Both Junior and Senior Mortgages May Result in Unjust Enrichment If the Two Obligations Amount to More than the Fair Market Value


The Third Department explained the “unjust enrichment” issues raised when a party holds two mortgages on the same property, forecloses on the junior mortgage, purchases the property at the foreclosure sale, and then sues on the senior mortgage:


Where, as here, a holder of two mortgages forecloses on the junior mortgage and purchases the property, the question of whether the senior obligation is recoverable is a matter of equity dependent upon the facts and circumstances of the case (see Restatement [Third] of Property § 8.5, Comment c [2]…).  When the sale price and the outstanding amount owed on the senior obligation together equal the fair market value of the property, the land is considered to satisfy the debt.  In that case, equity will prevent the mortgagee from suing on the senior obligation and thus receiving a windfall (see Restatement [Third] of Property § 8.5, Comment c [2]…).


If, however, the fair market value of the property is less than the sum of the two obligations, "the mortgagor would be unjustly enriched if the mortgagee is prevented from recovering on the senior obligation" (Restatement [Third] of Property § 8.5, Comment c [2]).  In such a situation "the mortgagee may recover on the senior obligation only the amount by which the sum of the junior and senior obligations exceed the fair market value of the land" (Restatement [Third] of Property § 8.5, Comment c [2]). Here, neither party submitted proof as to the fair market value of the property, and Supreme Court thus had no basis to determine the amount recoverable on the senior note.  We remit for that purpose.  TD Bank NA… v Dunbar Tower LLC, 516770, 3rd Dept 12-12-13







Proof of Value of Property For Purposes of Entering a Deficiency Judgment Not Sufficient


The Second Department determined that the mortgage lender failed to submit adequate proof of the value of the property for purposes of entering a deficiency judgment:


RPAPL 1371(2) permits a mortgage lender to enter a deficiency judgment for the amount owed "less the market value as determined by the court or the sale price of the property whichever shall be the higher." "The mortgagee has the initial burden to make a prima facie showing of the fair market value of the property as of the foreclosure sale date" … . An affidavit by a "licensed real estate appraiser setting forth his [or her] opinion as to the fair market value of the premises on the date of the foreclosure sale, and stating in conclusory fashion that his [or her] opinion was based upon his [or her] personal inspection of the subject premises, examination of the neighborhood, a review of sales and rentals of comparable properties, and general economic trends and expenses data," without describing the subject premises or appending evidence of comparable sales and market date, is not sufficient … . In the instant case, the plaintiff relied upon such a conclusory affidavit, two exterior photographs of the front and side of the subject premises, and information purportedly indicating the average sale price of properties in the relevant zip code area, without explaining how those average prices related to the appraiser's conclusion that the fair market value of the subject property on the date of the foreclosure sale was $550,000. The plaintiff's submission was, thus, insufficient to meet its burden of establishing that it was entitled to a deficiency judgment. Eastern Sav Bank FSB v Brown, 2013 NY Slip Op 08228, 2nd Dept 12-11-13





Under the Facts, a Stairwell Partially Covered by a Piece of Wood Was Not an Unreasonably Dangerous Condition


The Second Department determined that a stairwell leading to the basement of defendant’s restaurant, which was partially covered by a piece of wood, did not constitute an unreasonably dangerous condition.  Plaintiff fell down the stairwell after leaving a nearby bar by the back door and climbing over a fence:


A landowner has a duty to maintain his or her premises in a reasonably safe condition to prevent foreseeable injuries … . The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk … . "Absent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required to illuminate their property during all hours of darkness'”… .


[Defendant] submitted evidence demonstrating that it was not aware of any other prior similar incidents or injuries on its premises and that there was no access between the rear of its premises and the rear portions of the stores situated to the west of it, which included the subject bar. Additionally, [defendant’s] submissions demonstrated that the restaurant was closed at the time of the incident, that the back door of the restaurant was locked, and that none of [defendant’s] employees was at the premises. Thus, [defendant] established, prima facie, that under the circumstances of this case, the basement stairwell partially covered by a piece of wood did not constitute an unreasonably dangerous condition … . In opposition, the plaintiff failed to raise a triable issue of fact. Assefa v Bam, 2013 NY Slip Op 08220, 2nd Dept 12-11-13








Snow Removal Contractor May Be Liable to Plaintiff in Slip and Fall Action/Question of Fact Whether Failure to Use Low-Temperature Salt Created a Dangerous Condition


The Third Department determined there was a question of fact whether a contractor hired to clear snow and ice created a dangerous condition by not using salt designed for low temperatures:


While a snow removal contractor is generally not liable to injured persons who were not parties to the contract …, plaintiffs argue the recognized exception that extends a duty to noncontracting third parties where the contractor fails to exercise reasonable care in the performance of duties such that he or she "'launche[s] a force or instrument of harm'" … . 


In opposition to the motion for summary judgment, plaintiffs submitted affidavits from experts who opined that, among other things, [defendant’s] application of plain, untreated rock salt to the parking lot on the morning in question was negligent because temperatures, which were below 20 degrees Fahrenheit, were too cold for plain rock salt to be effective.  According to plaintiffs' experts, by using untreated salt instead of treated, low temperature salt, [defendant] caused snow shoveled from the sidewalk to the parking lot … to melt and then quickly refreeze, creating a layer of ice beneath the snow. There is no dispute that [defendant] had the option of using untreated or treated salt pursuant to the contract and that he had both kinds available.  There was also evidence that [defendant] was aware that snow would be shoveled from the sidewalk onto the parking lot, and [a witness] testified that he had observed salt in the area where plaintiff fell.  This evidence sufficiently raises a question of fact as to whether [defendant] "'negligently create[d] or exacerbate[d] a dangerous condition'" by using untreated salt, resulting in the formation of the ice on which plaintiff allegedly slipped… .  Belmonte v Guilderland Associates LLC…, 516830, 3rd Dept 12-12-13





Question of Fact About Resort Owner’s Duty to Maintain Walkways in Winter Despite Claim the Resort Was Closed in the Winter Months


The Third Department determined the claim that a resort was closed in the winter did not relieve the property owner from the duty to maintain the walkways during the winter months.  Plaintiff slipped and fell on a snow-covered walkway.  Condominiums at the resort were accessible year-round:


…[I]t is well settled that "a landowner has a duty to exercise reasonable care in maintaining his [or her] own property in a reasonably safe condition under the circumstances" … .  The nature and scope of a landowner's duty and the persons to whom such duty is owed are determined by consideration of, among other things, "the likelihood of injury to another from a dangerous condition on the property, . . . the burden of avoiding the risk [as well as] the foreseeability of a potential plaintiff's presence on the property" … .  "Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally" … .


In order to satisfy its burden on summary judgment, defendant was required to present evidence conclusively establishing that its duty to use reasonable care did not extend to plaintiff.  We reject defendant's argument that it was not required to maintain the walkway on which plaintiff fell because the resort was closed to the public during the winter months.  It is undisputed that there was no gate or other apparatus blocking the public's access to the resort and, apart from a sign posted on the main hotel door, there was no notice that either the resort property resort, generally, or the subject walkway, in particular, was closed to the public at the time of plaintiff's accident. Significantly, the condominiums located on the resort property were accessible year-round, with no limitation on visitors.  It is also uncontroverted that defendant did not inspect the walkway in question.  In our view, defendant failed to establish as a matter of law that plaintiff's use of the path was not reasonably foreseeable… . Drake v Sagbolt LLC, 516967, 3rd Dept 12-12-13





Defaulting Defendant Forfeits the Right to Discovery Re: Inquest on Damages


The Second Department determined that a defaulting defendant could not compel plaintiff to submit to an independent medical examination:


Although " a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damages,' a defendant forfeits the right to discovery by defaulting in answering the complaint" … . Contrary to the Supreme Court's determination, the defendant was not entitled to any further discovery, since its right to discovery was forfeited by its default in answering the complaint .. . Accordingly, the Supreme Court erred in denying the plaintiff's cross motion for a protective order and directing him to submit to an independent medical examination. Kolonlowski v Daily News LP, 2013 NY Slip Op 08230, 2nd Dept 12-11-13





Uncovered Baseboard Radiator May Constitute an Unsafe Condition Created by Landlord


The First Department determined there were questions of fact about whether the landlord assumed a duty to cover a baseboard heating unit, whether the landlord created an unsafe condition by removing the baseboard heating unit’s cover, and whether the uncovered unit needed repairs or was defective.  The infant plaintiff, who suffers from mental retardation and cerebral palsy, was burned when her face and hand was in contact with an uncovered baseboard radiator for an unknown period of time.  Nina W v NDI King Ltd Partnership, 2013 NY Slip Op 08202, 1st Dept 12-10-13





Cy Pres Doctrine Properly Applied to Distribute Gifts to the Hospital Which Had Taken Over the Duties of the Named Hospital


The Third Department determined Surrogate’s Court had properly exercised its cy pres power by distributing decedents’ charitable gifts to a hospital (Ellis Hospital) which had taken over the duties of the named hospital (St. Clare’s Hospital):


The relevant gifts were all undisputedly charitable in nature and, for cy pres relief, it was further necessary that the instruments establishing the gifts revealed a general charitable intent and that circumstances had changed rendering impracticable or impossible strict compliance with the terms of the gift instruments … .  * * * Here, the gift instruments, in which the donors also made various other charitable dispositions, revealed a general charitable intent.  With regard to the gifts in question, the intent was to benefit a hospital.  At the time the pertinent gift instruments were executed, St. Clare's Hospital operated as a hospital and gifts to the Foundation went exclusively to St. Clare's Hospital.  The stipulated facts reveal that the Foundation has stopped providing any charitable grants.  Its previous sole beneficiary, St. Clare's Hospital, ceased operating as a hospital, modified its corporate name and changed its corporate function to promoting health and well-being.  Ellis Hospital assumed all responsibility for the hospital and related healthcare services previously provided by St. Clare's Hospital. Matter of Lally, 516107, 3rd Dept 12-12-13





Application for a Full Board Review Must Be Considered by a Panel of At Least Three Members of the Workers’ Compensation Board


The Third Department noted that an application for a full Board review must be considered by a panel of at least three members of the Workers’ Compensation Board:


Applications for Board review are to be considered by a panel of at least three members and may not be decided by the chair, or any other single member of the Board, alone (see Workers' Compensation Law §§ 23, 142 [2]…).  The record before us provides no indication that the application for reconsideration and/or full Board review was considered by a three-member panel.  Rather, the decision appears to have been made solely by the chair "on behalf of the Board."  Accordingly, this matter must be remitted to the Board for proper consideration of the application by a panel of the Board consisting of not less than three members… . Matter of Scalo v CD Perry & Sons Inc…, 514342, 3rd Dept 12-12-13






Slip and Fall in Employee Parking Area Was Compensable


The Third Department determined that a slip and fall in an employee parking area can be compensable under Workers’ Compensation.  The Board’s finding that the injury was compensable in this case was affirmed:


As a general rule, "accidents that occur in public areas away from the workplace and outside of work hours are not compensable" … .  However, "by making arrangements for employee parking, [an employer] may be found to have extended its premises to the area of the approved parking facility so that an accident that occurs therein may be found to have arisen within the precincts of the claimant's employment, rendering it compensable.  This is particularly true where the claimant is injured on the way to work and in such physical proximity to his or her worksite as to establish a relationship between the accident and the employment"… .


Here, claimant testified that following the approval of her application to park in the subject lot, she was given a hang tag to display in her vehicle's window and a parking fee was deducted from her biweekly paycheck … .  Although a portion of the parking lot occasionally was set aside for vendors participating in events at the nearby Times Union Center, the lot was not – to the best of claimant's knowledge – open to the public during the work week.  Finally, claimant described the route traveled from the surface lot to her building and testified that "[e]veryone" who parked in the vicinity of the lot "usually [took the] same route into [the employer's] building"… .  Matter of Stratton v NYS Comptroller…, 514766, 3rd Dept 12-12-13


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