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December Page III

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





Writing Requirement of Statute of Frauds Met By a Number of Documents Associated With Absentee Bidding at a Public Auction


The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the Appellate Division and determined the plaintiff had not failed to comply with the statutory (statute of frauds) requirement of a writing in support of its breach of contract claim.  The defendant, as an absentee bidder at a public auction held by the plaintiff, successfully bid over $400,000 on an item but subsequently refused to pay for it.  The Appellate Division determined that the name of the seller was not in any of the relevant documents and therefore there was no writing which could be enforced.  The Court of Appeals disagreed and held that, because it was clear the plaintiff was acting as the seller’s agent in the bidding process, the absence of the seller’s name from the documents was not fatal to the writing requirement:


…[T]he absentee bidder form, along with the clerking sheet, provide the necessary information to establish the name of Rabizadeh as the buyer.  …


In addition to the buyer's name, the GOL requires disclosure of "the name of the person on whose account the sale was made".    * * *


[T]he GOL does not reference the "seller", making it clear that the seller's name need not be provided in order to satisfy the requirement of "the name of the person on whose account the sale was made".


* * * It is well settled that an auctioneer serves as a consignor's agent … . … Here, the clerking sheet lists Jenack [plaintiff] as the auctioneer, and as such it served as the agent of the seller. The clerking sheet, therefore, provides "the name of the person on whose account the sale was made" and satisfies GOL § 5701(a)(6).    …


It bears repeating in such a case as this that:


‘The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made’ … .


Using the Statute of Frauds as a "means of evading" a "just obligation" is precisely what Rabizadeh attempts to do here, but the law and the facts foreclose him from doing so.  Rabizadeh took affirmative steps to participate in Jenack's auction, including executing an absentee bidder form with the required personal information.  He then successfully won the bidding for item 193, closing out other interested bidders, with his $400,000 bid.  He cannot seek to avoid the consequences of his actions by ignoring the existence of a documentary trail leading to him.  Willam J Jenack Estate Appraisers and Auctioneers, Inc v Rabizadeh, 229, Ct App 12-17-13




Six-Year Breach of Contract Statute of Limitations Applied to Third Party Beneficiaries (Here the Plaintiff Villages and Towns) of Contracts Between the Counties and the Defendant Sewer-Construction Companies


The Court of Appeals, with two concurring judges, determined that the causes of action alleging the faulty construction of sewers resulting in settling of the roadways within the plaintiff villages and towns was time-barred. The plaintiff villages and towns were third-party beneficiaries to the sewer-construction contracts entered into by the counties encompassing the plaintiff villages and towns. The complaints alleged a “continuing nuisance.”  The court held that the actions were time-barred whether analyzed under a contract or nuisance theory (the continuing nuisance theory was rejected on the merits).  The court further held that the six-year breach of contract statute of limitations applied to third-party beneficiaries of the contracts (here the plaintiff villages and towns):


A breach of contract action must be commenced within six years from the accrual of the cause of action (see CPLR 203 [a]; 213 [2]).  "In cases against architects or contractors, the accrual date for Statute of Limitations purposes is completion of performance" (Newburgh, 85 NY2d at 538…).  This rule applies "no matter how a claim is characterized in the complaint" because "all liability" for defective construction "has its genesis in the contractual relationship of the parties" (Newburgh, 85 NY2d at 538 …). Even if the plaintiff is not a party to the underlying construction contract, the claim may accrue upon completion of the construction where the plaintiff is not a "stranger to the contract," and the relationship between the plaintiff and the defendant is the "functional equivalent of privity" (Newburgh, 85 NY2d at 538-539 … ). * * *


The Appellate Division properly applied Newburgh to these actions commenced by third-party beneficiaries to the construction contracts.  Newburgh extended the completion of performance accrual rule to actions against architects or contractors brought by "intended beneficiar[ies]" of construction contracts (id.).  Here, the Counties contracted with defendants to install the sewer system for the benefit of municipalities like plaintiffs, a fact which was surely "known to all parties at the time the contracts were negotiated" (id.).  Town of Oyster Bay v Lizza Industries Inc …, 214, 215, 217, 217, 218, 219, 220, 221, 222, 223, Ct App 12-17-13





Police Officers Properly Allowed to Testify About Victim’s Identification of Defendant Shortly After the Crime/Prior Consistent Statements Not Hearsay


In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined that two police officers, as well as the victim, were properly allowed to testify about the victim’s identification of the defendant shortly after the crime, extending the rule announced by the Court of Appeals in People v Huertas (75 NY2d 487):


Velez [the victim] identified defendant at trial as one of the robbers and also testified, without objection, to a description he had given the police on the night of the crime of a black man "about 5'6, short hair, round face, thick eyebrows" and wearing a white shirt.  The description fits defendant, but in the video the man alleged to be defendant is wearing a blueish-gray shirt.  Velez testified that, before he saw the video, he realized that his description of the shirt was in error, and corrected it.


Two police officers also testified, over objection, that Velez had given a description on the night of the crime. The officers' accounts of the description were brief, and consistent with Velez's.  One said that Velez had described a man "between 5'6 to 5'7 in height wearing shorts and . . . a white T-shirt."  The other said only that Velez had described "a short black male, dark skinned." * * *


Huertas involved a … prior consistent statement: a witness's description, given shortly after the crime, of the person who committed it.  Huertas held testimony about a description to be admissible not under any exception to the hearsay rule, but because the testimony is not hearsay at all. It is admitted not for the truth or accuracy of the prior description, but as "evidence that assists the jury in evaluating the witness's opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification" (Huertas, 75 NY2d at 493).  * * *


The issue here is whether the rule of Huertas, like CPL 60.30's hearsay exception for prior eyewitness identifications, is limited to a witness's account of his or her own previous statement.  We see nothing to justify such a limitation.  A statement that is not hearsay when the declarant testifies to it does not become hearsay when someone else does so. People v Smith, 226, Ct App 12-17-13





Issuer of Excess Policy Was Required (by the Terms of the Policy) to Pay “All Sums,” Including Interest, Over and Above the Policy-Limit Paid Out Under the Primary Policy


In reversing the Appellate Division, the Court of Appeals determined that the issuer of the excess policy (HIC) was obligated to pay all sums, including interest, after the $1,000,000 policy limit was paid out under the primary policy.  The issuer of the primary was insolvent and the $1,000,000 primary policy limit was paid by the liquidator:


Applying the plain meaning of the primary and excess policies to the particular medical malpractice judgment against plaintiff at issue here, it is clear that the primary insurer's liquidator fulfilled its obligations under the primary policy, thereby triggering HIC's responsibility to pay the interest in excess of the primary policy's $1,000,000 liability limit.  Upon entry of the initial judgment against plaintiff, the liquidator paid plaintiff $1,000,000 toward that judgment.  At that point, the liquidator was no longer required to pay interest under the "supplementary payments" provision of the primary policy because that further amount accrued only after the liquidator had already satisfied the liability limit of the primary policy in the manner specified by the "supplementary payments" provision.  Thus, the additional interest on the judgment, as amended, constituted a "sum[ ] in excess of the limits of liability of the Underlying Policy," which is covered by the excess policy.  Accordingly, HIC had to pay the additional interest.  Ragins… v Hospitals Insurance Company, Inc, 234, Ct App 12-17-13






“Equitable Medical Monitoring” Cause of Action Rejected; Plaintiffs, Who Had No Signs of Cancer from Heavy Smoking, Were Not Entitled to Bring an Action to Cover the Costs of CT Scans to Periodically Check for Cancer


In a full-fledged opinion by Judge Pigott, with two dissenting judges, the Court of Appeals determined New York does not recognize a “medical monitoring” cause of action.  The plaintiffs were all heavy smokers.  None of the plaintiffs is currently sick.  The lawsuit sought damages to pay for “medical monitoring” (low dose CT scans “LDCT”) as a way to ensure early diagnosis of cancer:


Plaintiffs do not claim to have suffered physical injury or damage to property.  They assert, rather, that they are at an "increased risk" for developing lung cancer and would benefit from LDCT monitoring, which they claim would allow them to discover the existence of cancers at an earlier stage, leading to earlier treatment.


A threat of future harm is insufficient to impose liability against a defendant in a tort context … .  The requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state's tort system … .  The physical harm requirement serves a number of important purposes: it defines the class of persons who actually possess a cause of action, provides a basis for the fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims. 


Having alleged no physical injury or damage to property in their complaint, plaintiffs' only potential pathway to relief is for this Court to recognize a new tort, namely, an equitable medical monitoring cause of action. Caronia v Philip Morris USA Inc, 227, Ct App 12-17-13









In a Class Action Suit, Class-Representatives’ Failure to Keep In Touch With Their Lawyer Justified Their Withdrawal as Class Representatives


The Third Department determined Supreme Court should have allowed representatives of the class (in a class action lawsuit) to withdraw based upon the representatives’ failure to keep in touch with their lawyer:


Supreme Court abused its discretion in declining to permit the seven class representatives to withdraw from this action. CPLR 3217 (b) provides that an action or proceeding may be discontinued "upon order of the court and upon terms and conditions, as the court deems proper."  While the decision to grant such an application is generally committed to the sound discretion of the trial court …, a party cannot ordinarily be compelled to litigate and, absent special circumstances – such as prejudice to a substantial right of the defendant or other improper consequences – discontinuance should be granted … . * * *


Class representatives have a duty to adequately and vigorously represent the interests of class members … .  Thus, if a class representative fails to maintain contact with class counsel or is otherwise no longer willing or able to serve in that capacity, he or she cannot fulfill the duties of a class representative and should withdraw … .  The remedy under such circumstances is not to penalize the entire class by forcing an unwilling plaintiff to remain in the litigation. Hurrel-Harring v State of New York, 517131, 3rd Dept 12-19-13




Motion to Renew Based Upon New Evidence Should Have Been Granted/Request to Depose Knowledgeable Witnesses In Addition to the Witnesses Initially Provided by the Municipality Should Have Been Granted


The Third Department determined a motion to renew based upon newly discovered evidence and a motion to depose additional knowledgeable witnesses (from the municipality) should have been granted:


To be entitled to renewal, plaintiffs were required to provide new facts that would change the prior determination as well as a justifiable excuse for not providing such facts earlier (see CPLR 2221 [e] [2], [3]…).  "While we generally decline to disturb the decision to grant or deny a motion to renew, we will do so if there was an abuse of discretion" … . * * *

Renewal of that part of plaintiffs' motion which sought the production of knowledgeable witnesses should have, to a large extent, also been granted.  "While a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for an examination before trial, a plaintiff may demand the production of additional witnesses, upon a showing that the representative already deposed had insufficient knowledge or was otherwise inadequate"… . Hurrel-Harring… v State of New York…, 517132, 3rd Dept 12-19-13





Part Performance Exception to the Statute of Frauds Does Not Apply to Contracts Which Cannot Be Performed Within One Year


The First Department, in a full-fledged opinion by Justice Saxe, determined that the part performance exception to the statute of frauds should not be applied to contracts that cannot be performed within one year.  The court first explained what “capable of performance within one year” means, and then looked at the controlling statute (General Obligations Law 5-701 (a)(1):


Before addressing the central issue of the applicability of a part performance exception for contracts that must be in writing under General Obligations Law § 5-701, I note … the oral contract alleged here was categorized as a contract incapable of performance within one year of its making (General Obligations Law § 5-701[a][1]). The application of § 5-701(a)(1) is limited to contracts that "have absolutely no possibility in fact and law of full performance within one year" … . "[T]he statute does not include an agreement which is simply not likely to be… performed, nor yet one which is simply not expected to be performed within the space of a year. Neither does it include an agreement which, fairly and reasonably interpreted, admits of a valid execution within that time, although it may not be probable that it will be" … . So, the determination of whether an alleged oral contract can possibly be performed within one year of its making is not conducted by looking back at the actual performance; it requires analysis of what was possible, looking forward from the day the contract was entered into. * * *


Analysis of the part performance exception must begin by emphasizing that General Obligations Law § 5-701 lacks any provision for a part performance exception such as that explicitly provided for by General Obligations Law § 5-703, which concerns contracts for the conveyance of an interest in real property. That is, while § 5-703(4) specifically provides, "Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance," the broader statute of frauds provision of § 5-701 contains nothing of the sort - although, notably, it contains other exceptions … .


Two relevant principles of statutory construction apply here. The first is that "a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact" … . The second is that an "inference must be drawn that what is omitted or not included was intended to be omitted and excluded" … . Inferring that the Legislature authorized a part performance exception for an oral contract that is not capable of performance within one year violates these principles. Gural v Drasner, 2013 NY Slip Op 088391, 1st Dept 12-17-13



Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth


The First Department affirmed the sex offender status determined by Supreme Court, rejecting the arguments that an exemplary prison record and abstention from alcohol during a long incarceration warranted a downward departure.  The court took the trouble to explain some of the basics of a Sex Offender Registration Act (SORA) determination:


In assessing a sex offender's danger to the community, and therefore, its recommendation to the court hearing a SORA application, the Board of Examiners of Sex Offenders (BOSE) must consider 15 statutory factors, applying them in accordance with the Risk Assessment Guidelines developed to assess an individual applicant's risk of a repeat offense (Correction Law § 168—l[5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). The evaluation is made using a Risk Assessment Instrument (RAI), identifying each factor which, if applicable, is assigned a numerical value. If a particular factor is not applicable, it is assessed at zero. The values are then tallied, resulting in a recommended risk assessment which is considered as presumptively correct at the SORA hearing before the court … .


One of the factors BOSE considers is "whether the sex offender's conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol" … (Correction Law § 168-1[5][a][ii]). The guidelines clarify that if the individual has a history of drug or alcohol abuse "or was abusing drugs and or alcohol at the time of the offense," 15 points will be assessed in that category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15). Pursuant to the guidelines, BOSE or the court may choose to score zero points in this category, if the drug and/or alcohol abuse is "in the distant past, but [the defendant's] more recent history is one of prolonged abstinence" … .


Since defendant admittedly committed his crime while intoxicated, this alone supports the 15 point assessment made against him in this category … . Thus the issue turns on whether his prolonged abstinence from alcohol use, while incarcerated, provides a basis for a 15 point reduction in this category. We find that it does not.


We have consistently held that even when alcohol use in the commission of the crime is remote in time, and the defendant has abstained from alcohol use for a prolonged period while incarcerated, such remoteness and abstinence are unreliable predictors of the risk for re-offense post-release, or to the threat posed by the sex offender to public safety … .   * * *


The SORA court also providently exercised its discretion in denying defendant's application for a discretionary downward departure to a level 2 based upon claims that he had an exemplary record while incarcerated, has shown remorse for his crime, and is now a productive member of society * * *.


We emphasize that a SORA risk-level determination is not an extended form of punishment for the sex crime committed, but a collateral consequence of the conviction intended to protect the public at large from the possibility of future crime … . A departure from a sex offender's presumptive risk level is generally warranted only where "there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…)… .  People v Watson, 2013 NY Slip Op 08379, 1st Dept 12-17-13







Conviction Under Accomplice Liability Theory Reversed After a Weight of the Evidence Analysis


The Second Department reversed defendant’s conviction for criminal sale of a controlled substance under an accomplice liability theory, finding the conviction against the weight of the evidence. The officer who purchased the drugs assumed, based on circumstantial evidence, the drugs were supplied to the seller by the defendant (who was in a vehicle with the seller and a woman) but did not actually see any transaction between the defendant and the seller:


Although the officer testified that, based upon his training and experience as an undercover officer who had made over 500 buys, he believed that the codefendant received drugs from the defendant inside the vehicle, he admitted that he did not observe an exchange of money or drugs between the codefendant and the defendant.

People v Curry, 2013 NY Slip Op 08455, 2nd Dept 12-18-13






Prosecutorial Misconduct and Defense Counsel’s Ineffectiveness Required Reversal


The Second Department reversed defendant’s conviction, in the interest of justice, finding the prosecutor’s improper comments during summation deprived defendant of a fair trial. In addition, the Second Department determined defense counsel was ineffective in eliciting inadmissible expert testimony detrimental to the defense and failing to object to the prosecutor’s misconduct:


Re: prosecutorial misconduct during summation, the Second Department wrote:


In summing up, a prosecutor "must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused" … . At trial, the defendant presented evidence concerning his cooperation with law enforcement authorities in drug cases against the complainants' mother to establish that the complainants had a motive to fabricate their allegations against him. During summation, the prosecutor improperly referred to such evidence as "an elaborate attempt to distract [the jury] from the real issues in this case" … . The prosecutor also inaccurately stated that the defendant, who had testified on his own behalf, needed "a clarification about which child's vagina he did or did not touch," when the defendant, in fact, had asked whether the question concerned his paramour, the complainants' mother. In addition, the prosecutor made an irrelevant and inflammatory argument intended to convince the jury that the … defendant's denials of the sexual abuse allegations in the indictment were implicit admissions that he had abused the complainants outside the periods of time designated for the charged crimes … .Furthermore, the prosecutor impugned the defendant's right to testify and improperly suggested that he lied on the stand, when she referred to him as "an opportunist" who "took the stand, and . . . said what he thought he had to to save himself" … . Finally, the prosecutor impermissibly vouched for the credibility of a witness based on his position as a law enforcement officer … . The cumulative effect of these improper comments deprived the defendant of a fair trial … .


Re: the ineffectiveness of defense counsel, the Second Department wrote:


During cross-examination by defense counsel, the People's expert on child sexual abuse accommodation syndrome offered testimony that the truthfulness of a child's disclosure of sexual abuse could be analyzed by looking at whether the content is specific and not age-appropriate knowledge. Despite the fact that this testimony was inadmissible …, and favorable to the People, defense counsel inexplicably asked the expert to elaborate, eliciting highly damaging testimony that a child's allegations of oral sexual conduct, sexual contact between males, or reciprocal contact would be "rather unique and idiosyncratic," and more believable than "just a global statement that I was touched." Thus, defense counsel intentionally elicited inadmissible and unduly prejudicial testimony during cross-examination … . Defense counsel also was deficient in failing to object to the prosecutor's improper remarks during summation … . The cumulative effect of defense counsel's errors deprived the defendant of the effective assistance of counsel … . Accordingly, the judgment must be reversed and a new trial ordered for this reason as well. People v Mehmood, 2013 NY Slip Op 08461, 2nd Dept 12-18-13






Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defendant Alleged He Would Not Have Pled Guilty Absent His Attorney’s Affirmative Misinformation About the Deportation Consequences of the Plea


The Third Department, in a full-fledged opinion by Justice Spain, determined defendant was entitled to a hearing on his motion to vacate his conviction based on the allegation defense counsel gave defendant affirmative misinformation about the deportation consequences of his guilty plea:


Defendant's motion to vacate sufficiently raises a question as to whether trial counsel provided him with affirmative misinformation regarding the deportation consequences of his guilty plea and adequately alleges facts that, if credited, show a reasonable probability that, but for counsel's erroneous assurances in this regard, defendant would have insisted on going to trial … . Accordingly, defendant is entitled to a hearing on the issues raised in his CPL 440.10 (1) (h) motion and the order must, therefore, be reversed… . People v Diallo, 104609, 3rd Dept 12-19-13






Restitution Hearing Required/Insufficient Proof to Substantiate the Amount/Conclusory Admission by Defendant Not Enough


The Third Department determined defendant was entitled to a restitution hearing, noting that the record did not include proof sufficient to substantiate the restitution amount.  The defendant’s stating a dollar amount, or a conclusory admission of the amount in a plea agreement, is not enough to meet the court’s and the People’s burden:


A restitution hearing "must be held where the record lacks sufficient evidence for a court to determine the amount of restitution ordered or the defendant requests such a hearing" … .  Although a defendant's statement at the time of the plea or sentencing can constitute sufficient evidence, that statement must include a concession of facts concerning the amount of loss; a defendant merely stating a dollar amount or making a conclusory admission as part of a plea agreement will not satisfy the court's obligation or the People's burden … .  At sentencing here, defendant requested a hearing.  Additionally, despite defendant's plea agreement, including a condition that he pay a specific amount of restitution, the record does not include sufficient proof to substantiate that amount.   Thus, we must remit for a restitution hearing… . People v Johnson, 104064, 3rd Dept 12-19-13






New Trial Ordered: Juror Found “Grossly Unqualifed” by the Trial Judge Should Have Been Dismissed/One Juror Was Absent from the Deliberations for About An Hour


The Third Department ordered a new trial was because one of the juror’s, juror No. 4 should have been dismissed after the trial court determined that the juror was “grossly unqualified,” and because deliberations continued while juror No. 4 was absent from the jury room for about an hour:


"If at any time after the trial jury has been sworn and before the rendition of its verdict, . . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . , the court must discharge such juror" (CPL 270.35 [1]…  ).  "A juror will be deemed to be grossly unqualified to serve only when, after conduct[ing] a probing, tactful inquiry into the specific circumstances, it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict" … .  Although the trial court traditionally is accorded "great deference in deciding whether a juror is grossly unqualified" …, inasmuch as juror No. 4 repeatedly expressed her inability to render a decision one way or the other, and County Court expressly found that she was both grossly unqualified to serve and unable to afford either the People or defendant a fair trial, County Court erred in failing to discharge juror No. 4… .


Moreover, even assuming that we discerned no impropriety with respect to juror No. 4's continued service on the jury, we nonetheless would be compelled to reverse defendant's conviction and order a new trial, as it is readily apparent from the record that the jury deliberated – on at least one occasion – with fewer than 12 members present.  CPL 310.10 (1) provides, in relevant part, that "[f]ollowing the court's charge, . . . the jury must retire to deliberate upon its verdict in a place outside the courtroom . . . and must, except as otherwise provided in [CPL 310.10 (2)], be continuously kept together under the supervision of a court officer."  Consistent with the provisions of CPL 310.10 (2), "[a]t any time after the jury has been charged or commenced its deliberations, and after notice to the parties and affording such parties an opportunity to be heard on the record outside of the presence of the jury, the court may declare the deliberations to be in recess and may thereupon direct the jury to suspend its deliberations and to separate for a reasonable period of time to be specified by the court."  Additionally, "[b]efore each recess, the court must . . . direct [the jury] not to resume its deliberations until all twelve jurors have reassembled in the designated place at the termination of the declared recess." * * *


Here … juror No. 4 was absent from the jury room for slightly more than one hour… . People v Cridelle, 104319, 3rd Dept 12-19-13







Failure to Call One of the Parties Who Signed a Drug-Analysis Report Did Not Violate the Confrontation Clause/No Evidence the Party Conducted Any Testing or Analysis


The Third Department determined that the Confrontation Clause was not violated because a party [Lafond] who had signed the report identifying the controlled substance defendant was accused of selling did not testify.  The court determined Lafond had nothing to do with the chemical tests and analysis.  The party who actually did the chemical tests and analysis, Brant, testifed:


…Brant – the analyst who identified the oxycodone, performed the chemical tests on it, determined the nature of the substance, and authored the report – in fact testified and was subject to crossexamination … .  The report is certified pursuant to CPL 190.30 (2) with the following language: "I, Clifford E. Brant, . . . hereby certify" and then states that it is "my [i.e. Brant's] report and contains the opinions and interpretations of the examination I performed in the above referenced case" (emphasis added).  Brant also testified that Lafond cosigned the report after an administrative review of it, as required by State Police protocol.  There is no support in the record for the proposition that Lafond examined or analyzed the substance, observed Brant doing so, or was signing the report in that capacity.  Indeed, Brant testified that after he alone performed the forensic chemical testing, he sealed, signed and dated the laboratory bag containing the pill, which remained intact as of the trial, supporting the conclusion that Lafond only read and signed the report after it was completed to ensure that proper procedure was followed …, and she had no role in ascertaining or verifying the identity of the substance in issue.  Thus, the "actual analyst who performed the tests" … and "wr[o]te [the] report[]" … testified.   We find that Lafond, who neither analyzed the substance in issue nor authored the report, was not a "witness" against defendant for purposes of the Confrontation Clause … and, accordingly, no Crawford violation occurred as a result of the People admitting Brant's report into evidence without calling Lafond to testify. People v Wolz, 104909, 104910, 3rd Dept 12-19-13





Horse Deemed a “Companion Animal”/Aggravated Cruelty to Animals Conviction Upheld


The Third Department affirmed defendant’s convictions, which stemmed from the killing of a horse.  The court determined the horse was a “companion animal” within the meaning of the Agricultural and Markets Law and, therefore, the elements of aggravated cruelty to animals were proven:


…[D]efendant claims that the charge of aggravated cruelty to animals was jurisdictionally defective for failure to allege a material element of the crime, arguing that the horse was not a "companion animal" (Agricultural and Markets Law § 353a [1]…).  However, horses are excluded from the statutory definition of companion animals only when they are "'[f]arm animal[s]' . . . raised for commercial or subsistence purposes" (Agricultural and Markets Law § 350 [4]).  Any domesticated animal, including a horse, may be a companion animal where, as here, it is not kept for such purposes and is "normally maintained in or near the household of the owner or person who cares for [it]" (Agricultural and Markets Law § 350 [5] ….  Likewise, there was no jurisdictional defect in the charge of criminal mischief in the second degree by intentionally damaging the property of another, as a companion animal is property (see Penal Law § 145.10…). People v Lohnes, 104483, 3rd Dept 12-19-13






No Standing to Challenge Governmental Action---No Injury-In-Fact and the Type of Potential Injury Alleged Does Not Fall Within the Zone of Interest Underlying the Statute


The Third Department determined that the petitioners, manufacturers of electronically-operated partitions used in school buildings, did not have standing to bring an action compelling the NYC Department of Education to comply with the Education Law (Education Law 409-f) and regulations with respect to the maintenance of the partitions.  The petitioners argued that they are subject to liability if the partitions are not maintained in accordance with the law:


The two-part test for the threshold legal requirement of standing to challenge governmental action requires, first, an injury-in-fact and, second, that the injury "fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision" … .  Petitioners contend that they have been injured in that their employees might get hurt working on improperly maintained safety devices, they are potentially exposed to litigation if a device installed by them is not properly maintained by respondents and causes injury, and their insurance premiums have increased due to heightened exposure to liability.  We agree with Supreme Court that petitioners are essentially asserting a general challenge to respondents' administration of the relevant statute and regulation …and further that their asserted injuries are too speculative and conjectural to satisfy the injury-in-fact requirement … . 


Even if a sufficient injury-in-fact was asserted, petitioners also failed to show that they are within the zone of interests sought to be protected by the statute and regulation. Enacted after the tragic death of a young student crushed by a school partition …, the purpose of the law was to protect primarily students … and not individuals paid to work specifically on the safety devices. … . Matter of Gym Door Repairs, Inc v New York City Department of Education, 516661, 3rd Dept 12-19-13





Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff


The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff)  with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he has given any statements to a quality assurance committee, even though the statements themselves would be privileged; (3) substantial changes to deposition testimony in an errata sheet would be allowed, but, based on the substantive nature of the changes, further deposition of the witness was appropriate as well.  With respect to questioning the defendant doctor as an expert about his own treatment, the court wrote:


In the context of a medical malpractice action, the Court of Appeals has held that "a plaintiff . . . is entitled to call the defendant doctor to the stand and question him [or her] both as to his [or her] factual knowledge of the case (that is, as to his [or her] examination, diagnosis, treatment and the like) and, if he [or she] be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community" … .  Thus, although "one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness[,] [w]here . . . the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert" … . Lieblich … v Saint Peter’s Hospital of the City of Albany…, 516736, 3rd Dept 12-19-13





Father’s Incarceration Justified a Modification of Custody/Sole Custody Awarded to Mother


The Third Department upheld Family Court’s finding father’s incarceration justified a modification of custody and the grant of sole custody to the mother:


Initially, we note the absence of anything in the record to indicate that, but for the father's incarceration, joint custody would not have continued to be appropriate.  Nonetheless, the father's incarceration presented logistical restrictions on the parties' ability to effectively and efficiently communicate with each other, rendered shared physical custody impossible and generally created limitations on the father's ability to fulfill his obligations as a custodial parent … .  In this regard, the mother testified that, while the father was incarcerated, she made all of the decisions regarding the child and the father did not initiate any contact with her about the child.  Notwithstanding the father's testimony that he had liberal access to a telephone and email, the mother was unaware that she could call him and testified that it normally took him at least one day to respond to her emails.


Additionally, the father acknowledged that the mother could not reach him while he was at work five days a week for several hours each day and that he had, at times, exhausted his monthly allotted telephone time.  Further, the father was unable to identify the child's medical provider or teacher, which reflected his limited involvement in the child's daily life.  After considering the appropriate factors relevant to custody determinations … and according deference to Family Court's ability to observe the witnesses and assess their credibility …, we find a sound and substantial basis for that court's determination that an award of sole physical and legal custody to the mother was in the child's best interests… . Matter of Breitenstein v Stone, 514316, 3rd Dept 12-19-13




Family Court Did Not Adequately Consider the Factors Relevant to Mother’s Request for Unsupervised Visitation/Determination of Visitation Improperly Delegated to Father


The Third Department determined Family Court did not adequately consider mother’s request for unsupervised visitation with her children and improperly delegated the court’s authority to determine visitation to the father:


…Both the children and the noncustodial parent have a right to meaningful visitation … .  "[I]n providing for visitation that will be meaningful, the frequency, regularity and quality of the visits must be considered [and] [e]xpanded visitation is generally favorable absent proof that such visitation is inimical to a child's welfare" … .  While Family Court's best interests determination in visitation matters is ordinarily accorded great deference …, the court's consideration of numerous important factors is not apparent here.  These include the children's ages, needs and wishes; the mother's progress with substance abuse treatment; the availability of adding supervised time or of additional supervisors of visitation, including family members; the passage of a great length of time with only highly restricted and limited supervised visits (since May 2011, at least); the fact that the visitation facility did not allow the children's siblings (i.e., the mother's infant born in June 2011 and adult daughter) or maternal family to attend; the father allowed only two unsupervised visits; the possibility of attaching conditions to unsupervised visitation; and the fact that the mother had been assessed as not posing a risk to herself or others in her treatment.  The foregoing factors, among others, represent a change in circumstances requiring, at the least, a reassessment of the existing visitation restrictions; … .


Moreover, Family Court erred in "delegat[ing] its authority to determine visitation to . . . a parent"… . Matter of Fish v Fish, 514662, 3rd Dept 12-19-13





Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding


In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt.  In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:


…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence "(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct" … . The use of the words "willful" and "willfully" in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). "It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party" … . * * *


"[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them" … . "In New York, unlike the rule in a criminal case, a party's invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert" … .  El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13





Prima Facie Proof Requirements for Entitlement to Payment of “No-Fault” Medical Expenses Clarified


In a full-fledged opinion by Justice Rivera, over the partial dissent by two justices, the Second Department resolved a conflict in its authority regarding what a medical provider must demonstrate to make out a prima facie case of entitlement to payment for medical treatment under the no-fault regime.  In Art of Healing Medicine PC v Travelers Home & Mar Ins Co (55 AD3d at 64), the Second Department wrote that “[t]he plaintiffs [ ] medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule”… . Based upon that language in “Art of Healing…,” several Appellate Term decisions “found that the plaintiff failed to establish its prima facie burden where it relied upon the affidavit of a biller who did not possess personal knowledge of the plaintiff's business practices and procedures so as to establish that the claim forms annexed to the plaintiff's moving papers were admissible under the business records exception to the hearsay rule…”.  In the instant case, the Second Department rejected that interpretation and reiterated that all a medical provider must demonstrate to make out a prima facie case is the submission of the proper billing forms and the failure to deny or pay the claim within the statutory period:


The requirement in Insurance Law § 5106(a) that a claimant must submit "proof of the fact and amount of the loss sustained" in order to trigger the 30-day period in which to pay or deny a claim refers to the contents of the billing forms, not the merits of the claim. * * *


The "how" evidentiary component of the plaintiff's proof is met by, inter alia, the affidavit of a billing agent or an employee of the medical provider; that is, someone with personal knowledge of the plaintiff's billing methods … . The billing agent will (1) attest that he/she personally sent the billing forms to the insurer, that the insurer received the same, and that the insurer failed to pay or deny the claim within the requisite 30-day period, or (2) set forth the procedures customarily utilized in the ordinary course of its business regarding the mailing/receipt of such forms and that the insurer failed to pay or deny the claim within the requisite 30-day period. As part of its prima facie showing, the plaintiff is not required to show that the contents of the statutory no-fault forms themselves are accurate or that the medical services documented therein were actually rendered or necessary. Stated another way, the plaintiff is not required to establish the merits of the claim to meet its prima facie burden. To the extent that Art of Healing imposes a "business record" requirement obliging the plaintiff to establish the truth or the merits of the plaintiff's claim, we overrule Art of Healing. Viviane Etienne Med Care PC v Country-Wide Ins Co, 2013 NY Slip Op 08430, 2nd Dept 12-18-13





Department of Health’s Reduction of Medicaid Reimbursement to Nursing Homes Upheld


The Third Department, in a highly technical decision applying the legislature’s mathematical analyses and formulas for the determination of Medicaid reimbursement rates for two nursing homes, determined Supreme Court had erred in annulling the Department of Health’s reduction in reimbursement:


…[W]e agree that the Department was authorized by these laws to reduce both the initial and the final trend factor by one percentage point.  * * * Where, as here, "the statutory language is special or technical and does not consist of common words of clear import, courts will generally defer to the agency's interpretative expertise unless that interpretation is unreasonable, irrational or contrary to the clear wording of the statute" … .  Additionally, as the law at issue is susceptible to different interpretations, the Department's past practice is given great weight in determining the law's meaning … .  Here, the record confirms that the Department has previously amended both the initial and the final CPI pursuant to legislative directives containing the phrase "trend factor projection" … .  We are therefore persuaded that the Department's interpretation of this law is in accord with its historical practice … .  Moreover, we note that such an interpretation effectuates the Legislature's intent to achieve cost savings in the Medicaid program… . Matter of Avenue Nursing Home and Rehabilitation Centre…, 516272, 3rd Dept 12-19-13






Police Officer’s Actions In a Private Dispute Could Not Be Invoked Against Municipality Under Doctrine of Respondeat Superior


The Third Department determined that the doctrine of respondeat superior could not be invoked against a municipality for the actions of an off-duty police officer, even where the officer characterized his actions as an arrest.  Here the police officer injured the plaintiff in a private dispute that had nothing to do with the officer’s official duties:


"The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" … .  Thus, "where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" … .  Notably, and as is relevant to the matter before us, "[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest" … . Stevens v Kellar, 516875, 3rd Dept 12-19-13





No Constitutional Issue Raised by Claim that County Is Paying Too High a “Mobility Tax” Because It Does Not Receive as Much Transit Service as Other Counties Paying the Same Amount


The Third Department affirmed the dismissal of two causes of action brought by a county challenging a “mobility tax” imposed upon counties served by the Metropolitan Transportation Authority (MTA).  The county alleged the mobility tax was disproportionately high because it did not receive as much service as other counties paying the same amount:


The gravamen of both claims is that the funding provided to the MTA by the County is disproportionately high when compared to the transit services received by it in return.  The MTA undoubtedly provides services to the County and its residents, however, and "[e]ven a 'flagrant unevenness' in application" of the financing scheme used to fund the MTA is constitutionally permissible … .


Without more, the fact that the County purportedly receives "fewer benefits from the [MTA] than those received by other[s] . . . is insufficient to warrant the relief requested" … .  Plaintiffs have not pointed to any constitutional or statutory provision that is violated by this alleged misallocation of resources and, as such, the sixth and seventh causes of action present nothing more than a nonjusticiable and impermissible attempt "to substitute judicial oversight for the discretionary management of public business by public officials" … .  Supreme Court thus acted properly in granting the MTA defendants' motion for summary judgment.  Vanderhoff… v Silver, 516180, 3rd Dept 12-19-13





It May Be an Abuse of Discretion for the Board to Refuse to Review an Untimely Application Raising a Jurisdictional Issue/Board May Be Barred from Reopening a Closed Claim More than Seven Years After the Accident


The Third Department determined the Workers’ Compensation Board should have considered the employer’s untimely application for review because the employer raised a jurisdictional issue. The court noted that the Board may barred from reopening closed claims after more than seven years have elapsed since the accident:


"The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time . . ." … .  Accordingly, "[w]hile the Board enjoys broad discretion to reject a late application for review," its refusal to consider an untimely challenge to its jurisdiction may constitute an abuse of discretion … .


While the Board generally retains continuing jurisdiction over workers' compensation claims, it is barred from reopening a claim "that has been . . .  disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, [where there has been] a lapse of seven years from the date of the accident" (Workers' Compensation Law § 123;…). Workers' Compensation Law § 123 accordingly acts to "prevent a brand new attempt to prove up a stale claim" …, and deprives the Board of "power and jurisdiction" over such an attempt (Workers' Compensation Law § 123…).  Given the age of the claim here and the fact that it was marked closed in 1995, the employer plausibly argues that the Board lacked jurisdiction to reopen the present claim.  Matter of VanAusdle, v NYC Police Department, 515592, 3rd Dept 12-19-13






Attorney Penalized for Making a Baseless Request for a Change of Venue


The Third Department upheld the Board’s determination that counsel should be penalized for making a baseless request for a change of venue (closer to the attorney’s office):


Workers' Compensation Law § 114-a (3) (ii) provides that "[i]f the [B]oard . . . determines that the proceedings in respect of [a claim for compensation], including any appeals, have been instituted or continued without reasonable ground[,] . . . reasonable attorneys' fees shall be assessed against an attorney . . . who has instituted or continued proceedings without reasonable grounds."  We will not disturb the Board's imposition of a penalty for a violation of that statute so long as the determination is supported by substantial evidence … .  The Board considers a request for change of venue, which is a procedural motion, to constitute a proceeding for purposes of the statute.  Counsel was previously warned that what she cited as a "Board Rule" was actually a provision of a private legal treatise, that it did not accurately reflect the law or Board policy on venue, and that any further change of venue request filed based on that reasoning and citation "will be deemed a proceeding instituted without reasonable grounds and subject to the imposition of penalties under" the statute. Matter of Banton…, 516574, 3rd Dept 12-19-13






Zoning Board Should Have Made Every Effort to Accommodate Religious Use/Zoning Board’s Denial of Variances Annulled and Variances Granted


The Second Department affirmed Supreme Court’s determination annulling a zoning board’s denial of variances to allow parking for a religious organization (and granting the variances).  The court noted that religious organizations are not exempt from zoning regulation, but the Board was obligated to make an effort to accommodate the religious use (which it did not do):


The Board's denial of the petitioner's applications was arbitrary and capricious. "[W]hile religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made" … . A local zoning board is required to "suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surrounding community to the greatest extent possible" … .


Here, the record reflects that the Board voted to deny the petitioner's applications without making any attempt to accommodate the proposed religious use… . Matter of Gospel Faith Mission Intl Inc v Weiss, 2013 NY Slip Op 08439, 2nd Dept 12-1813




Planning Board’s Determination Subdivision Was Exempt from Conservation Measures Under “Grandfathering” Laws Upheld


The Third Department determined the town planning board’s approval of a final subdivision plan was proper.  The petitioners challenged the approval arguing, in part, that the town’s repeated renewal of grandfathering provisions (under which the subdivision plan was approved) was unlawful. Under the grandfathering provisions, the subdivision was deemed exempt from certain conservation measures. The Third Department disagreed:


"A town's zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, 'beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'" … .  While "[z]oning laws must be enacted in accordance with a comprehensive land use plan" … to establish compliance, "respondents need only show that the zoning amendment was adopted for 'a legitimate governmental purpose'" and the amendment will not be considered arbitrary unless "'there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'" … .  … As set forth in the comprehensive plan, the Town's primary concerns included "ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area's natural resources and remaining open spaces."  The adoption of the initial grandfathering provision clearly evidenced and furthered the Town's interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements … .  


Petitioners have not shown that, under the circumstances here, the challenged extensions … were inordinately lengthy as to render them "arbitrary and unreasonable or otherwise unlawful"… .  Matter of Birchwood Neighborhood Association v Planning Board of the Town of Colonie, 516284, 3rd Dept 12-19-13

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