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February Page I

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


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"Arbitrary and Capricious" Defined/Criteria for Elimination of a Public-Employee Position Explained


In affirming the school district's actions in creating a new position and eliminating an existing position, the Fourth Department explained the relevant review standards:


"The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact' . . . Arbitrary action is without sound basis in reason and is generally taken without regard to the facts... . * * *


"It is well established that a public employer may abolish civil service positions for the purposes of economy or efficiency . . . , but it may not act in bad faith in doing so . . . , nor may it abolish positions as a subterfuge to avoid the statutory protection afforded civil servants before they are discharged . . . A petitioner challenging the abolition of his or her position must establish that the employer in question acted in bad faith" ... . Matter of Ifedigbo v Buffalo Pub Schools, 2015 NY Slip Op 01125, 4th Dept 2-6-15




Regulation Properly Promulgated---Analytical Criteria Described in Some Depth


In finding that a regulation promulgated by the Department of Health (DOH) was a valid exercise of regulatory authority, the Fourth Department noted that an agency need not rely on empirical studies when it adopts a regulation, but rather can rely on the expertise and experience of the agency.  The challenged regulation limited a specific type of Medicaid-reimbursement to nursing homes pending an audit:


...DOH had statutory authority to promulgate 10 NYCRR 86-2.40 (m) (10) under Public Health Law § 2808 (2-c) (d) and ... the regulation was not " out of harmony' with an applicable statute" ... . Although section 2808 (2-c) (d) does not explicitly authorize prepayment audits of residential health care facilities, "an agency can adopt regulations that go beyond the text of that legislation, provided that they are not inconsistent with the statutory language or its underlying purposes" ... . Moreover, we reject petitioners' contention that DOH usurped the role of the legislature by adopting 10 NYCRR 86-2.40 (m) (10). DOH has "inherent authority to protect the quality and value of services rendered by [Medicaid] providers" ... and, therefore, we conclude that DOH did not "stretch[ ] [the enabling statute] beyond its constitutionally valid reach" by adopting a regulation that allows a prepayment audit of Medicaid claims under certain circumstances ... .


...10 NYCRR 86-2.40 (m) (10) "has a rational basis and is not unreasonable, arbitrary or capricious" ... . Contrary to petitioners' contention, DOH is not required to rely upon empirical studies when it adopts a regulation. "Although documented studies often provide support for an agency's rule making, such studies are not the sine que non of a rational determination" ... . Thus, "the commissioner [of DOH] . . . is not confined to factual data alone but also may apply broader judgmental considerations based upon the expertise and experience of the agency he [or she] heads" ... . Here, DOH adopted 10 NYCRR 86-2.40 (m) (10) to "[e]nsure the accuracy and integrity of Medicaid rates that are adjusted for case mix data" (NY Reg, Jan. 2, 2013, at 16), and we conclude that adoption of the regulation was within DOH's authority in order to " assure[] that the funds which have been set aside for (providing medical services to the needy) will not be fraudulently diverted into the hands of an untrustworthy provider of services' " ... . Matter of Adirondack Health-Uijlein Living Ctr v Shah, 2015 NY Slip Op 01073, 4th Dept 2-6-15





Order Granting a Motion In Limine Is Appealable If It Effectively Limits the Presentation of a Legal Theory at Trial


The Fourth Department determined the order granting defendant's motion in limine was appealable because the order limited the theories available for use at trial, not merely the admissibility of evidence (which would not be appealable).  The Fourth Department found that the motion in limine should not have been granted because it effectively precluded plaintiffs from introducing evidence of continuous representation which may have tolled the statute of limitations in this legal malpractice action:


In the order on appeal, the court granted defendants' motions to preclude plaintiffs from introducing evidence that any of the defendants represented plaintiffs with respect to any issue other than an issue in the context of a medical malpractice action against a physician. The effect of that order was to limit plaintiffs to introducing evidence that, in 1994, one of the defendants made a statement to Gary M. Dischiavi (plaintiff) indicating that the medical malpractice action was not viable.


We note at the outset that, although the parties do not address the appealability of this order determining a motion in limine, we conclude that plaintiffs may appeal from the order at issue ... . "Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission" ... . This Court has noted, however, that "there is a distinction between an order that limits the admissibility of evidence,' which is not appealable . . . , and one that limits the legal theories of liability to be tried' or the scope of the issues at trial, which is appealable" ... . Here, the order precluded the introduction of the vast majority of the evidence on the issue whether defendants continued to represent plaintiffs so as to toll the statute of limitations, and thus it is appealable because it limits the scope of the issues at trial ... . Dischiavi v Calli, 2015 NY Slip Op 01116, 4th Dept 2-6-15





Whether Arbitrator Erred In Applying the Applicable Law Is Beyond the Courts' Review Powers


In affirming the arbitrator's award re: no-fault benefits, the Second Department explained the courts' limited review powers (re: arbitration awards):


"Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied" ... . Here, Allstate failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator's award. In addition, the determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis ... . "It is not for [the court] to decide whether [the master] arbitrator erred [in applying the applicable law]" ... . Matter of Allstate Ins v Westchester Med Group, 2015 NY Slip Op 00876, 2nd Dept 2-4-15





Additional Information Constituted a "Supplemental" Bill of Particulars, Not an "Amended" Bill of Particulars---Motion In Limine Properly Denied


The Fourth Department determined Supreme Court properly denied defendant's motion in limine because the bill of particulars was merely supplemented, not amended, by the additional information. The court also noted that the motion to preclude expert testimony was properly denied because there was no showing of a willful or intentional failure to disclose and no showing of prejudice:


"Where the plaintiff[s] seek[] to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars' " ... . Here, plaintiffs' second supplemental bill of particulars alleged that plaintiff may require surgery in the future, which could involve anterior C5-6 and C6-7 discectomy and fusion. In addition, plaintiffs alleged "future cumulative economic loss" of between approximately $1,299,555.00 and $1,699,464.00. Plaintiffs had alleged in their prior bills of particulars that plaintiff may require surgery and that there would be a claim for future lost earnings. Thus, the portions of the second supplemental bill of particulars at issue were "an anticipated sequelae" of the injuries and damages previously alleged and did not allege new claims ... . Sisemore v Leffler, 2015 NY Slip Op 01076, 4th Dept 2-6-15





An Action by a Judgment Creditor Pursuant to CPLR 5225 and 5227 Seeks both Legal and Equitable Relief---a Jury Trial Is Therefore Not Available


The Fourth Department determined an action to enforce a judgment against a party other than the judgment debtor (here a judgment creditor) under CPLR 5225 and 5227 is a proceeding for both legal and equitable relief for which a jury trial is not available:


"[T]he right to trial by jury is zealously protected in our jurisprudence and yields only to the most compelling circumstances" ... . "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever" (NY Const, art 1, § 2). "That guarantee extends to all causes of action to which the right attached at the time of adoption of the 1894 Constitution . . . Historically, however, actions at law were tried by a jury, [and] matters cognizable in equity were tried by the Chancellor. Even though the two systems have merged, vestiges of the law-equity dichotomy remain in the area relating to trial by jury" ... .


Thus, the right to a jury trial "depends upon the nature of the relief sought" ... . Under the CPLR, a jury trial is available in an action "in which a party demands and sets forth facts which would permit a judgment for a sum of money only" (CPLR 4101 [1] [emphasis added]). Where a plaintiff joins legal and equitable causes of action in a complaint, it waives its right to a jury trial ... . * * *


...[W]e conclude that enforcement of a judgment under CPLR 5225 and 5227 against a party other than the judgment debtor is an outgrowth of the "ancient creditor's bill in equity," which was used after all remedies at law had been exhausted. We thus conclude that [the judgment creditor's] use of CPLR 5225 and 5227 in this case is in furtherance of both legal and equitable relief and, therefore, that [the judgment creditor] is not entitled to a jury trial on those combined legal and equitable claims ... . Matter of Colonial Sur Co v  Lakeview Advisors LLC, 2015 NY Slip Op 01002, 4th Dept 2-6-15





Court Did Not Conduct an Adequate Investigation Into the Allegation of Improper Outside Influence on the Jury Before Granting Plaintiff's Motion to Set Aside the Verdict---Matter Sent Back for an Evidentiary Hearing


The Fourth Department determined Supreme Court did not conduct an adequate investigation of alleged outside influence upon the jurors before granting plaintiff's motion to set aside the verdict.  There was an allegation a person who worked for an insurance company which insured some of the defendants was "stalking" the jury during the trial:


It is well settled that the decision whether to grant a motion for a new trial pursuant to CPLR 4404 (a) is committed to the trial court's discretion and will not be disturbed absent an abuse of that discretion ... . Here, we agree with defendants that the court abused its discretion in the manner in which it investigated and determined the issue whether there had been improper outside influence on the jury that "was such as would be likely . . . to influence the verdict" ... . Shortly after the trial had concluded and the jury was discharged, the court received notice of an allegation from one juror that a person attending the trial had been "stalking" the impaneled jurors on lunch breaks and during other recess periods. The juror described the individual's behavior as "creepy." It was later learned that the individual was a representative of an insurance company monitoring the progress of the trial because it insured many of the defendants. As a result of the "stalking" allegation, the court conducted its own investigation and ultimately set aside the verdict, which had been entirely in defendants' favor, and ordered a new trial. We agree with defendants that the court abused its discretion in conducting an in camera interview of the complaining juror without notifying counsel, without seeking counsels' consent to that procedure ..., and without providing counsel with an opportunity to be heard or to participate, even in some restricted manner, in the interview of the juror ... . Further, the court limited its investigation to one juror, and we conclude that the court abused its discretion in failing to conduct a more expanded investigation, including, at a minimum, conducting an interview of all of the jurors ... . Lastly, the court abused its discretion in prohibiting counsel from contacting any jurors until after plaintiff's motion to set aside the verdict was decided. This unnecessary prohibition essentially precluded defendants from obtaining and submitting any meaningful opposition to plaintiff's motion, the practical result being that the granting of plaintiff's motion was a foregone conclusion. Varano v Forba Holdings LLX 2015 NY Slip OP 01090, 4th Dept 2-6-15





Proper Way to Handle an Inconsistent Verdict Explained


The Second Department explained the proper procedure when a verdict is inconsistent (either have the jury reconsider the verdict or order a new trial):


"When a jury's verdict is internally inconsistent, the trial court must direct either reconsideration by the jury or a new trial" ... . Here, the jury's verdict was internally inconsistent, as the jury attributed 10% of the fault for the plaintiff's accident to both the plaintiff and [one of the two defendants], despite having found that their negligence was not a substantial factor in causing the accident ... . The Supreme Court should have resolved the substantial juror confusion, as demonstrated by the internally inconsistent verdict, by either resubmitting the case to the jury for reconsideration or directing a new trial on the issue of liability (see CPLR 4111[c]...). Kumar v PI Assoc LLC, 2015 NY Slip Op 00849, 2nd Dept 2-4-15






Analytical Criteria Re: Res Judicata and the Interpretation of a Release Explained


The Second Department, in grappling with the effect of stipulations and a release stemming from divorce proceedings, explained the principles of res judicata (precluding mother's action for payment of Bar Mitzvah fees) and the interpretation of a release (allowing mother's action for teen tour expenses):


"Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation" ... . Under New York's transactional approach to res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" ... . Here, the Family Court properly granted the father's objection to that portion of the Support Magistrate's order which awarded the mother reimbursement of Bar Mitzvah fees. The father presented evidence showing that the mother's claim against him arose from the same operative facts as a claim which was decided on the merits in the Supreme Court matrimonial action, in which she sought, inter alia, a finding of contempt against him for his nonpayment of the same Bar Mitzvah fees. The father thus demonstrated that the claim for Bar Mitzvah fees that was asserted against him in this proceeding could have been raised in the Supreme Court action. Thus, this claim was properly dismissed as barred by the doctrine of res judicata.


... " A release is a contract, and its construction is governed by contract law'" ... . Where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement ... . Here, the mother established her prima facie entitlement to judgment as a matter of law on her claim for reimbursement of the teen-tour expenses. In opposition, the father failed to raise a triable issue of fact as to whether the claim was barred by the release contained in the parties' stipulation of settlement. That release contained an exception that clearly and unambiguously allowed either party to pursue claims seeking to enforce the terms of the stipulation of settlement, as well as all prior stipulations entered into by the parties. This exception was applicable to the mother's claim in this proceeding for reimbursement of teen-tour expenses. Viewed in its entirety, the terms of the stipulation of settlement make clear that it was not intended to preclude the mother's claim in this regard. Matter of Singer v Windfield, 2015 NY Slip Op 00890, 2nd Dept 2-4-14





Action Challenging a City Resolution to Sell City Property to an Identified Purchaser Is a Challenge to an Administrative Act and Is Therefore Governed by the Four-Month "Article 78" Statute of Limitations


The Fourth Department determined the four-month "Article 78" statute of limitations applied to a challenge to a city resolution allowing the sale of city property to a particular, named purchaser  (which was an administrative act).  The action, therefore, was properly dismissed as time-barred. The court explained how an action is analyzed to determine the nature of it for purposes of applying the correct statute of limitations:


The causes of action under General Municipal Law § 51 have no specific limitations period, and we must "examine the substance of th[e] action to identify the relationship out of which the claim[s] arise[] and the relief sought" ... . "If the rights of the parties may be resolved in a different form of proceeding for which a specific limitations period applies, then we must use that period" ... . Ultimately, "the nature of the remedy rather than the theory of liability is the salient consideration in ascertaining the applicable [s]tatute of [l]imitations" ... . Here, plaintiffs are challenging the resolution authorizing defendant Mayor to execute a purchase and sale agreement for the garage. The resolution was an administrative act, rather than a legislative act, inasmuch as it applies only to the City and [the purchaser]... . It is well established that the proper vehicle for challenging an administrative act is a CPLR article 78 proceeding, and thus the four-month statute of limitations under CPLR 217 applies ... . Riverview Dev LLC v City of Oswego, 2015 NY Slip Op 01105, 4th Dept 2-6-15





Party Moving for a Change of Venue Must Demonstrate the Change Will Better Serve the Convenience of Material Witnesses


In affirming the denial of a motion for a change of venue, the Second Department explained the criteria:


"The party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses would be better served by the change" ... . In doing so, the moving party must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which these witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses would be inconvenienced if the venue of the action was not changed ... . MI v Trinity-Pawling School, 2015 NY Slip Op 00852, 2nd Dept 2-4-15





Despite Mandatory Language In the Statute Requiring that an Action Against a School District Be Brought in the County Where the School District Is Located, the Court Has the Discretion to Grant a Motion for a Change of Venue Based Upon the Convenience of Material Witnesses and the Absence of Prejudice to the School District


The Second Department determined that, despite the mandatory language of CPLR 504, a change of venue based upon the convenience of witness was appropriate in an action against a school district:


CPLR 504 provides, in relevant part, that "the place of trial of all actions against . . . school districts . . . shall be . . . in the county in which such . . . school district . . . is situated" (CPLR 504[2]...). "The purpose of CPLR 504, which applies not just to school districts but also to counties, cities, towns, and villages, is to protect municipal entities and their employees from the inconvenience of an alternative venue ... . "Nevertheless, and despite the seemingly unforgiving language of the statute, venue may be changed to a non-mandated county upon a showing of special circumstances" ... . The decision of whether to grant a change of venue is committed to the providently exercised discretion of the trial court ... .


Here, the plaintiff established that the convenience of material witnesses and the ends of justice outweigh the asserted governmental inconvenience ... . The plaintiff produced the affirmations from his treating physicians, both of whom maintain a surgical practice in Kings County, and an affidavit from an eyewitness to the accident, who resides in Kings County ... . Each prospective witness disclosed the facts underlying his proposed testimony and asserted that he will be inconvenienced if the trial were conducted in Suffolk County rather than in Kings County ... . The defendant, however, did not assert that any of its employees witnessed the accident ... . Furthermore, the defendant failed to establish that any of its trial witnesses would be inconvenienced by traveling to Kings County. Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Kings County. Xhika v Rocky Point Union Free School Dist, 2015 NY Slip OP 00874,d 2nd Dept 2-4-15





Criteria for Determining the Clarity or Ambiguity of the Terms of a Contract Explained


In affirming the verdict after a bench trial (finding the relevant terms of a contract unambiguous), the Second Department explained its review powers and outlined the analytical criteria re: the determination of the clarity or ambiguity of the terms of a contract:


"In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing the witnesses and hearing the testimony" ... . "The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence" ... . "When interpreting a contract, the construction arrived at should give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the parties' expressions so that their reasonable expectations will be realized" ... . "The terms of a contract are clear and unambiguous when the language used has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion" ... . Palumbo Group v Poughkeepsie City Sch Dist, 2015 NY Slip Op 00857, 2nd Dept 4-4-15




Even Where Probable Cause for Arrest Exists, a Search Can Not Be Justified as a Search Incident to Arrest Unless the Searching Officer(s) Intended to Arrest Based Upon the Existing Probable Cause---Here the Officers Did Not Intend to Arrest the Defendant for Littering and the Search Was Therefore Not a Valid Search Incident to Arrest


The Third Department determined the search of defendant's backpack was illegal and suppressed the weapon found. Although the defendant had discarded a cup while the officers were watching him, providing grounds for arrest for littering, the officers did not intend to arrest the defendant for littering and in fact did not charge the defendant with littering.  Therefore the search of the backpack could not be justified as a search incident to arrest:


Based on the recent Court of Appeals decision in People v Reid (__ NY3d __ 2014, 2014 NY Slip Op 08759 [2014]), which holds that there must be either an actual or intended arrest for the offense justifying the search, we now reverse.


It is well recognized that the police may search the person or area within the immediate control of any individual who is lawfully placed under arrest ... . The warrantless search incident to arrest advances the twin objectives of ensuring the safety of law enforcement and the prevention of evidence tampering or destruction by a suspect. It is not particularly significant whether a search precedes an arrest or vice versa, so long as the two events occur in a nearly contemporaneous manner... . Based on Reid, however, it is now clear that the police must either make an arrest or intend to make an arrest at the time of the search in order for the search to be considered lawful ... . The intent to arrest for the offense justifying the search must be present even if a defendant is ultimately arrested for a different offense ... .


In Reid, the defendant was pulled over by a police officer after he was observed driving erratically. Based on the defendant's disheveled appearance and odd responses to questions, the officer ordered him out of the car, searched his person, and uncovered a knife in his pocket. Although it was undisputed that the officer's observations gave him probable cause to arrest the defendant for driving while intoxicated, the officer testified at the suppression hearing that he had no intention of arresting the defendant at the time he was initially stopped and searched. The officer also explained that it was not until discovery of the knife that he decided to arrest the defendant. In declining to uphold the search as incident to the defendant's arrest, the Court of Appeals observed that "but for the search," the arrest "would never have taken place (2014 NY Slip Op 08759, *6)," concluding that it was irrelevant that an arrest for DWI could have been made prior to the search. The Court explained that the search must be "incident to an actual arrest, not just probable cause that might have led to an arrest, but did not" (2014 NY Slip Op 08759, *4). This necessarily requires that, at the time the search is undertaken, an arrest has either been made or the officer has already formulated the intent to effectuate an arrest.


While in this case the officers had probable cause to arrest defendant for littering (see Administrative Code of the City of New York § 16-118...]), defendant was not arrested for that offense. Nor did either of the officers testify at the suppression hearing that they harbored any intent to arrest defendant until they discovered the gun. According to officer Arslanbeck, it was only after they discovered a weapon in defendant's backpack that a decision to arrest him was made. Without an actual arrest or the formulation of an intent to arrest defendant for littering prior to frisking his bag, the search cannot be justified as having been incident to defendant's arrest ... . People v Magnum, 2015 NY Slip Op 00796, 1st Dept 2-3-15




Judge's Failure to Question Prospective Juror Re: the Juror's Possible Bias In Favor of Police Officers Was Reversible Error/Prosecutor's Suggestion in Summation that Simply Being a Defendant Is Evidence of Guilt Was Grounds for Reversal As Well


The First Department reversed defendant's conviction because the trial judge did not further question a juror who indicated bias in favor of police officers.  [The judge, in denying defense counsel's "for cause" challenge, erroneously indicated it was defense counsel's role to question the juror about the juror's ability to be fair.]  In addition, the prosecutor's suggestion in summation that simply being a defendant is evidence of guilt was grounds for reversal:


Criminal Procedure Law § 270.20(1)(b) provides that a party may challenge a prospective juror for cause if the juror "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial." Upon making this type of challenge, "a juror who has revealed doubt, because of prior knowledge or opinion, about [his] ability to serve impartially must be excused unless the juror states unequivocally on the record that [he] can be fair" ... . The CPL "does not require any particular expurgatory oath or talismanic words" ..., but challenged jurors "must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence" ... . Those who have given "less-than-unequivocal assurances of impartiality . . . must be excused" and "[i]f there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another" ... .


In this case, the prospective juror gave a response that was uncertain at best, stating that he did not know and "couldn't say" whether he would be able to judge an officer's credibility as opposed to a civilian witness. * * * Given this ambiguity ... it was incumbent upon the trial court to take corrective action to elicit unequivocal assurance from the prospective juror that he would be able to reach a verdict based solely upon the court's instructions on the law ... . ...


...[T]he prosecutor's summation remarks regarding reasonable doubt also constituted reversible error, as these remarks suggested that the jury should convict based on facts extraneous to the trial. Specifically, the comments "linked [the defendant] to every defendant who turned out to be guilty and was sentenced to imprisonment," thus inviting the jury to consider his status as a defendant as "evidence tending to prove his guilt" ... . Moreover, the prosecutor's comments tended to minimize the jury's sense of responsibility for the verdict. These remarks exceed the bounds of permissible advocacy. People v Jones, 2015 NY Slip Op 00797, 1st Dept 2-3-15




Proof Presented to Grand Jury Was Sufficient to Support Allegation Defendant "Caused" the Death of a Police Officer Killed by Another Driver While Responding to the Accident In Which Defendant Was Involved


The Second Department determined the evidence before the grand jury was sufficient to support the charge that defendant, who had been involved in a vehicle accident and was allegedly under the influence of alcohol, "caused" the death of a police officer who was struck by a car at the accident scene.  The court explained the nature of the proof required to support the charge that the defendant "caused" the death of another:


"Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction'" ... . " Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10[1]).


In order to be held criminally liable for a person's death, a defendant must have engaged in conduct that "actually contribute[d]" to that person's death ... . The defendant's actions need not be the sole cause of death and, indeed, the defendant need not have committed the fatal act to be liable ... . The test is, instead, whether it may be reasonably foreseen that the defendant's actions would result in the victim's death; if so, the defendant's actions may, under the criminal law, constitute a "sufficiently direct cause" of the death to warrant criminal liability for it ... .


Here, viewing the evidence before the grand jury in the light most favorable to the prosecution ..., we find that there was legally sufficient proof before the grand jury that the defendant's actions "caused" the officer's death. Specifically, it was reasonably foreseeable that the defendant's conduct would cause collisions and that the police would respond and be required to be in the roadway, where they would be exposed to the potentially lethal danger presented by fast-moving traffic ... . People v Ryan, 2015 NY Slip Op 00915, 2nd Dept 2-4-15




Defendant's Exclusion from a "Sirois" Hearing (Where It Was Determined a Witness Was "Practically Unavailable" Because of Threats Made to the Witness on Behalf of the Defendant) Was Reversible Error


The Second Department reversed defendant's conviction because he was excluded from a "Sirois" hearing where it was determined a witness was "practically unavailable" because of threats made by a person on behalf of the defendant.  The defendant had been allowed to hear the testimony but was not able to participate in the proceedings in any way:


"[A] defendant's absence at a Sirois hearing has a substantial effect on his ability to defend the charges against him and, thus, a Sirois hearing constitutes a material stage of the trial" ... . The "[d]efendant was entitled to confront the witness against him at that hearing and also to be present so that he could advise counsel of any errors or falsities in the witness' testimony which could have an impact on guilt or innocence" ... . Here, the defendant was not in the courtroom and was not allowed to confer with his attorney during the hearing. Moreover, the fact that the defendant was able to hear the witness's testimony from a holding cell, and that the Supreme Court did not render a decision on the People's application until after argument was heard three days after the hearing, were insufficient safeguards to ensure that the defendant was "afforded the opportunity for meaningful participation to which he was entitled" ... . People v Williams, 2015 NY Slip Op 00916, 2nd Dept 2-4-15




More Sophisticated DNA Test, Ruling Out the Defendant as the Source of Semen, Was a Proper Basis for Vacating Defendant's Conviction--Criteria Described


The Fourth Department upheld County Court's grant of defendant's motion to vacate his rape conviction because a recent DNA test demonstrated he was not the source of semen found in the victim's vagina (the source was the victim's boyfriend).  At the time of the trial the DNA results were inconclusive and the prosecutor had argued the presence of semen corroborated the victim's assertion defendant had raped her:


"It is well settled that on a motion to vacate a judgment of conviction based on newly [*2]discovered evidence, the movant must establish, inter alia, that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence" ... . "The power to grant an order for a new trial on the ground of newly discovered evidence is purely statutory. Such power may be exercised only when the requirements of the statute have been satisfied, the determination of which rests within the sound discretion of the court" ... . People v White, 2015 NY Slip Op 01075, 4th Dept 2-6-15




Evidence Sufficient to Support Count Charging Sexual Abuse First Degree, Despite Evidence Defendant Did Not Touch the Victim for the Purpose of Gratifying Sexual Desire


The Fourth Department determined the evidence presented to the grand jury was sufficient to support the count charging sexual abuse in the first degree.  The issue was whether there was sufficient evidence defendant touched the victim for the purpose of gratifying sexual desire.  Based upon what the defendant said at the time, the purpose of his touching the victim was to determine whether she had recently had sex with another.  The court explained the level of proof required at the grand jury stage:


" Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10 [1]). Thus, "[o]n a motion to dismiss an indictment based on legally insufficient evidence, the issue is whether the evidence before the [g]rand [j]ury establishes a prima facie case" ... . In deciding a motion to dismiss a count of an indictment for legally insufficient evidence, a "reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crime[],' and whether the [g]rand [j]ury could rationally have drawn the guilty inference' . . . That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the [g]rand [j]ury could rationally have drawn the guilty inference' " ... .


As relevant here, "[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . . [b]y forcible compulsion" (Penal Law § 130.65 [1]), and sexual contact is defined as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party" (§ 130.00 [3]). Consequently, the People were required to submit sufficient evidence from which the grand jury could have inferred that defendant touched the victim's vagina for the purpose of gratifying his or the victim's sexual desire. It is well settled that, "[b]ecause the question of whether a person was seeking sexual gratification is generally a subjective inquiry, it can be inferred from the conduct of the perpetrator" ... . Here, we conclude that the evidence before the grand jury, viewed in the light most favorable to the People, was sufficient to permit the grand jury to infer that defendant touched the sexual and intimate parts of the victim's body by forcible compulsion for the purpose of gratifying his sexual desire ... . To require, as defendant suggests, that the reviewing court accept the explanation that defendant proffered for his conduct, "would skew a reviewing court's inquiry and restrict, if not extinguish, the [g]rand [j]ury's unassailable authority to consider logical inferences that flow from the facts presented to it" ... . People v Hoffert, 2015 NY Slip Op 01083, 4th Dept 2-6-15




Department of Social Services (DSS) Is Not a "Victim" under the Penal Law---Defendant Can Not Be Ordered to Pay Restitution to DSS for Care of Child-Victim of Defendant's Offense


The Fourth Department determined the Department of Social Services (DSS) was not a "victim" within the meaning of Penal Law 60.27 and therefore the defendant could not be ordered to pay restitution to the DSS for expenses incurred caring for the child-victim of defendant's crime:


It is well established that restitution may be required for expenses that "were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime" ... . Here, however, the foster care expenses are the result of the placement of the victim in the care and custody of DSS pursuant to a proceeding in Family Court (see Family Ct Act § 1055 [1]), and thus DSS is performing its statutory duty pursuant to Social Services Law § 398 (2) (b). We note that the Legislature has specifically provided that certain governmental agencies and entities are entitled to restitution when performing their statutory duties (see Penal Law § 60.27 [9], [10], [13]). Section 60.27 (9), for example, was enacted to permit restitution to police agencies for unrecovered funds used in undercover drug purchases following the decision in People v Rowe (152 AD2d 907, 909, affd 75 NY2d 948, 949). In Rowe, we determined that, absent legislative intent to include a city police department as a "victim," such funds could not be recovered by means of a court order of restitution. Similarly, here, in the absence of legislative intent that DSS is a "victim" pursuant to Penal Law § 60.27, we decline to impose an obligation on defendant to pay restitution for the expenditure of public funds for providing foster care for the victim. People v Johnson, 2015 NY Slip Op 01107, 4th Dept 2-6-15





Prosecutorial Misconduct Deprived Defendant of a Fair Trial


The Fourth Department, exercising its "interest of justice" jurisdiction, over a dissent, determined the misconduct of the prosecutor warranted a new trial.  The prosecutor improperly questioned defendant about his homosexuality and the criminal records of persons with whom defendant resided, The prosecutor further improperly introduced evidence of defendant's propensity to commit a crime and elicited bolstering testimony from a police officer about the Child Sexual Abuse Accommodation Syndrome without qualifying the officer as an expert in that area. With respect to the police officer's testimony, the court wrote:


...[T]he prosecutor improperly elicited testimony from a police investigator that he had received training establishing that underaged victims of sexual crimes frequently disclosed the crime in minimal detail at first, and provided more thorough and intimate descriptions of the event later. That testimony dovetailed with the People's position concerning the way in which the victim revealed this incident ... . Thus, we conclude that the investigator's testimony "was the precise equivalent of affirming the credibility of the People's witness through the vehicle of an opinion that [sexual abuse is frequently committed] as the victim had related. It is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not. The jurors were fully capable of using their ordinary experience to test the credibility of the victim-witness; and the receipt of the [investigator]'s testimony in this regard was improper and indeed constituted usurpation of the function of the jury . . . Where, as here, the sole reason for questioning the expert' witness is to bolster the testimony of another witness (here the victim) by explaining that his version of the events is more believable than the defendant's, the expert's' testimony is equivalent to an opinion that the defendant is guilty" (People v Ciaccio, 47 NY2d 431, 439), and the prosecutor improperly elicited that testimony.


Moreover, by eliciting that testimony, the prosecutor improperly introduced expert testimony regarding the Child Sexual Abuse Accommodation Syndrome. Although such testimony is admissible in certain situations ..., here it was elicited from a police investigator under the guise that it was part of the investigator's training. The prosecutor failed to lay a foundation establishing that the investigator was qualified to provide such testimony .... Furthermore, the evidence does not establish that the investigator had "extensive training and experience [that] rendered [him] qualified to provide such [testimony]" ... . People v Scheidelman, 2015 NY Slip Op 01111, 4th Dept 2-6-15





Lowering Health Insurance Benefits for School-District Retirees Below Level Afforded Active Employees Violated the Insurance Moratorium Statute


The Fourth Department determined lowering the health insurance benefits for retired school district employees below the level of benefits afforded active employees violated the Insurance Moratorium Statute:


The moratorium statute sets a minimum baseline or "floor" for retiree health benefits, and that "floor" is measured by the health insurance benefits received by active employees ... . In other words, the moratorium statute does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees ... . Matter of Anderson v Niagara Falls City School Dist, 2015 NY Slip Op 01098, 4th Dept 2-6-15





Criteria for Determining the Propriety of the Termination of a Probationary State Employee Explained


The Second Department explained the criteria for determining the propriety of the termination of a probationary (state) employee:


"The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law" ... . Here, the petitioner failed to carry his burden of presenting competent proof that his termination was improper ... . The record demonstrates that the petitioner's performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith... . Matter of Triola v Daines, 2015 NY Slip Op 00896, 2nd Dept 2-4-15






Mother's Actions and Mental Health Issues Did Not Warrant a Finding of Neglect


The Fourth Department determined mother's actions and mental health issues did not support Family Court's neglect-finding.  The mother had left her child with appropriate caregivers and kept in touch, although she was absent longer than expected:


"[A] party seeking to establish neglect must show, by a preponderance of the evidence . . . , first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship" (...see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]). "Where a motion is made by the respondent at the close of the petitioner's case to dismiss a neglect petition, [the court] must determine whether the petitioner presented a prima facie case of neglect . . . , viewing the evidence in [the] light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the proof presented" ... .


We conclude that, viewing the evidence in the light most favorable to petitioner, the evidence established that the mother left the child with appropriate caregivers, who agreed to care for the child for several days; however, she left the state for approximately 24 hours, and she failed to provide a medical authorization in case of an emergency. Further, although the male caregiver was unable to reach the mother during the confrontation with the mother's grandmother, petitioner's evidence established that the mother had borrowed a telephone and had remained in contact with the caregivers each day that she was away. The evidence also established that the mother was inexperienced as a parent and that the couple with whom she lived was assisting her with parenting skills and in obtaining appropriate housing, as well as medical and other benefits.


We conclude that petitioner failed to establish that, as a result of the mother's actions, the child was in imminent danger, i.e., "near or impending [danger], not merely possible" ... . We further conclude that petitioner failed to present any evidence connecting the mother's alleged mental health condition to any actual or potential harm to the child ... . We therefore conclude that petitioner failed to establish by a preponderance of the evidence that the child's physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired as a result of the mother's failure to exercise a minimum degree of care for the child ... . Matter of Lacey-Sophia TR, 2015 NY Slip Op 01123, 4th Dept 2-6-15




Evidence Did Not Support Finding of Neglect Based Upon Mother's Mental Illness and Failure to Take Medication


The Second Department determined the evidence was not sufficient to demonstrate mother's neglect based upon her mental illness and her failure to take medication:


" A finding of neglect may be predicated upon proof that a child's physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent's mental illness'" (... see Family Ct Act § 1012[f][i]). "However, proof of mental illness alone will not support a finding of neglect'; the evidence must establish a causal connection between the parent's condition, and actual or potential harm to the children'" ... .


Here, based on our evaluation of the record, and giving deference to the Family Court's credibility determinations ..., we find that the petitioner failed to establish, by a preponderance of the evidence, the existence of a causal connection between the mother's mental illness and actual or potential harm to the subject child ... . * * *


"Proof of ongoing mental illness and the failure to follow through with aftercare medication, which results in a parent's inability to care for her child in the foreseeable future, is a sufficient basis for a finding of neglect" ... . Here, although there was evidence that the mother stopped taking medication after her discharge from Beth Israel, the evidence was insufficient to establish that the mother was unable to care for the child during that period. Matter of Nialani T, 2015 NY Slip Op 00894, 2nd Dept 2-4-15




Family Court Should Have Inquired More Deeply Into Mother's Finances Before Ordering the Matter to Proceed Without Counsel for Mother


The Second Department determined Family Court should have inquired into mother's financial situation in more depth before finding that she was not eligible for assigned counsel and proceeding in the absence of counsel:


Given the mother's statements indicating that she lacked the funds to retain private counsel, the Family Court should have inquired further into the mother's financial circumstances, including, but not limited to, inquiring about her expenses, to determine whether she was eligible for assigned counsel ... .


Furthermore, "[w]aiver of the right to counsel must be founded on an explicit and intentional relinquishment which is supported by knowledge and a clear understanding of the right" ... . "In order to determine whether a party is validly waiving the right to counsel, the court must conduct a searching inquiry of the party who wishes to waive that right and thus proceed pro se. While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel" ... .


Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so in light of her alleged inability to retain counsel after numerous adjournments and a lengthy delay in the proceedings ... . The deprivation of the mother's fundamental right to counsel requires reversal, without regard to the merits of her position ..., especially where, as here, the record demonstrates that the mother did not have a basic understanding of court proceedings ... . Matter of Pugh v Pugh, 2015 NY Slip Op 00887, 2nd Dept 2-4-15





Criteria for Deceptive Business Practices Explained


The Fourth Department determined that the defendant's (One Source's) violation of General Business Law 349 had been proven. Defendant had misled car-purchasers by informing them they were required to purchase an extended service contract or warranty as a condition of a loan.  Only at the closing of loan were the purchasers informed they could waive the warranty.  The court explained the elements of a section 349 violation:


Pursuant to section 349, deceptive business acts or practices are unlawful, and a " [petitioner] under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the [consumer] suffered injury as a result of the deceptive act' " ... . With respect to the second element, an act or practice that is deceptive or misleading in a material way is defined as a representation or omission "likely to mislead a reasonable consumer acting reasonably under the circumstances" ... . Contrary to respondents' contention, we conclude that petitioner established that second element, i.e., that One Source's actions were likely to mislead a reasonable consumer. One Source's actions were misleading in a material way in light of the fact that the consumers at issue were dependent on One Source to find them the financing to purchase their vehicles, and they were willing to pay for a warranty in order to obtain their loans. People v One Source Networking Inc, 2015 NY Slip Op 01068, 4th Dept 2-4-15









Question of Fact Whether Fight Which Broke Out at a Youth Hockey Game Was Foreseeable


The Fourth Department, over a dissent, determined there was question of fact whether a fight at a youth hockey game, in which plaintiffs were injured, was foreseeable from the perspective of the Rome Youth Hockey Association (RYHA) which leased part of the facility where the fight broke out:


...[T]here is an issue of fact whether the duty of RYHA to plaintiffs included the duty to protect plaintiffs from Ricci's conduct ... . "Foreseeability . . . determines the scope of [a] duty once it is determined to exist" ... and, given the hostile environment in the arena before the fight, there is an issue of fact whether RYHA knew or should have known of the likelihood of the fight ... . Here, the tensions in the stands built throughout the game such that we conclude that a trier of fact should determine whether RYHA had a duty to intercede and protect plaintiff ... . Pink v Ricci, 2015 NY Slip Op 01077, 4th Dept 2-6-15





Requirements for Prima Facie Case Based Upon Circumstantial Evidence Explained (Re: Existence of Hazardous Condition)


The Second Department, reversing Supreme Court, determined the defendants were not entitled to summary judgment in a slip and fall case.  The court explained the plaintiff's standard of proof when the existence of a hazardous condition (here a slippery substance on stairs) is demonstrated by circumstantial evidence.  The court noted that a defendant's self-serving affidavit (claiming that nothing was spilled on the stairs) was not sufficient to warrant summary judgment in defendant's favor:


"To prove a prima facie case of negligence in a case based on a hazardous condition, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition" ... . "To establish a prima facie case of negligence based wholly on circumstantial evidence, [i]t is enough that [the plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'" ... . "The law does not require that plaintiff's proof positively exclude every other possible cause of the accident but defendant's negligence" ... . "Rather, [the plaintiff's] proof must render those other causes sufficiently remote' or technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" ... . "A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency" ... . Quiroz v 176 N Main LLC, 2015 NY Slip Op 00863, 2nd Dept 2-4-15





"Big Apple" Map Provided City with Written Notice of a Tree-Well Defect in a Sidewalk/Notice of Claim Was Sufficient Even Though It Did Not Specifically Mention the Tree-Well Defect


The Second Department determined summary judgment should not have been granted to the city in a tree well/sidewalk slip and fall case.  The "Big Apple map" provided the city with notice of the defect alleged to be the cause of plaintiff's fall.  The notice of claim was sufficient to notify the city of the defect in question, even though the tree well was not specifically mentioned in the notice:


"Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects . . . [of] which its officials have been actually notified exist at a specified location" ... . Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City ... .  * * *


Here, the Big Apple map provided the City with notice that the subject tree well was unprotected and potentially hazardous. Indeed, the key to the Big Apple map, which has been in the City's possession since 2003, is entitled, in relevant part, "Survey Of Pavement Defects Sufficient To Cause A Hazard." Moreover, it is the failure to "fence" or place a barrier around the tree well, which is shown on the Big Apple map, that formed the basis of the plaintiff's cause of action. Therefore, the City did not meet its burden of demonstrating, prima facie, that it did not have prior written notice of the alleged defective condition ... .


Moreover, the Supreme Court erred in concluding that the plaintiff's notice of claim precluded her from asserting a theory of liability based on the absence of a fence or barrier around the tree well. The purpose of the notice of claim is "[t]o enable authorities to investigate, collect evidence and evaluate the merit of a claim" ... . Here, the plaintiff's notice of claim alleged a defective condition located adjacent to P.S. 146 on 98th Street, between 158th and 159th Avenues, in Queens. The City does not argue that its investigation of the claim was prejudiced based on the description provided by the plaintiff in the notice of claim ... . Nor has it articulated how investigating a defective sidewalk would differ from investigating an unsecured tree well at the same location. Moreover, any discrepancy as to the cause of the plaintiff's fall was remedied by the plaintiff's hearing testimony. Bartels v City of New York, 2015 NY Slip Op 00836, 2nd Dept 4-4-15





School's Duty to Supervise the Child Had Ended When the Child Was Struck by a Car Just Outside the School Building/City Is Immune from Liability for Alleged Negligent Traffic Control---No "Special Relationship" with the Child


The Second Department determined the school's duty to supervise plaintiff's child had ended at the time the child was struck by a car outside the school building.  Plaintiff had already taken custody of the child at the time.  In addition, the court determined that the city was immune from liability for the alleged negligent traffic control because no special relationship between the city and the child existed:


A school's duty to supervise the students in its charge arises from its physical custody over them ... . The rationale underlying this duty is that when a school takes custody of a child, it deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived .. . For this reason, a school's duty to supervise is generally viewed as being "coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases" ... . In support of their motion, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they had released the infant to the plaintiff's custody and, thus, he was no longer in the custody of the municipal defendants when the accident occurred.


... A municipal defendant is immune from liability for negligence claims arising from the performance of its governmental functions ... . However, there is a "narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a special relationship' between the municipality and the claimant" .... "A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" ... . Regulation and control of traffic and public transportation "is the exercise of an unquestioned governmental function" ... . Here, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they did not owe the infant a special duty and, in response, the plaintiff failed to raise a triable issue of fact. Giresi v City of New York, 2015 NY Slip Op 00844, 2nd Dept 2-4-15




"Falling Objects" Protection Afforded by Labor Law 240 (1) Explained


In affirming the denial of defendant's motion for summary judgment on the Labor Law 240 (1) cause of action, the Fourth Department explained the law relating to "falling objects:"


Labor Law § 240 (1) "applies to both falling worker' and falling object' cases" ..., and that section 240 (1) guards "workers against the special hazards' that arise when the work site either is itself elevated or is positioned below the level where materials or load [are] hoisted or secured' " ... . To recover under section 240 (1), a worker injured by a falling object must thus establish both (1) that the object was being hoisted or secured, or that it " required securing for the purposes of the undertaking,' " and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential ... . Floyd v New York State Thruway Auth, 2015 NY Slip Op 01131, 4th Dept 2-6-15




Non-Supervising Property Owner Not Liable Under Common Law or Labor Law 200 for Injury Stemming from the Manner In Which the Work Is Done


The Fourth Department noted that no liability attaches to the non-supervising property owner under Labor Law 200 or common law negligence when the worker's injury stems from the manner in which the work was performed and not from the condition of the work site:


"It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law" ... . Here, defendants met their initial burden by establishing that plaintiff's accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and defendants exercised no supervisory control over the work... . Zimmer v Town of Lancaster Indus Dev Agency, 2015 NY Slip Op 01023, 4th Dept 2-6-15





"Case Management Fee" Imposed Upon Property Owners Who Do Not Correct a Code Violation Within One Year Is an Unconstitutional Penalty Which Requires Due Process Protections


The Fourth Department determined a so-called "case management fee" (CMF) authorized by City of Rochester Municipal Code 90-21 is an unconstitutional penalty imposed without adequate due process.  The code provisions allows the assessment of $100 against a property owner who fails to correct a code violation within one year:


Although "[t]he exceedingly strong presumption of constitutionality applies . . . to ordinances of municipalities[,] . . . [that] presumption is rebuttable" ..., and we conclude that petitioners have rebutted the presumption of constitutionality.


A determination whether the CMF is a fee or a fine imposed as a penalty is critical to our analysis because "[p]rocedural due process rights do not apply to legislation of general applicability," and thus the imposition of fees such as licensing fees are "not subject to attack on grounds of procedural due process. Fines [that are imposed as a penalty], however, can implicate procedural due process rights" ... . * * *


Having concluded that the CMF is a fine imposed as a penalty on the property owner, we must determine whether the ordinance provides property owners with due process of law. As the Court of Appeals wrote in Morgenthau v Citisource, Inc. (68 NY2d 211), "[w]e have long recognized that due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand' . . . [,] and in determining whether [f]ederal due process standards have been met, we look to the three distinct factors that form the balancing test enunciated by the Supreme Court in Mathews v Eldridge (424 US 319, 335): First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail' " (id. at 221).


While we agree with the court that the private interest at stake, i.e., $100, "is relatively insubstantial," we conclude that there is a significant risk of erroneous deprivation of that interest through the procedures established by the ordinance. * * *


Although " [d]ue process does not, of course, require that the defendant in every civil case actually have a hearing on the merits' " ..., we conclude that due process requires some type of hearing at which the City should be required to establish that property owners did not abate the violation within the one-year period. Matter of D'Alessandro v Kirkmire, 2015 NY Slip Op 01018, 4th Dept 2-6-15






No Statute of Limitations Applies to an Owner Seeking to Have an Apparent Encumbrance Struck from the Record


The Fourth Department determined the six-year statute of limitations did not apply to an owner in possession of land who seeks to have an apparent encumbrance discharged from the record.  Supreme Court erred when it determined a six-year statute began to run when a tax deed erroneously purported to transfer the property:


"It is well settled that an owner in possession has a right to invoke the aid of a court of equity at any time while he is so the owner and in possession, to have an apparent, though in fact not a real incumbrance discharged from the record and such right is never barred by the [s]tatute of [l]imitations. It is a continuing right which exists as long as there is an occasion for its exercise" ... . Indeed, "[a] [s]tatute of [l]imitations is one of repose designed to put an end to stale claims and was never intended to compel resort to legal remedies by one who is in complete enjoyment of all he claims . . . The logic of such a view is inescapably correct, for otherwise, the recording of the deed resulting from such a proceeding would transform the owner's absolute title in fee simple into a right of action only, the exercise of which is subject to time limitation" ... .


We conclude that, inasmuch as plaintiff and his predecessors in interest have always held title and have been in continuous possession of the disputed property, the tax deed to defendants' predecessor in interest was void with respect to the disputed property because the County of Onondaga could not convey an interest in land that it did not have ... . Indeed, "[a] purchaser who fails to use due diligence in examining the title is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed" ... . Here, due diligence on the part of defendants would have disclosed the error in the 1959 transfer of the disputed property. Crain v Mannise, 2015 NY Slip Op 01109, 4th Dept 2-6-15





Underwater Land Is Appurtenant to Adjacent Upland


The Fourth Department determined defendant had no ownership rights in underwater land appurtenant to plaintiffs' upland property:


...[T]he court properly considered the deeds submitted by plaintiffs in support of their motion. All of those deeds, with the exception of defendant's own quitclaim deed, are more than 10 years old and therefore are "prima facie evidence of their contents" (CPLR 4522...). With respect to defendant's quitclaim deed, plaintiffs' attorney swore to its authenticity ..., and defendant herself relies on that deed in opposition to plaintiffs' motion.


...[E]ven with navigable waterways, "when land under water has been conveyed by the state to the owner of the adjacent uplands, the lands under water so conveyed become appurtenant to the uplands, and will pass by a conveyance of the latter without specific description" ... . Here, regardless of whether title to the underwater land merges and passes with title to adjacent uplands, or is conveyed separately, plaintiffs met their initial burden. Although the State initially conveyed uplands and underwater land to Charles Smyth by separate deeds, the underwater land thereafter passed appurtenant to Smyth's uplands, including by deeds to plaintiffs and several other landowners on North Bay, but not to defendant. Even if the underwater land could be conveyed only separately, it would have passed to Smyth's heirs and devisees, not directly to defendant. Kernan v Williams, 2015 NY Slip Op 01122, 4th Dept 2-6-15





Commercial Property Overvalued---Evidentiary Criteria Explained In Some Depth


The Fourth Department determined three commercial properties had been overvalued for real property tax purposes.  The court discussed the relevant evidentiary criteria in considerable depth:


...[P]etitioners met their initial burden of presenting "substantial evidence that the propert[ies were] overvalued" ..., thereby rebutting the "presumption of validity [that] attaches to the valuation of property made by the taxing authority" ... . "In the context of tax assessment cases, the substantial evidence' standard merely requires that petitioner demonstrate the existence of a valid and credible dispute regarding valuation" ... . "The ultimate strength, credibility or persuasiveness of petitioner's arguments are not germane during this threshold inquiry" ... . Here, petitioners submitted appraisals by a qualified expert who valued the subject properties utilizing the income capitalization approach to valuation, which is "generally regarded as the preferred method for determining the value of income-producing propert[ies]" such as those at issue in this case .... Further, the appraisals "contained documentation and calculations to support the underlying methodolog[y] and the ultimate valuation" ... . "The fact that some aspects of [the expert]'s valuation methodology may be subject to question goes to the weight to be accorded the appraisal[s] and not to the threshold issue of whether petitioner[s] produced substantial evidence to rebut the presumption of validity' ... . 


... It is well established that "valuation [is] largely a question of fact, and the [trial] courts have considerable discretion in reviewing the relevant evidence as to the specific propert[ies] before them" ... . "As a general rule, actual rental income is often the best indicator of value" ... , although actual income " may be disregarded where it does not reflect full value' " ... . Here, there is no evidence that the rents petitioners charged were arbitrary or the result of collusion or self-dealing ..., and respondents "failed to establish that the actual income was not reflective of the market for the years under review" ... . * * *


"The ultimate purpose of valuation . . . is to arrive at a fair and realistic value of the property involved" ... . The income capitalization approach to valuation "rests on the proposition that the value of income-producing property is the amount a willing buyer, desiring but not compelled to purchase it as an investment, would be prepared to pay for it under ordinary conditions to a seller who desires, but is not compelled, to sell . . . That amount will depend on the net income the property will likely produce inasmuch as the purchase price represents the present worth of anticipated future benefits" ... . Here, the " net income the property will likely produce' " ..., at least for the next 30 years, is the amount of the ground lease. Matter of Techniplex III v Town & Vil of E Rochester, 2015 NY Slip Op 01101, 4th Dept 2-6-15





In Proceedings Seeking the Reduction of Tax Assessments, Court Should Not Have Ordered the Inspection of the Interior of the Homes---The Assessor Did Not Demonstrate Interior Inspections Were Necessary for the Defense and Did Not Demonstrate the Need for the Inspections Outweighed the Homeowners' Fourth Amendment Privacy Rights



The Fourth Department determined Supreme Court should not have ordered inspections of the interior of homes in proceedings where homeowners challenged the tax assessments of their properties:


"Because discovery tends to prolong a case, and is therefore inconsistent with the summary nature of a special proceeding, discovery is granted only where it is demonstrated that there is need for such relief" ... . Here, in order for "respondents to establish their entitlement to conduct . . . interior inspection[s] of the petitioner[s'] home[s] for purposes of appraisal, in the absence of the petitioner[s'] consent, . . . respondents bore the burden of demonstrating that [each] particular inspection [was] reasonable' " ..., and " that interior inspections were necessary to prepare their defense' " ... . We agree with petitioners that respondents failed to make the required showing that interior inspections were reasonable and necessary to prepare their defense ... . * * *


In addition to establishing that their request for interior inspections was reasonable and necessary to prepare their defense, respondents were also required to show that their interest in conducting them outweighed petitioners' Fourth Amendment privacy rights ... . In determining whether respondents made such a showing, the court was required to "balanc[e] respondents' need for interior inspections [of the homes] against the invasion of petitioners' privacy interests that such inspections would entail" ... . Upon our review of the record, we conclude that respondents failed to establish that their interest in interior inspections outweighed petitioners' Fourth Amendment privacy rights ... . Matter of Aylward v Assessor, City of Buffalo..., 2015 NY Slip Op 01065, 4th Dept 2-6-15





Teacher at a Community College Entitled to Unemployment Insurance Benefits---Teacher Was Offered Employment in the Next School Year But the Hours Were Drastically Reduced---Therefore the Teacher Did Not Receive "Reasonable Assurance of Continued Employment" within the Meaning of Labor Law 590(10)


The Third Department determined claimant, who taught at a community college, did not receive "reasonable assurance of continued employment" during the next school year and therefore was eligible for unemployment insurance benefits.  Claimant had been offered employment for less than a third of the hours he had worked in the past school year:


Labor Law § 590 (10) precludes professionals employed by educational institutions from receiving unemployment insurance benefits for periods between two successive academic years when the employer has provided them with a reasonable assurance of continued employment ... . "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period" ... . Whether a claimant received a reasonable assurance of employment is a question of fact for the Board to resolve and its findings in this regard will be upheld if supported by substantial evidence ... .


Here, claimant worked 150 hours during the 2010-2011 academic year, but was only offered 45 hours during the 2011-2012 academic year, limited to the 2011 fall semester. The employer did not specify any hours for the 2012 spring semester either in its reappointment letter or notice advising claimant of his assignment, and claimant was offered significantly fewer hours during the 2011 fall semester than he had worked during the 2010 fall semester. Matter of Rosenbaum ..., 2015 NY Slip OP 00926, 3rd Dept 2-5-15





Judicial Approval of a Settlement with Third Parties Was Properly Granted After the Expiration of the Statutory Period (Nunc Pro Tunc)---Delay In Seeking Approval Was Not Due to Injured Worker's Fault or Neglect/Workers' Compensation Carrier's Consent to a Settlement Is Required Even Where the Settlement Is Greater than the Amount of the Benefits Received/Absent the Consent of the Carrier, Judicial Approval Is Required


The Second Department determined judicial approval of a settlement with third parties after the statutory period had passed was properly granted nunc pro tunc.  The injured worker received about $189,000 in workers' compensation benefits and eventually settled with third parties for $2,000,000. The workers' compensation carrier sued to collect on its lien.  The court noted that, despite the language of Workers' Compensation Law 29(5), the workers' compensation carrier's consent to a settlement is required even if the amount of the settlement is more than the amount of the benefits. In the absence of such consent (absent here), judicial approval is required (properly granted here):


Workers Compensation Law § 29(5) provides, in pertinent part:


"A compromise of any such cause of action by the employee or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of . . . the person, association, corporation, or insurance carrier liable to pay the same. However, written approval . . . need not be obtained if the employee or his dependents obtain a compromise order from a justice of the court in which the third-party action was pending. ...


"If the third-party action is on trial at the time the offer of settlement which is acceptable to the plaintiff, is made and either such written approval or order as provided in this subdivision is required, the action may be marked settled subject to the securing of such written approval or such order. If such written approval or such order is not subsequently secured within three months the action shall be restored to the head of the trial day calendar" (emphasis added).


Section 29(5) was enacted to protect an insurance carrier from paying a deficiency between the settlement and the amount paid to the injured party ... . As originally enacted, the provision required the consent of the insurance carrier. However, "in many instances, the carrier arbitrarily refused to give its consent to a proposed settlement regardless of how fair or generous the proposal might have been," prompting the Legislature to amend the provision to provide that consent need not be obtained where there is judicial approval of the settlement ... .


Although there is case law which indicates that approval pursuant to Workers' Compensation Law § 29(5) is not required if the amount of Workers' Compensation benefits received is less than the amount of the settlement ..., the Court of Appeals has held that even where the settlement constitutes 100% of the policy limits, approval pursuant to Workers' Compensation Law § 29(5) is required in order for the claimant to continue to receive Workers' Compensation benefits in the future .... Any settlement is potentially less than the benefits provided by the Workers' Compensation Law (see 1-7 New York Workers' Compensation Handbook § 7.01[5] [2014]), especially where, as here, the claimant is seeking a permanent partial disability classification from the Workers' Compensation Board, which could mean that he would be entitled to benefits indefinitely.


"[A] judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even where the application for approval is sought more than three months after the date of settlement, provided that the employee can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the employee's fault or neglect, and (3) the insurance carrier was not prejudiced by the delay" ... . Fidelity & Guar Ins Co v Digiacomo, 2015 NY Slip OP 00842, 2nd Dept 2-2-15





Late Motion for Judicial Approval of a Settlement Properly Denied---Delay In Seeking Approval Was Due to Plaintiff's Own Fault or Neglect


The Second Department determined plaintiff's late motion for judicial approval of a settlement was properly denied because the delay in making the motion was due to the plaintiff's own fault or neglect:


"Pursuant to Workers' Compensation Law § 29(5), an employee who is the recipient of workers' compensation benefits may compromise a third-party claim arising out of the same accident without prejudice to the continued payment of benefits upon obtaining either the written consent of the compensation carrier before the compromise, or judicial approval of the compromise within three months after it" ... . "However, a judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even where the application for approval is sought more than three months after the date of settlement, provided that the employee can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the employee's fault or neglect, and (3) the insurance carrier was not prejudiced by the delay" ... .


A proceeding for approval, nunc pro tunc, of the settlement of a third-party action pursuant to Workers' Compensation Law § 29(5) is directed to the discretion of the court ... . Here, the delay in seeking judicial approval was due to the plaintiff's own fault or neglect. Under these circumstances, the Supreme Court providently exercised its discretion in denying the plaintiff's motion ... . Lobban v Brown, 2015 NY Slip Op 00850, 2nd Dept 2-4-15

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