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February Page II

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


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Appeal Should Not Have Been Dismissed as Moot Because the Underlying Order of Protection Had Expired---There Are Significant Negative Consequences of the Issuance of an Order of Protection Which May Affect Appellant in the Future 


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the appeal by respondent, who had been found to have committed a Family Offense and against whom an order of protection had been issued, should not have been dismissed as moot because the order of protection had expired.  The Court of Appeals explained that the issuance of the order of protection could have significant negative future consequences for the respondent:


"[i]n general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" .... The ability of an appellate decision to directly and immediately impact the parties' rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand "what ifs." On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal ... .


In this case, the expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggests that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. ** * *In the face of the substantial probability that the order of protection will prompt severely deleterious future legal rulings against respondent, an appellate decision in his favor will directly vindicate his interest in avoiding that consequence of the order.


The order of protection has other potential legal consequences that render it susceptible to appellate review. For example, in a future legal matter, an opposing party might be permitted to use the order of protection to impeach respondent's credibility .... . Furthermore, since the order of protection remains in a police computer database, albeit not in an active file (see Executive Law §§ 221-a [1]; 221-a [6]; see also 9 NYCRR 486.2 [g]), respondent may face additional law enforcement scrutiny and an increased likelihood of arrest in certain encounters with the police (see 9 NYCRR 486.3 [n] [declaring information obtained from the database to be relevant to the decision to arrest an individual]).[FN2]


Beyond its legal consequences, the order of protection places a severe stigma on respondent, and he can escape that stigma by prevailing on appeal ... . Matter of Veronica P v Radcliff A, 2015 NY Slip Op 01300, CtApp 2-13-15






Motion for a Change of Venue Can Be Entertained in "Dangerous Sex Offender" Trials and Hearings Under the Mental Hygiene Law/Non-Final Order Which Necessarily Affects the Final Order Is Appealable


The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that "dangerous sex offender" trials and hearings under the Mental Hygiene Law are subject to the change of venue procedures under the CPLR.  Here, after the motion for a change of venue was denied, the petitioner refused to attend the hearing.  The Court of Appeals noted that the denial of the motion to change venue, although a non-final order, was appealable because it necessarily affected the final order:


Mental Hygiene Law § 10.08 (e) provides that "[a]t any hearing or trial pursuant to the provisions of this article, the court may change the venue of the trial to any county for good cause, which may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent."  * * * The construction of the provision is somewhat ambiguous, in that, if the legislature intended to restrict a change of venue to article 10 trials, the reference to "any hearing or trial" would appear to be superfluous. We see no need to read a restriction into the statute limiting annual review hearings solely to the few counties where secure treatment facilities are located.


However, petitioner failed to establish good cause for the change of venue. As noted above, the statute provides that good cause "may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent" (Mental Hygiene Law § 10.08 [e]). The affidavit submitted in support of the motion did urge, generally, that it would be inconvenient and burdensome for unnamed family members and other potential witnesses to travel to Oneida County, but failed to identify a single witness that would testify on petitioner's behalf. Nor did the affidavit set forth the subject of any proposed testimony — let alone identify any information that would be potentially relevant to the issue of whether petitioner remained a dangerous sex offender in need of confinement. Therefore, the motion for a change of venue was properly denied. Matter of Tyrone D v State of New York, 2015 NY Slip Op 01301, CtApp 2-13-15









Criteria for Review of State Liquor Authority (SLA) Determination Explained


In affirming Supreme Court's determination that the State Liquor Authority (SLA) should have granted petitioner's application for a liquor license, the Second Department explained its review powers:


In reviewing the SLA's determination of whether the public convenience and advantage would be served by granting or denying an application for a retail liquor license, the inquiry of the court is strictly limited to whether the SLA acted arbitrarily and capriciously ... . A determination is "arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" ... .


Judicial review of a determination by the SLA "is limited to the grounds invoked by the agency" ... . "If those grounds are inadequate or improper, the court is powerless to affirm the administrative [determination] by substituting what it considers to be a more adequate or proper basis" ... . Furthermore, reliance upon an improper basis for its determination requires that the determination be annulled, regardless of whether the SLA also relied, in part, upon valid considerations ... . Matter of Costco Wholesale Corp v New York State Liquor Auth, 2015 NY Slip Op 01274, 2nd Dept 2-11-15






Elements of Civil Antitrust Action Under the General Business Law (Donnelly Act) Explained/Corporate Officers Can Be Individually Liable


The Fourth Department determined there were questions of fact re: the civil antitrust action and the related individual liability of corporate officers:


... [T]he court erred in granting those parts of defendants' motions for summary judgment dismissing the fourth cause of action against them, alleging unfair competition and restraint of trade in violation of General Business Law § 340 (1) (hereafter, Donnelly Act), and we therefore modify the judgment accordingly. ... "A party asserting a violation of the Donnelly Act is required to (1) identify the relevant product market; (2) describe the nature and effects of the purported conspiracy; (3) allege how the economic impact of that conspiracy is to restrain trade in the market in question; and (4) show a conspiracy or reciprocal relationship between two or more entities" ... . The Court of Appeals has recognized, however, "that neither the Donnelly Act nor the Sherman Act, after which it was modeled, has been interpreted as prohibiting every agreement that has the effect of restraining trade, no matter how minimal. Instead, as construed by State and Federal courts, the antitrust laws prohibit only unreasonable' restraints on trade" ... . * * *


"[C]orporate officer[s] can also be held liable in civil antitrust actions" under the Donnelly Act, and there are triable issues of fact regarding their participation in the alleged corporate antitrust violations ... . Radon Corp of Am Inc v National Radon Safety Bd. 2015 NY Slip Op 01365, 4th Dept 2-13-15





Appendix Incomplete---Appeal Dismissed


The Second Department dismissed an appeal because the appendix did not include necessary documents:


"An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal" ... . "The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent" (22 NYCRR 670.10-b[c][1]; see CPLR 5528[a][5]...), including "material excerpts from transcripts of testimony or from papers in connection with a motion" ..., and critical exhibits (see 22 NYCRR 670.10-b[c][1][vi]). Here, the plaintiff omitted from her appendix critical exhibits and material excerpts from transcripts of testimony. These omissions "inhibit the court's ability to render an informed decision on the merits of the appeal" ... . Accordingly, the appeal must be dismissed. Beizer v Swedish, 2015 NY Slip Op 01229, 2nd Dept 2-11-15




Analytical Criteria for Confirmation of an Arbitration Award Described


The Second Department explained the analytical criteria for confirmation of an arbitration award.  The court noted that an arbitrator does not have the power to award punitive damages:


"The court shall confirm an award upon application of a party made within one year after its delivery to him [or her], unless the award is vacated or modified upon a ground specified in section 7511" (CPLR 7510). "An arbitration award is indefinite or nonfinal for purposes of CPLR 7511 and subject to vacatur only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy'" ... . "An award is final and definite if the computation of the award is so clear and specific that the determination of the amounts owing is merely an accounting calculation" ... . Matter of Olidort v Pewzner, 2015 NY Slip Op 01278, 2nd Dept 2-11-15





Four-Year Statute of Limitations Under Magnuson-Moss Warranty Act Started to Run When the Vehicle Was Delivered, I.E., When the Vehicle Was Leased===Three-Year Statute of Limitations for the General Business Law 349 Cause of Action Started to Run When the Vehicle Was Subsequently Purchased (After the Lease-Period)


Plaintiff leased a car (from BMW) for several years and then purchased it.  After the purchase plaintiff sought coverage for repairs under the Magnuson-Moss ... Warranty Act (Warranty Act) and sought damages pursuant to General Business Law 349 (deceptive business practices).  The Second Department determined the Warranty Act cause of action accrued on the date the car was delivered (leased) and therefore was time-barred.  However, the General Business Law cause of action accrued when the car was purchased and was timely:


In moving to dismiss a cause of action as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired ... . The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period ... . To make a prima facie showing, the defendant must establish, inter alia, when the plaintiff's cause of action accrued ... .


Claims brought under the Warranty Act are covered by the four-year statute of limitations prescribed by UCC 2-725 ... . That statute specifically defines the date of accrual to be "when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered" (UCC 2-725[2]).


Here, BMW met its prima facie burden by establishing that the plaintiff had four years from November 10, 2007, the date she accepted delivery of the vehicle, to commence the Warranty Act cause of action, but that this action was not commenced until November 22, 2011. ... The "New Vehicle Limited Warranty" did not guarantee future performance but only promised to repair or replace defective parts for a specified period of time... . ...


Actions pursuant to General Business Law § 349 must be commenced within three years of the date of accrual ... , which first occurs when the plaintiff has been injured by a deceptive act or practice that is in violation of section 349 ... . As this cause of action is predicated on the sale of the vehicle, which took place in October 2010, it was timely commenced on November 22, 2011, within the three-year statute of limitations ... . Loiodice v BMW of N Am LLC, 2015 NY Slip Op 01244, 2nd Dept 2-11-15





Process Servers Outside of New York City Are Not Required to Keep a "Log Book"


The Second Department explained that, under the relevant provisions of the General Business Law, process servers outside the City of New York are not required to keep a "log book" for recording service:


General Business Law § 89-u, which applies to process servers outside of the City of New York, requires process servers to "maintain a legible record of all service made by him [or her] as prescribed in this section" (General Business Law § 89-u[1]). Unlike General Business Law § 89-cc(1), which is applicable in the City of New York, General Business Law § 89-u, which is applicable outside the City of New York, does not expressly require that the "legible record" be "kept in chronological order in a bound, paginated volume" (General Business Law § 89-cc[1]), i.e., a log book. "Pursuant to the maxim of statutory construction expressio unius est exclusio alterius, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded" ... . Since the Legislature did not include a log book requirement for process servers in counties outside of the City of New York, the Supreme Court erred in determining that the process server in Nassau County was required to maintain such log book. Moret Partnership v Spickerman, 2015 NY Slip Op 01248, 2nd Dept 2-11-15





Telephone-Communication Buy-Sell Arrangements Sufficient for Long-Arm Jurisdiction/Forum Selection Clause In Invoices Not Enforceable Pursuant to UCC 207


The First Department determined that telephone communications re: the sale of diamonds between a seller in New York and a buyer in California were a sufficient basis for New York's long-arm jurisdiction over the California defendant.  The court further found that the forum selection clause and consent to jurisdiction in the relevant invoices were additional terms which, pursuant to UCC 207, were never expressly agreed to and therefore not enforceable:


UCC § 2-207 contemplates situations like the one here, where parties do business through an exchange of forms such as purchase orders and invoices. As the parties did here, merchants frequently include terms in their forms that were not discussed with the other side. UCC § 2-207[2] addresses that scenario, providing, "[t]he additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: ... [b] they materially alter it."


Here, during telephone discussions, the parties negotiated the essential terms required for contract formation, and the invoices were merely confirmatory ... . Thus, the forum selection clause is an additional term that materially altered the parties' oral contracts, and defendant did not give its consent to that additional term ... . ...


... [T]he motion court erred in finding that the parties' telephone dealings over several years and in the two transactions at issue were insufficient as a matter of law to confer personal jurisdiction over defendant pursuant to CPLR 302(a)(1). CPLR 302(a)(1) authorizes the assertion of long-arm jurisdiction over a non-domiciliary who "transacts any business within the state or contracts anywhere to supply goods or services in the state." CPLR 302(a)(1) is a "single act statute"; accordingly, physical presence is not required and one New York transaction is sufficient for personal jurisdiction. The statute applies where the defendant's New York activities were purposeful and substantially related to the claim ... . " Purposeful'" activities are defined as " those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'" ... .


We recognize that courts of this state have generally held telephone communications to be insufficient for finding purposeful activity conferring personal jurisdiction ... . However, there are exceptions to this general rule, and in some cases, telephone communications will, in fact, be sufficient to confer jurisdiction ... . C Mahendra NY LLC v National Gold & Diamond Ctr Inc, 2015 NY Slip Op 01157, 1st Dept 2-10-15






Failure to Timely Respond to a Notice to Admit Not an Admission of the Matters Stated Therein---Notice Improperly Sought Admissions that Went to the Heart of the Controversy


The Second Department determined defendants' failure to timely respond to plaintiff's notice to admit was not an admission of the matters stated therein because the notice sought admissions which went to the heart of the controversy:


"The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial" ... . Contrary to the plaintiff's contention, his notice to admit improperly sought the defendants' admissions concerning a matter that went to the heart of the controversy in this case ... . Since the admissions sought were improper, the defendants' failure to timely respond to the subject notice should not be deemed an admission of the matters stated therein ... . Williams v City of New York, 2015 NY Slip Op 01268, 2nd Dept 2-11-15





Dismissal for Failure to State a Cause of Action Is Not Given Res Judicata Effect


The Second Department noted that a dismissal for failure to state a cause of action is not a determination on the merits and will not be given res judicata effect:


"As a general rule, a dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect" ... . Since the dismissal of the prior action was not on the merits, the Supreme Court should have denied that branch of the moving defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss, on the ground of res judicata... . Hock v Cohen, 2015 NY Slip Op 01243, 2nd Dept 2-11-15





CPLR 5239 Is the Proper Vehicle for Vacation of an Execution---Here Defendant's Brother Brought a CPLR 5239 Proceeding to Vacate an Execution Against the Brother's Property Which Purported to Relate to a Debt Owed by Defendant---The 

Execution Was Vacated Based Upon the Brother's Proof of Ownership


The Second Department determined Kamel, a non-party, had demonstrated that he did not have an ownership interest in property which was executed against to satisfy a judgment against the defendant, Kamel's brother. The court explained the procedure to vacate an execution pursuant to CPLR 5239:


Pursuant to CPLR 5239, "any interested person may commence a special proceeding against the judgment creditor or other person with whom a dispute exists to determine rights in the property or debt" (CPLR 5239...). The court may "vacate the execution or order, void the levy, direct the disposition of the property or debt, or direct that damages be awarded" and, if necessary, may hold a hearing to determine the proper disposition (CPLR 5239...). As the party seeking relief, "it [is the] petitioner's burden to proffer evidence demonstrating that the property was not subject to the lien identified in the notice of sheriff's sale" ... .


At the hearing, Kamel presented mortgage documents relating to the purchase of the LIC property, as well as documents identifying him as the principal of the LLC which held legal title to that property and his own personal guaranty for the $1.45 million mortgage loan for that property. Accordingly, Kamel met his burden of demonstrating that the LIC property was not subject to execution ... . Born to Build LLC v Saleh, 2015 NY Slip Op 01232, 2nd Dept 2-11-15







Warrantless Search of Defendant's Jacket Not Justified--Defendant Was Handcuffed Inside a Police Car and Jacket Was Outside the Car


The First Department, in a full-fledged opinion by Justice Richter, over a dissent, determined that the warrantless search of defendant's jacket could not be justified.  The defendant was handcuffed and sitting in the back of a police car when the jacket, which was on the trunk of the police car, was searched:


"[A]ll warrantless searches presumptively are unreasonable per se," and, "[w]here a warrant has not been obtained, it is the People who have the burden of overcoming" this presumption of unreasonableness ... . As the Court of Appeals recently reiterated in Jimenez (22 NY3d at 717), the People must satisfy two separate requirements to justify a warrantless search of a container incident to arrest. "The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest" (Jimenez, 22 NY3d at 721 [internal quotation marks omitted]...). The second requires the People to demonstrate the presence of exigent circumstances (Jimenez, 22 NY3d at 722). The Court of Appeals has recognized two interests underlying the exigency requirement: the safety of the public and the arresting officer, and the protection of evidence from destruction or concealment ... .  * * *


Here, the jacket was unquestionably outside defendant's grabbable area at the time of the search, which even the dissent acknowledges. Defendant was sitting handcuffed inside a police car, the jacket was outside lying on the vehicle's trunk, and numerous officers were on the scene. Thus, the jacket had been reduced to the exclusive control of the police and there was no reasonable possibility that defendant could have reached it... .


Further, the People failed to establish the requisite exigent circumstances justifying a warrantless search of the jacket. Although defendant had previously struggled with police, five to six additional officers had arrived on the scene and defendant was subdued and placed in the police car. Thus, the scene at the time of the search was police-controlled ... . People v Morales, 2015 NY Slip Op 01190, 1st Dept 2-10-15




Police May Direct Occupants to Step Out of the Car After a Vehicle-Stop


In affirming the denial of a motion to suppress evidence seized after a vehicle stop the Second Department determined the police properly requested that the occupants step out of the car:


"In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car" ... . People v Mitchell, 2015 NY Slip Op 01292, 2nd Dept 2-11-15





Defendant's Verbal Abuse of His Lawyer Did Not Constitute a Waiver of His Right to Counsel---Criteria for Valid Waiver Explained


The Third Department determined the defendant did not, by his disruptive behavior and his telling his lawyer she was fired, waive his right to counsel:


Defendant's "conduct unambiguously indicate[d] a defiance of the processes of law and . . . disrupt[ed] the [hearing] after all parties [were] assembled and ready to proceed," and he arguably thereby forfeited his right to be present at the hearing ... . Nevertheless, he did not validly waive his right to counsel. "For such a waiver to be effective, the trial court must be satisfied that," among other things, "it has been made competently, intelligently and voluntarily" ... . Thus, the court must undertake a "searching inquiry . . . when a defendant [seeks to] waive[] the right to counsel in favor of self-representation[,] aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel" ... . Here, Supreme Court did not make any attempt to apprise defendant of the risks inherent in proceeding pro se or the importance of counsel's role, and there is no indication on the record before us that defendant "acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel's inability to participate" ... . Indeed, defendant stated that he did not wish to represent himself. Inasmuch as the court "did not make the requisite searching inquiry to [e]nsure that defendant was aware of the drawbacks of self-representation before allowing him to go down that path" ... . People v Middlemiss, 2015 NY Slip Op 01208, 3rd Dept 2-11-15




Appeal Waiver and Guilty Plea Fatally Flawed


The Third Department determined defendant's waiver of appeal was ineffective and his guilty plea was not knowing, voluntary and intelligent:


A review of the record supports defendant's contention that his guilty plea and waiver of appeal were not knowing, voluntary and intelligent. As a threshold matter, the terms under which defendant was entering a guilty plea were not clearly stated prior to the plea allocution, County Court misstated the minimum term of postrelease supervision (see Penal Law § 70.45 [2] [f]), and defendant was not advised of the maximum potential sentence ... . * * * ,,,[T]he record does not reflect that defendant was accurately advised, prior to the plea allocution, of his rights, options or the terms of his plea.


Moreover, "[w]hen a defendant opts to plead guilty, he [or she] must waive certain constitutional rights — the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses" ... and the court need not "specifically enumerate all of the rights" implicated ..., here, the only constitutional right referred to was the right to a jury trial. We cannot conclude that defendant's guilty plea was knowing, voluntary and intelligent as there was neither "an affirmative showing on the record that defendant waived his constitutional rights" ..., nor any indication that he "consulted with his attorney about the constitutional consequences of a guilty plea" ... .


We also note, with regard to the oral appeal waiver, that County Court did not adequately convey "that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" but, rather, improperly lumped those rights together ... . Although the record contains a written appeal waiver dated the same day as the plea proceedings, there was "no attempt by the court to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents" ... . People v Vences, 2015 NY Slip Op 01196, 3rd Dept 2-11-15




Prosecutorial Misconduct Warranted a New Trial


The Fourth Department reversed defendant's conviction and ordered a new trial because of the prosecutor's misconduct.  The prosecutor shifted the burden of proof, vouched for the single witness, and appealed to the sympathies of the jury:


The prosecutor began her summation by improperly characterizing the People's case as "the truth" and denigrating the defense as a diversion ,,, . In addition, the prosecutor implied that defendant bore the burden of proving that the complainant had a motive to lie, thereby impermissibly shifting the burden of proof to defendant ... .


Perhaps most egregiously in this one-witness case where credibility was paramount, the prosecutor repeatedly and improperly vouched for the veracity of the complainant ... . The prosecutor asked the jury "to listen carefully to the 911 call. It may not clearly state what happened, but statements that [the complainant] made like, I'm bugging, but I tried to catch him, that's why I left,' are examples of the ring of truth." Defense counsel objected, and the objection was sustained. Nonetheless, the prosecutor continued: "I submit to you the (complainant's statements) are truthful." The prosecutor also bolstered the complainant's credibility by making herself an unsworn witness in the case ... . In addressing inconsistencies between the complainant's testimony and his earlier statement to the police, the prosecutor argued that the complainant made only "[o]ne inconsistent statement, from talking to the police and talking to me" (emphasis added). The prosecutor's remark suggests that the complainant made numerous prior consistent statements to the police and to the prosecutor herself, and we conclude that such suggestion has no basis in the record ... .


The prosecutor also improperly appealed to the sympathies of the jury by extolling the complainant's "bravery" in calling the police and testifying against defendant ... . The prosecutor told the jurors that it was "not an easy decision" for complainant to call the police, and asked them to "hang [their] hat on . . . [the complainant]'s bravery by coming in front of you." The prosecutor argued that the neighborhood where the crime occurred and where the complainant's family worked "is an anti-police atmosphere." After defense counsel's objection to that comment was sustained, the prosecutor protested that "it was a statement in evidence" when, in fact, that testimony had been stricken from the record, and County Court had specifically warned the prosecutor not "to go into what this area is like." The prosecutor nonetheless continued her summation by asking the jurors to "[u]se [their] common sense to think about whether or not this happened and why there's no other witnesses" (emphasis added). The prosecutor argued that the complainant "is someone who knows the game. He knows the neighborhood, and he knows what would have been the easy thing to do, and I submit to you that easy thing to do was not to call 911 that day." She continued: "So please tell [the complainant] he did the right thing by calling 911 and telling them one man's word is enough. Tell them that he is brave to report this." The prosecutor ended her summation by urging the jury to "tell [the complainant] that his truthfulness is enough to convict the defendant" by returning a guilty verdict. People v Griffin, 2015 NY Slip op 01346, 4th Dept 2-13-15




Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right


The Second Department determined that a defendant must be informed of his right to counsel on an appeal taken by the People:


A defendant has important interests at stake on an appeal by the People, and is thus entitled to certain protections, including "the right to appellate counsel of defendant's choice and the right to seek appointment of counsel upon proof of indigency" ... . "The ultimate duty of informing the defendant of his right to have counsel on appeal rests with the State" ... and, absent record evidence that the defendant was informed of the right to counsel and waived that right, the Appellate Division should not proceed to consider and decide an appeal by the People ... . Since there is no such record evidence in this case, we agree with the defendant's contention that he was deprived of his constitutional right to counsel on the People's appeal to this Court ... . Accordingly, we assign counsel to represent the defendant on the People's appeal ..., and will consider and decide the remainder of the application upon the submission of all briefs. People v Clemente, 2015 NY Slip Op 01287, 2nd Dept 2-11-15











Comments Made by Dean and Assistant Dean in Their Professional Capacities Protected by a Qualified Privilege


The Second Department determined comments made about plaintiff-coach by the dean and assistant dean of the school where plaintiff worked were protected by a qualified privilege:


"Generally, a statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his interest is concerned" ... . The defendants demonstrated that the statements at issue made by [defendants] in their official capacities as Dean and Assistant Dean of the School, respectively, and that the persons to whom they made the statements, had corresponding interests in the subject matter of the statements ... .  Melious v Besignano, 2015 NY Slip Op 01247, 2nd Dept 2-11-15





Town Board and Police Commission Members Entitled to Immunity and Qualified Privilege Re: Defamation Causes of Action---Criteria Described/Power to Terminate Probationary Police Officer Described


The Fourth Department determined statements attributed to members of the town board and police commission with respect to the reasons for plaintiff's termination as a probationary police officer were protected by governmental immunity and qualified privilege (explaining the relevant criteria).  In addition, the court explained the power to terminate a probationary police officer:


There is complete immunity from liability for defamation for " an official [who] is a principal executive of State or local government who is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension' . . . , with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties" ... . Here, the Town Board has the statutory authority to "make, adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and of the members thereof" (Town Law § 154) and, as members of the Police Commission, [defendants] were delegated "all the powers relative to police matters conferred upon the town board" (§ 150 [2]). We therefore conclude that Brooks, Sullivan, and Ulinski were entitled to absolute immunity because "members of the Town Board enjoy an absolute privilege against a claim of defamation where . . . the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties" ..., and "[t]he privilege of absolute immunity . . . extends to those of subordinate rank who exercise delegated powers' " ... . ...


A qualified privilege arises when a person makes a good[ ]faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest' " ... . Here, defendants submitted evidence that, at the time of the alleged slanderous communications, Ulinski was a member of the Police Commission and, therefore, had an interest in plaintiff's performance as a probationary police officer, and that Ulinski made the communications to persons with a corresponding interest in plaintiff's performance, namely to a member of the Town Board, and to the president of the union that represented plaintiff ... . We further conclude that plaintiffs "failed to raise a triable issue of fact whether the statements were motivated solely by malice" ... . * * *


As a probationary police officer, plaintiff could be " dismissed for almost any reason, or for no reason at all[,]' . . . [and he] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason" ... . Fiore v Town of Whitestown, 2015 NY Slip Op 01361, 4th Dept 2-13-15





Labor Law Definition of "General Contractor" Applies In Subrogation Action


The Second Department, over a dissent, determined that the Style defendants, whose role in a building project was limited to procuring the building permit and some minor carpentry, were not the general contractor for the project and were therefore entitled to summary judgment.  After paying the fire-related claim, plaintiff insurance company brought a subrogation action against the Style defendants (as the alleged general contractor). In finding the Style defendants were not the general contractor, the Second Department used the definition of "general contractor" applied under the Labor Law:


The Style defendants established, prima facie, that they were not the general contractor on the ... renovation project through the submission of evidence showing that they did not undertake general contractor duties such as supervising, hiring, or paying contractors ... . The evidence submitted in support of the Style defendants' motion demonstrated, prima facie, that the Berensons hired the Baruch defendants as the general contractor on the project, and that the Baruch defendants undertook general contractor duties by coordinating and supervising the project, and hiring and paying subcontractors ... . The evidence demonstrated that the only function the Style defendants performed in connection with the renovation project was obtaining the work permit and, at most, performing some minor carpentry and molding work at the beginning of the project ... . * * *


.... [T]he rule enunciated in [the] Labor Law cases, which is based on the basic definition of a general contractor as one who, for instance, coordinates and supervises the work and hires and pays subcontractors ... , applies equally to this subrogation action. To ignore our Labor Law precedent in this action would, in effect, create a different definition of a general contractor in the subrogation/property damage context, one that would confer general contractor status on an entity simply by virtue of it being listed as the contractor on a work permit. There is no persuasive reason for having two separate definitions of a general contractor, one for the Labor Law/personal injury context and another for the subrogation/property damage context... . Utica Mut Ins Co v Style Mgt Assoc Corp, 2015 NY Slip Op 01266, 2nd Dept 2-11-15





Principles of Owner/Contractor's Liability Pursuant to Labor Law 241 (6) Succinctly Explained---Plaintiff's Freedom from Comparative Fault Must Be Demonstrated---Absence of Actual or Constructive Notice on the Owner/Contractor's Part Is Not a Defense


The Second Department determined summary judgment was properly granted to plaintiff on his Labor Law 241 (6) cause of action based upon the presence of snow and ice on the work site.  Plaintiff was directed to carry a piece of plywood over an area covered with ice and snow.  He fell and was injured.  The court explained the relevant analytical criteria:


As a predicate for liability pursuant to Labor Law § 241(6), the plaintiff alleged that he was injured as a result of a snow and ice condition that was permitted to remain on the worksite in violation of 12 NYCRR 23-1.7(d). That section of the Industrial Code unequivocally directs that ice and snow "shall be removed" from worksites so as "to provide safe footing" (12 NYCRR 23-1.7[d]...). The duty imposed is nondelegable ... . Indeed, here, the Construction Management Agreement ... provided that [the contractor] "shall remove snow or ice from the Project Site." The plaintiff's testimony at his deposition and his averments in his affidavit in support of his motion established that he slipped and fell as a result of the snow and ice at the location where he was performing the tasks assigned to him. The plaintiff also demonstrated his freedom from comparative fault, as he was following his employer's directives, using the equipment provided, and wearing proper shoes as required by his employer. The plaintiff thereby demonstrated his prima facie entitlement to judgment as a matter of law on the Labor Law § 241(6) cause of action ... . ... Moreover, "[s]ince an owner or general contractor's vicarious liability under section 241 (6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to the imposition of Labor Law § 241 (6) liability" ... . Reynoso v Bovis Lend Lease LMB Inc, 2015 NY Slip Op 01256, 2nd Dept 2-11-15





One- and Two- Family Homeowners' Exemption Precluded Labor Law 240 (1) and 246 (1) Causes of Action/Defendant-Owner's Failure to Demonstrate He Did Not Create or Have Notice of the Alleged Dangerous Condition Precluded Summary Judgment on the Labor Law 200 and Common-Law Negligence Causes of Action


After finding that the Labor Law 240(1) and 246(1) causes of action were properly dismissed (one- and two-family homeowner exemption), the Second Department determined the summary judgment should not have been granted to the homeowner on the Labor Law 200 and common-law negligence causes of action.  The motion for summary judgment failed to address the allegation the owner created or had notice of the dangerous condition:


The plaintiff alleged that his injuries were caused both by a dangerous condition on the premises and the "means and methods" of construction. Accordingly, in order to be entitled to judgment as a matter of law dismissing those causes of action, Elias was required to address both theories ... . Since Elias failed to establish, prima facie, that he neither created nor had actual or constructive notice of a dangerous condition on the premises, that branch of his motion which was for summary judgment dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200 insofar as asserted against him should have been denied, without regard to the sufficiency of the plaintiff's papers submitted in opposition... . Pineda v Elias, 2015 NY Slip Op 01254, 2nd Dept 2-11-15




Labor Law 200 and Common Law Negligence Causes of Action Against Owner Properly Dismissed---Owner Did Not Exercise Supervisory Control Over Plaintiff's Work


The Fourth Department determined the owner was entitled to summary judgment on the Labor Law 200 and common law negligence causes of action based upon evidence the owner did not exercise any supervisory control over plaintiff's work:


It is well settled that, "[w]here 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 Labor Law § 200" ... . Here, defendants met their burden on the motion of establishing that they did not direct or control plaintiff's work .... "There is no evidence that defendant[s] gave anything more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200" or under the common law.. . Matter of Mitchell v NRG Endergy Inc, 2015 NY Slip Op 01367, 4th Dept 2-13-15





"Local Authority," Within the Meaning of the Public Authorities Law, Defined


The Fourth Department determined petitioner, Operation Oswego County, was a "local authority" subject to reporting and oversight requirements of respondent, the New York Authorities Budget Office.  The court defined what a "local authority" is:


A "local authority" under the Public Authorities Law includes "a not-for-profit corporation affiliated with, sponsored by, or created by a county, city, town or village government" (§ 2 [2] [b]). Petitioner is a not-for-profit corporation that acts as a local development corporation by establishing and implementing economic development strategies for Oswego County (County). We agree with respondent that petitioner is a local authority inasmuch as it is affiliated with and/or sponsored by the County ... . The record establishes that the County regularly gives grants to petitioner, which comprise the majority of its budget. ...[T]he term "sponsor" means, inter alia, " a person or an organization that pays for or plans and carries out a project or activity' " (id. at 1404, quoting Merriam-Webster On-line Dictionary [emphasis added]). The County has also given interest-free loans to petitioner. Furthermore, a County official serves as a voting member of petitioner's board, and several County officials serve as ex-officio, non-voting members of petitioner's board. Considering the totality of the circumstances ..., we conclude that petitioner is a local authority as defined in the Public Authorities Law. Matter of Operation Oswego County Inc v State of New York Auths Budget Off, 2015 NY Slip Op 01358, 4th Dept 2-13-15





The Procedure for Holding an Executive Session Does Not Apply to Proceedings Which Are Exempt from the Open Meetings Law


The Fourth Department determined that the town board need not follow the procedure in the Public Officers Law (Open Meetings Law) for holding an executive session (where the public is excluded) for matters which are exempt from the open meetings requirement. In this case a consultation between the town board and town counsel was exempt from the open meetings requirement pursuant to a provision of the Public Officers Law.  Therefore, the town board could not be faulted for keeping that consultation private without following the formal procedure for holding an executive session:


It is well settled that "[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [section 105]" (Public Officers Law § 103 [a]...). While an executive session may be called to discuss, inter alia, "proposed, pending or current litigation" (§ 105 [1] [d]), the public body may do so only upon a majority vote of its membership and after "identifying the general area or areas of the subject or subjects to be considered" (§ 105 [1]). There is no dispute that section 105 (1) does not extend to communications between a town board and its counsel, but section 108 (3) provides in relevant part that "[n]othing contained in [the Open Meetings Law] shall be construed as extending the provisions hereof to . . . any matter made confidential by federal or state law." "[S]ince communications made pursuant to an attorney-client relationship are considered confidential under the [CPLR] . . . , communications between a . . . board . . . and its counsel, in which counsel advises the board of the legal issues involved in the determination of a[n] . . . application, are exempt from the provisions of the Open Meetings Law" ... . "When an exemption [under section 108] applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by § 105 (1) that relates to entry into an executive session" ... . Matter of Brown v Feehan, 2015 NY Slip Op 01339, 4th Dept 2-13-15








Criteria for Holding Property Owner Liable for an Assault on the Owner's Property Succinctly Described


In affirming the dismissal of the complaint against the property owner which alleged liability for an assault which occurred during a party on the property, the Second Department explained the criteria for such liability.  Here there was no showing that the assault was foreseeable or that the property owner had the opportunity to control the conduct of the assailant:


"A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" ... . "This duty arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so" ... . Morris v Chase Bank, 2015 NY Slip Op 01249, 2nd Dept 2-11-15






Battery Cause of Action Based Upon the Complete Absence of Consent or Fraudulently Induced Consent Is Not Duplicative of a Dental Malpractice Allegation---Criteria Explained/Questions of Fact Raised Re: the Deceptive Business Practices Cause of Action---Some of the Criteria Explained


The Fourth Department determined the cause of action for battery was not duplicative of the cause of action for dental malpractice because it was based upon the allegations consent to the procedure was completely absent or was fraudulently induced.  In addition, there were questions of fact re: the deceptive business practices cause of action:


...[T]he cause of action asserting the complete absence of consent and/or fraudulently induced consent for treatment is properly treated as one for battery rather than for dental malpractice, and it is not duplicative of the dental malpractice cause of action ... . "It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all' " ... . The court properly denied that part of the ... defendants' motion with respect to the battery cause of action, inasmuch as they failed to meet their initial burden of establishing that they "did not intentionally engage in offensive bodily contact without plaintiff's consent"... . ...


A cause of action for deceptive business practices under section 349 "requires proof that the defendant engaged in consumer-oriented conduct that was materially deceptive or misleading, causing injury" ... . Even assuming, arguendo, that the ... defendants met their initial burden by establishing that the underlying transaction was private in nature and the allegedly deceptive acts were not aimed at the public at large ..., we conclude that plaintiff's submissions raised issues of fact concerning whether the ... defendants engaged in a scheme to place profits before patient care, which allegedly included fraudulent practices that impacted consumers at large beyond a particular dentist's treatment of an individual patient ... . Matter of Smiles, 2015 NY Slip Op 01362, 4th Dept 2-13-15





Criteria for Determining "Employee" Versus "Independent Contractor" Briefly Described/Elements of Cause of Action Based Upon a Lack of Informed Consent Explained


After finding there was a question of fact whether the dentist (Weiss) who treated plaintiff was an employee of defendant-Toothsavers or an independent contractor, the Second Department determined there was a question of fact about whether plaintiff gave informed consent to the procedure:


"The Toothsavers defendants contend that because Weiss was an independent contractor, not an employee, they cannot be vicariously liable for Weiss's malpractice. The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" ... . "The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced or, more importantly, the means used to achieve the results" ... . ...


"To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" ... . Chan v Toothsavers Dental Care Inc, 2015 NY Slip Op 01236, 2nd Dept 2-11-15



Newspaper Carriers Were Employees Despite Reference to Them as Independent Contractors In Employment Agreement


The Third Department affirmed the Appeal Board's determination that claimant newspaper-carrier was an employee, not an independent contractor. and therefore was entitled to unemployment insurance benefits, despite the "independent contractor" language in the contract:


"Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the. . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" ... . "An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results [although] control over the means is the more important factor to be considered" ... .


The evidence provided ample support for the Board's finding that [the employer] exercised control over significant aspects of the carriers' work and the means used to achieve timely and proper deliveries, and the Board's determination that the carriers were its employees is consistent with prior cases involving essentially similar facts ... . ... "[a] different finding is not compelled by the existence of a written agreement that identifies claimant as an independent contractor" ... . Matter of Isaacs..., 2015 NY Slip Op 01215, 3rd Dept 2-11-15





Claimant Entitled to Partial Disability Benefits for a Back Injury Until the Relationship Between the Back Injury and Claimant's Inability to Work Was Raised for the First Time at the Hearing---Claimant Had Stopped Working After an Unrelated Knee Injury


The Third Department determined the claimant was entitled to benefits re: his partial disability (for a back injury) up until the time the Special Fund raised, at the hearing, the requirement that claimant demonstrate his attachment to the labor market, i.e., the requirement that claimant demonstrate his inability to work was the result of the back injury.  Claimant had stopped working because of an unrelated injury to his knee and the Special Fund argued he was not entitled to any benefits for the back injury:


... [A]bsent a finding of involuntary retirement, claimants with a partial disability have "an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions" ... . As the Special Fund concedes, however, the Board has previously held that awards should be continued until the carrier has raised the issue of labor market attachment, thereby allowing for development of the record on the issue ... . The Special Fund does not challenge the principle set forth in the Board's prior decisions, but argues that they are distinguishable. We disagree. The award sought herein was for lost time prior to the date of the hearing, when the Special Fund raised the issue of attachment to the labor market for the first time. The award of benefits for that period was therefore entirely consistent with the Board's prior precedent. Matter of Scott v Rochester City Sch Dist, 2015 NY Slip Op 01219, 3rd Dept 2-11-15




Claimant Demonstrated His Partial Disability Prevented Him from Finding Work


The Third Department affirmed the Appeal Board's finding that claimant had demonstrated he was unable to find work due to his partial disability and was therefore entitled to benefits:


"Where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions," and the Board's determination in that regard will be upheld if supported by substantial evidence ... . Here, the Board concluded that claimant credibly testified and provided corroborating documentary evidence that he actively participated in a job location service and engaged in an independent job search within his medical restrictions, thereby demonstrating attachment to the labor market ... . The Board noted that, although jobs were available, when claimant advised prospective employers of his disability, he was told that no positions were available that would accommodate his medical restrictions ... . Contrary to the employer's argument, the fact that claimant limited that search to jobs within the field that he had worked for nearly 50 years provides no basis to disturb the Board's decision ... . Matter of Cole v Consolidated Edison Co of NY Inc, 2015 NY Slip Op 01220, 3rd Dept 2-11-15




Workers' Compensation Carrier Has an Automatic Lien Re: Recovery by Injured Worker Against Third-Parties


The Fourth Department noted that a workers' compensation carrier has a lien against any settlement the worker reaches with a third-party:


Where an individual receiving workers' compensation benefits commences a civil action against a tortfeasor "not in the same employ who caused the injuries giving rise to such benefits . .. , an automatic lien attaches to the proceeds of any recovery, in favor of the [worker's compensation carrier], for any amounts that the [carrier] has paid in compensation benefits, less litigation costs and amounts received in lieu of first[-]party benefits under the no-fault law" ... . Klem v Special Response Corp, 2015 NY Slip Op 01368, 4th Dept 2-13-15

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