Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)
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COURT OF APPEALS
Harassment Not a Lesser Included Offense of Attempted Assault Third Degree
The Court of Appeals, in a full-fledged opinion by Judge Rivera, reaffirmed prior case law and held that harassment is not a lesser included offense of attempted assault in the third degree, even where both offenses are based on the same conduct. Here defendant was accused of deliberately bumping into the complainant as she was coming up the stairs. She fell back but was not injured because her husband was directly behind her on the stairwell. The defendant was convicted of both offenses and appealed arguing that the harassment conviction could not stand because it was "included" in the attempted assault conviction. The Court of Appeals determined it was possible (in the abstract) to be convicted of one of the two offenses without being convicted of the other because of the different intent requirements---harassment requires the intent to annoy, assault requires the intent to injure:
To establish that a count is a lesser included offense in accordance with CPL 1.20 (37), a defendant must establish "that it is theoretically impossible to commit the greater offense without at the same time committing the lesser" ... . Such determination requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution ... . Thus, the defendant must show that the offense "is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense" ... . Since defendant cannot establish that in all circumstances it is impossible to commit attempted assault without also committing harassment, his challenge to his conviction on both these counts fails as a matter of law.
Our comparison of attempted assault and harassment establishes that these counts do not share a common intent element. To be guilty of attempted assault in the third degree requires proof that defendant "engage[d] in conduct which tends to effect the commission of [assault]," with the "intent to cause physical injury to another" (Penal Law §§ 110, 120.00 ). A conviction for harassment requires that defendant "with intent to harass, annoy or alarm another . . . [,] shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26 ). People v Repanti, 2015 NY Slip Op 01375, CtApp 2-17-15
Defendant Should Not Have Been Denied His Right to Testify Before the Grand Jury Because He Struck Out Waiver Provisions Not Required by Statute
The Court of Appeals determined defendant was denied his right to testify before the grand jury. The waiver presented to the defendant as a prerequisite to his testifying included the provisions required by statute, plus three additional provisions. The defendant struck out the additional provisions and signed the waiver. Because the defendant struck out the three additional provisions, he was not allowed to testify by the district attorney. The Court of Appeals held that the signed waiver was sufficient, without the struck-out provisions, because it included all the provisions required by statute. Therefore, defendant should have been allowed to testify:
CPL 190.50 (5) provides that a defendant must be permitted to testify before a grand jury if he serves upon the People a notice of intent to testify, appears at the designated time and place, and signs and submits a waiver of immunity pursuant to CPL 190.45. The parties do not dispute that defendant complied with the first two requirements of CPL 190.50 (5). Rather, the issue presented on this appeal is whether defendant complied with the third requirement of signing a waiver of immunity. CPL 190.45 (1) provides:
"A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he [or she] waives his privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to section 190.40 . . . . "
The People presented defendant with a waiver of immunity form that included the provisions required by CPL 190.45, and three additional provisions that are not required under that statute. * * *
Defendant's statutory right to testify before the grand jury was violated. This right "'must be scrupulously protected'" ... . Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify. People v Brumfield, 2015 NY Slip Op 01377, CtApp 2-17-15
Under the Facts, the Judge's Failure to Mention the Imposition of Post-Release Supervision as Part of the Sentence at the Time of the Plea Was an Error that Must Be Preserved by Objection (No Objection Made)
The Court of Appeals, over a dissent, determined that defendant, under the facts, was precluded from raising the judge's failure to inform defendant at the time of defendant's plea that post-release supervision (PRS) would be part of defendant's sentence because the error was not preserved by objection. Here defendant and/or defendant's counsel had been informed of the imposition of PRS both before and after the plea:
In People v Catu [4 NY3d 242], this Court held that "the trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences" ... . A court is not required to engage in any particular litany when allocuting a defendant, but the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant ... . We found that "[p]ostrelease supervision is significant" and that a defendant "must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntary and intelligently choose among alternative courses of action" ... .
Defendant claims that his plea was not knowing, voluntary and intelligent under Catu because County Court failed to reiterate the term of PRS during the plea colloquy. We hold that, under the circumstances of this case, defendant was required to preserve his claim.
Defendant and his attorney had three opportunities to object to the imposition of PRS: at the initial scheduled sentencing July 15, at his sentencing on July 28, and at the appearance on August 17. Neither defendant nor defense counsel expressed any objection to the imposition of PRS. Because defendant had ample opportunity to raise an objection to the PRS component prior to and during these proceedings, defendant was required to preserve his claim ... . People v Crowder, 2015 NY Sip Op 01481, CtApp 2-17-15
Defendant's Having Unprotected Sex with Partner After Defendant's HIV-Positive Diagnosis Did Not Constitute "Depraved Indifference"
The Court of Appeals determined that the "depraved indifference" standard in the first degree reckless endangerment statute was not met by the facts. Defendant had (consensual) unprotected sex with his partner after the defendant was diagnosed as HIV positive. The defendant's partner was subsequently diagnosed as HIV positive:
Depraved indifference is a culpable mental state which means the same thing in the murder and reckless endangerment statutes ... . As we explained in People v Suarez (6 NY3d 202, 212 ), "[a] defendant may be convicted of [a depraved indifference crime] when but a single person is endangered in only a few rare circumstances"; specifically, where the defendant exhibits "wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator's inexcusable acts" (id. at 213). Here, there is no evidence that defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim's fate .. . People v Williams, 2015 NY Slip Op 01485, CtApp 2-19-15
HUMAN RIGHTS LAW/EMPLOYMENT LAW/MUNICIPAL LAW
No Notice of Claim Requirement for Human Rights Law Action Against City/Questions of Fact About City's Motivation for Allowing Firefighter Promotion Eligibility Lists to Expire Precluded Summary Judgment in Favor of White Firefighters Alleging Reverse, Disparate Treatment Racial Discrimination
The Court of Appeals, in a full-fledged opinion by Judge Lippman, with concurring and concurring/dissenting opinions, determined that summary judgment should not have been granted to white firefighters who sued the city alleging the promotion eligibility lists were improperly allowed to expire resulting in reverse, disparate treatment racial discrimination. The court first held that the notice of claim requirement for actions against a municipality (General Municipal Law 50-i) does not apply to actions brought under the Human Rights Law. The court went on to hold that questions of fact about the city's motivation for allowing the promotion eligibility lists to expire precluded summary judgment:
...[W]e reject the City's argument for dismissal on the basis of plaintiffs' failure to file a notice of claim prior to commencement of this action. General Municipal Law § 50-e (1) (a) requires service of a notice of claim within 90 days after the claim arises "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation." General Municipal Law § 50-i (1) precludes commencement of an action against a city "for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city," unless a notice of claim has been served in compliance with section 50-e. The Appellate Division departments addressing the issue have determined that the General Municipal Law does not encompass a cause of action based on the Human Rights Law and "[s]ervice of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria" ... . Human rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor do we perceive any reason to encumber the filing of discrimination claims. Accordingly, we conclude that there is no notice of claim requirement here. * * *
In this case, the issue of liability turns on the factual circumstances behind the City's actions, the strength of its justifications and its motivations. It is undisputed that the plaintiffs here made out a prima facie case of discrimination, as the City chose not to promote white candidates from the eligibility list. The burden then shifted to the City to prove that it had "a strong basis in evidence to justify its race conscious action" ... . * * *
Based on the record before us, we conclude that whether the City had "a strong basis in evidence to believe it [would] be subject to disparate-impact liability" at the time that it terminated the promotion eligibility lists ... raises issues of fact that cannot be determined on motions for summary judgment. Margerum v City of Buffalo, 2015 NY Slip Op 01378, CtApp 2-17-15
INSURANCE LAW/CONTRACT LAW
"Ensuing Loss" Exception to Coverage Exclusion for Water Damage Did Not Apply to Water Damage Stemming from an "Explosion" of a Water Main Outside Plaintiffs' Home---The "Ensuing Loss" Exception in the Policy Referred Only to Water Damage which Stemmed from a Covered Peril (Like a Fire)
The Court of Appeals, in a full-fledged opinion by Judge Read, with a concurring opinion, determined the water-damage exclusion in the homeowner's policy precluded recovery for water entering plaintiffs' basement when a water main burst outside the home. Plaintiffs argued that an exception in the policy for water damage resulting from an "explosion" allowed recovery. The Court of Appeals held that the "explosion" exception was part of an "ensuing loss" exception referring to water damage which necessarily followed a covered event, like an explosion or fire, and did not cover water damage stemming from an "explosion" of a water main outside the home:
First, "[i]n determining a dispute over insurance coverage, we first look to the language of the policy" ... . Concomitantly, we "construe the policy in a way that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect" ... .
Second, although the insurer has the burden of proving the applicability of an exclusion ..., it is the insured's burden to establish the existence of coverage ... . Thus, "[where] the existence of coverage depends entirely on the applicability of [an] [*5]exception to the exclusion, the insured has the duty of demonstrating that it has been satisfied" ... .
And finally, "[w]here a property insurance policy contains an exclusion with an exception for ensuing loss, courts have sought to assure that the exception does not supersede the exclusion by disallowing coverage for ensuing loss directly related to the original excluded risk" ...
In this case, plaintiffs' loss occurred when water from a burst water main flowed onto their property, flooding the basement of their home. Accordingly, their loss clearly falls within item 4 of the water loss exclusion, which bars coverage for "loss to the property . . . consisting of or caused by . . . 4. Water . . . on or below the surface of the ground, regardless of its source . . .[, including] water . . . which exerts pressure on, or flows, seeps or leaks through any part of the residence premises" ... .
Turning ... to the sudden and accidental exception, this clause is properly characterized as an ensuing loss provision, which "provide[s] coverage when, as a result of an excluded peril, a covered peril arises and causes damage" ... . Platek v Town of Hamburg, 2015 NY Slip Op 01483, CtApp 2-19-15
LANDLORD-TENANT/REAL PROPERTY LAW/CONTRACT LAW/ATTORNEYS
Lease Provision Allowing the Landlord to Recover Attorney's Fees in an Action Against the Tenant Triggered the Tenant's Reciprocal Right to Recover Attorney's Fees Against the Landlord Pursuant to Real Property Law 234 Should Tenant Prevail in the Action
The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that a provision in a lease which allowed the landlord to recover attorney's fees in a successful action against the tenant for failure to cure a default triggered the tenant's right to attorney's fees under Real Property Law 234 should the tenant prevail in the action:
Under Real Property Law § 234,
"Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys' fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and/or expenses incurred by the tenant as a result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease."
In order for the tenant to be eligible for attorneys' fees under this section, the parties' lease must permit the landlord, in any action or summary proceeding, to recover attorneys' fees as a result of the tenant's breach. Where a lease so provides, the court must interpret the lease to similarly permit the tenant to seek fees incurred as a result of the landlord's breach or the tenant's successful defense of a proceeding by the landlord. Here, we hold that paragraph 15 provides the basis for the tenant's claim for reciprocal rights to attorneys' fees within the meaning of Real Property Law § 234.
Paragraph 15 of the lease, titled "Tenant's default", sets forth the landlord's remedies and the tenant's liabilities upon the tenant's failure to comply with a term or rule in the lease. According to this paragraph, where a properly notified tenant fails to cure a default the landlord may cancel the lease and retake possession of the premises, if necessary, by way of an eviction proceeding or other lawsuit. Upon cancellation of the lease and the landlord's repossession of the premises the tenant is liable for rent for the unexpired term. The landlord's rights to attorneys' fees are set forth in clause D. (3) of this paragraph, which states, in part,
"D. If this Lease is cancelled, or Landlord takes back the Apartment, the following takes place:. . . .
"(3) Any rent received by Landlord for the re-renting shall be used first to pay Landlord's expenses and second to pay any amounts Tenant owes under this Lease. Landlord's expenses include the costs of getting possession and re-renting the Apartment, including, but not only reasonable legal fees, brokers fees, cleaning and repairing costs, decorating costs and advertising costs."
Thus, clause D. (3) anticipates that after a tenant's default leads to the reletting of the premises, the landlord is entitled to collect attorneys' fees incurred in gaining possession. Under these circumstances, clause D. (3) complies with the requirements of Real Property Law § 234 that the lease provide "in any action or summary proceeding" for the landlord's recovery of attorneys' fees "incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease." Graham Ct Owner's Corp v Taylor, 2015 NY Slip Op 01482, CtApp 2-19-15
MUNICIPAL LAW/CONSTITUTIONAL LAW/CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA)
Local Law Imposing Residency Restrictions Upon a Level One Sex Offender Who Was No Longer Subject to State Sex-Offender Residency Restrictions Preempted by Implication---The Body of State Law Regulating Sex Offenders Evinced the State's Intent to "Occupy the Field"
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a Nassau County Local Law which prohibited registered sex offenders from residing within 1000 feet of a school was preempted by the body of state law regulating the residency of sex offenders. In this case, the defendant was adjudicated a level one sex offender (the lowest level of "danger" to the community) and had been discharged from parole. The state sex-offender residency restrictions no longer applied to him. The Court of Appeals held that the body of law enacted by the state in this area, by implication, evinced an intent to "occupy the field" and therefore local governments did not have the power to enact their own sex-offender residency laws:
Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the State (see NY Const, art IX, § 2 [c]; Municipal Home Rule Law § 10  [i]; [ii]  [a] ). This doctrine of preemption is a significant restriction on a local government's home rule powers because although localities are "invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies 'the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern'" ... . * * *
The doctrine of field preemption prohibits a municipality from exercising a police power "when the Legislature has restricted such an exercise by preempting the area of regulation" ... . Although field preemption may be "express" as evidenced by the Legislature's stated directive, it may also "be implied from a declaration of State policy by the Legislature . . . or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area" ... . Intent to preempt the field may "be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area" ... . * * *
The defendant in this appeal is a designated level one sex offender, is not on probation or parole, nor is he subject to conditional release or PRS. None of the [state] provisions that even touch upon residency or placement apply to him. ...[T]hat does not mean that the State has delegated to local governments the duty of enacting residency laws concerning registered sex offenders. Nor does it mean ... that "the Legislature has chosen to limit its regulations over sex offenders and not to enact a comprehensive legislative scheme in the area concerning the residency restrictions of sex offenders who are not on parole, probation, subject to conditional discharge or seeking public assistance" ... . Rather, it is clear that the State has been continuously active in this field and, as such, it is evident that the State has chosen to occupy it. People v Diack, 2015 NY Slip Op 01376, CtApp 2-17-15
Failure to Make Timely Objections to Invoices Justified Summary Judgment
The First Department determined defendant's statement in an affidavit that defendant advised plaintiff the invoices were not correct was not sufficient to defeat summary judgment:
...[D]efendant did not object to the invoices in a timely manner. The parties' agreement provided that "[f]ailure to object to any bill within thirty days from the mailing shall be deemed an acknowledgment of the amount owed ...." Plaintiff sent defendant regular invoices, with the most recent invoice having been sent on July 13, 2010. Defendant did not make any objections until plaintiff's commencement of a prior action filed on August 27, 2010. Such belated protest is insufficient to ward off summary judgment ... . Notably, the only evidence in the record of a protest is defendant's affidavit, sworn to on May 6, 2011, asserting, without any details, that he advised plaintiff that its invoices were incorrect. This is insufficient to raise a triable issue of fact ... . Mintz & Gold LLP v Daibes, 2015 NY Slip Op 01388, 1st Dept 2-17-15
Determinative, Purely Legal Arguments Raised for the First Time on Appeal May Be Considered by the Appellate Court
In the context of a mortgage foreclosure action, the First Department noted that arguments raised for the first time on appeal may be considered if the issues are determinative and present purely legal arguments without raising new facts. Bank of NY v Arthur, 2015 NY Slip Op 01392, 1st Dept 2-17-15
APPEALS/ADMINISTRATIVE LAW/MUNICIPAL LAW
Municipal Action Re: a Mining Permit Not Ripe for Review
In finding that the issue was not ripe for review, the Third Department explained the relevant analytical criteria:
A municipal action is ripe for judicial review if it "impose[s] an obligation, den[ies] a right or fix[es] some legal relationship as a consummation of the administrative process" ... . Such a determination requires a "pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury" ... .
* * * ... [A]ny harm to petitioner at this stage is merely speculative, may be ameliorated by further proceedings and is insufficient to warrant judicial review... . Matter of Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01517, 3rd Dept 2-19-15
Criteria for Determining Motions to Dismiss Affirmative Defenses Explained
The Second Department explained the analytical criteria for determining motions to dismiss affirmative defenses:
Pursuant to CPLR 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211[b]). When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is "without merit as a matter of law" ... . "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" ... . Bank of NY v Penalver, 2015 NY Slip Op 01407, 2nd Dept 2-18-15
Further Proceedings Are Stayed When Counsel's Motion to Withdraw Is Granted
The First Department noted that when plaintiff's counsel's motion for leave to withdraw was granted, further proceedings against plaintiff were stayed pursuant to CPLR 321 (c):
When the court granted plaintiff's counsel's motion for leave to withdraw, further proceedings against plaintiff were stayed, by operation of CPLR 321(c), until 30 days after notice to appoint another attorney had been served upon her ... . While the stay was in effect, the court had no power to decide defendant's motion for summary judgment dismissing the complaint. Fan v Sabin, 2015 NY Slip Op 01400, 1st Dept 2-17-15
CIVIL PROCEDURE/EMPLOYMENT LAW/EVIDENCE
Plaintiff Placed Her Mental Condition In Controversy---Defendant Entitled to Have Her Examined by a Psychiatrist
The First Department, in the context of an action for retaliatory discharge, sexual harassment and intentional infliction of emotional distress, determined plaintiff had placed her mental condition in controversy and defendant was entitled to have plaintiff examined by a psychiatrist. Plaintiff had alleged "extreme mental and physical anguish," "severe anxiety," eczema, hair pulling, depression and suicidal feelings:
Under these circumstances, the court providently exercised its discretion in determining that defendant had demonstrated that plaintiff had placed her mental condition "in controversy" by alleging unusually severe emotional distress, so that a mental examination by a psychiatrist is warranted to enable defendant to rebut her emotional distress claims (CPLR 3121[a]...). Although plaintiff asserts that an examination would be unduly intrusive into private matters, she did not propose conditions or seek a protective order limiting the scope or extent of the examination ... . Clark v Allen & Overy LLP, 2015 NY Slip Op 01398, 1st Dept 2-17-15
Some of the Requirements for the Application of Attorney Work-Product and Trial-Preparation Privileges Explained
The Second Department explained some of the requirements for the application of attorney work-product and trial-preparation privileges:
Attorney work product under CPLR 3101(c), which is subject to an absolute privilege, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her legal analysis, conclusions, theory, or strategy ... . "[T]he mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement work product'" ... . Contrary to the plaintiff's contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant Nicoletta Starks prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy ... .
The plaintiff argues, in the alternative, that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2). However, the conclusory assertions set forth in her supporting affidavit are insufficient to meet her burden of establishing, with specificity, that the recording was prepared "exclusively in anticipation of litigation" ... . Geffner v Mercy Med Ctr, 2015 NY Slip Op 01411, 2nd Dept 2-18-15
Criteria for Recovery of Lost Profits for Breach of Contract Described
In finding the criteria were not met, the Second Department explained the proof necessary to recover lost profits in a breach of contract action:
"Lost profits may be recoverable for breach of a contract if it is demonstrated with certainty that such damages have been caused by the breach, and the alleged loss is capable of proof with reasonable certainty. There also must be a showing that the particular damages were fairly within the contemplation of the parties to the contract at the time the contract was made" ... . While a plaintiff need not prove that its damages resulted "solely from [the defendant's] breach of contract, to the exclusion of all other factors," it must, at least, prove that the breach "contributed in substantial measure to its damages" ... . Todd Rotwein DPM PC v Nader Enters LLC, 2015 NY Slip Op 01441, 2nd Dept 2-18-15
Landlord Not Entitled to Reformation of a Lease---Landlord Had Failed to Use Due Diligence Before Signing and Did Not Notice a Deletion Made by Plaintiff---Plaintiff Was Not Obligated to Highlight the Deletion
The First Department determined defendant landlord, sophisticated in business matters, was not entitled to reformation of a lease. The landlord had signed the agreement after the provision capping what the landlord would pay for renovations made by the tenant was deleted. The renovations ended up costing nearly a year's rental income. Plaintiff's failure to "highlight" the deletion did not constitute fraud:
Defendant landlord failed to demonstrate that it was entitled to reformation of the lease amendment providing that it would reimburse plaintiff tenant the total cost of its alterations, rather than a capped amount as had been set forth in drafts circulated during negotiations over the renewal lease. Defendant's failure to read the final document before signing it precludes its claim of unilateral mistake induced by fraud based on plaintiff's failure to highlight its deletion of the portion of the provision capping the reimbursement amount, before presenting it to defendant's in-house counsel for defendant's signature ... . Contrary to this sophisticated defendant's contention, the justifiability of its reliance does not present an issue of fact barring summary disposition ... . Even assuming an obligation to conduct pre-contractual negotiations in good faith in appropriate circumstances, such as would enable a party to rely on the adverse party negotiating in good faith and to assume that there are no new changes to earlier drafts unless the change is highlighted, defendant's claim for reformation based on the allegation of fraud cannot stand. Defendant simply may not justifiably rely on the absence of such highlighting for its failure to fully review the final version of this four-page document before signing it, especially since the change is on the first page. US Legal Support Inc v Eldad Prime LLC, 2015 NY Slip Op 01386, 1st Dept 2-17-15
TRUSTS AND ESTATES/REAL PROPERTY LAW
Elements of a Constructive Trust Not Adequately Pled
The Second Department determined plaintiff's complaint did not state a cause of action for a constructive trust. Plaintiff alleged she was 50% owner of rental property ostensibly owned by the defendant, her uncle, based upon her uncle's sharing the rent with plaintiff's father (now deceased). The Second Department noted that there was no allegation of a promise running from the uncle to the plaintiff, an essential element of a constructive trust. The court further noted that plaintiff's claim she inherited her father's 50% interest in the property must be adjudicated as part of her father's estate proceedings:
In general, a constructive trust may be appropriate in situations " [w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'" ... . The necessary elements for imposition of a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance on that promise, and (4) unjust enrichment ... .
Here, contrary to the Supreme Court's determination, the plaintiff's complaint, as amplified by her affidavit, does not adequately plead a cause of action to impose a constructive trust on the ... property. While a confidential relationship exists between the plaintiff and the defendant as uncle and niece, the complaint does not allege the existence of a promise between the plaintiff and the defendant, or a transfer in reliance upon a promise between them.
Further, ... the plaintiff's allegations in support of a theory that she should be deemed a 50% owner of the ... property do not adequately plead the elements of a constructive trust. Her claim of entitlement is based on the laws of inheritance, and must be pursued by the executor or administrator of her father's estate ... . Igneri v Igneri, 2015 NY Slip Op 01419, 2nd Dept 2-18-15
Denial of "For Cause" Challenges to Jurors Who Said They Needed to Hear "Both Sides of the Story" Required Reversal
The First Department reversed defendant's conviction because the trial judge did not make inquiries to ensure jurors could be fair before denying defense counsel's "for cause" challenges. The jurors said they needed to hear "both sides of the story" indicating they would expect the defendant to testify. The judge failed to immediately instruct the jury that the defendant was under no obligation to testify:
The court erred in denying, without further inquiry, defendant's challenges for cause to three prospective jurors, against whom defendant ultimately exercised peremptory challenges. In response to defense counsel's questioning during jury selection, the panelists at issue expressed, in one form or other, that it would be difficult for them to decide the case if they did not "hear from" defendant or hear his "side of the story." The court did not instruct the panel on the People's exclusive burden of proof and a defendant's right not to testify, and it did not elicit from the panelists at issue "some unequivocal assurance" that they would be "able to reach a verdict based entirely upon the court's instructions on the law" ... .
A prospective juror's statement to the effect that it is "important to hear both sides" raises the "appear[ance of] assertion of a defendant's obligation to present a defense" ... . Here, although the court had not yet instructed the jurors on the relevant legal principles, defense counsel framed several of her questions in terms of the "right to remain silent." Further, counsel's several other attempts to place her questioning in the context of the legal instructions the jurors would receive were cut short by the court, which indicated that it would instruct the jurors "at the appropriate time." However, the circumstances called for a prompt instruction on the relevant principles regarding the burden of proof and a defendant's right not to testify or present evidence, along with the elicitation of unequivocal assurances that the panelists would follow that charge. People v Jackson, 2015 NY Slip Op 01385, 1st Dept 2-17-15
"For Cause" Challenges to Jurors Who Could Only Say They Would "Try" to Be Fair Should Have Been Granted
The Second Department reversed defendant's conviction because "for cause" challenges to jurors were denied. The jurors, who had been victims of crime, could only say they would "try" to be fair:
CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial." Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence ... . "A prospective juror's responses construed as a whole, must demonstrate an absolute belief that his [or her] opinion will not influence his [or her] verdict'" ... .
Here, during voir dire, two prospective jurors indicated that due to incidents in which they had been the victims of crimes, they were unsure whether they could be objective or impartial. The first prospective juror indicated that he had been "attacked more than once" by gangs in the past, and that the experience colored his opinion of gang members. When pressed, he repeatedly stated that he could only "try" to be fair and impartial. The second prospective juror at issue indicated that he had been the victim of a robbery 11 years earlier, and as a result, moved from Brooklyn to Queens. When asked if that was going to affect his ability to be fair, the juror responded, "I'm not sure, probably not." He subsequently stated, "I will try my best." The trial court denied for-cause challenges to the prospective jurors and, since the defense had exhausted all of its peremptory challenges, the second prospective juror at issue was seated.
At no point did the prospective jurors unequivocally state that their prior states of mind would not influence their verdict, and that they would render an impartial verdict based solely on the evidence. Under the circumstances, the trial court should have granted the defendant's challenges for cause ... . People v Garcia, 2015 NY Slip Op 01468, 2nd Dept 2-18-15
Same issue and result in People v Reyes, 2015 NY Slip Op 01473, 2nd Dept 2-18-15
Bare Allegation in an Attorney Affidavit that, Upon Information and Belief, the Deputies Lacked Probable Cause to Arrest Defendant, Not Enough to Justify a Hearing on a Suppression Motion
In finding defendant's motion to suppress was properly denied without a hearing, the Third Department explained what is required to warrant a hearing:
"A motion seeking suppression of evidence 'must state the ground or grounds of the motion and must contain sworn allegations of fact . . . supporting such grounds'" ... . A hearing in this regard is neither "automatic [n]or generally available [simply] for the asking" ... and, except in circumstances not present here (see CPL 710.60  [b]; 710.20 , ), the trial court "may summarily deny the motion if the papers do not allege a legal basis for suppression or if the factual allegations do not as a matter of law support any alleged ground" ... . Here, in support of her suppression motion, defendant tendered the affidavit of her attorney, who merely asserted — upon information and belief — that the deputies in question lacked probable cause to arrest defendant. This "bare allegation of a lack of probable cause, without any factual support, was insufficient to require a hearing" ... . People v Briskin, 2015 NY Slip Op 01493, 3rd Dept 2-19-15
Appellant Entitled to a Hearing on His Motion to Vacate His Conviction---Questions of Fact Whether Witness Testimony Was Induced by Threats and/or Promises Not Disclosed to the Defense at Trial
The Third Department determined appellant, who had been convicted of second degree murder, was entitled to a hearing re: a potential Brady violation. Appellant was an inmate at the time of the incident and the witnesses to the incident were other inmates Appellant, in a motion to vacate the conviction, presented affidavits from witnesses to the incident who averred they were threatened or offered promises by prison personnel in exchange for their testimony. The court noted there was a question of fact whether the prosecution could be held responsible for the actions of prison personnel (relevant information may have been outside the control of the prosecution):
...[D]efendant was entitled to a hearing on his motion. Due process requires that the People disclose to the defendant any evidence in their possession that is "material to guilt or punishment" ... . The People must disclose evidence relating to a witness's credibility, including "the 'existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness'" ... . "To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ... . When a specific request has been made for the evidence that was withheld, "the materiality element is established provided there exists a 'reasonable possibility' that it would have changed the result of the proceedings" ... . People v Lewis, 2015 NY Slip Op 01492, 3rd Dept 2-19-15
CRIMINAL LAW/CONSTITUTIONAL LAW/EVIDENCE
Criteria for a Valid Warrantless Search of a Home Pursuant to the Emergency Exception Described---The Court Noted that One of the Criteria, i.e., that the Police Not Be Primarily Motivated by Intent to Arrest and Seize Evidence, No Longer Applies to Claims Under the US Constitution and May Only Apply to Claims Under the New York Constitution
In affirming County Court's denial of defendant's suppression motion, the Second Department explained the application of the emergency exception to the warrant requirement. The court noted that there is now a question whether one of the criteria for a valid warrantless search pursuant to the emergency exception, i.e., that the police are not primarily motivated by the intent to arrest and seize evidence, no longer applies under the Fourth Amendment to the US Constitution, and may only apply to claims under the New York Constitution:
"[Al]though warrantless entries into a home are presumptively unreasonable'" ..., a warrantless search and seizure in a protected area may be lawful, under some circumstances, pursuant to the emergency doctrine (see People v Mitchell, 39 NY2d 173, 177-178...). The exception applies where the police (1) have "reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property," (2) are "not . . . primarily motivated by intent to arrest and seize evidence," and (3) have a "reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched" (People v Mitchell, 39 NY2d at 177-178...).
The United States Supreme Court has held that the subjective intent of the police is not relevant in determining the reasonableness of police conduct under the Fourth Amendment to the United States Constitution (see Brigham City v Stuart, 547 US 398, 403). Consequently, the second prong of Mitchell is now relevant, if at all, only to claims raised under the New York Constitution (see NY Const, art I, § 12). We need not determine in this case whether the second prong of Mitchell is still viable under the New York Constitution ... , because we conclude that the actions of the police officers were permissible under both Brigham City and Mitchell ... . People v Loucks, 2015 NY Slip Op 01471, 2nd Dept 2-18-15
"Equitable Subrogation" Doctrine Defined
The Second Department explained the concept of "equitable subrogation" re: paying the debt of another:
The doctrine of equitable subrogation "is broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability" ... . Bank of NY v Penalver, 2015 NY Slip Op 01406, 2nd Dept 2-18-15
ENVIRONMENTAL LAW/MUNICIPAL LAW/ZONING
Town, In Reviewing a Special Use Permit Application Under Its Zoning Regulations after the State Environmental Quality Review Act (SEQRA) Environmental Impact Statement (EIS) Process Is Complete, Must Rely on the SEQRA Findings and Cannot Make Further Environmental Impact Findings
In a mining-permit matter, the Third Department determined that, once a final Environmental Impact Statement (EIS) is approved after the State Environmental Quality Review Act (SEQRA) process is finished, the town (the lead agency) does not have the power to make further environmental-impact findings beyond those in the SEQRA record. However, the town retains the power to do an independent review of the application for a special use permit under its zoning regulations:
...[A]lthough the Town is bound by DEC's [Department of Environmental Conservation's] SEQRA findings and it may not repeat the SEQRA process, it nevertheless retains the authority to make an independent review of plaintiffs' application for a special use permit in accord with the standards and criteria set forth in its applicable zoning regulation ... . That regulation provides that the Town may consider, among other things, the "health, safety, welfare, comfort and convenience of the public," including "the environmental impact" of the proposed quarry (Local Law No. 2  of Town of Nassau art VI [A]). However, ... the Town's independent review [does not include] the ability to now gather additional environmental impact information beyond the full SEQRA record. Rather, in conducting its own jurisdictional review of the environmental impact of the project, the Town is required by the overall policy goals of SEQRA and the specific regulations governing findings made by "involved agencies" to rely on the fully developed SEQRA record in making the findings that will provide a rationale for its zoning determinations. Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01511, 3rd Dept 2-19-15
ENVIRONMENTAL LAW/MUNICIPAL LAW/WATER LAW/ADMINISTRATIVE LAW
Department of Environmental Conservation's Finding that the Owners of Land on Either Side of a Creek Also Owned a Dam Across the Creek, and Therefore Were Responsible for Making the Dam Safe, Was Not Supported by Substantial Evidence---Dam Had Been Conveyed to the City in Condemnation Proceeding
The Third Department determined that the Department of Environmental Conservation's (DEC's) finding that the owners of parcels of land bordering a creek also owned the dam spanning the creek between the parcels, and therefore the landowners were responsible for the work necessary to make the dam safe, was not supported by substantial evidence. The Third Department concluded the land under the water where the dam was located had been transferred to the City of Hudson in a condemnation proceeding:
We recognize that a riparian owner's right to the natural flow of water along its land is properly classified as real property, equally with the land ... . As such, a party could acquire an interest in the water flow separate and distinct from the land under the water ... . The controlling point here, however, is that the "real estate" acquired in the condemnation, in conjunction with the indenture and agreement, is as defined under the WSA [Water Supply Act]. The comprehensive statutory definition for "real estate" embraces both the water and the "lands under water." Because the [DEC] considered only the "rights" that the City acquired by the condemnation and not the "property," the ALJ's conclusion that petitioners own the dam is not supported by substantial evidence in the record. Berger v New York State Dept of Envtl Conservation, 2015 NY Slip Op 01496, 3rd Dept 2-19-15
FAMILY LAW/ADMINISTRATIVE LAW/EVIDENCE
Maltreatment Finding Not Supported by Substantial Evidence
The Third Department determined substantial evidence did not support the Office of Children and Family Services finding of maltreatment. Petitioner spanked the child for eating soap while petitioner was bathing the child. Petitioner explained what had happened to the child's day-care provider, who then reported the incident to the Central Register of Child Abuse and Maltreatment:
"'At an administrative hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a fair preponderance of the evidence'" ... . Specifically, "'[t]o establish that maltreatment occurred, the agency must show that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the parent's failure to exercise a minimum degree of care'" ... . In our consideration of the underlying determination, "our focus is whether the determination is rational and supported by substantial evidence" ... . * * *
A parent is "entitled to use reasonable physical force to promote discipline" ... , however, the application of such force may not "exceed the threshold of reasonableness" ... . Although a single instance of excessive corporal punishment can suffice for a finding of maltreatment ..., here, the record lacks substantial evidence demonstrating that petitioner's conduct "impaired or was in imminent danger of impairing [the child's] physical, mental or emotional condition" ... . Matter of Maurizio XX v New Y\ork State Off of Children and Family Services, 2015 NY Slip Op 01512, 3rd Dept 2-19-15
Relatively Low Degree of Corroboration Required to Admit Child's Out-of-Court Statements Re: Abuse or Neglect
The Third Department, in a custody proceeding, explained the level of corroboration required to render a child's out-of-court statements admissible:
Both the mother and the attorney for the children contend that the testimony of the father's psychiatrist ... concerning the older child's out-of-court statements are inadmissible hearsay. We disagree. A child's out-of-court statements are admissible in a custody dispute if the statements relate to abuse or neglect, provided that such statements are corroborated by other evidence ... . "The degree of corroboration required is relatively low" ... , and the hearing court "is accorded considerable discretion in determining whether there is sufficient corroboration" ... . Heather B v Daniel B, 2015 NY Slip Op 01506, 3rd Dept 2-19-15
Family Court Did Not Inform Respondent of His Rights and Did Not Conduct an Adequate Colloquy---PINS Adjudication Reversed
The Third Department reversed respondent's adjudication as a PINS because Family Court did not advise respondent of his rights and the colloquy prior to Family Court's acceptance of the consent finding was inadequate:
Family Court erred by failing to advise respondent of his rights. Pursuant to statute, at the initial appearance and at the commencement of any hearing concerning a PINS petition, Family Court must advise the respondent and his or her parent of the respondent's rights to remain silent and to be represented by counsel of his or her choosing or an assigned attorney (see Family Ct Act § 741 [a]...). Here, the court did not mention these rights at the first appearance on the PINS petition, at which time the court accepted respondent's consent to a PINS finding, nor at the dispositional hearing. The court's failure to advise respondent of these rights constitutes reversible error ... . Additionally, the court's colloquy prior to accepting that consent finding was inadequate; respondent merely answered "[y]es" when asked if he had a basic understanding of the proceeding and if he consented to a PINS finding, without any further discussion. To ensure that a PINS admission is knowingly and intelligently entered into, in a proper colloquy "[t]he respondent should at least state and admit the precise act, or acts, which constitutes the admission, and should be made aware on the record of the consequences, the dispositional alternatives, and the waiver of specific rights," as well as give an assurance of the lack of coercion and that he or she consulted with counsel (Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 741 at 98...). Due to the inadequate colloquy and lack of advisement of rights, reversal is required, respondent's adjudication as a PINS is vacated and the matter is returned to the preadmission stage. Matter of Aaron UU ..., 2015 NY Slip Op 01505, 3rd Dept 2-19-15
Cause of Action for Fraudulent Concealment Must Allege a Basis for the Existence of a Duty to Disclose
In affirming the dismissal of a cause of action alleging fraudulent concealment (no basis for a duty to disclose was alleged), the Second Department explained the required elements:
To properly plead a cause of action for fraud, a plaintiff must allege all of the following requisite elements: (1) the defendant made a misrepresentation or a material omission of fact which was false and which the defendant knew to be false; (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it; (3) the plaintiff justifiably relied on the misrepresentation or material omission; and (4) injury ... . To sustain a cause of action for fraudulent concealment, the plaintiff must further allege a fifth element, namely, that the defendant had a duty to disclose the material information ... . Bannister v Agard, 2015 NY Slip Op 01408, 2nd Dept 2-18-15
No-Fault Carriers Not Required to Pay "Facility Fees" for "Office-Based" Surgery
The Second Department, in a full-fledged opinion by Justice Balkin, determined that a no-fault insurer is not required to pay a "facility fee" for "office-based" surgery:
The No-Fault Law (Insurance Law art 51) and its implementing regulations specifically provide that the operator of a hospital or "ambulatory surgery center," both of which are established under, and subject to, the comprehensive statutory and regulatory framework of Public Health Law article 28, may properly bill a no-fault carrier for facility fees (see e.g. 10 NYCRR 86-4.40). There is, however, no provision for recovery of a facility fee for the performance of an "office-based surgery" performed in a practice and setting accredited under Public Health Law § 230-d (Public Health Law § 230-d[b]). Public Health Law § 230-d, which is not contained in Public Health Law article 28, imposes a substantially more modest level of oversight and regulation than article 28. We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. * * *
The facility fee is a charge for the cost of providing "technicians, medical assistant[s] . . . [and] equipment," such as X-ray and ultrasound equipment, for office-based surgery. Government Empls Ins Co v Avanguard Med Group PLLC, 2015 NY Slip Op 01413, 2nd Dept 2-18-15
LABOR LAW-CONSTRUCTION LAW/CONTRACT LAW
Contract with Construction Manager Did Not Give the Manager Sufficient Supervisory Control to Impose Liability Under Labor Law 200, 240 (1) or 246 (1)
The First Department determined the terms of the contract with the construction manager did not afford the manager sufficient control to impose liability under Labor Law 200. The court further determined the contract did not make the manager an agent for the property owner, such that the manager would be vicariously liable under Labor Law 240 (1) or 246 (1). Plaintiff fell when an elevated plank on which he was standing shifted:
... [T]he CMS (construction management services contra t) specified that [t]he [construction manager] will not supervise, direct, control or have authority over or be responsible for each contractor's means, methods, techniques, sequences or procedures of construction or the safety precautions and programs incident thereto. If it became apparent that the means and methods of construction proposed by the construction contractors would constitute or create a hazard, then the construction manager was required to notify the Commissioner, or . . . his/her duly authorized representative."
Where a claim under Labor Law § 200 is based on alleged defects or dangers arising from a subcontractor's methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work ... . Defendants established that under the CMS they were not obligated to exercise supervisory control over the construction contractor's means or methods of work, nor did they assume such responsibility ... . Although under the CMS the construction manager had some general duties to monitor safety at the work-site, and defendants' personnel were on site on a daily basis, these general supervisory duties are insufficient to form a basis for the imposition of liability ... .
Defendants also established that they were not the property owner's statutory agent for purposes of Labor Law §§ 240(1) or 241(6) such that they should be held vicariously liable for plaintiff's injuries .... The CMS did not confer upon the construction manager the right to exercise supervisory control over the individual contractors, nor were defendants authorized to stop the work if their personnel observed an unsafe practice ... . The construction manager was only obligated to notify the project owner or its duly authorized representative of such a situation. DaSilva v Haks Engrs, 2015 NY Slip Op 01380, 1st Dept 2-17-15
MENTAL HYGIENE LAW
Under the Criteria Recently Announced by the Court of Appeals, the Proof Was Not Sufficient to Justify Placing the Respondent Under Strict and Intensive Supervision in the Community
The First Department, in a full-fledged opinion by Justice Renwick, applied the criteria recently announced by the Court of Appeals and determined the state had not presented sufficient proof to justify placing the respondent, a sex offender who had served 33 years in prison, under strict and intensive supervision (SIST) in the community. The opinion is very detailed and defies summary. Some of the main points follow:
The State of New York brought this Mental Hygiene Law (MHL) article 10 proceeding seeking civil commitment of respondent as a dangerous sex offender. This proceeding, however, preceded the recent pronouncement by the Court of Appeals in Matter of State of New York v Donald DD. (24 NY3d 174 ). In Donald DD., the Court of Appeals limited the evidence that can be used to civilly commit a convicted sex offender, and clarified that a sex offender cannot be subject to civil commitment solely because the individual is diagnosed as suffering from an abnormality that predisposes him to commit sexual offenses. In so doing, the Court of Appeals clarifies the line between civil commitment and penal commitment. In this case, we heed this clarification by dismissing this MHL article 10 proceeding on the ground that the State has failed to establish by clear and convincing evidence that respondent has or will have serious difficulty controlling his behavior. * * *
...[T]he jury found that respondent suffers from a mental abnormality qualifying him for civil management under MHL article 10. Following a dispositional hearing where the State experts and respondent testified, Supreme Court found that respondent is not a dangerous sex offender in need of confinement, and ordered instead that he submit to strict and intensive supervision and treatment (SIST) in the community. * * *
...[T]he statute requires that all offenders subject to civil management, including SIST, must be found to have a mental abnormality as a threshold qualification. MHL § 10.03(i) defines a mental abnormality as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct."
Article 10 authorizes civil confinement only of those sex offenders whose "mental abnormality" involves such a strong disposition to commit sexual misconduct and an inability to control behavior that the person is dangerous to society (MHL §§ 10.03[e], 10.07[f]). MHL article 10, as written, is also designed to provide courts with a mechanism for deciding whether the mental condition of a sex offender suffering from a mental abnormality is so extreme that the more restrictive alternative of confinement is warranted or whether, on the other hand, the least restrictive option, namely SIST, is permitted (see MHL § 10.07[f]).
...[I]n Donald DD. ..., the Court of Appeals clarified that the State must prove, separate from a finding of mental abnormality required for civil commitment, that the defendant has serious difficulty controlling his behavior. Specifically, the State must demonstrate that as a result of the "serious mental illness, abnormality or disorder," a person also would have serious difficulty controlling his behavior if released (24 NY3d at 187, 189). Matter of State of New York v Frank P, 2015 NY Slip Op 01551, 1st Dept 2-19-15
Owner of Restaurant Not Liable for Parking-Lot Assault on Plaintiff by Another Patron
In finding summary judgment should have been granted to the defendant bar/restaurant, the Second Department explained the analytical criteria re: liability for the assault by one patron upon another. A verbal dispute erupted inside the restaurant and plaintiff was struck as the dispute continued in the parking lot:
"Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property" ... . "However, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control" ... . "Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" ... .
The defendant established his prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action with evidence demonstrating that he could not have reasonably prevented the unforeseeable and unexpected assault upon the injured plaintiff ... . Hegerty v Tracy, 2015 Slip Op 001415, 2nd Dept 2-18-15
Parking Lot Concrete Wheel Stop Not a Dangerous Condition
The Second Department noted that a concrete wheel stop in a Costco parking lot is "open and obvious" and is not a dangerous condition. Costco leased the parking lot from the out-of-possession owner:
While Costco had a duty to maintain the premises in a reasonably safe manner ... , there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous ... . Generally " [a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm'" ... .
Here, Costco established its prima facie entitlement to judgment as a matter of law by showing that the wheel stop over which the plaintiff tripped and fell, which was cement-colored in contrast to the color of the pavement to which it was affixed, was not an inherently dangerous condition and was readily observable by those employing the reasonable use of their senses ... . Miller v Costco Wholesale Corp, 2015 NY Slip Op 01429, 2nd Dept 2-18-15
Defendant Did Not Demonstrate the Absence of Constructive Notice of the Condition Alleged to Have Caused Plaintiff to Fall--Defendant Therefore Not Entitled to Summary Judgment
The Second Department determined defendant in a slip and fall case was not entitled to summary judgment because it did not demonstrate its lack of constructive notice of the condition (glass debris):
A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ... . "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it" ... . "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" ... .
Here, the defendants did not proffer any evidence demonstrating when the area where the plaintiff fell was last cleaned or inspected prior to the plaintiff's accident and, thus, failed to eliminate all triable issues of fact with regard to their contention that they lacked constructive notice of the glass debris ... . The defendants' failure to establish their prima facie entitlement to judgment as a matter of law required the denial of their motion, regardless of the sufficiency of the plaintiff's opposition papers ... . Santiago v HMS Host Corp, 2015 NY Slip Op 01437, 2nd Dept 2-18-15
Property Owner and Snow Removal Contractor Should Have Been Awarded Summary Judgment in Snow/Ice Slip and Fall Case---Analytical Criteria Explained
The Second Department determined the defendant property owner and defendant snow-removal contractor should have been awarded summary judgment in a slip and fall case. The court outlined the criteria for both causes of action:
" A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence'" ... . Thus, to establish its prima facie entitlement to judgment as a matter of law, a property owner defendant moving for summary judgment is required to establish, prima facie, that it neither created nor had actual or constructive notice of the dangerous condition that allegedly caused the plaintiff to fall ... . Here, ... [the property owner] ... established its prima facie entitlement to judgment as a matter of law by submitting the transcripts of the deposition testimony of ... a maintenance supervisor, and ... the snow removal contractor, which established, prima facie, that [the property owner] did not have actual or constructive notice for a sufficient length of time to discover and remedy the ice condition which allegedly caused the plaintiff to fall... . * * *
"As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties" ... . "However, in Espinal v Melville Snow Contrs. (98 NY2d 136, 140), the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) where the contracting party has entirely displaced another party's duty to maintain the subject premises safely" ... .
Here, the plaintiff alleged [the snow-removal contractor] created the dangerous condition that caused her to slip and fall and, thus, launched a force or instrument of harm. In support of its motion, [the contractor] established, prima facie, that it did not create the allegedly dangerous condition which caused the plaintiff's fall ... . In opposition ..., the plaintiff and [the property owner] failed to raise a triable issue of fact as to whether [the contractor] created or exacerbated the alleged hazardous condition ... . The affidavit of the plaintiff's expert as to the origin of the hazardous condition was speculative and conclusory and, thus, insufficient to defeat a motion for summary judgment ... . Scott v Avalonbay Communities Inc, 2015 NY Slip Op -1438, 2nd Dept 2-18-15
Criteria for Common Law Indemnification Explained (Not Met Here)---Property Owner Could Not Seek Indemnification from Independent Contractor Re: Dangerous Condition on the Property
In the context of a personal injury action based upon a dangerous condition, the Second Department explained the criteria for common law indemnification. Here the dangerous condition was on property built by an independent contractor, Ambrosio, and owned by Wincoma. Wincoma did not demonstrate it met the criteria for seeking indemnification from Ambrosio:
"The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" ... . "If . . . an injury can be attributed solely to negligent performance or nonperformance of an act solely within the province of [a] contractor, then the contractor may be held liable for indemnification to an owner" ... . A party that has actually participated in the wrongdoing is not entitled to indemnification ... .
Here, the record demonstrates that Wincoma, the owner of the property where the subject incident occurred, had actual and constructive notice of the allegedly defective condition which caused the plaintiff's injuries ... . Moreover, the record shows that the injury cannot be attributed solely to the negligent performance or non-performance of an act solely within the province of Ambrosio, which was an independent contractor ... . Ambrosio built the subject structure approximately one year prior to the accident, the structure was built pursuant to specifications provided by Wincoma, and the record shows that those specifications were not "patently defective" ... . Consequently, Wincoma could not be entitled to common-law indemnification from Ambrosio for any damages that may be assessed against it in this action ... . Rappel v Wincoma Homeowners Assn, 2015 NY Slip Op 01434, 2nd Dept 2-18-15
Jury's Conclusion the School Negligently Supervised Students But the Negligent Supervision Was Not the Proximate Cause of Plaintiff's Injuries Was Supported by the Evidence/Inconsistent Verdict Issue Not Preserved Because Not Raised Before the Jury Was Discharged
The Second Department noted that the issue whether the jury's conclusion that the school district negligently supervised students who assaulted plaintiff but that the negligent supervision was not the proximate cause of plaintiff's injuries was not preserved for appeal because no objection to the verdict was raised before the jury was discharged. The court further noted that the jury's conclusion was based upon a fair interpretation of the evidence (and therefore did not constitute an inconsistent verdict):
The plaintiffs contend that the jury verdict finding that the defendant ... School District ... negligently supervised certain students who assaulted the plaintiff ..., but that such negligence was not a proximate cause of his injuries, is inconsistent and contrary to the weight of the evidence. Since the plaintiffs did not raise the issue of the claimed inconsistent jury verdict before the jury was discharged, that issue is not preserved for appellate review ... . Contrary to the plaintiffs' further contention, the jury verdict was not against the weight of the evidence. The jury's finding that, while the School District negligently supervised these students, such negligence was not a proximate cause of [plaintiff's] injuries, was based on a fair interpretation of the evidence... . LaMacchia v City of New Rochelle, 2015 NY Slip Op 01422, 2nd Dept 2-18-15
Questions of Fact Raised Re: Whether Property Owner Liable for Work Done by Independent Contractor
The Second Department determined questions of fact existed about the liability of the property owner (Eastern) for work done by an independent contractor (Affraim). Infant plaintiff was injured when he fell through a glass panel near the entrance of defendant's building. The panel had been installed by an independent contractor. The court explained the relevant analytical criteria:
"The general rule is that a party who retains an independent contractor . . . is not liable for the independent contractor's negligent acts" ... . One of the exceptions to this general rule is the "nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'" ... . In such instances, the party "is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated" ... .
Here, the Eastern defendants demonstrated, prima facie, their entitlement to judgment as a matter of law by presenting evidence that the glass in the fixed panel was installed by an independent contractor in compliance with the applicable City and State building codes, and that the condition of the glass did not otherwise violate their duty to maintain the premises in a reasonably safe condition ... . However, in opposition, the plaintiffs' submissions, including expert affidavits, raised a triable issue of fact as to whether Affraim violated City and State building codes by failing to install safety glass in the panel ... , and whether the Eastern defendants thereby breached a nondelegable duty to maintain the premises in a reasonably safe condition ... . Horowitz v 763 E Assoc Inc, 2015 NY Slip Op 01417, 2nd Dept 2-18-15
Defendant-Employer's Motion for Summary Judgment Properly Denied---Defendant Did Not Submit Proof that Defendant's Employee Was Not Acting Within the Scope of Employment When Employee Removed and Disseminated Photos from Plaintiff's Cell Phone and Defendant Did Not Submit Proof Demonstrating It Did Not Know of the Employee's Propensity for Such Conduct
The Second Department determined the motion for summary judgment made by defendant-employer, R & K, was properly denied. The plaintiff alleged that defendant's employee, Press, removed and disseminated photographs of her from a cell phone plaintiff had left with defendant for repair. The Second Department noted that an employer can be liable for the negligence and the intentional torts of an employee, provided that the employee was acting within the scope of employment. The court explained the criteria for vicarious liability under the doctrine of respondeat superior as well as direct liability for negligent hiring and supervision:
"Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment" ... . "Intentional torts as well as negligent acts may fall within the scope of employment" ... . Liability will not attach for torts committed by an employee acting solely for personal motives unrelated to the furtherance of the employer's business ..., or for conduct which could not have been reasonably expected by the employer ... .
Here, R & K failed to establish, prima facie, that it could not be held vicariously liable for Press's alleged acts, as it submitted no transcripts of testimony or affidavits from any of its employees, or business records, to support its contention that Press was acting outside the scope of his employment when he accessed and disseminated photographs from the plaintiff's cell phone. * * *
"To establish a cause of action based on negligent hiring and supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" ... . R & K failed to submit any proof establishing that it did not know and should not have known about Press's alleged propensity to engage in the conduct at issue here, or that it was not negligent in hiring Press ... . Hoffman v Verizon Wireless Inc, 2015 NY Slip Op 01416, 2nd Dept 2-18-15
NEGLIGENCE/MUNICIPAL LAW/EDUCATION-SCHOOL LAW/CIVIL PROCEDURE
Criteria for Discovery in a Special Proceeding Explained/Criteria for Leave to File a Late Notice of Claim Explained
The Second Department determined petitioner's application for leave to file a late notice of claim was properly denied, as was petitioner's request for discovery prior to the hearing. The court explained the relevant analytical criteria:
In a special proceeding, where disclosure is available only by leave of the court (see CPLR 408), the Supreme Court has broad discretion in granting or denying disclosure ..., although it must balance the needs of the party seeking discovery against such opposing interests as expediency and confidentiality ... . Contrary to the petitioners' contention, they failed to demonstrate that the requested discovery was necessary and that providing the requested discovery would not unduly delay this proceeding ... .
In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) the petitioner had a reasonable excuse for the delay, and (3) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e...). The injured petitioner's assertion that she did not immediately appreciate the nature and severity of her injuries during the first 90 days after the subject incident is unavailing without supporting medical evidence explaining why the possible permanent effects of the injuries took so long to become apparent and to be diagnosed ... . * * *
In addition, the petitioners failed to establish that the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter ... . * * *
Finally, the petitioners failed to establish that the respondent would not be substantially prejudiced in its defense on the merits by the significant delay should leave be granted ... . Matter of Bramble v New York City Dept of Education, 2015 NY Slip Op 01450, 2nd Dept 2-18-15
Defendant Seeking Summary Judgment Under the Storm in Progress Rule Must Demonstrate It Did Not Undertake Snow Removal During or Immediately After the Storm and Did Not Create or Exacerbate the Dangerous Condition
The Second Department, in denying defendant's (Happy Nails') motion for summary judgment, explained the analytical criteria for the "storm in progress" defense to a slip and fall case. Here the defendant failed to demonstrate it did not undertake snow removal efforts and did not create or exacerbate the dangerous condition during or immediately after the storm:
Under the storm-in-progress rule, a property owner or tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm, or on an abutting public sidewalk that it has a statutory duty to clear, " until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'" ... . However, once a landowner or a tenant in possession elects to engage in snow removal, it is required to act with "reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" ... . Thus, New Happy Nails may be held liable for the allegedly hazardous condition on the sidewalk if it undertook snow and ice removal efforts during or immediately after the storm that made the naturally occurring condition more hazardous ... .
Here, New Happy Nails failed to establish its prima facie entitlement to judgment as a matter of law. New Happy Nails failed to demonstrate that it did not undertake to remove snow and ice during or immediately after the storm, and failed to show that any such efforts on its part did not create or exacerbate the alleged icy condition ... . Fernandez v City of New York, 2015 NY Slip Op 01410, 2nd Dept 2-18-15
REAL ESTATE//TORTIOUS INTERFERENCE WITH CONTRACT/CONTRACT LAW
Plaintiff Breached Contract By Not Being Ready on the Time-of-the-Essence Date and Was Therefore Not Entitled to a Return of the Downpayment/Plaintiff's "Tortious-Interference-with-Contract" Cause of Action Against Brokers Dismissed Because Sellers Did Not Breach the Contract
In finding plaintiff was not entitled to return of her downpayment because she was not ready to close on the "time-of-the-essence" date, the Second Department explained the relevant analytical criteria, as well as the elements of a tortious interference with contract cause of action:
The sellers established, prima facie, that they were ready, willing, and able to perform on the time-of-the-essence closing date, and that the plaintiff lacked a lawful excuse for her failure to close ... . In opposition, the plaintiff failed to raise a triable issue of fact ... . Accordingly, the sellers established that they did not breach the contract and that the plaintiff was not entitled to the return of her down payment ... . ...
The plaintiff alleged that the brokers tortiously interfered with the contract between the plaintiff and the sellers. The elements of a cause of action for tortious interference with contract are (1) a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procurement of the third party's breach of that contract; and (4) damages ... . Here, the brokers established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the third-party, i.e., the sellers, did not breach the contract; rather, the plaintiff breached the contract when she did not appear on the time-of-the-essence closing date. In opposition, the plaintiff failed to raise a triable issue of fact. Iacono v Pilavas, 2015 NY Slip Op 01418, 2nd Dept 2-18-15
REAL PROPERTY LAW
Presumption Tenants-In-Common Share Equally Can Be Rebutted
The First Department noted that the presumption that tenants-in-common share equally in the common tenancy, that presumption can be rebutted:
"While there is a presumption that tenants-in-common share equally in their common tenancy, such a presumption may be rebutted if the facts show that they hold the tenancy in unequal shares. A court acting in equity may take into account the amounts invested in the property by the respective tenants in determining the shares to which they are entitled" ... . Here, the court properly considered defendant's undisputed testimony that she alone contributed all of the funds utilized to purchase and maintain the property, and that she resided in the home since its purchase. Ampratwum v Appiah, 2015 NY Slip Op 01533, 1st Dept 2-19-15
CONTRACT LAW/CIVIL PROCEDURE
Criteria for Vacation of a Stipulation of Settlement Not Met
In finding that the motion to vacate a stipulated settlement was properly denied, the Second Department explained the relevant analytical criteria:
"Settlements entered into in open court are binding and are not lightly cast aside" ... . A stipulation is an independent contract which is subject to basic principles of contract law ... . "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" ... . Mortgage Elec Registration Sys Inc v Kontarinis, 2015 NY Slip Op 01430, 2nd Dept 2-18-15
TAX LAW/MUNICIPAL LAW
County (Nassau) Must Indemnify Special Districts for Ad Valorem Tax Refunds Paid by the Special Districts
The Second Department determined that special districts (sanitation and garbage) which were obligated to refund ad valorem taxes wrongly collected from the New York Water Service Corporation were entitled to be reimbursed by the county:
... "[P]ursuant to the County Guaranty, the County is liable for refunds of tax payments made in connection with levies for special ad valorem taxes" ... . We have also held that "special ad valorem levies are not assessments for benefit' within the meaning of former Nassau County Administrative Code § 6-26.0(b)(3)(a)-(b) and, thus, they cannot be charged back to the special districts in the following tax year" ... . ...[T]he County entities must indemnify the special districts for any refunds paid by the special districts ... . New York Water Serv Corp v Supervisor of Town of Oyster Bay, 2015 NY Slip Op 01431, 2nd Dept 2-18-15
Delivery Driver Was an Independent Contractor, Not an Employee
The Third Department reversed the Unemployment Insurance Appeals Board and determined claimant was not an employee and therefore was not entitled to unemployment insurance benefits. Claimant worked as a delivery person for a business (ADS) that transports lost luggage from airports to the owners of the luggage:
Whether an employee-employer relationship exists "is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record" ... . "'While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important'" ... . Upon reviewing the record here, we find that the requisite control is lacking.
Claimant paid all of the expenses associated with his delivery work, including the lease of his vehicle, fuel, tolls, insurance, maintenance and his cell phone. For his services, claimant negotiated his own rate of pay and was paid a portion of the commission paid to ADS ... . No training was provided by ADS, nor did it impose any conditions on the way that claimant performed his work. Claimant spoke to the customer directly to determine delivery times and was ultimately responsible for lost or damaged luggage. Moreover, under the parties' agreement, which designated him an independent contractor, claimant was permitted to hire other individuals to perform work, did not work a fixed schedule, had the right to accept or reject assignments and was free to work for any other company ... . Matter of Jennings..., 2015 NY Slip Op 01503, 3rd Dept 2-19-15
Motor-Route Newspaper Carriers Were Employees, Not Independent Contractors
The Third Department determined motor-route newspaper carriers were employee, despited "independent contractor" characterization in the distribution agreement:
"Whether an employer- employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence" ... . "While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important" ... .
Recently, in Matter of Armison [Gannett Co., Inc.— Commissioner of Labor] (122 AD3d 1101 ), this Court upheld a finding of an employer-employee relationship between Gannett and certain newspaper delivery persons. Here, as we did in Armison, we find that the requisite level of control was present to support the Board's finding of an employer-employee relationship. Claimant was required to make deliveries within set time frames and according to other conditions. Claimant was also required to be a licensed driver with a registered and insured vehicle, and was obligated to provide Gannett with a copy of her driver's license and proof of liability insurance. Additionally, under the terms of the distribution agreement, all substitutes were required to be licensed and insured. Claimant was provided a route set by Gannett and, if claimant was not available to deliver her route, she was responsible for finding a substitute. In the event that deliveries were not made by claimant, Gannett would use an employee to make the delivery and charge claimant a fee. Further, Gannett controlled other aspects of claimant's work, including prohibiting placing foreign materials on or in the publications. Claimant was also provided access to accident insurance from Gannett's policy. In light of the foregoing, and despite the existence of other evidence in the record suggestive of an independent contractor relationship — including the distribution agreement expressly designating claimant as an independent contractor — we find that substantial evidence supports the Board's determination that claimant was an employee ... . Matter of Hunter..., 2015 NY Slip Op 01509, 3rd Dept 2-19-15
Insurance Agent Was an Employee, Not an Independent Contractor
The Third Department determined claimant, an insurance agent, was an employee of Aaron Casey Insurance, not an independent contractor, and, therefore, was entitled to unemployment insurance benefits:
Whether an employee-employer relationship exists "is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record" ... . "While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important" ... .
... [C]laimant was required to work a minimum of 30 hours per week, per a schedule set by Aaron Casey Insurance, and needed permission to take time off. In addition to servicing customers outside the office, claimant was responsible for performing in-office work, including answering phones and servicing walk-in customers. Claimant was paid an hourly wage plus commissions and was reimbursed for the costs associated with obtaining his insurance license. Additionally, claimant was provided training and was required to report back regarding sales leads, his work was reviewed by Aaron Casey Insurance and he had a sales quota and faced termination if it was not met. In our view, the foregoing is more than sufficient to support the Board's finding of an employment relationship, notwithstanding the existence of other proof that could support a contrary conclusion ... . Matter of Fahrson..., 2015 NY Slip Op 01515, 3rd Dept 2-19-15
MUNICIPAL LAW/ADMINISTRATIVE LAW/RETIREMENT AND SOCIAL SECURITY LAW
First Responder, a NYC Police Officer, Was Entitled to the World Trade Center Presumption that Her Illness, Fibromyalgia, Was Caused by Environmental Exposure at the Site of the 2001 Collapse of the World Trade Center
The First Department, in a full-fledged opinion by Justice Acosta, determined a NYC police officer was entitled to the World Trade Center (WTC) presumption that her illness, fibromyalgia, was caused by her exposure at the site of the World Trade Center collapse in 2001. The officer was therefore eligible for accidental disability retirement (ADR):
Administrative Code § 13-252.1 provides that "any condition or impairment of health ... caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident ... unless the contrary be proved by competent evidence" (§ 13-252.1[a]...). "Qualifying World Trade Center condition" is defined to include, among other conditions, "[n]ew onset diseases resulting from exposure as such diseases occur in the future including cancer, asbestos-related disease, heavy metal poisoning, and musculoskeletal disease" (§ 2 [c][v] [emphasis added]). * * *
Here, the evidence shows that petitioner did not have fibromyalgia before September 11, 2001, and that she developed disabling fibromyalgia and chronic fatigue syndrome in the wake of her WTC exposure.
Because it was "caused by a qualifying [WTC] condition," petitioner's fibromyalgia is presumed to have been "incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by [her] own willful negligence, unless the contrary be proved by competent evidence" (Administrative Code § 13-252.1[a]). Respondents bear the burden of showing that petitioner's qualifying injury was not incurred in the line of duty ... . The Board of Trustees' determination must be supported by credible evidence in the record ... .
The significance of the presumption is that, "unlike ordinary ADR claimants, first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits" ... Thus, the Board "cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure" ... . * * *
...[R]espondents have failed to rebut the presumption that petitioner's qualifying condition, fibromyalgia, was caused by hazards encountered at the WTC site. Matter of Sheldon v Kelly, 2015 NY Slip Op 01404, 1st Dept 2-1715
"Special Exception Permit" Defined
In affirming the denial of an application for a "special exception permit," the Second Department explained the relevant criteria:
A "special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right" ... . The burden on an owner in seeking a special exception permit is, therefore, "considerably less" than the burden on an owner seeking a use variance ... . An applicant for a special exception permit need only show that it has complied with every legislatively imposed condition on the permitted use ... . If the applicant fails to comply with any of the conditions set forth in the ordinance, the zoning authority may deny the application ... . Matter of Nathan v Board of Appeals of Town of Hempstead, 2015 NY Slip Op 01457, 2nd Dept 2-18-15