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January Page I

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


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Regulation Prohibiting/Restricting Smoking in New York Parks Properly Promulgated by Office of Parks, Recreation and Historic Preservation---"Boreali" Criteria Explained and Applied to the Facts in Some Depth


Reversing Supreme Court, the Third Department, in a full-fledged opinion by Justice Peters, determined that a regulation prohibiting/restricting smoking in New York parks was properly promulgated by the Office of Parks, Recreation and Historic Preservation (OPRHP).  Petitioner, an organization promoting the interests of smokers, argued the agency did not have the authority to regulate smoking in parks absent legislation on the issue and, therefore, the promulgation of the rule violated the principle of separation of powers.  The court explained the "Boreali" criteria under which the regulation was analyzed and applied the criteria to the facts (the interesting, detailed, fact-specific analysis is not summarized here):


Respondents, the Office of Parks, Recreation and Historic Preservation (hereinafter OPRHP) and its Commissioner, are empowered by statute to "[o]perate and maintain . . . historic sites and objects, parks, parkways and recreational facilities"(PRHPL 3.09 [2]) and to "[p]rovide for the health, safety and welfare of the public using facilities under its jurisdiction" (PRHPL 3.09 [5]). In February 2013, pursuant to this statutory authority, OPRHP adopted a rule establishing smoke-free areas in certain limited outdoor locations under its jurisdiction (see 9 NYCRR 386.1). Such regulation, among other things, also prohibits smoking in each state park located in New York City, with limited exceptions (see 9 NYCRR 386.1 [a] [2])... . OPRHP announced that this rule was needed in order to allow "patrons to enjoy the outdoors, breathe fresh air, walk, swim, exercise and experience [s]tate [p]arks' amenities and programs without being exposed to secondhand tobacco smoke and tobacco litter" (NY Reg Dec. 5, 2012 at 11). * * *


"The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation" (...see NY Const, art III, § 1). As the Court of Appeals has recently reaffirmed, when determining whether an administrative agency has violated the constitutional principle of separation of powers, we must consider the "coalescing circumstances" set forth in Boreali v Axelrod (71 NY2d 1, 11 [1987]), namely, (1) whether the respondents improperly engaged in the balancing of their stated goal with competing social concerns and acted "solely on [their] own ideas of sound public policy"; (2) whether the respondents engaged in the "interstitial" rulemaking typical of administrative agencies or instead "wrote on a clean slate, creating [their] own comprehensive set of rules without benefit of legislative guidance"; (3) whether the challenged regulation concerns "an area in which the Legislature ha[s] repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions"; and (4) whether the respondents overstepped their bounds because the development of the regulation did not require the exercise of expertise or technical competence by the administrative agency (id. at 12-14 ...). In determining whether "the difficult-to-define line between administrative rule-making and legislative policy-making has been transgressed," this Court should view these circumstances "in combination" (Boreali v Axelrod, 71 NY2d at 11), while ever mindful that "'it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends'" ... .


Applying the four Boreali considerations, we find no usurpation of the Legislature's prerogative by respondents' promulgation of 9 NYCRR 386.1. Matter of NYC C.L.A.S.H. Inc v New York State Off of Parks, Recreation & Historic Preserv, 2014 NY Slip Op 09085, 3rd Dept 12-31-14





Because the Habeas Corpus Petition Sought the Transfer of Kiko, A Chimpanzee, to Another Facility, Rather than Immediate Release, the Petition Must Be Denied, Regardless of Whether Kiko is Deemed a Person for Purposes of the Writ


The Fourth Department determined that a habeas corpus petition seeking the transfer of a chimpanzee, Kiko, to a facility with better conditions could not be granted, even if Kiko is deemed a person, because the petition did not seek Kiko's immediate release:


Regardless of whether we agree with petitioner's claim that Kiko is a person within the statutory and common-law definition of the writ, " habeas corpus relief nonetheless is unavailable as [that] claim[], even if meritorious, would not entitle [Kiko] to immediate release' " ... . It is well settled that a habeas corpus proceeding must be dismissed where the subject of the petition is not entitled to immediate release from custody ... . Here, petitioner does not seek Kiko's immediate release, nor does petitioner allege that Kiko's continued detention is unlawful. Rather, petitioner seeks to have Kiko placed in a different facility that petitioner deems more appropriate. Matter of Nonhuman Rights Project Inc v Presti, 2015 NY Slip Op 00085, 4th Dept 1-2-15





Appeal Dismissed Pursuant to Fugitive Disentitlement Doctrine Reinstated Upon Posting of a Bond


The Fourth Department, which had previously dismissed respondent's appeal pursuant to the fugitive disentitlement doctrine, reinstated the appeal upon respondent's posting a $25,000 bond:


We previously dismissed respondent's appeal from an "order of dismissal" entered by Family Court upon declining to sign an order to show cause seeking to vacate two orders entered on respondent's default. One of the orders determined that respondent was in willful violation of a child support order, and the other order committed him to a term of six months of incarceration ... . The court also issued a warrant for respondent's arrest ... . We determined that the fugitive disentitlement theory applied both to respondent's order to show cause to vacate the default orders and to the subsequent appeal ... . We nevertheless granted respondent leave to move to reinstate his appeal upon the posting of an undertaking in the amount of $25,000 with the court within 60 days of service of our order with notice of entry ... . Respondent timely posted the undertaking and his motion to reinstate the appeal was granted by this Court.


"The principal rationales for the doctrine [of fugitive disentitlement] include: (1) assuring the enforceability of any decision that may be rendered against the fugitive; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting the efficient operation of the courts; and (4) avoiding prejudice to the nonfugitive party"... . By posting an undertaking in the amount of the child support arrears, we conclude that respondent has demonstrated that he is not flouting the judicial process and has provided a means of enforcement of the court's order determining the amount of child support arrears in the event that the court's determination is unchanged (see Family Ct Act § 471; CPLR 2502 [c]). We conclude that the fugitive disentitlement theory no longer applies to respondent ... , and thus we reverse the order insofar as appealed from and remit the matter to Family Court to determine respondent's application to vacate the orders entered on his default and the warrant for his arrest. Matter of Shehatou v Louka, 2015 NY Slip Op 00086, 4th Dept 1-2-15





Supreme Court Should Determine Only the Threshold Issue of Whether a Matter Is Arbitrable as Encompassed by the General Subject Matter of the Collective Bargaining Agreement Without Considering the Merits of the Underlying Claim (Which Should Be Left to the Arbitrator)


The Fourth Department determined Supreme Court erred when it held that the parties had not agreed to arbitrate the issue (concerning a promotion).  The Fourth Department explained the criteria, noting that Supreme Court should not have been concerned with the merits of the underlying claim, but rather only the threshold issue of arbitrability:


The issue is governed by the Court of Appeals' two-prong test to determine "whether a grievance is arbitrable" ... . In the first prong of the test, known as "the may-they-arbitrate' prong," we "ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" ... . If arbitration is not prohibited, we then in the second prong "examine the CBA [collective bargaining agreement] to determine if the parties have agreed to arbitrate the dispute at issue," which is known as "the did-they-agree-to-arbitrate' prong" ... .


...Supreme Court erred in concluding that the parties did not agree to arbitrate this issue. "It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim" ... . ...  "Where, as here, there is a broad arbitration clause and a reasonable relationship' between the subject matter of the dispute and the general subject matter of the parties' collective bargaining agreement, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them' " ... . Matter of County of Herkimer v Civil Serv Employees Assn Inc, 2015 NY Slip Op 00125, 4th Dept 1-2-15





Conflict of Interest Waived Where Respondent Knew of the Conflict and Participated in Prior Proceedings for Some Time


The Fourth Department determined a disqualifying conflict of interest existed between respondent and petitioner's attorney, but that respondent had waived the conflict by participating in prior aspects of the case without objection:


...[R]espondent established that she had a prior attorney-client relationship with petitioner's attorney, that the issues in the two litigations are substantially related, each involving ownership of the same parcel of property, and that her interests are adverse to those of petitioner ... . Usually, that would create an "irrebuttable presumption of disqualification" ..., but many courts have nevertheless denied disqualification upon finding that a party has waived any objection to the purported conflict of interest ... .


In determining whether a party has waived any objection to a conflict of interest, "courts consider when the challenged interests became materially adverse to determine if the party could have moved [for disqualification] at an earlier time . . . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party's representation . . . Further, where a motion to disqualify is made in the midst of litigation where the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made merely to secure a tactical advantage"... . Matter of David C Peters, 2015 NY Slip Op 00042, 4th Dept 1-2-15





Charging an Additional 10% Contingency Fee for the Appeal, On Top of the 33 1/3% Contingency Fee for the Trial, for a Total Contingency Fee of 43 1/3 %, Was Proper---Motion Court Did Not Have the Power to Alter the Fee Agreement Sua Sponte and the Motion Court No Longer Had Jurisdiction Over the Case When It Made the Alteration


The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a dissent, discussed several fundamental issues in reversing Supreme Court's sua sponte award of attorney's fees which differed from the fee agreed to by the plaintiff and the plaintiff's law firm.  The First department held that the 33 1/3% contingency fee for the trial, and an additional 10% contingency for the appeal, amounting to a 43 !/3 % contingency fee, was proper. In addition, the First Department determined the defendant did not have standing to contest the fee, Supreme Court did not have the power to adjust the fee and Supreme Court no longer had jurisdiction over the case at the time it did so:


Initially, we note that defendant has no standing to challenge the fees agreed upon as between plaintiff and his counsel. CPLR 5015(a)(3) provides that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . fraud, misrepresentation, or other misconduct of an adverse party (emphasis added)." Defendant is not an "interested person" within the meaning of the statute, as even the motion court appeared to recognize. Defendant will pay the same amounts pursuant to the judgment regardless of the division of fees as between plaintiff and his counsel. ...


Further, there is no evidence whatsoever that the judgment was procured by fraud, misrepresentation or other misconduct by plaintiff or his attorneys. ...


Defendant having no standing under CPLR 5015(a)(3) to challenge the separate fee for appellate work, the court relied on its "inherent authority" to reach the issue. A court, however, has no inherent authority to sua sponte reach the issue of attorneys' fees ... . 


Moreover, Supreme Court was without jurisdiction to revisit the issue of the propriety of the fees, even upon the motion of a proper party. Since the Court of Appeals denied applications for review ... the judgment was final, and Supreme Court lacked jurisdiction to, in effect, reverse the Court by modifying the judgment ... .


Plaintiff's expert, a leading expert on legal ethics, opined that it was legally and ethically permissible for the firm to collect a separate fee for appellate work, notwithstanding that the firm is entitled, under the original retainer, to a contingency fee of one third of the recovery. Plaintiff's expert opined that limiting counsel's contingent fee to that encompassed in the initial retainer "does not advance the purpose behind Section 603.7 [Rules of the Appellate Division] . . . i.e., protecting clients from gouging by attorneys." The expert also observed that had plaintiff chosen to retain new counsel for the appeal, there would be absolutely no question that the new counsel would be entitled to a fee for his or her work, notwithstanding the fact that trial counsel was entitled to receive 33 1/3% of any recovery. Plaintiff's expert noted that it would be "anomalous" to assert that trial counsel should be compensated less favorably than new counsel for performing the work that had not been contemplated by the initial retainer. Stewart v New York City Tr Auth, 2014 NY Slip Op 09063, 1st Dept 12-30-14





Recommencement of A Dismissed Action Pursuant to CPLR 205 (a) Not Allowed Where Prior Action Was Dismissed for Neglect to Prosecute


The Second Department determined that dismissal of plaintiff's action for neglect to prosecute precluded the commencement of another identical action pursuant to CPLR 205 (a):


The Supreme Court correctly concluded that a prior action commenced by the plaintiff against the defendant, which asserted the same causes of action, was dismissed for the plaintiff's failure to obtain personal jurisdiction over the defendant and neglect to prosecute, and that the order of dismissal entered in that action adequately set forth the conduct of the plaintiff that constituted the neglect and demonstrated a general pattern of delay in proceeding (see CPLR 205[a]). Accordingly, the court properly concluded that the plaintiff could not avail herself of CPLR 205(a), which provides that, under certain circumstances, an action that has been dismissed, albeit not on the merits, may be recommenced within six months after its dismissal... . Webb v Greater NY Auto Dealers Assn Inc, 2014 NY Slip Op 09121, 2nd Dept 12-31-14





Procedure Under Civil Rights Law for Disclosure of Police Personnel Records Described


The Second Department determined plaintiff was entitled to the audiotapes of interviews of police officers which were attached to a report about a high-speed chase that resulted in the death of plaintiff's decedent.  Plaintiff's decedent was killed when the vehicle the police were chasing crashed into plaintiff's decedent's house:


CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action." However, Civil Rights Law § 50-a, which codifies the standards for the disclosure of police personnel records ..., provides that a police officer's "personnel records, used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order" (Civil Rights Law § 50-a[1]). Prior to issuing such an order, the court is obligated to conduct an in camera review of the requested file, "and make a determination as to whether the records are relevant and material in the action before" it, and, upon such a finding "the court shall make those parts of the record found to be relevant and material available to the persons so requesting" (Civil Rights Law § 50-a[3]).


Here, the order dated March 22, 2013, indicated that the Supreme Court had reviewed "the reports sought . . . and all documentation annexed thereto" before concluding that there was "relevant and material" information contained therein (emphasis added). Accordingly, the plaintiff met his burden for compelling disclosure pursuant to Civil Rights Law § 50-a, and the court properly directed the County to disclose the IAB report. However, we perceive no reason why the plaintiff should have been denied access to the audiotapes of the interviews which were identified in the attachments to the IAB report ... . The plaintiff should be permitted to hear the actual interviews of the officers regarding the accident, and not only read the IAB report's summaries thereof, since the interviews were the main source material for the IAB report and were incorporated by reference therein ... .


"The party opposing disclosure carries the burden of demonstrating that the requested information falls squarely within the exemption'" ... . The County has not offered any explanation as to why the audiotapes should not be discoverable, especially since it has already disclosed all of the other source material identified in the attachments to the IAB report. Calhoun v County of Suffolk, 2014 NY Slip Op 09095, 2nd Dept 12-31-14





Survey Without Surveyor's Affidavit Insufficient to Support Plaintiff's Summary Judgment Motion/Inadmissible Evidence (Survey) May Be Considered to Defeat Defendant's Summary Judgment Motion/Nuisance Cause of Action Dismissed Because Duplicative of Negligence Cause of Action


In an action stemming from the collapse of a retaining wall between the plaintiff's and defendant's properties, the First Department noted that a survey map without an affidavit from the surveyor is insufficient to support plaintiff's motion for summary judgment, but was sufficient to support the denial of defendant's motion for summary judgment.  The court also noted that where negligence and nuisance causes of action are duplicative, the nuisance action should be dismissed:


... [A] survey alone, without an accompanying affidavit from the surveyor, does not constitute competent evidence of the location of property lines and fences or retaining walls ... . Plaintiff has therefore failed to tender sufficient evidence to demonstrate entitlement to a declaratory judgment on its claim brought pursuant to Administrative Code of City of NY § 28-305.1.1.


Defendant met its prima facie burden as cross movant by submission of the affidavit of a land surveyor who inspected and measured the property subsequent to the collapse of the retaining wall in June 2013, and concluded that no portion of the wall had been upon defendant's property. That plaintiff's two surveys indicate that the wall was "on [the] line" of both properties, is sufficient, however, to raise a question as to the location of the wall relative to the two properties; we have long held that otherwise inadmissible evidence may be considered to defeat an application for summary judgment ... . 


... [W]e find that the claim of negligence is expressed throughout plaintiff's papers, and there is a question of fact as to whether defendant owed a duty of care to plaintiff, if the retaining wall is found to rest on both parties' premises. The claim of nuisance, based on allegations that defendant's ongoing refusal to participate in the repairs and maintenance of the retaining wall substantially interferes with plaintiff's ability to use and enjoy its property, arises solely from plaintiff's claim of negligence. Where nuisance and negligence elements are "so intertwined as to be practically inseparable," a plaintiff may recover only once for the harm suffered ... . Upon a search of the record, we conclude that the third cause of action, nuisance, should be dismissed as duplicative of the negligence cause of action, although this argument was not previously made or considered ... . 70 Pinehurst Avenue LLC v RPN Mgt Co Inc, 2014 NY Slip Op 09029, 1st Dept 12-30-14





In an Action Stemming from an Automobile Accident, Having Granted a Default Judgment, Supreme Court Should Not Have Directed Plaintiff to Accept a Late Answer and Allowed Discovery Re: Damages--A Defaulting Defendant Is Not Entitled to Discovery


The Second Department determined Supreme Court, having granted plaintiff's motion for a default judgment on liability in an automobile-accident case, should have also granted plaintiff's motion for an inquest on damages.  Supreme Court should not have ordered plaintiff to accept a late answer and allowed discovery on damages:


Having granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants on the issue of liability, the Supreme Court should have directed an inquest on damages. Since serious injury "is decidedly an issue of damages, not liability" ..., the plaintiff will be required to present prima facie proof at the inquest that she sustained a serious injury. However, while the defendants are "entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damages" ..., they may not conduct discovery with respect to the issue of damages, since defaulting defendants forfeit the right to discovery ... . Rudra v Friedman, 2014 NY Slip Op 09117, 2nd Dept 12-31-14





Supreme Court Properly Considered Documentary Evidence Re: a Motion to Dismiss for Failure to State a Cause of Action Pursuant to CPLR 3211(a)(7)---Limited Role of Such Evidence in this Context Clarified/Criteria for Specific Performance of a Real Estate Contract Explained


The Fourth Department, in a full-fledged opinion by Justice Whalen, clarified how a motion to dismiss for failure to state a cause of action (CPLR 3211(a)(7)) should be handled when documentary evidence is submitted by the defendant.  The case involved a real estate transaction which initially fell through when plaintiff was unable to finance it.  Years later, when plaintiff finally was able to obtain financing, it sought specific performance of the original contract. Documents tracing the history of the communications between plaintiff and defendant were submitted with the motion to dismiss.  Supreme Court considered the documents and dismissed the complaint.  The Fourth Department affirmed. In addition to an extensive discussion of the use of documentary evidence submitted in support of (and in opposition to) a motion to dismiss pursuant to CPLR 3211(a)(7), the Fourth Department explained the criteria for specific performance of a real estate contract and the role of a "time is of the essence" demand (which was not made here):


CPLR 3211 (a) (7) authorizes the summary dismissal of a complaint for failure to "state" a cause of action. Historically, "[a] motion to dismiss for failure to state a cause of action . . . was[] limited to the face of the complaint" (Rovello, 40 NY2d at 638 [Wachtler, J., dissenting]), but the Legislature enlarged the scope of facial sufficiency motions by enacting subdivision (c) of CPLR 3211, which permits "trial court[s to] use affidavits in its consideration of a pleading motion to dismiss" (id. at 635 ...). The Court in Rovello held that the plain text of CPLR 3211 (c) "leaves this question," i.e., the admissibility of affidavits on a motion pursuant to CPLR 3211 (a) (7), "free from doubt" (id. at 635). The First Department recently explained that Rovello's reference to "affidavits" is merely shorthand for "evidentiary submissions" ... .


As noted in Rovello, however, CPLR 3211 does not specify "what effect shall be given the contents of affidavits submitted on a motion to dismiss when the motion has not been converted to a motion for summary judgment" (id.). The Court noted that "[m]odern pleading rules are designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one' " and held that evidentiary submissions may only be considered for a "limited purpose" in assessing the facial sufficiency of a civil complaint (id. at 636). This "limited purpose," Rovello explained, is two-fold. On the one hand, "affidavits submitted by the defendant [as movant] will seldom if ever warrant the relief" sought under CPLR 3211 (a) (7) "unless too the affidavits establish conclusively that plaintiff has no cause of action" (id. [emphasis added]). On the other hand, the nonmoving party may "freely" submit evidentiary materials "to preserve inartfully pleaded, but potentially meritorious, claims" (id. at 635).


The "limited purpose" to be accorded evidentiary submissions on a motion to dismiss has been consistently reiterated by the Court of Appeals since Rovello ... . Indeed, in Guggenheimer v Ginzburg (43 NY2d 268, 275), the Court of Appeals noted that "dismissal should . . . eventuate" only when the defendant's evidentiary affidavits "show[] that a material fact as claimed by the pleader to be one is not a fact at all and . . . that no significant dispute exists regarding it" ... . * * *


We therefore conclude that the court properly considered defendant's evidentiary submissions in evaluating the motion to dismiss at bar. Liberty Affordable Hous Inc v Maple Ct Apts, 2015 NY Slip Op 0003, 4th Dept 1-2-15





Default Judgment of Foreclosure Cannot Be Collaterally Attacked in a Plenary Proceeding/Former Property Owner Cannot Contest Sale of Property After Default Judgment of Foreclosure


The Second Department noted that petitioner, Amona, could not bring a plenary action (an Article 78/declaratory judgment proceeding) after a tax foreclosure proceeding in which she defaulted and which resulted in the sale of her property.  Amona's only recourse was a motion to vacate the judgment of foreclosure.  However, Amona's default in the foreclosure action precluded any action to contest the sale of the property:


The Supreme Court properly granted the Conservancy's motion, in effect, to dismiss the petition/complaint. The relief sought herein by Amona should have been pursued by way of a motion to vacate the judgment pursuant to CPLR 317 or CPLR 5015(a) in the in rem tax lien foreclosure proceeding ... . "A plenary action or proceeding for such relief does not lie and must be dismissed" ... . Since Amona has improperly sought to collaterally attack the judgment by way of this proceeding/action, the Supreme Court properly, in effect, dismissed the proceeding/action.


Moreover, Amona's default in the foreclosure action forever barred and foreclosed her of "all right, title, and interest and equity of redemption in and to the parcel" in which she had had an interest (RPTL 1131). Thus, Amona has no standing to contest the County's sale of the property ... (see RPTL 1136[3]...).  Matter of Amona v County of Orange, 2014 NY Slip Op 09125, 2nd Dept 12-31-14




Unsworn Juror Properly Dismissed Based Upon the "Two-Hour-Trial-Delay" Rule


The First Department determined the dismissal of a juror based on transportation problems which would delay the trial more than two hours was proper.  Apparently none of the jurors had been sworn at the time of the dismissal. Because the standards for dismissing a juror are higher for sworn, as opposed to unsworn, jurors, the fact that the juror was unsworn was of no consequence:


...[D]efendant had no objection to a delay in swearing the jurors after the completion of jury selection, and thus effectively "agreed to create a category of jurors, i.e., selected but unsworn jurors, about which the Criminal Procedure Law is silent as to criteria for discharge" ... . The record reveals that the court merely used CPL 270.35 as a guideline in deciding whether to delay the trial by waiting for the juror. In any event, "[t]he power to excuse an unsworn juror is much broader than the statutorily limited power to discharge a sworn juror . . . ." ... . Therefore, if the criteria set forth in CPL 270.35 for the dismissal of a sworn juror have been met, then, a fortiori, the same considerations would warrant dismissal of a selected but unsworn juror ... .


"The Court of Appeals has held that the two-hour rule' gives the court broad discretion to discharge any juror whom it determines is not likely to appear within two hours" ... . Using the two-hour rule as a guideline, it is clear that the court providently exercised its discretion in replacing the juror with an alternate ... . People v Sanchez, 2014 NY Slip Op 09031, 1st Dept 12-30-14




Failure to Move to Withdraw Plea, and Thereby Preserve the Issue for Appeal, Did Not Prohibit Appeal Here---Defendant Was Wrongly Informed by the Court and Counsel that the Denial of His Speedy Trial Motion Would Be Appealable After the Plea


The Third Department reversed Supreme Court and vacated defendant's guilty plea because defendant was wrongly informed by the court and counsel that his statutory speedy trial issue would survive the guilty plea (for appeal).  Under the circumstances, the court determined the failure to preserve the error by moving to withdraw the plea did not prohibit the appeal:


The People concede that an essential term of the plea bargain was the parties' understanding that defendant would retain the right to appeal the denial of his motion to dismiss on speedy trial grounds. Defendant was thereafter sentenced ... . Defendant now appeals, arguing that his plea was involuntarily entered because his counsel and County Court erroneously informed him that a statutory CPL 30.30 claim would survive a plea of guilty.


Initially, we consider whether defendant was required to preserve this claim by appropriate postallocution motion (see CPL 220.60 [3]; 440.10). While a challenge to the validity of a guilty plea is generally not preserved for appellate review unless it was first raised in the trial court ..., the Court of Appeals has recognized that "where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required" ... . Here a CPL 440.10 motion was unavailable because the error is clear from the face of the record; similarly a CPL 220.60 (3) motion was practically unavailable because "'defendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge'" ... . Inasmuch as defendant--due to the inaccurate advice of his counsel and the trial court--did not know during the plea and sentencing proceedings that his statutory speedy trial claim would be forfeited as a direct consequence of his plea ..., preservation was not required ... . Moreover, under these circumstances, we agree with defendant that his guilty plea was not knowing, intelligent and voluntary and, accordingly, we reverse and vacate the plea ... . People v Williams, 2014 NY Slip Op 09067, 3rd Dept 12-31-14






Trial Testimony Rendered an Indictment Count Duplicitous Requiring Dismissal/Sexual Abuse First Degree Is Not a Lesser Included Offense Re: a Course of Sexual Conduct Against a Child First Degree


The Third Department determined that an indictment-count rendered duplicitous by the trial testimony should have been dismissed, and an indictment-count was wrongly amended because the new charge was not a lesser included offense re: the original charge:


As pertinent here, the crime of criminal sexual act in the first degree requires proof that the defendant engaged in oral sexual conduct with another person who is less than 11 years old, and oral sexual conduct includes "contact between . . . the mouth and the vulva or vagina" (Penal Law § 130.00 [2] [a]; see Penal Law § 130.50 [3]). The challenged count charged defendant with this crime based upon the victim's grand jury testimony that defendant had caused the victim to use her mouth to make contact with defendant's vaginal area on a single occasion in 2004. At trial, however, the victim testified that defendant caused her to engage in this conduct multiple times during the pertinent time period, and that she did not remember any specific time when it had happened. ... Unfortunately, the ... testimony regarding multiple acts made it impossible to ascertain the particular act upon which the jury verdict was based. We are therefore required, despite the utterly heinous nature of the acts the victim described, to reverse defendant's conviction on this charge; further, the challenged count must be dismissed... . ...


While the People may seek to amend an indictment at any time during trial to correct "matters of form, time, place, names of persons and the like," such an amendment may not alter the theory of prosecution reflected in the evidence before the grand jury (CPL 200.70 [1]; see CPL 200.70 [2]...). Further, a court may submit to a jury a lesser included offense of a crime charged in an indictment provided that the elements of the two crimes are such that "it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct [and] there [is] a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater" ... . * * *


A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense ... . It is possible for a defendant to engage in an act of sexual conduct within the scope of the crime of course of sexual conduct against a child through an act of sexual contact, defined in pertinent part as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party" (Penal Law § 130.00 [3]). However, a defendant could also commit an act of sexual conduct within the scope of the originally-charged offense by an act of "sexual intercourse, oral sexual conduct, anal sexual conduct, [or] aggravated sexual contact" (Penal Law § 130.00 [10]). The definitions of these acts do not include any element of intent; thus, it is possible for a defendant to commit an act that constitutes sexual conduct without the purpose of gratifying anyone's sexual desire that is a required element of sexual contact (see Penal Law § 130.00 [1], [2] [a], [b]; [11]...). Therefore, as it is possible to commit course of sexual conduct against a child in the first degree without also committing sexual abuse in the first degree by the same conduct, defendant's conviction on that charge must be reversed, and the amended indictment count must be dismissed ... . People v Baker, 2014 NY Slip Op 09068, 3rd Dept 12-31-14








Only the Board of Parole Has the Authority to Impose Conditions On Postrelease Supervision/Fine or Restitution Imposed Without Having Been Discussed at Sentencing Must Be Stricken---Case Remitted


The Third Department noted that County Court should not have imposed conditions upon defendant's postrelease supervision because only the Board of Parole has that power.  The Third Department also noted that County Court should not have imposed a fine or restitution which were not mentioned during the plea proceedings, but the order of protection, which was discussed, should stand:


because only the Board of Parole is authorized to impose the conditions of a term of postrelease supervision (...Penal Law § 70.45 [3]; Executive Law §§ 259-c [2]; 259-i [3], [4]), County Court erred to the extent that it imposed certain conditions of defendant's postrelease supervision at sentencing and the conditions should be stricken. Similarly, inasmuch as neither a fine nor restitution was mentioned at the plea proceedings, the matter must be remitted to allow County Court to either impose the sentence that was negotiated or to give defendant an opportunity to withdraw his plea before imposing the enhanced sentence ... .


In contrast, while only an order of protection against the victim was discussed during the plea agreement, "[o]rders of protection are not punitive in nature and are not necessarily dependent on, or the result of, a plea agreement" ... . Accordingly, County Court did not err when it imposed an order of protection in favor of the victim and her family at sentencing and, notwithstanding this Court's determination to remit this matter, the order of protection remains in place. People v Curry, 2014 NY Slip Op 09069, 3rd Dept 12-31-14







Stop and Investigative Detention of Defendant Was Proper Under DeBour Analysis/Defendant's Absence from Initial Sandoval Conference Cured by His Presence at a Subsequent Sandoval Hearing/Defendant's Sentence Reduced Based In Part on a Much Lower Sentence Attached to a Plea Offer


The Fourth Department determined that the arresting officer had enough information about the defendant's behavior to justify stopping the defendant after he left a store with a plastic garbage bag (which turned out to be full of shirts on hangers).  The court explained and applied the DeBour criteria for street stops and investigative detention.  The court further determined that defendant's absence from a discussion in chambers of the prior crimes about which the defendant could be questioned if he testified (a Sandoval hearing) was not reversible error because the same discussion was later held on the record in defendant's presence.  The Fourth Department reduced defendant's sentence, who was found to be a persistent felony offender, from 20 to 15 years, noting that he was a non-violent serial shoplifter and he had been offered a plea deal with a sentence of two to four years.  With respect to the legality of stopping and detaining the defendant, the court wrote:


...[T]he deputy sheriff observed defendant carrying the bag while walking away from the scene of a recently reported larceny and in the direction of the suspected getaway vehicle. Although there were other people in the parking lot at the time, defendant was the only person walking toward that vehicle and the only person carrying a large garbage bag, which is unusual in that setting. Based on those observations, we conclude that the deputy sheriff had the requisite founded suspicion that criminal activity was afoot sufficient to justify the common-law right of inquiry ... .


Moving to the next step of the DeBour analysis, we conclude that the deputy sheriff's questions of defendant were reasonably related to the scope of the circumstances that justified the interference ... . In response to the deputy sheriff's first question, defendant offered the obviously false answer that there was nothing in the bag, which contained 61 shirts on hangers. That false answer, combined with the information already obtained by the deputy sheriff, gave rise to a reasonable suspicion that defendant had committed or was committing a crime ... . It thus follows that the deputy sheriff acted lawfully in stopping and detaining defendant for investigative purposes. People v Ellison, 2015 NY Slip Op 00015, 4th Dept 1-2-15




Insufficient Evidence Defendant Shared the Intent of the Seller of Heroin---Conviction Under an "Acting in Concert" or "Accomplice" Theory Reversed


Using its "interests of justice" jurisdiction over an unpreserved error, the Fourth Department determined the evidence was insufficient to support defendant's conviction under an "acting in concert" or "accomplice" theory.  There was insufficient evidence the defendant shared the intent to sell heroin:


"To establish an acting-in-concert theory in the context of a drug sale, the People must prove not only that the defendant shared the requisite mens rea for the underlying crime but also that defendant, in furtherance of the crime, solicited, requested, commanded, importuned or intentionally aided the principal in the commission of the crime . . . The key to our analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise--—the illegal sale of a narcotic drug" ... . 


We conclude that the evidence is legally insufficient to establish that defendant acted in concert with the codefendant to sell heroin to the buyer inasmuch as he did nothing "more than simply direct the [buyer] to a location where [she] could purchase [heroin]" ... . "While this evidence certainly demonstrated that the defendant was able to identify a local purveyor of narcotics, it did not show . . . that he shared the seller's intent to bring the transaction about . . . [Indeed], by merely responding to the [buyer's] inquiry as to who had drugs for sale, the defendant did nothing to solicit or request, much less demand[,] importune[, or assist in] the illicit sale" ... . We therefore reverse the judgment of conviction and dismiss the indictment. People v Davila, 2015 NY Slip Op 00016, 4th Dept 1-2-15




Even If Initial Frisk of Defendant Was Unlawful, the Defendant's Pushing the Officer and Running Away Justified the Defendant's Arrest (for Harassment of the Officer) and Seizure of Drugs


The Fourth Department determined defendant's motion to suppress evidence was properly denied.  Defendant was a passenger in a vehicle stopped by the police.  A police officer told defendant to get out of the vehicle and proceeded to frisk him.  The defendant then pushed the officer and ran away.  He was captured and drugs were subsequently found.  The Fourth Department determined that, even if the frisk was unlawful, the defendant's pushing the officer and running away were not precipitated by the frisk:


Even assuming, arguendo, that the frisk was unlawful, we conclude that defendant's act of pushing the frisking officer was not "spontaneous and precipitated by the illegality . . . [but] was a calculated act not provoked by the unlawful police activity and thus attenuated from it" ... . We therefore conclude that there was probable cause for defendant's subsequent arrest for harassment of the frisking officer ... . Consequently, the drugs seized from defendant's person and the backseat of the patrol car were discovered incident to a lawful arrest ... . People v Fox, 2015 NY Slip Op 00034, 4th Dept 1-2-15




Error Associated With Defendant's Being Handcuffed During the Suppression Hearing Harmless/Error Associated with Defendant's Wearing a Stun Belt During Trial Waived


The Fourth Department, in affirming defendant's first degree murder conviction, determined the court's failure to place on the record the reason defendant was hand-cuffed during the suppression hearing was harmless error, and the error associated with the defendant's wearing a stun belt during the trial was waived:


With respect to being restrained in handcuffs, the court denied defense counsel's request to remove defendant's handcuffs during the suppression hearing in accordance with the County Sheriff's policy. Although the court's response was error, inasmuch as a court "must state a particularized reason for [restraining defendant] on the record" even at a bench trial ..., we nevertheless conclude that the error is harmless beyond a reasonable doubt because the error "did not contribute to the [court's decision]" on the suppression issue ... . With respect to the stun belt, we note that the requirement to wear the stun belt is not a mode of proceedings error and, therefore, such an error may be waived ... . Here, defendant waived his contention because he agreed to wear the stun belt, despite the court having informed defendant that he was entitled to a hearing to make findings as to the necessity of the belt ... .  People v Ashline, 2015 NY Slip Op 00037, 4th Dept 1-2-15








Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant's Lawyer's Phone Number from Defendant's Wallet---Subsequent Statements Should Have Been Suppressed/Defense Counsel's Failure to Move to Suppress Weapon Seized from Defendant's Person Deprived Defendant of Effective Assistance


The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant's lawyer's phone number from the defendant's wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel's failure to move to suppress the weapon seized from defendant's person:


"Whether a particular request [for counsel] is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant's demeanor [and] manner of expression[,] and the particular words found to have been used by the defendant" (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant's attorney from defendant's wallet. The hearing testimony further established that an investigator acknowledged defendant's request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. " [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant's request for his attorney's phone number]' " ... ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  ... . 


We agree with defendant ... that he was denied effective assistance of counsel based on defense counsel's errors with respect to suppression ... . We note that defense counsel moved to suppress evidence seized from defendant's residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant's person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing "approximately 8-10 houses away" from the location of reported gunfire. According to a police report, "[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody," and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity ... . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant's person and that was the factual basis for the charges in the indictment ... . We further conclude that defense counsel's errors prejudiced defendant and deprived him of the right to effective assistance of counsel ... . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15




Defendant's Attorney Not Ineffective for Failing to Make a Motion to Suppress---Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent


The Fourth Department, over a two-justice dissent, determined that defendant's attorney was not ineffective for failure to move to suppress a few of the items of stolen property seized after a traffic stop.  The majority and the dissent disagreed about whether the appeal questioned the validity of the traffic stop or the arrest after the stop.  The dissent felt that a motion to suppress all of the evidence based upon the arguable invalidity of the vehicle stop should have been made. The majority felt that the validity of the stop had not been questioned on appeal. The majority noted that, because the defendant testified, even if the evidence had been suppressed, the defendant could have been impeached with the suppressed evidence. The most useful discussion in the decision concerns the general nature of a motion which, if not made, would constitute ineffective assistance:


We respectfully disagree with our dissenting colleagues that the threshold standard to be applied in determining whether an attorney was ineffective for failing to file a particular motion is "whether the motion at issue had more than little or no chance of success." It is true, as the dissent points out, that the Court of Appeals has repeatedly stated that "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success' " ... . By so stating, however, the Court was not articulating the standard for what does constitute ineffective assistance of counsel; instead, the Court was explaining what does not constitute ineffective assistance of counsel. As noted, the Court has made clear in other cases that the standard to be applied is whether defense counsel failed to file a "colorable" motion and, if so, whether counsel had a strategic or legitimate reason for failing to do so ... . Although neither the Court of Appeals nor the Appellate Division has defined "colorable" in this context, the term is elsewhere defined as "appearing to be true, valid, or right" (Black's Law Dictionary 301 [9th ed 2009]). Federal courts have described a colorable claim as one that has " a fair probability or a likelihood, but not a certitude, of success on the merits' " ... . Here, for the reasons previously stated, we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely have been granted. People v Carver, 2015 NY Slip Op 00046, 4th Dept 1-2-15




Sentencing a Defendant with a Prior Felony Conviction as a First-Time Felon Is Illegal


The Fourth Department determined that sentencing a defendant with a prior felony conviction as a first-time felon is illegal:


...[T]he proper sentencing procedures pursuant to CPL 400.21 were not followed and thus that the sentence may be illegal. County Court sentenced defendant as a first felony offender, but, " [w]hen it became apparent at sentencing that defendant had a prior felony conviction, the People were required to file a second felony offender statement in accordance with CPL 400.21 and, if appropriate, the court was then required to sentence defendant as a second felony offender' " ... . "[I]t is illegal to sentence a known predicate felon as a first offender" (id. [internal quotation marks omitted]) and, inasmuch as we cannot allow an illegal sentence to stand, we modify the judgment by vacating the sentence imposed and we remit the matter to County Court for the filing of a predicate felony offender statement and resentencing in accordance with the law ... . People v johnson, 2015 NY Slip Op 00062, 4th Dept 1-2-15




Criminal Possession of a Weapon in the Third Degree Is Not a Lesser Inclusory Concurrent Count of Criminal Possession of a Weapon in the Second Degree


The Fourth Department determined that criminal possession of a weapon in the third degree is not a lesser inclusory concurrent count of criminal possession of a weapon in the second degree:


"[A] comparative examination of the statutes defining the two crimes, in the abstract" (People v Glover, 57 NY2d 61, 64), demonstrates that it is possible to commit criminal possession of a weapon in the second degree without by the same conduct committing criminal possession of a weapon in the third degree (compare § 265.02 [1] with § 265.03 [3]). For example, a defendant in possession of a loaded gun outside of his or her home or business who had not previously been convicted of any crime would be committing only the second-degree but not the third-degree offense. Because it is possible to commit the greater offense without committing the lesser one, the two counts are " non-inclusory concurrent counts' " ... . To the extent that the prior decision of this Court in People v Wilkins (104 AD3d 1156, lv denied 21 NY3d 1011) was based on an incorrect concession by the People and suggests a rule to the contrary, we conclude that Wilkins should no longer be followed. People v Puryear, 2015 NY Slip Op 00093, 4th Dept 1-2-15








Reversible Error to Deny For Cause Challenge to Biased Juror/Defendant's Counsel Ineffective


The Fourth Department reversed defendant's conviction because one of the jurors indicated a bias in favor of police officers [the for cause challenge to the juror was denied and the peremptory challenges were exhausted] and because the defendant was denied his right to effective assistance of counsel:


Upon questioning by defense counsel, a prospective juror stated that there was a possibility that he would have "sympathy" for police officer witnesses. Despite further questioning on the issue, the prospective juror did not provide an unequivocal assurance that he would not be biased in favor of the police. It is well settled that, once a potential juror has indicated a possible bias, he or she "must be excused unless [he or she] provide[s] unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence' " ... . Inasmuch as the court erred in denying defendant's challenge for cause, we reverse the judgment and grant a new trial.


We further agree ... that reversal is also required on the ground that he was denied effective assistance of counsel based upon, inter alia, defense counsel's elicitation of testimony that had been precluded by the court's pretrial ruling and defense counsel's characterization of defendant as a "drug dealer" on summation ... . Although "[i]solated errors in counsel's representation generally will not rise to the level of ineffectiveness" ... , here defense counsel's failures were "so serious, and resulted in such prejudice to the defendant, that he was denied a fair trial thereby" ... . People v Tapia-DeJesus, 2015 NY Slip Op 00167, 4th Dept 1-2-15




Failure to Make a Motion to Suppress Constituted Ineffective Assistance


The Fourth Department determined defendant was denied his right to effective assistance of counsel because counsel failed to move to suppress drugs seized during a traffic stop and the motion was likely to succeed.  The police questioning defendant whether he had anything illegal on him was not prompted by a reasonable suspicion of criminal activity:


In a supporting deposition, a police officer stated that he stopped defendant's vehicle after observing defective brake lights, in violation of Vehicle and Traffic Law § 375 (40). He observed that defendant was nervous, and defendant gave responses to questions concerning where he was coming from and where he was going that did not make sense considering the direction in which he was traveling. The officer ordered defendant out of the vehicle and asked him "if he had anything illegal on him," and defendant responded that he had "coke" in his pocket. The officer then searched defendant's pocket and retrieved what was later determined to be cocaine.


We conclude that defendant established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence ... . The officer's question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot ... . Defendant's nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot ... . We further conclude that defendant's contention survives his guilty plea inasmuch as defense counsel's error infected the plea bargaining process ... . People v Dealmeida, 2015 NY Slip Op 00169, 4th Dept 1-2-15




Case Remitted for Determination Whether Defendant Should Be Adjudicated a Youthful Offender/Record Insufficient to Determine Whether Court Erred In Not Disclosing to the Defendant the Written Submissions of the Victims Which Were Reviewed by the Court--Case Remitted to Make an Adequate Record for Review


The Fourth Department determined County Court erred in failing to determine whether defendant should be adjudicated a youthful offender.  The Fourth Department further determined the record was not sufficient for consideration of defendant's argument County Court erred when it refused to allow defendant to see the written submissions to the judge made by the victims. The case was remitted for consideration of whether the defendant should be adjudicated a youthful offender and to create a record of the written submissions and the reasons defendant was refused access to them.  People v Minemier, 2015 NY Slip Op 00171, 4th Dept 1-2-15



Statute of Limitations Tolling Provisions Do Not Apply to Endangering the Welfare of a Child


In finding the count charging defendant with endangering the welfare of a child was time-barred, the Fourth Department noted that the tolling provision (starting the statute of limitations when the victim reaches the age of 18) does not apply to that offense:


The statute of limitations for that offense is two years (see CPL 30.10 [2] [c]), and the tolling provision of CPL 30.10 (3) (f) does not apply to that offense ... . Although, as noted, defendant's contention is unpreserved for our review, we exercise our power to address it as a matter of discretion in the interest of justice, and we modify the judgment accordingly ... . People v Lomaglio, 2015 NY Slip Op 00181, 4th Dept 1-2-15





Larceny Jury Instruction Shifted Burden of Proof to Defendant---Reversal Required In Absence of Preservation of the Error


The Fourth Department reversed defendant's conviction because the jury instruction shifted the burden of proof to the defendant:


Penal Law § 155.15 (1) provides that, "[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith." ...[H]owever, the Court of Appeals in People v Chesler (50 NY2d 203, 209-210) "held that section 155.15 was unconstitutional insofar as it made a good-faith claim of right an affirmative defense because to do so impermissibly shifted the burden onto the defendant to disprove the element of intent." Rather, "a good faith claim of right is properly a defense--—not an affirmative defense—--and thus, the [P]eople have the burden of disproving such defense beyond a reasonable doubt' " ... . Here, however, the court instructed the jury that "defendant has the burden of proving that she took, withheld or obtained the property under a claim of right made in good faith by a preponderance of the evidence." We conclude that the court committed a mode of proceedings error when it shifted the burden onto defendant to disprove the element of intent ..., thereby requiring reversal of the judgment and a new trial even in the absence of preservation ... . People v Forbes-Haas, 2015 NY Slip Op 00092, 4th Dept 1-2-15




Where Proof Is Directed Exclusively to a Theory Not Charged in the Indictment, the Proof Is Insufficient to Support the Conviction---Such a Variance Need Not Be Preserved by Objection to Be Raised on Appeal/Conduct of Spectators (Mouthing Words When Victim Testified) Did Not Require that the Spectators Be Removed and Did Not Mandate the Declaration of a Mistrial


The Fourth Department determined that variance between the charges described in the indictment and the proof at trial required the dismissal of several counts.  Such a variance does not need to be preserved for appeal by objection.  The court noted that the trial judge's failure to exclude spectators who were mouthing word's during the victim's testimony was not an abuse of discretion:


"Where the charge against a defendant is limited either by a bill of particulars or the indictment itself, the defendant has a fundamental and nonwaivable' right to be tried only on the crimes charged" ... . We have thus held that, where, as here, a defendant contends that he or she has been convicted upon an uncharged theory of the crime, such a contention does not require preservation... . * * *


"Where there is a variance between the proof and the indictment, and where the proof is directed exclusively to a new theory rather than the theory charged in the indictment, the proof is deemed insufficient to support the conviction" ... . Counts two and three of the indictment alleged hand-to-vagina contact, but the victim testified that the only part of defendant's body that came into contact with her vagina was defendant's penis. Indeed, when asked specifically if any other part of defendant's body came into contact with her vagina during the incident encompassed by counts two and three, the victim responded, "No." Count nine of the indictment alleged penis-to-vagina contact, but the victim testified that defendant touched her vagina with his hand during that incident. Again, when asked specifically if any other part of defendant's body came into contact with her vagina during the incident encompassed by count nine, the victim responded, "No." We thus conclude that the evidence is legally insufficient to support the conviction with respect to counts two, three and nine and that defendant was denied his fundamental and nonwaivable right to be tried on only those crimes charged in the indictment. We therefore modify the judgment accordingly.  People v Duell, 2015 NY Slip Op 00014, 4th Dept 1-2-15





(Harmless) Error to Admit Voice Identification Testimony---The People Did Not Provide Notice of the Testimony and the Identification Was Not Merely Confirmatory


The Fourth Department noted that voice identification testimony should not have been allowed because the people did not provide notice of it and it was not merely confirmatory.  The error was deemed harmless however:


We agree with defendant that the court erred in allowing one of the victims to offer voice identification testimony at trial. Prior to trial, the prosecutor had the victim listen to recordings of telephone calls allegedly made by defendant from jail, and the victim identified the voice of the person making the calls as belonging to defendant. The victim offered similar testimony at trial over defendant's objection. Because the People failed to provide defendant with notice of the pretrial voice identification procedure as required by CPL 710.30 (1) ..., the voice identification testimony was admissible at trial only if the identification was merely confirmatory as a matter of law ... . Contrary to the People's contention, the victim's identification of defendant's voice was not merely confirmatory inasmuch as the victim acknowledged that, although he had heard defendant speak a number of times in the neighborhood, he and defendant had never actually spoken to each other. We thus conclude that the People did not establish as a matter of law that the victim was so familiar with defendant's voice that "the identification at issue could not be the product of undue suggestiveness" ... . People v Ramos, 2015 NY Slip OOp 00049, 4th Dept 1-2-15









Grandmother's Pro Se Petition to Modify Visitation Is To Be Construed Liberally and Should Not Have Been Dismissed Without a Hearing


The Third Department determined Family Court should not have dismissed grandmother's petition to increase her visitation with the child without a hearing.  The court noted that because the grandmother filed her petition pro se, it should be construed liberally:


"A party seeking to modify a visitation order must show a change in circumstances resulting in a need for the modification to ensure the best interests of the child" ... . Inasmuch as the grandmother filed her petition pro se, it should be construed liberally when considering whether she sufficiently alleged a change in circumstances (...see also CPLR 3026). Here, the grandmother alleged that an increase in visitation was warranted given that the child was older, the grandmother and child had developed a close bond, overnight visitation had never been addressed, and an overnight would permit the grandmother and the child to do more together, including spending time with family members who live farther away. While the mere passage of time and the child getting older do not constitute unanticipated changes in circumstances ..., more was alleged here. Liberally construed, the grandmother's allegations in the petition adequately asserted that a sufficient change in circumstances has occurred. Matter of Ford v Baldi, 2014 NY Slip Op 09078, 3rd Dept 12-31-14





Defendant's Motion to Vacate a Default Judgment of Divorce Should Have Been Granted Even Though Defendant First Appeared and Then Withdrew


The Fourth Department defendant's motion to vacate a default judgment of divorce should have been granted, even though the defendant had appeared in the action and then withdrew.  The court noted that a default judgment cannot be appealed and the only remedy is therefore a motion to vacate:


We reject plaintiff's contention that defendant could not move to vacate the judgment based on excusable default pursuant to CPLR 5015 (a) (1) because he appeared and then withdrew his appearance on the record. Regardless of the fact that defendant appeared initially, the judgment was entered upon defendant's default. Defendant therefore could not appeal from the judgment of divorce (see CPLR 5511) and, indeed, his only remedy was to move to vacate the judgment of divorce pursuant to CPLR 5015 (a) (1) ... .


We conclude that defendant demonstrated both a reasonable excuse for the default and a meritorious defense ..., and that he is entitled to vacatur of those parts of the judgment of divorce distributing the parties' assets ..., the only parts of the judgment challenged by defendant on appeal ... . Defendant averred that he informed his attorney that he disagreed with the proposed resolution of the parties' retirement accounts and did not want to finalize the judgment on those terms, but that he was subsequently unable to contact his attorney, and a default judgment of divorce was entered without his knowledge. Furthermore, the judgment of divorce failed to resolve the outstanding issues regarding distribution of the retirement accounts, the home equity loan, and defendant's enhanced earning capacity, which issues the parties expressly acknowledged remained to be resolved and were dependent upon, at least in part, the forthcoming report. Marshall v Marshall, 2015 NY Slip Op 00059, 4th Dept 1-2-15





Neither CPLR 5015 Nor Family Court Act 451 Was a Bar to Mother's Petition to Modify a Child-Support Money Judgment by Temporarily Suspending Interest


In reversing Family Court's denial of mother's petition to modify a child-support money judgment (temporary suspension of interest), the Second Department explained that neither CPLR 5015, nor Family Court Act 451 was a bar to the petition:


The mother's failure to allege any of the grounds listed in CPLR 5015 did not preclude her from seeking modification of the money judgment since the grounds set forth in the statute are not exhaustive ... . Additionally, Family Court Act § 451 provides the Family Court with continuing jurisdiction over any support proceeding brought under Family Court Act article 4 "until its judgment is completely satisfied," and authorizes it to "modify, set aside or vacate any order issued in the course of the proceeding" without limitation as to grounds (Family Ct Act § 451[1]). * * *


Contrary to the Family Court's conclusion, the prohibition contained in Family Court Act § 451 on modifying or vacating an order or judgment so as to "reduce or annul child support arrears accrued prior to the [filing of the petition for modification]" did not preclude the modification the mother sought through her motion, inasmuch as she proposed only to suspend interest on the money judgment prospectively from the date her modification petition was filed (Family Ct Act § 451[1]). Moreover, DSS, the party in whose favor the money judgment was entered, expressly consented to the suspension of interest on the money judgment as requested by the mother.  Matter of Nassau County Dept of Social Servs v Schapp, 2014 NY Slip Op 09139, 2nd Dept 12-31-14





Child Unborn When Sibling Found to Be Neglected Properly Found to Be Derivatively Neglected---Summary Judgment Properly Granted


The Second Department determined Family Court correctly granted summary judgment finding a child not yet born when a sibling was adjudicated neglected to be derivatively neglected.  The court explained the analytical criteria, including when summary judgment in such a case is warranted:


In determining whether a child born after the underlying acts of neglect should be adjudicated as a child who was derivatively neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct that formed the basis for a finding of neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists ... . "In such a case, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future" ... . "[I]n an appropriate case, the Family Court may enter a finding of neglect on a summary judgment motion in lieu of holding a fact-finding hearing upon the petitioner's prima facie showing of neglect as a matter of law and the respondent's failure to raise a triable issue of fact in opposition to the motion" ... . Matter of Alicia P ..., 2014 NY Slip Op 09140, 2nd Dept 12-31-14





A Series of Evidentiary Errors Required Reversal in a Custody Proceeding, a De Novo Hearing, and the Appointment of a Different Attorney for the Child



In reversing Family Court in a custody proceeding and sending the matter back for complete forensic evaluations of the parties and a de novo hearing, as well as ordering the appointment of a new attorney for the child, the Second Department noted several significant evidentiary errors, including inadmissible hearsay, a violation of the Health Insurance Portability and Accountability Act (HIPAA), and the failure to order forensic evaluations of the parties:


Before a hearing on the petitions was held, the attorney for the subject child, based on the out-of-court statements of the day care provider, made an application for the father to be awarded temporary custody of the subject child. The Family Court granted that application. Such an award was improper, as it was based on the disputed hearsay allegations ... . 


During the hearing on the petitions, the Family Court erred in permitting the father to testify that the subject child told him that the mother's other daughter "did it." The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration... . * * *


The Family Court also erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 (hereinafter HIPAA) for disclosure of her other daughter's medical information was not met (see 45 CFR 164.512[e][1][i], [ii]). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony ... . * * *


The Family Court erred in failing to order forensic evaluations of the parties, their living environments, and the subject child prior to issuing a decision on the petitions. "In custody disputes, the value of forensic evaluations of the parents and children has long been recognized" ... . "Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final determination" ... . Here, in the absence of such evaluations, the record in this case is inadequate to support the court's finding that it was in the best interest of the subject child for the father to be awarded sole custody of her... . 


Moreover, "[an attorney for the child] should not have a particular position or decision in mind at the outset of the case before the gathering of evidence" ... . It is only appropriate for an attorney for a child to form an opinion as to what would be in the child's best interest, after such inquiry ... . Here, it was inappropriate for the attorney for the subject child to have advocated for a temporary change in custody without having conducted a complete investigation. The attorney for the subject child acknowledged that his application was based solely on his discussion with the father and the subject child's day care provider, which was located near the father's residence, and that he did not speak to the mother or the subject child's other day care provider closer to the mother's residence. Matter of Brown v Simon, 2014 NY Slip Op 09127, 2nd Dept 12-31-14





Robbery Petition Jurisdictionally Defective---No Nonhearsay Identification of Respondent As the Perpetrator


The Third Department determined the petition charging respondent with the equivalent of robbery in the second degree and petit larceny was jurisdictionally defective and must be dismissed, even though respondent admitted to the charged acts and did not seek dismissal of the petition.  Although the petition was supplemented by a video showing the person alleged to have committed the robbery and a letter identifying the respondent as that person, the letter was unsworn and unsigned:


A juvenile delinquency petition must contain "a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the crime charged and the respondent's commission thereof" (Family Ct Act § 311.1 [3] [h]...). "A juvenile delinquency petition that fails to contain non-hearsay allegations . . . establish[ing] . . . every element of each crime charged and the respondent's commission thereof is both legally insufficient and jurisdictionally defective" ... . Finally, notwithstanding respondent's admission to the charged acts in Family Court and his failure to seek the dismissal of the petition, his assertion that the petition is facially insufficient can be considered for the first time on appeal as such claim regards a nonwaiveable jurisdictional defect ... . 


Although the statements in the victim's deposition constitute nonhearsay allegations establishing that property was forcibly stolen from him, the deposition does not establish that respondent was the individual who committed such acts. Nor do the video image and ... letter identifying respondent as the individual wearing the blue jacket depicted therein cure the evidentiary deficiencies that render the petition invalid. In particular, the video image shows, among other things, a male wearing a blue jacket with a white-striped sleeve that matches the description provided in the victim's report; however, the image itself does nothing to connect respondent to the robbery. Moreover, as [the] letter to the investigating police officer identifying respondent as the person wearing a blue jacket with white stripes on the sleeve was unsigned and unsworn, it does not constitute a nonhearsay identification of respondent as the person who committed the charged acts, thereby rendering the petition facially invalid ... . Matter of Jayquan Vv, 2014 NY Slip Op 09086, 3rd Dept 12-31-14





Prior Ties to New York Sufficient to Justify Jurisdiction of New York Courts over Custody Proceedings Brought by the Child's Grandmother Two Months After the Child and Mother Moved to Florida


The Second Department determined New York did not have jurisdiction over the custody matter by virtue of Domestic Relations Law 76 (1)(a) but did have jurisdiction pursuant to Domestic Relations Law 76 (1)(b) ( Unified Child Custody Jurisdiction and Enforcement Act [UCCJEA]).  Respondent mother had moved from New York to Florida with the child two months before the custody proceedings were commenced by petitioner, the child's grandmother (who lives in New York).  The mother argued the New York courts did not have jurisdiction:


UCCJEA provides the jurisdictional grounds for a court of this state to hear an initial custody dispute, including when "this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state" (Domestic Relations Law § 76 [1] [a]...).


It is not disputed that New York was the home state of the child within six months prior to the time that petitioner commenced this proceeding. Because the child moved to Florida approximately two months prior to the commencement of the proceeding, the question presented is whether Family Court properly concluded that petitioner was a "person acting as a parent" for the purposes of the UCCJEA. A "person acting as a parent" is one who "(a) has physical custody of the child or has had physical custody for a period of six consecutive months . . . within one year immediately before the commencement of a child custody proceeding; and (b) has been awarded legal custody by a court or claims a right to legal custody under the law of this state" (Domestic Relations Law § 75-a [13]). ...[B]ecause petitioner neither claims a right to legal custody nor has been awarded legal custody of the child, Family Court erred when it determined that petitioner was a "person acting as a parent" pursuant to Domestic Relations Law § 76 (1) (a).


...Having found that petitioner was not a "person acting as a parent," it follows that, at the time this proceeding was commenced, the child, who had been living in Florida for fewer than six months, did not have a home state for purposes of the UCCJEA ... . In such a case, a New York court may exercise jurisdiction if "(i) the child [and the parent] . . . have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76 [1] [b]).


* * * ... [W]e find that the record supports a finding that, at the time that the petition was filed, the child and respondent had a significant connection with New York and that "substantial evidence regarding her present and future welfare" existed in New York ... . Accordingly, we find that Family Court had subject matter jurisdiction to entertain the petition. Matter of Breselor v Arciniega, 2014 NY Slip Op 09084, 3rd Dept 12-31-14





At Least Some of the Information In a Report Prepared for the Town by Outside Counsel May Be Subject to Disclosure Because the Attorney-Client Privilege Was Waived to the Extent the Contents of the Report Were Described at a Public Hearing


The Third Department determined that a report prepared for the town by outside counsel was protected from disclosure by the attorney-client privilege.  However that privilege may have been waived to the extent the contents of the report were described at a public hearing:


"Under FOIL, an agency need not disclose documents 'specifically exempted from disclosure by state or federal statute,'" such as those protected by attorney-client privilege (...Public Officers Law § 87 [2] [a]; see CPLR 3101 [b], [c]; 4503 [a] [1]...). Petitioners do not, in fact, dispute that the report was privileged when it was prepared. They instead contend that the privilege was waived when the contents of the report were later disclosed at various Town Board meetings. Accordingly, it was incumbent upon respondents to demonstrate that the privilege had not been waived and that the report remained exempt from disclosure ... .


..."[A] client who voluntarily testifies to a privileged matter, who publicly discloses such matter or who permits his [or her] attorney to testify regarding the matter is deemed to have impliedly waived the attorney-client privilege" ... . In that regard, outside counsel appeared at a ... public meeting and made an extensive oral presentation — apparently at the Town Board's behest — in which counsel set forth his legal analysis of the zoning issues involved. To the extent that the oral presentation parrots the analysis set forth in the report, it may well constitute a waiver of the privilege protecting the contents of the report. ... Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip OP 09082, 3rd Dept 12-31-14




Seizure of Claimant's Computers Pursuant to a Warrant Did Not Give Rise to Conversion, Negligent Misrepresentation and Constitutional Tort Causes of Action---Elements of Those Causes of Action Explained


The Fourth Department reversed the Court of Claims and dismissed causes of action for conversion and negligent misrepresentation stemming from the seizure of claimant's computers pursuant to a judicial warrant.  The court noted that the seizure pursuant to the authority of the warrant precluded the conversion cause of action and the absence of privity between the claimant and the investigators who said the computers would be promptly returned precluded the negligent representation cause of action. Alternate ways to seek return of the computers (an application to County Court and an Article 78 proceeding if the application were denied) precluded the constitutional tort cause of action:


An actionable "conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" ... . Here, a search warrant specifically authorized law enforcement to "search for and seize" six categories of items, including "[a]ll computers and computer storage media and related peripherals, electronic or computer data." Claimants have never challenged the validity of the search warrant. Moreover, the unchallenged warrant placed no time limit on the retention of the items seized, and the authorization to "seize" the computers was not terminated until County Court ordered the property returned following Boerman's guilty plea. We therefore conclude that defendant's exercise of control over the computers did not constitute conversion inasmuch as it had the proper authority to exercise such control ... .


The tort of "negligent misrepresentation requires [a claimant] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information' " ... . We agree with defendant that, as a matter of law, there can be no "privity-like relationship" between an investigator and the target of his or her investigation ... . Indeed, the relationship between investigator and target is the opposite of a "special position of confidence and trust" in which one party might justifiably rely upon the " unique or specialized expertise' " of the other party ... . Thus, as defendant correctly contends, the negligent misrepresentation claim fails as a matter of law ... . 


Even assuming, arguendo, that the initial seizure or continued detention of claimants' computers violated the Search and Seizure Clause of the State Constitution (art I, § 12), we conclude that "no . . . claim [for constitutional tort] will lie where the claimant has an adequate remedy in an alternate forum" ... . Here, claimants could have raised their constitutional arguments in an application to County Court seeking the return of their computers ... or, if such motion were denied, in a CPLR article 78 proceeding seeking relief in the nature of mandamus or prohibition ... . LM Bis Assoc Inc v State of New York, 2015 NY Slip Op 00007, 4th Dept 1-2-15





Collapse of Makeshift Scaffold Entitled Plaintiff to Summary Judgment in Labor Law 240(1) Action---Plaintiff's Comparative Negligence Is Not a Defense


The Fourth Department determined summary judgment should have been granted to the plaintiff in the Labor Law 240 (1) action. Plaintiff was not provided with a scaffold or safety equipment.  Plaintiff fashioned a makeshift scaffold which collapsed.  The court noted plaintiff's comparative negligence (in the construction of the scaffold) is not a defense under Labor Law 240 (1):


We conclude that "[t]he fact that the scaffold collapsed is sufficient to establish as a matter of law that the [scaffold] was not so placed . . . as to give proper protection to plaintiff pursuant to the statute" ... . Contrary to defendant's contention, there is no issue of fact whether the safety equipment provided to plaintiff was sufficient to afford him proper protection under Labor Law § 240 (1). The only safety device provided to plaintiff at the work site was a 14-foot-long pick [an aluminum plank]. "There were no harnesses, lanyards, safety lines, or similar safety devices available for use to prevent [plaintiff's] fall" ... . To perform the work of installing siding on the building, plaintiff therefore had to create what the court accurately referred to as a "makeshift" scaffold by placing one end of the pick in the shovel of a backhoe and the other end between two pieces of wood he or a coworker nailed into the side of the building. "[T]he onus [was not] on plaintiff to construct an adequate safety device, using assorted materials on site [that were] not themselves adequate safety devices but which may [have been] used to construct a safety device" ... . Bernard v Town of Lysander, 2015 NY Slip Op 00050, 4th Dept 1-2-15





Supreme Court Should Have Considered the Alleged Incapacitated Person's (AIP's) Available Resources Before Finding the AIP Incapacitated and In Need of a Guardian


The Fourth Department reversed Supreme Court's determination the alleged incapacitated person (AIP) was incapacitated and needed a guardian.  Supreme Court did not consider the sufficiency of the AIP's available resources:


We agree with the AIP that Supreme Court erred in making that determination without considering "the sufficiency and reliability of available resources' (Mental Hygiene Law § 81.02 [a] [2]) to satisfy the AIP's personal needs and property management without the need for a guardian" ... . It is undisputed that the AIP had "available resources," i.e., a power of attorney and healthcare proxy (see Mental Hygiene Law § 81.03 [e]), and the court should therefore have inquired whether those advance directives were adequate to protect the AIP's personal and property interests before determining that she is incapacitated and in need of a guardian ... . Matter of Mitchell, 2015 NY Slip Op 00165, 4th Dept 1-2-15






Failure to Affirmatively Demonstrate Snow Removal Efforts Did Not Create the Dangerous Condition in a Slip and Fall Case Precluded Summary Judgment Pursuant to the "Storm in Progress" Doctrine


In a slip and fall case, the Second Department determined defendant was not entitled to summary judgment pursuant to the "storm in progress" doctrine because it did not affirmatively demonstrate it did not create the dangerous condition by engaging in snow removal during the storm.  The court explained the relevant law:


"Under the storm in progress' rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm 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 property owner elects to engage in snow removal activities, the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" ... .


Here, the defendant failed to establish, prima facie, that it was entitled to judgment as a matter of law dismissing the complaint based on the storm in progress rule. In support of the motion, the defendant failed to submit evidence sufficient to demonstrate that it did not engage in any snow removal work while the snow was falling and that it did not create the alleged hazardous condition that proximately caused the plaintiff to fall ... . The defendant could not satisfy its initial burden as the movant for summary judgment merely by pointing to gaps in the plaintiff's case ... . Harmitt v Riverstone Assoc, 2014 NY Slip Op 09105, 2nd Dept 12-31-14




Question of Fact Raised About Plaintiff's Comparative Negligence, Even though Defendant Failed to Yield Right-of-Way


Even though defendant failed to yield the right-of-way at an intersection, a question of fact was raised (by an expert affidavit) about whether plaintiff's negligence (speeding) contributed to the accident:


A driver who has the right-of-way is entitled to anticipate that other motorists will obey the traffic laws and yield the right-of-way ... . Nevertheless, "a driver who lawfully enters an intersection . . . may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection" ... . In support of her motion, plaintiff made a prima facie showing that she had the right-of-way, that she was entitled to anticipate that Juarbe would obey the traffic laws which required her to yield, and that, by failing to yield, [defendant driver] violated Vehicle and Traffic Law § 1142 (a), which constituted negligence as a matter of law ... .


The court properly concluded, however, that defendants raised a triable issue of fact whether plaintiff was comparatively negligent in failing to use reasonable care to avoid the accident ... . Defendants submitted the affidavit of an accident reconstruction expert who opined, contrary to plaintiff's deposition testimony that she was traveling "20 miles per hour or less," that plaintiff was traveling at a speed of at least 40 miles per hour in a 30 mile per hour zone. Thus, defendants raised a triable issue of fact whether plaintiff was driving at an excessive rate of speed and whether she could have avoided the accident through the exercise of reasonable care... . Redd v Juarbe, 2015 NY Slip Op 00045, 4th Dept 1-2-15





Required Level of Protection of Public from Being Struck by Baseballs Explained


In finding that the plaintiff failed to state a cause of action, even when the affidavit in opposition to the motion to dismiss was considered, the Second Department explained the "protection-of-the-public-from-being-struck-by-baseballs" obligation of the owners of a baseball park.  (Plaintiff failed to allege he was seated in the area of the park where protection is mandated.):


"[I]n the exercise of reasonable care, the proprietor of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest" ... . So long as such screening "is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game,' the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence'" ... .


Here, the complaint alleged that the plaintiff was struck by a ball while seated in a luxury suite on the "Empire Level" of the premises, "located behind home plate," while the windows were open. The plaintiff did not allege that he was seated at field level, or in the area of the field behind home plate when he was struck, or that the defendants failed to provide screening of a sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire seating in the area of the field behind home plate in the course of an ordinary game. Thus, the complaint failed to state a cause of action ... .  Tarantino v Queens Ballpark Co LLC, 2014 NY Slip Op 09118, 2nd Dept 12-31-14





Jury Verdict Finding Defendant's Negligence Was Not the Proximate Cause of the Accident Should Not Have Been Set Aside---Criteria for Setting Aside a Verdict As Against the Weight of the Evidence Explained


The Fourth Department determined the trial court should not have set aside a verdict on the ground that it was against the weight of the evidence.  Plaintiff, a pedestrian, had been struck by a car driven by defendant.  The jury concluded the driver was negligent but the driver's negligence was not the proximate cause of the accident:


"A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence" ... . "A jury finding that a party was negligent but that such negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause' " ... . Where, however, "a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" ... .


Here, the jury could have reasonably found from the evidence that plaintiff was not crossing the street in the crosswalk; that it was a dark, rainy evening; and that plaintiff emerged in defendant's lane of travel from between stopped vehicles. The jury could also reasonably have found that, although defendant was negligent in, for example, the manner in which she approached the intersection before turning left, such negligence was not a proximate cause of the collision with plaintiff after she made the turn. Thus, "the finding of proximate cause did not inevitably flow from the finding of culpable conduct," and the verdict therefore is not against the weight of the evidence ... . Amorosi v Hubbard, 2015 NY Slip Op 00110, 4th Dept 1-2-15





Once the Jury Found Defendant's Negligence Was Not a Substantial Factor in Causing Plaintiff's Injuries, the Jury Should Not Have Continued to Deliberate, Make Findings of Comparative Negligence and Apportion Damages---Jury's Continued Deliberations Were Superfluous---New Trial Not Necessary


The First Department determined a new trial was not necessary where the jury went on to assess comparative fault and damages after finding defendant's negligence was not a substantial factor in causing the plaintiff's injuries.  The jury should have stopped deliberating at that point:


The verdict sheet in this personal injury action instructed the jurors to determine (1) whether defendant was negligent, and (2) if so, whether defendant's negligence was a substantial factor in causing plaintiff's injuries. The jurors found that defendant was negligent, but that his negligence was not a substantial factor in causing plaintiff's injury. The verdict sheet instructed that if the jurors answered the second question in the negative, they should cease deliberations and report their verdict. The jurors, however, continued deliberating and determined that plaintiff was also negligent; that plaintiff's negligence was a substantial factor in causing his own injury; that plaintiff was 95% at fault, and defendant was 5% at fault; and that plaintiff was entitled to $200,000 in damages.


This case is controlled by Pavlou v City of New York (21 AD3d 74 [1st Dept 2005], affd 8 NY3d 961 [2007]), a Labor Law case in which the plaintiff was injured due to a damaged crane hoist. In Pavlou, the jurors determined that the City (the owner of the construction site) was negligent under the Industrial Code, but that its negligence was not a substantial factor in causing the plaintiff's injury. The jury also found that the crane manufacturer was not negligent (id. at 75). The verdict sheet instructed that upon making these findings, the jurors were to stop deliberations. The Pavlou jury, however, went on to find the third-party defendant-employer negligent for operating a damaged crane; the jury then apportioned the employer's degree of fault and fixed the amount of damages (id. at 81). This Court held that the plaintiff was not entitled to a new trial as against the City, stating, "[T]he jury should not have apportioned [the employer's] liability . . . or fixed the amount of damages, once it determined that the violation of the Industrial Code was not a proximate cause and that the crane manufacturer was not negligent. The fact that the jury attempted such an award was a superfluous act that does not require a new trial" (id. at 76). The Court of Appeals affirmed (8 NY3d 961 [2007]).


The same reasoning as in Pavlou applies here. Once the jurors determined that defendant's negligence was not a substantial factor or proximate cause (see PJI 2:70, Proximate Cause — In General; see also PJI 2:36) of plaintiff's injuries, they should not have attempted to assess plaintiff's own negligence and to fix damages. That they did so was a superfluous act that [*2]does not require a new trial. Alcantara v Knight, 2014 NY Slip OP 09030, 1st Dept 12-30-14





Supervision of Student Could Not Have Prevented Injury


In finding that the school's duty to supervise was not the proximate cause of the student's injuries, the Second Department explained the relevant law.  Here, the student tripped and fell after stepping on the straps of his book bag as he left the school:


Schools are under a duty to supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision ... . " Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students'" ... . Moreover, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury ... . Goldschmidt v City of New York, 2014 NY Slip Op 09103, 2nd Dept 12-31-14





Although Elevator Company Which Agrees to Maintain Elevator May Be Liable to an Injured Passenger, Here the Passenger Was Unable to Raise a Question of Fact About the Company's Notice of a Potential Problem


The Second Department determined Supreme Court should have granted the elevator company's motion for summary judgment. Plaintiff alleged he was injured when the elevator suddenly stopped between floors but was unable to raise a question fact whether the elevator company had notice of the problem which caused the elevator to stop:


"An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found" ... . Nouveau established its prima facie entitlement to judgment as a matter of law by showing that it did not have actual or constructive notice of an ongoing condition that would have caused the elevator to abruptly stop, and that it did not fail to use reasonable care to correct a condition of which it should have been aware ... .


In opposition, the plaintiff failed to raise a triable issue of fact as to whether a prior problem with the elevator provided notice of the specific defect that allegedly caused the elevator to stop on the date of the subject incident. In addition, the affidavit of the plaintiff's expert was conclusory, lacking in foundation, and speculative ... . Further, the plaintiff could not rely on the doctrine of res ipsa loquitur because he failed to demonstrate that the accident was one that would not ordinarily occur in the absence of someone's negligence ... . Reed v Nouveau El Indus Inc, 2014 NY Slip Op 09116, 2nd Dept 12-31-14





Tenant In "Adjacent Property" May Be Responsible for Maintenance of a Sidewalk Where the Sidewalk is Subject to Special Use by the Tenant as Part of a Driveway


In perhaps the most thorough treatment of the theories of liability for a dangerous condition on a city sidewalk ever written, the Fourth Department explained the potential liability of the various abutting and "adjacent" property owners/tenants of the area where plaintiff slipped and fell.  Only the discussion of the "special use" by tenants (Bison) of "adjacent property" is excerpted here:


"Where a sidewalk is adjacent to but not part of the area used as a driveway, the plaintiff bears the burden of proof on a motion for summary judgment of showing that the special use of the sidewalk contributed to the defect . . . However, if the defect is in the portion of the sidewalk used as a driveway, the abutting landowner, on a motion for summary judgment, bears the burden of establishing that he or she did nothing to either create the defective condition or cause the condition through the special use of the property as a driveway" ... . The same principle applies to a commercial tenant of property where the driveway constitutes a special use by the tenant ... .


While the area of the dangerous condition is in a City right-of-way that falls within the extended lot line boundaries of the property owned by Seneca One, we conclude that the Bison defendants, as lessors of the "adjacent property," may nevertheless still be liable if there is evidence that they had "access to and ability to exercise control over the special use [driveway]" ... . We conclude that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control that special use driveway ... and, further, failed to establish as a matter of law "that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway" ... . Indeed, based on the evidence submitted by the Bison defendants in support of their motion, it is reasonable to conclude that the "driveway apron was constructed and exclusively used for the benefit of [the Bison defendants' leased] property" ... . The only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison Baseball. We thus conclude that the court properly denied their motion seeking to dismiss the negligence claims asserted against the Bison defendants insofar as those claims were based on their special use of the driveway ... . Capretto v City of Buffalo, 2015 NY Slip Op 00055, 4th Dept 1-2-15





Release Which Specifically Refers to a Particular Incident Relates Solely to that Incident---Where Terms of the Release Are Unambiguous, Extrinsic Evidence Will Not Be Considered


The Fourth Department determined that a release unambiguously related solely to a particular slip and fall on a particular day and did not bar an action based upon a subsequent slip and fall:


...[T]he release stated that defendant, in exchange for providing plaintiff with the agreed-upon settlement amount, was "released and forever discharged . . . from all manner of actions, causes of action, suits, . . . claims and demands whatsoever" that plaintiff "ever had, now has or which [her] successors and assigns, heirs, executors or administrators, hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of those present . . . More specifically, for injuries sustained in a slip and fall incident which occurred on June 3, 2009, in the City of Lackawanna, County of Erie and State of New York." Defendant made payment on the settlement and filed a copy of the stipulation of discontinuance in November 2012.


"It is well settled that a general release is governed by principles of contract law' ... and that, where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement' ... . Moreover, "[i]t has long been the law that where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby' ... . Thus, "[w]here, as here, [a] release . . . contain[s] specific recitals as to the claims being released, and yet [contains] . . . an omnibus clause to the effect that the releasor releases and discharges all claims and demands whatsoever which he [or she] . . . may have against the releasee . . . , the courts have often applied the rule of ejusdem generis[, i.e., "of the same kind or class" (Black's Law Dictionary 594 [9th ed 2009])], and held that the general words of a release are limited by the recital of a particular claim" ... .


Here, we conclude that the language of the release is unambiguous in specifying that the only claims discharged thereby are those arising from the injuries plaintiff allegedly sustained in the first slip and fall accident ... . Contrary to defendant's further contention that we should consider extrinsic evidence purportedly demonstrating that the parties intended the settlement to cover both matters, "[i]t is well settled that, where the language of a release is clear and unambiguous, effect will be given to the intention of the parties as indicated by the language employed and the fact that one of the parties may have intended something else is irrelevant" ... . Abdulla v Gross, 2015 NY Slip Op 00036, 4th Dept 1-2-15




Leasing Company Which Never Had Possession of the Product (Here a Garbage Truck) and Which Was a Financial Arm of the Purchaser, Not the Manufacturer, of the Product, Entitled to Dismissal of Strict Products Liability Cause of Action/However, a Question of Fact Was Raised Whether the Finance Lessor Was Liable for Failure to Inspect the Product on the Ground It Had Designated an Agent for Inspection on Its Behalf


The Fourth Department, over a two-justice dissent, determined Supreme Court should have granted summary judgment dismissing the strict products liability cause of action against a "finance lessor" of a garbage truck, H Leasing Company.  The lawsuit stemmed from an accident involving the truck.  The court explained that a strict products liability action will not lie against a "finance lessor" which is not in the business of leasing equipment to the general public, which never had possession of the leased equipment, which was not a financial arm of the manufacturer, and which neither marketed the product nor placed it in the stream of commerce.  Here H Leasing Company was a financial arm of the purchaser of the truck:


"It appears universally accepted as New York law that strict products liability will not apply to finance lessors which merely offer the use of money to acquire goods but otherwise neither market a product nor place it in the stream of commerce" ... . We reject plaintiff's contention that H Leasing is the owner and lessor of the truck, and it is therefore subject to strict products liability because it is in the business of leasing equipment. The cases permitting strict products liability actions against lessors involve leasing entities that either actually take possession of the equipment at issue and lease it to the public ..., or are financing arms of the manufacturer ... . In those situations, the principles of strict products liability may properly be applied to such lenders in order to further the policy goals of such liability, i.e., ensuring that products are safe by permitting an action to go forward "when imposing liability would provide injured consumers with a greater opportunity to commence an action against the party responsible, fix liability on one who is in a position to exert pressure on the manufacturer to improve the safety of the product, or ensure that the burden of accidental injuries occasioned by products would be treated as a cost of production by placing liability upon those who market them" ... . Such goals would not be served by allowing a strict products liability cause of action against H Leasing, however, because it did not take possession of the truck, it is not in the business of leasing equipment to the general public, and it is a financial arm of the purchaser of the truck, not the manufacturer ... . Consequently, we agree with H Leasing "that strict products liability should not be imposed upon [it], a finance lessor which merely offered the use of money and neither marketed the machine nor placed it in the stream of commerce" ... . Houston v McNeilus Truck & Mfg Inc, 2015NY Slip Op 00001, 4th Dept 1-2-15



In a separate decision in the same case, again over a two-justice dissent, the Fourth Department determined that a cause of action against H Leasing alleging negligent failure to inspect the truck properly survived a summary judgment motion.  The allegation that H Leasing designated the company which leased the truck as its agent for the inspection of the truck raised a triable question of fact:


Here, the lease for the garbage truck, which was submitted in support of H Leasing's motion for summary judgment, stated in relevant part that H Leasing appointed decedent's employer as its agent for purposes of inspection and acceptance of the garbage truck from the supplier. Moreover, a vice-president of H Leasing, who was decedent's employer, acknowledged at his deposition, that the lessees inspected the equipment upon delivery in their capacities as H Leasing's agents as "laid out in the lease agreement," and that deposition testimony was also submitted in support of H Leasing's motion. Viewing those submissions in the light most favorable to plaintiff and affording her the benefit of every reasonable inference, we conclude that H Leasing's own submissions raise a triable issue of fact whether it was liable in negligence for the failure of one of its agents, decedent's employer, to inspect and warn of a dangerous condition. Houston v McNeilus Truck & Mfg Inc, 2015 NY Slip OP 00002, 4th Dept 1-2-15





Strict Products Liability Cause of Action Against Forklift Manufacturer Properly Dismissed Due to Owner's Disabling Safety Switch/Question of Fact Whether Plaintiff Was a Special Employee of the Owner of the Forklift (Which Would Limit Plaintiff's Recovery to Workers' Compensation)


Plaintiff was injured by a forklift which continued running when he was out of the driver's seat because the safety switch (which would have automatically shut the forklift off when the driver left the seat) had been disabled by the owner of the forklift.  The Fourth Department determined the strict products liablity cause of action against the manufacturer of the forklift was properly dismissed because the safety switch had been disabled. But the negligence cause of action against the owner of the forklift, Nuttall Gear, should not have been dismissed.  Nuttal Gear argued plaintiff was its special employee and therefore Workers' Compensation was the exclusive remedy.  The Fourth Department determined there was a question of fact about whether plaintiff was a special employee. It was not clear that Nuttal Gear supervised plaintiff's work:


We conclude that the court properly granted the motions of the products liability defendants. As the Court of Appeals has recently made clear, " a manufacturer, who has designed and produced a safe product, will not be liable for injuries resulting from substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe' " ... . Here, the products liability defendants established as a matter of law that the forklift was not defectively designed by establishing that, when it was manufactured and delivered to Nuttall Gear, it had a safety switch that would have prevented plaintiff's accident, and a third party thereafter made a substantial modification to the forklift by disabling the safety switch. The burden thus shifted to plaintiffs to raise an issue of fact, and they failed to meet that burden ... . Contrary to plaintiffs' contention, the affidavit of their expert, a professional engineer, does not raise a triable issue of fact.


We agree with plaintiffs, however, that the court erred in granting the motion of the Nuttall Gear defendants for summary judgment dismissing the complaint against them, and we therefore modify the order accordingly. It is well settled that "a general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits" ... . "A special employee is described as one who is transferred for a limited time of whatever duration to the service of another . . . General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer" ... . Although the determination of special employment status is "usually a question of fact," such a determination "may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact" ... . * * *


It appears from the record that the only person who had contact with plaintiff at Nuttall Gear was Mark Moscato, who himself was a general employee of SPS [plaintiff's employer]. The Nuttall Gear defendants have not identified a single person, other than Moscato, who told plaintiff what to do or how to do it.  Verost v Mitsubishi Caterpillar Forklift Am Inc, 2014 NY Slip Op 0008, 4th Dept 1-2-15



Criteria for Implied Easement, Express Easement, Easement by Necessity and Prescriptive Easement Explained


In considering whether a turnaround area was the subject of an easement, the Fourth Department found that the criteria for an implied easement, express easement, and easement by necessity were not met, but a question of fact about the existence of an easement by prescription had been raised.  The court described the criteria for each:


..."[A] grantee claiming an easement implied by existing use must establish: (1) a unity and subsequent severance of title with respect to the relevant parcels; (2) that during the period of unity of title, the owner established a use in which one part of the land was subordinated to another; (3) that such use established by the owner was so continuous, obvious, and manifest that it indicated that it was meant to be permanent; and (4) that such use affects the value of the estate conveyed and that its continuation is necessary to the reasonable beneficial enjoyment of the estate conveyed" ... . "Stated another way, [a]n implied easement will arise "upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate" ' " ... . "Implied easements are not favored by the law and the burden of proof rests with [plaintiffs] to prove such entitlement by clear and convincing evidence"... . ...


With respect to the ... cause of action... for an express easement... we note that Real Property Law § 240 (3) provides in relevant part that "[e]very instrument creating [or] transferring . . . an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." "The intent' to which the statute refers is the objective intent of the parties as manifested by the language of the deed; unless the deed is ambiguous, evidence of unexpressed, subjective intentions of the parties is irrelevant" ... . We conclude that defendants met their burden of establishing that the access easement in the deed to defendants from the owner of what was formerly the common properties did not grant to that owner express permission to use the turnaround ... . ... 


With respect to the ... cause of action, seeking an order determining that plaintiffs have an easement by necessity with respect to the turnaround, we note that "[t]he party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence . . . that there was a unity and subsequent separation of title, and [ ] that at the time of severance an easement over [the servient estate's] property was absolutely necessary' . . . Significantly, the necessity must exist in fact and not as a mere convenience' . . . and must be indispensable to the reasonable use for the adjacent property"... . * * *


To establish a prescriptive easement, plaintiffs must establish by clear and convincing evidence that the use of the turnaround was" adverse, open and notorious, continuous and uninterrupted for the prescriptive period' " of 10 years ... . The elements of a claim for an easement by prescription are similar to those of a claim for adverse possession, except that demonstration of exclusivity is not essential to a claim for easement by prescription ... . Thus, to establish an easement by prescription, plaintiffs must establish by clear and convincing evidence possession that was hostile and under a claim of right; actual; open and notorious; and continuous for the required period ... . Mau v Schusler, 2015 NY Slip Op 00052, 4th Dept 1-2-15





Questions of Fact Raised About Whether Sellers' Representations on the Condition Disclosure Statement Claiming No Water-Related Problems on the Property Violated Real Property Law 462, 465, Constituted Fraud, and Constituted Breach of Contract


The Fourth Department determined the sellers' representations on the condition disclosure statement created questions of fact about whether sellers violated Real Property Law 462 and 465, whether the sellers committed fraud, and whether the sellers breached the sales contract.  The sellers indicated on the condition disclosure statement that they had experienced no problems with standing water and water seeping into the basement.  There was evidence the sellers were aware of the existence of such water problems when they indicated on the form there had been none:


Real Property Law § 462 (1) requires sellers of residential real property to "complete and sign a property condition disclosure statement" and to provide such statement to a prospective buyer "prior to the signing by the buyer of a binding contract of sale." Real Property Law § 462 sets forth the disclosure form, which instructs the seller to complete the form based upon his or her "ACTUAL KNOWLEDGE," and contains the seller's certification that "THE INFORMATION IN THIS PROPERTY CONDITION DISCLOSURE STATEMENT IS TRUE AND COMPLETE TO THE SELLER'S ACTUAL KNOWLEDGE AS OF THE DATE SIGNED BY THE SELLER." Where a seller provides a property condition disclosure statement and "willful[ly] fail[s] to perform the requirements" set forth in article 14 of the Real Property Law "[such] seller shall be liable for the actual damages suffered by the buyer in addition to any other existing equitable or statutory remedy" (Real Property Law § 465 [2]). * * *


... [W]e conclude that plaintiff raised an issue of fact with respect to whether defendants knowingly misrepresented a material fact, i.e., the property's history of flooding and standing water, on the property condition disclosure statement ... . We likewise conclude that plaintiff raised an issue of fact with respect to whether he justifiably relied on defendants' alleged misrepresentations ... . * * *


Although the provisions of a contract for the sale of real property are generally merged in the deed and therefore extinguished upon the closing of title ..., that rule does not apply " where the parties have expressed their intention that [a] provision shall survive delivery of the deed' " ... . Here, the contract provides that "[a]ny claim arising from failure to comply with Paragraph[] 5 [of the contract]," which encompasses defendants' representations in the property condition disclosure statement, "shall survive for 2 years after the Closing or cancellation of this Contract" ... . In any event, we note that "the merger doctrine [is] inapplicable where, as here, there exists a cause of action based upon fraud" ... . Sicignano v Dixey, 2015 NY Slip Op 00054, 4th Dept 1-2-15




Actual Income Is Best Measure of Value of Income-Producing Property/Amount of Mortgage on Property Does Not Necessarily Fairly Reflect Value/Assessment Awarded Can Not Be Lower than that Requested in Article 7 Petition


The Third Department determined petitioner was entitled to a lower assessment of petitioner's property, which included a hotel. However, the Third Department held that the assessment could not be lower than that requested in the Article 7 petition (Supreme Court had imposed a lower assessment than that requested in the petition based upon the trial evidence). The Third Department noted that actual income is the best indicator of income-producing property and the amount of the mortgage on the property is not necessarily a fair measure of value. The relevant law was explained:


It is undisputed that petitioner met its initial burden to rebut the presumptive validity of the tax assessments and, accordingly, Supreme Court was required to "weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued" ... . "Where, as here, conflicting expert evidence is presented, we defer to the trial court's resolution of credibility issues, and consider 'whether the court's determination of the fair market value of the subject property is supported by or against the weight of the evidence'" ... . Under settled law with respect to income-producing property, "actual income is the best indicator of value" ... . * * *


While a court in determining fair market value may consider evidence of loans advanced on property during or near a particular tax status date when reviewing an assessment proceeding, such evidence standing alone is not entitled to [the] 'greatest weight' because the reasons behind the terms and amount of the loan may be uncertain and unrelated to market values" ... . The mortgage was collateralized by land, buildings, furniture and equipment, with a limited personal guarantee, and, under the prevailing circumstances, did not necessarily fairly reflect the value of the property.


... We have previously stated that, "in areas outside New York City, RPTL 720 (1) (b) prohibits tax reductions beyond those requested in the petitions" ... . * * * We are unpersuaded by petitioner's argument that it should be permitted to essentially eviscerate this statutory provision via a motion to amend its pleadings made after there has been a trial and decision on the merits of the petitions. Matter of Village Sq of Penna Inc v Board of Assessment Review of the Town of Colonie, 2014 NY Slip OP 09080, 3rd Dept 12-31-14





Tenant's Filing for Bankruptcy Precluded County from Proceeding with Efforts to Collect on a Property Tax Lien


The Fourth Department determined the county properly concluded it could not proceed to collect on a tax lien after the tenant in the relevant property filed for bankruptcy:


The Village contends that the County used an improper basis for its determination to withdraw the properties from the in rem foreclosure proceeding and to cancel the tax liens, i.e., the bankruptcy proceeding filed by plaintiff's tenant. Although the County does not explicitly respond to the Village's contention that the bankruptcy petition of plaintiff's tenant did not operate to stay the in rem proceeding because plaintiff is the property owner, we nevertheless reject that contention. "[A] leasehold, like all other interests of the debtor, immediately becomes property of the [debtor's] estate whenever bankruptcy relief is sought" ... . Thus, the tenant's petition operated as a stay to "enforce any lien against property of the estate" (11 USC § 362 [a] [4]). We therefore conclude that the County properly determined that the in rem foreclosure proceeding with respect to the subject parcels was stayed pursuant to RPTL 1140 (1), and properly withdrew those parcels from the proceeding. Herkimer County Indus Dev Agency v Village of Herkimer, 2015 NY Slip Op 00053, 4th Dept 1-2-15





Biogas Facility Which Is Located on a Farm and Which Produces Electricity from Manure Is Not Entitled to a Tax Exemption Pursuant to the Former Version of RPTL 483-a


Petitioners use manure produced on petitioners' dairy farm to generate electricity in a biogas facility.  The electricity is used to operate the farm and is sold to the grid. The Fourth Department determined petitioners were not entitled to a tax exemption for the biogas facility because it was not a "manure storage and handling" facility within the meaning of the former statute (Real Property Tax Law [RPTL] 483-a).  The court further determined that new version of the statute, by its explicit terms, cannot be applied retroactively:


...[P]etitioners contend that the facility is entitled to a tax exemption pursuant to RPTL 483-a (former [1]) because it is a "manure storage and handling" facility as contemplated by that statute. We reject that contention. Inasmuch as petitioners' contention involves "a question of statutory interpretation, we turn first to the plain language of the statute[] as the best evidence of legislative intent" ... . The former version of the statute provided that "[s]tructures permanently affixed to agricultural land for the purpose of preserving and storing forage in edible condition, farm feed grain storage bins, commodity sheds, manure storage and handling facilities, and bulk milk tanks and coolers used to hold milk awaiting shipment to market shall be exempt from taxation, special ad valorem levies and special assessments" (RPTL 483-a [former (1)]). We conclude that the anaerobic digester facility is not a "manure storage and handling" facility as contemplated by RPTL 483-a (former [1]) because the facility is not used simply to store and handle manure. Petitioners' facility uses an anaerobic digester to produce biogas from the manure, which is then used to generate electricity, and the statute does not provide a tax exemption for an anaerobic digester or an electrical generator. Notably, another provision of RPTL article 4 defines the term "farm waste generating equipment" as "equipment that generates electric energy from biogas produced by the anaerobic digestion of agricultural waste" (RPTL 487 [1] [e]), but such equipment was not included among the enumerated structures in RPTL 483-a (former [1]). Furthermore, "words employed in a statute are construed in connection with, and their meaning ascertained by reference to the words and phrases with which they are associated" (McKinney's Cons Laws of NY, Book 1, Statutes § 239 [a]), and the plain language of RPTL 483-a (former [1]) establishes that the tax exemption is applicable to structures used for the storage of agricultural materials, and not to structures used for the generation of energy. Matter of Synergy LLC v KIbler, 2015 NY Slip Op 00038, 4th Dept 1-2-15





County Has Power to Amend Tax Maps Without Notice and a Hearing/Tax Maps Merely Identify Property and Do Not Determine Ownership/Any Dispute About Ownership Must Be Remedied by an Action to Quiet Title


The Third Department determined the county had the power to amend tax maps without notice and a hearing.  Here the director of real property tax services amended a tax map to list the Steger Trust as the current owner of a 25 acre lot previously listed as the petitioner's property. The Third Department explained the county's powers in this regard, noted that a tax map merely identifies property, does not determine ownership and an action to quiet title is the appropriate remedy:


The County correctly asserts that the Director of Real Property Tax Services has the statutory authority to amend tax maps and to provide information about such amendments to the Town's assessor. Counties are required to prepare and maintain tax maps for each city and town therein, and it is the duty of the assessors to use such maps in assessment administration (see RPTL 503 [1] [a]; 1532 [1] [a]). As part of this responsibility, county directors of real property tax services are required to make "such changes from year to year upon such tax maps as may be necessary to maintain the maps in current condition" (RPTL 503 [2]; see 20 NYCRR 8189.14 [a] [7]; [c] [8]; 8189.16 [b]), and to advise assessors on the preparation and maintenance of assessment rolls and property record cards, among other things (see RPTL 1532 [1] [c]). Based on this authority, the County properly amended its tax map and provided the updated information to the assessor listing the Steger Trust as the current reputed owner.


Also, contrary to petitioners' claim, the County did not determine that they do not own the parcel. Rather, the listing of the reputed owner on the tax map is only for the purpose of identifying the assessed property ... . Likewise, because title to the property is not determined by the tax map, petitioners have failed to identify any protected property interest giving rise to procedural due process protection ... . Any ongoing dispute between petitioners and the Steger Trust should be resolved in an action to quiet title pursuant to RPAPL [Real Property Actions and Proceedings Law] article 15... . Matter of Carpentier v County of Sullivan, 2014 NY Slip Op 09083, 3rd Dept 12-31-14






Complaint by Members of a Congregation against the Congregation's Board of Trustees Stemming from the Termination of a Rabbi Reinstated---Criteria for Motions to Dismiss, Statutory Interpretation Principles, Criteria for Stating a Defamation Cause of Action, and the Qualified Immunity Afforded Board Members by the Not-for-Profit Corporation Law Discussed in Some Depth


The Second Department, in a full-fledged opinion by Justice Dickerson, reversed Supreme Court's dismissal of a complaint against the congregation's board of trustees by members of the congregation alleging causes of action stemming from the board's termination of a Rabbi. The Second Department held Supreme Court had not properly interpreted the Religious Corporations Law and the congregation's by-laws (Supreme Court had erroneously concluded the board had the power to act as it did under the statute and by-laws). The court further held the complaint sufficiently alleged malice in support of the defamation cause of action and sufficiently alleged the qualified immunity afforded board members by the Not-for-Profit Corporation Law may not apply.  The court discussed the criteria for a motion to dismiss pursuant to CPLR 3211, statutory interpretation principles, the elements of defamation, and the qualified immunity afforded board members by the Not-for-Profit-Corporation Law in some depth. Only a portion of the statutory-interpretation discussion is quoted here.  Supreme Court had interpreted the statutory phrase "The trustees ... shall have no power to settle or remove or fix the salary of the minister..." to refer only to the trustees' actions concerning "the salary of the minister."  The Second Department interpreted the phrase to mean the trustees have no power to "settle," "remove," or "fix the salary of" the minister:


We conclude that a more natural reading of the provision "[t]he trustees . . . shall have no power to settle or remove or fix the salary of the minister" (Religious Corporations Law § 200) establishes that "settle or remove" do not modify "the salary of the minister." Rather, a more natural reading of this passage would be that the terms "settle," "remove," and "fix the salary of" all modify "the minister." Under this reading, the trustees have no power to settle, or hire, the minister; they have no power to remove, or terminate the engagement of, the minister; and, finally, they have no power to fix the salary of the minister.


Under the Supreme Court's interpretation of the relevant language, the words "settle" and "fix" would have the same meaning, thus rendering one of these terms superfluous. " Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning'" (...see McKinney's Cons Laws of NY, Book 1, Statutes § 231). Moreover, the Supreme Court's interpretation would lead to the somewhat unnatural provision for the "removal" of a clergyperson's salary. Furthermore, the use of the word "or" to separate each of the three terms suggests an intent to distinguish three distinct concepts.


Additionally, our interpretation of the statute, prohibiting the trustees from settling or removing the minister, or fixing his or her salary, is supported by the consistent, and quite similar, language set forth in Religious Corporations Law § 5. We note in this regard that " [a] statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent'" ... . Kamchi v Weissman, 2014 NY Slip Op 09109, 2nd Dept 12-31-14





State Did Not Rebut Statutory Presumption Corrections Officer's Heart Condition Was Linked to His Work


The Third Department determined petitioner, a corrections officer, should have been awarded performance of duty disability retirement benefits.  The state did not rebut the statutory presumption that petitioner's heart condition was linked to his job:


... Retirement and Social Security Law § 607-d ... provides that performance of duty disability retirement benefits shall be awarded to correction officers who become disabled by "any condition of impairment of health caused by diseases of the heart" where such disability occurs while they are employed. Notably, the statute contains a presumption that the impairment "was incurred in the performance and discharge of duty, unless the contrary can be proven by competent evidence" (Retirement and Social Security Law § 607-d). To successfully rebut this statutory presumption, it must be demonstrated through expert proof that the applicant's cardiac condition was caused by cardiac risk factors other than the applicant's employment ... . Matter of Park v DiNapoli, 2014 NY Slip Op 098075, 3rd Dept 12-31-14





Constructive Trust Causes of Action Should Not Have Been Dismissed on the Merits, Criteria Explained (Some Constructive Trust Causes of Action Were Properly Dismissed as Time-Barred, However)/Procedure Re: Motion to Dismiss for Failure to State a Cause of Action Described/Application of Statute of Limitations to Constructive Trusts Explained/"Dead Man's" Statute Not Applicable to Certain Evidence, at Least at this Stage of the Proceedings


The Fourth Department determined causes of action alleging the existence of constructive trusts on behalf of petitioners re: real property and stock owned by decedent should not have been dismissed on the merits.  (However, in a second related appeal addressed in the same decision, the Fourth Department determined the real-property constructive trust actions were time-barred). Re: the company stock, respondent, the executor, alleged he was the sole owner but could not support the allegation with documentary evidence. Petitioners alleged the stock should be distributed as one of the assets of decedent's estate.  The Fourth Department held that the petitioners had stated a valid constructive-trust cause of action. The court discussed in some depth the consideration of evidence submitted re: a motion to dismiss pursuant to CPLR 3211(a)(7), the nature of a constructive trust, the inapplicability of the "dead-man's" statute (CPLR 4519) to certain evidence, and the application of the six-year statute of limitations to constructive trusts.  With respect to the nature of constructive trusts, the court wrote:


We agree with petitioners that the petition sufficiently states a cause of action for a constructive trust with respect to the NGR property, the Manitou Road property and NYSFC stock. "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction . . . We accept the facts as alleged in the [petition] as true, accord [the petitioners] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . In assessing a motion under CPLR 3211 (a) (7), . . . a court may freely consider affidavits submitted by the [petitioner] to remedy any defects in the [petition] . . . and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' " ... .


"[I]t is well settled that [a] constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest . . . In order to invoke the court's equity powers, [a petitioner] must show a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, a breach of the promise, and [the respondent's] unjust enrichment . . . Inasmuch as a constructive trust is an equitable remedy, however, courts do not rigidly apply the elements but use them as flexible guidelines . . . In this flexible spirit, the promise need not be express, but may be implied based on the circumstances of the relationship and the nature of the transaction" ... .


The facts as alleged in the petition and set forth in the corresponding affidavits establish the existence of a confidential and fiduciary relationship between respondent and decedents. The facts with respect to the NGR and Manitou Road properties establish that respondent promised to pay decedents for the NGR property and to reconvey the Manitou Road property to decedents after it was subdivided by respondent. The petition further alleges that the properties were transferred to respondent as a result of those promises, and that respondent breached those promises and was thereby unjustly enriched.


With respect to the NYSFC stock, the petition and corresponding affidavits allege that Anthony believed, until the day that he died, that he still owned the company and that respondent had made promises to "allow all of [decedents'] children to share in NYSFC." While the allegations of an express promise are lacking, "[e]ven without an express promise, . . . courts of equity have imposed a constructive trust upon property transferred in reliance upon a confidential relationship. In such a situation, a promise may be implied or inferred from the very transaction itself. As Judge Cardozo so eloquently observed: Though a promise in words was lacking, the whole transaction, it might be found, was "instinct with an obligation" imperfectly expressed' " (Sharp, 40 NY2d at 122). Based on the circumstances of the relationship between respondent and decedents and the nature of their multiple transactions, we conclude that there are sufficient facts from which we can conclude that there was an implied promise made by respondent to decedents; that the transfer of stock, if indeed there was a transfer, was made in reliance upon that promise; and that the promise was thereafter broken, resulting in an unjust enrichment to respondent. Matter of Thomas, 2015 NY Slip Op 00017, 4th Dept 1-2-15





Regulation Mandating a 25-Year Look-Back for Relicensing (Driver's License) Is a Valid Exercise of the Department of Motor Vehicles' Authority/Regulation Was Correctly Applied to Deny Petitioner's Application for Relicensing


The Fourth Department determined the 25-year look-back for relicensing in the Department of Motor Vehicles regulations was a valid exercise of the department's authority.  Under the regulation, the department was required to deny petitioner's application for relicensing based upon his record:


We conclude that 15 NYCRR 136.5 [the 25-year look-back] is not legislative in nature, inasmuch as the Legislature delegated its authority to administer the relicensing process to the Commissioner of the Department of Motor Vehicles (see Vehicle and Traffic Law §§ 215 [a]; 510 [5], [6]...). Therefore, in promulgating 15 NYCRR part 136, the Commissioner has not "act[ed] inconsistently with the Legislature, or usurp[ed] its prerogatives" ... . * * *


Here, within the 25 years preceding petitioner's most recent revocable offense (see 15 NYCRR 136.5 [a] [4]), i.e., driving while intoxicated, petitioner has two other alcohol-related driving convictions, i.e., driving while intoxicated and driving while ability impaired, both under Vehicle and Traffic Law § 1192 (see 15 NYCRR 136.5 [a] [1] [i]). Furthermore, respondent properly concluded that petitioner committed a serious driving offense within the meaning of the regulation because the regulation defines a serious driving offense as occurring where a driver has accumulated "20 or more points from any violations" (15 NYCRR 136.5 [a] [2] [iv]), and petitioner had accumulated 21 points from other traffic violations. Respondent was therefore required to deny petitioner's application for relicensing. Matter of Shearer v Fiala, 2015 NY Slip Op 00051, 4th Dept 1-2-15





Self-Insured Employer Not Entitled to Offset Workers' Compensation Benefits by the Amount Claimant Received in a Third-Party Settlement


The Third Department determined claimant's self-insured employer was not entitled to a reduction of the Workers' Compensation benefits payable to claimant by offsetting the amount claimant received in a third-party settlement (claimant was injured in an automobile accident on the job--employer agreed to the settlement):


Workers' Compensation Law § 29 provides that a carrier or self-insured employer that pays workers' compensation benefits has the right to offset future payments of compensation against proceeds recovered by a claimant in a third-party action as long as such payments do not constitute first party benefits made to reimburse a claimant for basic economic loss or payments made in lieu of first party benefits under the No-Fault Law (see Workers' Compensation Law § 29 [1], [1-a], [4]; Insurance Law §§ 5102 [a], [b]; 5104 [a]...). Basic economic loss includes payments, not exceeding $50,000, for items such as lost earnings of up to $2,000 per month for three years after the date of the accident (see Insurance Law § 5102 [a] [2]...). Payments that are considered reimbursement for basic economic loss or that are made in lieu thereof are not subject to the offset provisions of Workers' Compensation Law § 29 ... . The dispositive question presented on this appeal is whether that part of the schedule loss of use award associated with claimant's [initial] lost time falls within this category, despite the fact that it was initially labeled as payment for "temporary total disability." * * *


Inasmuch as claimant received only a schedule loss of use award, the award is not allocable to any particular time period, and the fact that the monthly rate of the award exceeded the $2,000 threshold in Insurance Law § 5102 (a) (2) is irrelevant to the employer's right of offset ... . Matter of Cruz v City of New York Dept of Children's Services, 2014 NY Slip OP 09074, 3rd Dept 12-31-14






Claimant Did Not Link Illness Caused by Ingestion of a Ubiquitous Mold to Workplace


The Third Department reversed the Workers' Compensation Board's determination that claimant had contracted an occupational disease by ingesting mold on the job at a garbage recycling and energy production facility.  Although there was mold at the plant, that same mold is ubiquitous:


Initially, Workers' Compensation Law § 2 (15) defines an occupational disease as "a disease resulting from the nature of employment and contracted therein" ... . In order to demonstrate that a condition is compensable as an occupational disease, a claimant must "establish a recognizable link between his [or her] condition and a distinctive feature of his [or her] occupation through the submission of competent medical evidence" ... .


Here, claimant maintained that he was exposed to the aspergillus fungus while working in the cooling tower, where he observed green plant life growing, and also in the boiler house under the ram feeder table, where there was decomposing garbage... . * * *


Carl Friedman, a pulmonary specialist who conducted an independent medical examination based upon a review of claimant's medical records, opined that claimant's respiratory condition was not causally related to his employment. Because the aspergillus fungus is ubiquitous and is found in soil everywhere, Friedman testified, claimant could have been exposed in an industrial setting or at home in his own backyard. Friedman further indicated that it could not be determined exactly when claimant was exposed or, given claimant's clinical history, the date of onset of the disease.


Based upon the foregoing, claimant has not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job as a maintenance mechanic and/or planner ... . Matter of Connolly v Covanta Energy Corp, 2014 NY Slip Op 09076, 3rd Dept 12-31-14





Town Did Not Follow Its Own Procedures for Rescinding a Planned Development District--Local Law Purporting to Do So Annulled


The Third Department determined the Town of Colonie acted arbitrarily and capriciously when it enacted a Local Law restoring the original zoning after construction at the site came to a halt.  In enacting the new Local Law, the town had not followed its own procedures for rescinding a planned development district.  [The Third Department noted that the town's actions were not egregious and therefore damages based upon an alleged violation of constitutional rights (42 USC 1983) would not lie and the equal protection argument had no merit.]:


"Zoning regulations, being in derogation of the common law, must be strictly construed against the municipality which has enacted and seeks to enforce them" ... . The Town Board was therefore obliged to "comply with its own procedural rules regarding enactment of the zoning ordinance" in making amendments to that ordinance ... . Chapter 190 of the Code of the Town of Colonie (hereinafter referred to as Colonie Land Use Law) governs the creation and rescission of planning development districts, and Local Law No. 12 (2007) of the Town of Colonie was enacted pursuant to its terms (see Colonie Land Use Law § 190-65 et seq.). As is relevant here, Colonie Land Use Law § 190-72 permits the Town Board to rescind a planned development district and restore a property to its prior zoning under limited circumstances. The Town Board did not make the factual findings required by section 190-72, however, and the Town Attorney made clear that the Town Board was not relying upon that section in enacting Local Law No. 5. Respondents now argue that the facts of this case permitted the Town Board to rely upon section 190-72. The fact remains that the Town Board did not, however, and "a court reviewing an administrative determination must judge the propriety of such action solely on the grounds invoked by the agency, and if those grounds are inadequate or improper, the court is powerless to confirm on grounds it deems adequate or proper" ... . Thus, the Town Board acted in an arbitrary and capricious manner by disregarding the provisions of the Colonie Land Use Law in enacting Local Law No. 5, and the law cannot be sustained ... . Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip Op 09081, 3rd Dept 12-31-14






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