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January Page III

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


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Exceptions to "Exhaustion of Administrative Remedies" Requirement Not Applicable---"Futility" and "Irreparable Harm" Not Demonstrated


The Third Department determined that petitioner (a nursing home) could not, via an Article 78 proceeding, involve the courts to contest the Department of Health's (DOH's) calculation of Medicaid reimbursement rates because petitioner did not first exhaust every available administrative remedy.  The exceptions to the exhaustion requirement, futility and irreparable harm, did not apply:


It is well settled that an administrative agency's determination must be challenged through every available administrative remedy before it can be challenged in the courts ... . The narrow exceptions to this requirement include, as relevant here, where an administrative challenge would be futile or the petitioner can demonstrate irreparable harm ... . Neither exception has been demonstrated. Matter of Schenectady Nursing & Rehabilitation Ctr LLC, v Shah, 2015 NY Slip Op 00425, 3rd Dept 1-15-15





Client's Motion to Quash Attorney's Charging Lien Properly Granted Without a Hearing/No "Conflicting Facts" Concerning Whether the Attorney Was Discharged Was For Cause


The Second Department determined the client's motion to quash the attorney's charging lien was properly granted (without a hearing) because the attorney failed to raise a question of fact whether his discharge was for cause:


A client has "an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" ... . "Where an attorney's representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien" (...see Judiciary Law § 475...). In contrast, "[a]n attorney who is discharged for cause . . . is not entitled to compensation or a lien" ... . "Where there are conflicting claims as to whether an outgoing attorney was discharged with or without cause, a hearing is necessary to resolve such dispute" ... .


On his motion to quash Wilson's charging lien, Romero submitted evidence in support of his contention that the plaintiff had discharged Wilson for cause. In opposition, Wilson failed to dispute or address Romero's factual assertions and, thus, there were no "conflicting claims" as to whether the discharge was for cause ... . Sacarello v City of New York, 2015 NY Slip Op 00350, 2nd Dept 1-14-15





Conditions Spelled Out in an Irrevocable Stand-By Letter of Credit Had Been Complied With by the Defendant---Plaintiff's Fraud Cause of Action Dismissed


The Second Department determined the defendant had properly sought (and been paid by the bank) funds pursuant to an irrevocable standby letter of credit (LOC) which was executed by the plaintiff in favor of defendant because the conditions spelled out in the LOC had been complied with. The court explained the relevant analytical criteria:


"Letters of credit are commercial instruments that provide a seller or lender (the beneficiary) with a guaranteed means of payment from a creditworthy third party (the issuer) in lieu of relying solely on the financial status of a buyer or borrower (the applicant). Historically, letters of credit have been used to assure predictability and stability in mercantile transactions by diminishing a seller's risk of nonpayment and a buyer's risk of nondelivery due to insufficient funds" ... . "By issuing a letter of credit, the [bank] undertakes an obligation to pay the beneficiary, or his [or her] transferee if the letter is negotiable, from the account of its customer" ... . Generally, stand-by letters of credit are "meant to be drawn upon only in the event that its applicant fails to make a direct payment to the beneficiary . . . For this reason, to collect upon a stand-by [letter of credit], the beneficiary . . . must present to the issuing bank a default letter stating that the debt had not been satisfied as of a specified date" ... . However, "letters of credit must be strictly construed and performed in compliance with their stated terms" ... . The rationale for this rule is rooted in the purpose of letters of credit: " [b]y conditioning payment solely upon the terms set forth in the letter of credit, the justifications for an issuing bank's refusal to honor the credit are severely restricted, thereby assuring the reliability of letters of credit as a payment mechanism'" ... . Accordingly, "to make an issuing bank's payment obligation conditional, the parties must clearly and explicitly set forth that requirement on the face of the letter of credit" ... .


The ... defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for fraud, since in [defendant's] letter to [the bank], it accurately and truthfully represented to [the bank] that [defendant] was the beneficiary of the LOC, and satisfied the two conditions set forth in the LOC pursuant to which payment would be made to it, to wit, by (1) referencing the LOC number, and (2) attaching the LOC. Weiss v Benetton USA Corp, 2015 NY Slip Op 00360, 2nd Dept 1-14-15





Abuse of Discretion to Grant Motion for Leave to Amend Answer On the Eve of Trial


The Second Department determined Supreme Court should not have granted defendant's motion for leave to amend his answer, which was made long after the action had been certified for trial:


While leave to amend a pleading shall be freely granted (see CPLR 3025[b]), a motion for leave to amend is committed to the broad discretion of the court ... . "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered" ... . Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit ... .


"However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'" ... . "Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly" ... . Yong Soon Oh v Hua Jin, 2015 NY Slip Op 00362, 2nd Dept 1-14-15




Failure to Strictly Comply with the Service Instructions in the Court's Order to Show Cause (Which Included Service by E-Mail and Text Message) Required Dismissal of the Petitions


The Third Department determined the failure to comply with the service instructions in Family Court's order to show cause required the dismissal of the petitions:


Strict compliance with court-directed methods of service is necessary in order for the court to obtain personal jurisdiction over a respondent/defendant ... . Here, petitioner's counsel drafted and presented Family Court with a proposed order directing service pursuant to CPLR 308 (5). Specifically, the order required that the amended orders to show cause and petitions be served on two attorneys who had represented respondent in unrelated litigation and, further, that substituted service be completed as follows:


"2. By serving [respondent] at [two known] email addresses [and] by including with such emails copies of the [p]etitions, this [o]rder, and the [o]rders to show cause filed by [p]etitioner in support of the [p]etitions, in PDF format, each of such emails to be sent on or before April 28, 2014; and


3. By sending [respondent] an SMS/text message at [a known] subscriber number . . . advising her of the pendency of the two above-captioned proceedings and advising her to access her email addresses as set forth in paragraph 2 herein, to review this [o]rder and the contents of the attached PDF files and to contact her attorneys . . . for copies of the [o]rders to show cause and [p]etitions upon whom these papers have been served on her behalf, said text to be sent on or before April 28, 2014."


Despite the fact that petitioner's counsel created the terms upon which substituted service of process would be deemed sufficient, the record demonstrates that petitioner's compliance with such terms was lacking. As to the email requirement, petitioner's affidavit of service states that respondent was served on April 28, 2014 via two separate email addresses, as per Family Court's order, and that both emails were returned as undeliverable. While neither dictates of due process nor Family Court's order required proof that respondent actually received notice of the proceedings ... , we observe that the affidavit of email service fails to state that the documents were, in fact, delivered to respondent in a PDF format.


Of greater concern, however, is the manner in which petitioner conducted service by text message. As to that particular mode of delivery, petitioner's process server averred that, on April 28, 2014, he sent respondent a text message stating that "[p]aternity and custody petitions have been filed by [petitioner] regarding [the child]. Your court date in [Family Court] is May 21, 2014 at 9AM. Your failure to appear may result in a custody order and default. Contact [respondent's attorneys] for copies of these documents." Having neglected to state in the text message, as expressly required in Family Court's order, that respondent should access her email accounts to review the documents that had been served in a PDF format by email and that the text message was being sent by virtue of Family Court's order, we agree with Family Court's determination that such substituted service was insufficient to confer personal jurisdiction over respondent ... . Matter of Keith X v Kristin Y, 2015 NY Slip Op 00429, 3rd Dept 1-15-15





Supreme Court Properly Denied a Motion to Approve a Settlement of a Proposed Non-Opt-Out Class Action---Shareholders Who Objected to the Settlement Were Entitled to Opt Out to Preserve Their Damages Claims


The Second Department, over an extensive dissent, determined Supreme Court had properly denied defendant's motion, made jointly with the plaintiff, to approve a settlement of a proposed non-opt-out class action.  The majority concluded that shareholders who objected to the settlement were entitled to "opt out" to preserve their damages claims, as the Court of Appeals held in Matter of Colt Indus Shareholder Litig, 77 NY2d 185.  The Second Department explained the facts of the case as follows:


The instant appeal arises from a merger between the defendant On2 Technologies, Inc. (hereinafter On2), a publicly held Delaware corporation that developed video compression technology, and Google, Inc. (hereinafter Google), the global technology conglomerate specializing in Internet-related services. On August 4, 2009, On2 entered into a merger agreement with Google and Oxide, Inc., a subsidiary of Google, pursuant to which Google agreed to acquire each share of On2 common stock in exchange for 60 cents worth of Google Class A common stock. At that time, the proposed transaction was valued at approximately $106.5 million.


On August 7, 2009, the plaintiff, on behalf of himself and other similarly situated shareholders of On2, commenced the instant action, alleging that On2's board of directors breached its fiduciary duties to the shareholders by, inter alia, failing to ensure that the shareholders would receive maximum value for their shares. Among other things, the plaintiff sought certification of a class to prosecute the matter as a class action, a declaration that the merger agreement was unlawful and unenforceable, rescission of the merger agreement, and injunctive relief. In August 2009, other shareholders of On2 (hereinafter collectively the Delaware plaintiffs) commenced similar actions in the Delaware Court of Chancery.


On February 22, 2010, the parties to this action, as well as the Delaware plaintiffs, proposed a settlement, pursuant to which they agreed that "solely for the purpose of effectuating the [s]ettlement," the instant action "may be maintained . . . as a non-opt out class action." The settlement provided, inter alia, for dismissal of the New York and Delaware actions in their entirety, with prejudice, and a release of "any and all" merger-related claims. The proposed settlement class encompassed "all persons and entities who held shares of the common stock of On2 . . . at any time between August 4, 2009 and February 19, 2010."


Upon notice of the proposed settlement to all record holders of On2 common stock, 226 of those shareholders filed objections to the proposed settlement. The objectors contested the proposed settlement, claiming that it contained "an astonishingly broad" release that would "unlawfully restrict" and "unduly burden" the rights of shareholders to pursue their own individual claims for damages. Following a fairness hearing, the Supreme Court denied approval of the settlement because it did not afford nonresident class members the opportunity to opt out of the settlement in order to preserve their right to assert claims for damages. We affirm.  Jinnaras v Alfant, 2015 NY Slip Op 00335, 2nd Dept 1-14-15





First Degree Burglary Conviction Upheld Even though the Residential Portion of the Building Was Not Accessible from the Basement of the First-Floor Store Where the Defendant Entered the Building


The First Department, over a two-justice dissent, determined that defendant was properly convicted of first degree burglary even though the residential portion of the building could not be accessed from the the basement of the first-floor store, where defendant entered the building.  The majority found that the exception fashioned for "large" buildings where the residents could not be aware of the defendant's presence in the non-residential portion of the building did not apply:


In McCray, the Court of Appeals reaffirmed the rule, established in Quinn v People (71 NY 561 [1878]), that "if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist" (McCray, 23 NY3d at 624). Although the inaccessibility requirement appears to have been met, the other condition for application of the exception  - namely, that the building in question be "large" - has not.


Stating that the decision in McCray did not turn on the size of the building, and that the critical factor is whether there is close contiguity between the residential and nonresidential elements of the building such that the residents of the building would be aware of the burglar's presence, the dissent would reverse the conviction for second-degree burglary because the basement was entirely sealed off and inaccessible from the residences above. However, in Quinn, which is the foundation on which McCray stands, there also was no "internal communication" between the shop that was broken into and the living quarters above, and a person had to go into the yard and then up stairs to get from one to another (Quinn at 565). Nevertheless, the Court of Appeals affirmed the conviction of first-degree burglary because the shop "was within the same four outer walls, and under the same roof" (id.). The Court reasoned that "the essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation. It is plain that both of these may arise, when the place entered is in close contiguity with the place of the owner's repose, though the former has no relation to the latter by reason of domestic use or adaptation" (id. at 567). People v Joseph, 2015 NY Slip Op 00299, 1st Dept 1-13-15





Father's Recording of Defendant's Berating and Threatening Father's Child Admissible Under the "Vicarious Consent" Theory (Father Vicariously Consented, on Behalf of the Child, to the Recording)/Variance Between Jury Instruction and Charges in the Indictment Was Harmless Error--No Possibility Defendant Was Convicted of a Theory Not Encompassed by the Indictment


The Second Department applied a "vicarious consent" theory to reject the defendant's argument that the father's recording of the defendant berating and threatening the father's child violated the eavesdropping statutes, Penal Law 250.05 and CPLR 4506. Father had called mother's cell phone which mother answered without speaking. Father could hear the defendant speaking to the child over the phone and recorded the defendant's words.  In addition to the "vicarious consent" discussion, he Second Department noted that a variance between the jury instructions and the charges in the indictment was harmless error because there was no possibility the guilty verdict was based upon a theory not in the indictment.  With respect to the "vicarious consent" to the recording, the court wrote:


While ... Penal Law § 250.05 serves the strong public policy goal of protecting citizens from eavesdropping, we are not persuaded that the New York Legislature intended to subject parents to criminal penalties when, "out of concern for the bests interests of their minor child, they record that child's conversations" ... . Given the similarity between the federal wiretap statute and New York's eavesdropping statute, and recognizing that the "vicarious consent" exemption is rooted on a parent's need to act in the best interests of his or her child ..., we deem it appropriate to adopt it as an exemption to Penal Law § 250.05.


Here, the People sufficiently demonstrated that the father had a "good faith, objectively reasonable basis to believe" that it was necessary for the welfare of the infant to record the conversation ..., such that he could consent to the recording on the infant's behalf ... . Accordingly, the "vicarious consent" exemption applies, and admission of the subject recording was not barred by CPLR 4506. People v Badalamenti, 2015 NY Slip Op 00384, 2nd Dept 1-14-15





Defendant Was Subjected to Custodial Interrogation Before Waiving His Right to Remain Silent---Oral Pre-Miranda and Written Post-Miranda Statements Should Have Been Suppressed---Error Deemed Harmless


The Second Department determined defendant's pre-Miranda statements, as well as his post-Miranda written statement, should have been suppressed because the defendant was in custody and interrogated before he waived his right to remain silent.  Defendant had been stopped by two police cars, one of which cut off defendant's lane of travel. Defendant then consented to going to the police station where he was placed in a locked room and subjected to accusatory questioning.  (The court ultimately determined the error was harmless, however):


Contrary to the suppression court's determination, the statements made by the defendant at the police station should have been suppressed as the product of custodial interrogation conducted without the benefit of Miranda warnings. "Miranda warnings need not be given until both the elements of police custody' and interrogation' are present" ... . The issue of whether a suspect is in custody is generally a question of fact ... . In deciding whether a defendant was in custody before receiving Miranda warnings, "the subjective beliefs of the defendant are not to be the determinative factor" ... . Nor does the determination turn on the subjective intent of the police officer ... . Rather, the test is "what a reasonable man [or woman], innocent of any crime, would have thought had he [or she] been in the defendant's position" ... . "[T]he term interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect" ... .


Here, a reasonable, innocent person would not have believed that he or she was free to leave the police station at the time the defendant made his oral statements to the police ... . Moreover, the questions by the police were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response ... . Accordingly, the oral statements made by the defendant at the police station were the product of custodial interrogation without Miranda warnings and should have been suppressed. Furthermore, the written statement by the defendant, although created after Miranda warnings were issued, also should have been suppressed, as there was no attenuation between the statements that were obtained unlawfully and the written statement ... . People v Reardon, 2015 NY Slip Op 00394, 2nd Dept 1-14-15




Detective's Testimony About a Non-Testifying Witness' Description of the Perpetrator Properly Admitted to Explain Detective's Subsequent Actions and Complete the Narrative


The Second Department, over an extensive dissent, determined a detective's testimony about a non-testifying witness' (Anderson's) description of the perpetrator was admissible for the non-hearsay purpose of explaining the detective's subsequent actions, and completing the narrative of events:


The jury was specifically instructed not to consider this description for its truth, and the description was properly admitted for the relevant, nonhearsay purpose of "establishing the reasons behind the detective's actions, and to complete the narrative of events leading to the defendant's arrest" ... . Contrary to the view of our dissenting colleague, we find that the People sufficiently established a connection between Anderson's description and subsequent police conduct. Anderson's general description of the perpetrator, as distinct from a direct identification of the defendant, led to successive police investigatory conduct such as interviewing other witnesses, including a witness who identified the defendant at trial, and procuring the surveillance video of the defendant ... . Thus, the Supreme Court did not err in admitting Anderson's description of the perpetrator for a limited nonhearsay purpose ... . People v Speaks, 2015 NY Slip Op 00396, 2nd Dept 1-14-15




Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a "Lease Enforcement Officer" Who Believed the Apartment Was Occupied by "Squatters"


The Third Department determined the police properly made a warrantless entry of the apartment where defendant [Anderson] was staying based upon the consent of a "lease enforcement officer" who believed the apartment was occupied by "squatters."  The motion to suppress the weapon found near the defendant was, therefore, properly denied:


...John Downey, a lease enforcement officer, informed a police detective that he believed that Anderson's apartment was vacant and that tenants frequently abandoned their units in the apartment building without providing notice. Downey further explained that he was authorized to enter apartments in order to ensure that they are secure and not occupied by squatters. Downey averred that he provided law enforcement officers with a key to the apartment because he was concerned that someone other than Anderson may have been staying there. When law enforcement arrived at the apartment and knocked on the door, there was no response and no noise was detected from inside the residence. Although it became obvious to the officers, after having entered the apartment, that it was not vacant, inasmuch as an objective view of the evidence adequately demonstrated that the police reasonably relied in good faith upon Downey's apparent authority to allow entry into the apartment, County Court properly found that the warrantless entry --and resulting seizure of the gun that was in plain view--was not illegal... . People v Edwards, 2015 NY Slip Op 3rd Dept 1-15-15




Potential Use of Condemned Property In Conjunction with Adjoining Land Properly Considered in the Valuation of the Taking/Statutory 6% Interest Applies in Condemnation Proceedings


The Second Department determined Supreme Court properly took into consideration the potential use of the condemned land in conjunction with adjacent parcels of land in assessing the value of the property.  The court further determined that the statutory 6% interest for condemnation proceedings (General Municipal Law 3-a(2)) applied:


The measure of damages in a condemnation proceeding " must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time'" ... . "The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future" ... . " The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value'" ... . "Thus, a claimant is entitled to the fair market value of its property for its highest and best available use even though that use is in connection with adjoining properties, provided there is a reasonable probability that the condemned property would be combined with other tracts in the reasonably near future"... . Matter of City of Long Beach v Sun NLF Ltd Partnership, 2015 NY Slip Op 00370, 2nd Dept 1-14-15





Where Plaintiff Was "Demoted" In Violation of an Employment Agreement, the Restrictive Covenants in the Agreement Are No Longer Enforceable


The First Department determined the restrictive covenants agreed to by the plaintiff in conjunction with the job he was hired to do did not apply to the job, with diminished responsibility, he was subsequently assigned (in violation of the employment contract):


The significant change in plaintiff's duties constituted a material breach of his employment agreement ... . * * *


The record demonstrates that defendants did not have a legitimate interest in restricting plaintiff from working for a competitor once he was in his demoted position ... . Although the employment agreement acknowledged the uniqueness of plaintiff's services, that acknowledgment was made in connection with plaintiff's acceptance of a position he no longer held at the time of his resignation. Further, the record is devoid of evidence that plaintiff possessed any trade secrets or confidential customer lists ... . Thus, insofar as the restrictive covenants contained in the employment and option agreements prohibited plaintiff from competing ..., they are unenforceable. Fewer v GFI Group Inc, 2015 NY Slip Op 00440, 1st Dept, 1-15-15





In an Employment Discrimination Case, Plaintiff Is a Member of a Protected Class By Virtue of His Wife's Religion


The Second Department, in a full-fledged opinion by Justice Leventhal, over a dissent, determined plaintiff had raised a question of fact whether he was the subject of employment discrimination in violation of the Executive Law (State Human Rights Law).  Plaintiff's wife is Jewish and plaintiff is not. Plaintiff's co-workers are alleged to have made anti-Semitic remarks and plaintiff alleged his firing was a manifestation of discrimination against members of the Jewish faith.  The question of first impression before the court was whether plaintiff is a member of a protected class by virtue of his wife's religion.  The Second Department found that he is:


To establish a prima facie case of discrimination under the State Human Rights Law, a plaintiff who has been terminated from employment must demonstrate (1) that he or she is a member of the class protected by the statute, (2) that he or she was actively or constructively discharged, (3) that he or she was qualified to hold the position from which he or she was terminated, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination ... . * * *


The defendants assert that there is no authority to support a claim of discrimination based upon the religious belief of a spouse under the State Human Rights Law. While there is no authority addressing this issue under the State Human Rights Law, several federal courts have construed Title VII to protect individuals "who are the victims of discriminatory animus towards third persons with whom the individuals associate" ... . * * *


While the plaintiffs' allegations call to mind the infamous Nuremberg Laws enacted in 1935, which stripped German Jews of their civil rights and citizenship and prohibited persons of "German or related blood" from marrying or having sexual relations with German Jews, we are aware that the defendants' alleged conduct is not akin to Town-initiated discrimination. State Human Rights Law claims under Executive Law § 296 are "analytically identical to claims brought under Title VII" ..., and thus we see no reason to construe the State statute more restrictively than the federal statute. Accordingly, the plaintiff sufficiently demonstrated his membership in a protected class by virtue of the defendants' alleged discriminatory conduct stemming from his marriage to a Jewish person. Indeed, we note that discrimination against an individual based on his or her association with a member of a protected class also constitutes an infringement upon that individual's First Amendment right to intimate association, which receives protection as a fundamental element of personal liberty (see Roberts v United States Jaycees, 468 US 609, 617-618 ["choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme"]; Matusick v Erie County Water Auth., 757 F3d 31 [2d Cir] [where plaintiff, a white male, alleged that he was discriminated against and terminated from his employment because of his engagement to an African-American female, the United States Court of Appeals for the Second Circuit recognized, for the first time, that a constitutionally protected right to intimate association based upon marriage engagement could be the predicate for a claim that the defendants, while acting under color of state law, deprived the plaintiff of his First and Fourteenth Amendment rights in violation of 42 USC § 1983]). Chiara v Town of New Castle, 2015 NY Slip Op 00326, 2nd Dept 1-14-15





Waterway Bordered by Private Land Deemed "Navigable-in-Fact"---Owners of the Land Cannot Prohibit Public Use of the Waterway


The Third Department, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that a waterway bordered by private land in the Adirondacks was "navigable-in-fact" and the owners of the land (plaintiffs) bordering the waterway could not prohibit public use of the waterway.  The waterway was deemed "navigable-in-fact" even though a portion of it consisted of rapids which required canoeists to carry their canoes on a privately-owned path along the rapids:


Pursuant to the common law, a waterway on private property that is not navigable-in-fact is owned by the adjacent landowners, but a waterway that is navigable-in-fact "is considered a public highway, notwithstanding the fact that its banks and bed are in private hands" ... . The State cannot alienate the right of the public to travel on a navigable-in-fact waterway by transferring title in its bed and banks to a private owner ... . As riparian owners never obtain ownership interests in the waters of navigable-in-fact waterways, a judicial determination that the public has the right of navigation does not result in a taking for public use without compensation ... . Accordingly, the import of a judicial determination that a waterway is navigable-in-fact is that it has always been open to the public in that character, even though the riparian owners may not have believed it to be, and no trespass was committed by a traveler who navigated upon it before a court ruled upon its navigability. * * *


...[W]here, as here, the State has no sovereign or proprietary ownership interest in the land and the waterway in question passes through private property, its navigability-in-fact is determined by a common law examination of "evidence of [the waterway's] actual practical use or evidence of capacity for practical use" ... . Historically, this analysis turned on whether the waterway had the capacity to be used for commercial transportation; the public was deemed to have the right to travel on "every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks" ... . More recently, the Court of Appeals clarified that commercial use is not the only relevant factor, and that a waterway's capacity for recreational use is also significant in determining its navigability. "[W]hile the purpose or type of use remains important, of paramount concern is the capacity of the river for transport, whether for trade or travel" ... . The Court of Appeals stated that this holding neither altered nor enlarged the applicable common-law analysis and was "in line with the traditional test of navigability, that is, whether a river has a practical utility for trade or travel" ... . 


Accordingly, the Waterway's navigability-in-fact must be determined based upon its utility for travel or trade as revealed by the testimony, affidavits, maps, photographs, historical records and other evidence in the voluminous record. * * *


The Waterway's narrow, shallow character does not preclude such a finding, as a stream that can carry only small boats may nevertheless be navigable-in-fact ... . Likewise, neither the portage around the relatively short Mud Pond rapids nor the presence in the Waterway of other incidental obstacles such as beaver dams and fallen trees renders the Waterway nonnavigable, as "occasional natural obstructions do not destroy the navigability of a [waterway]" ... . On the contrary, the presence of such occasional obstructions in a navigable-in-fact waterway gives rise to a public right to circumvent them by "mak[ing] use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands" ... . Friends of Thayer Lake LLC v Brown, 2015 NY Slip Op 00420, 3rd Dept 1-15-15





Claimant's Imprisonment for a Month After His Release Date Was Not Privileged


The Third Department affirmed the Court of Claims, finding that claimant's confinement was not privileged.  Claimant had completed his sentence at the time of sentencing but he was held for a month:


...[I]n order to succeed on a claim of false imprisonment or unlawful confinement, claimant was required to show "that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged"... . The first three elements have undoubtedly been satisfied and, accordingly, the question distills to whether claimant's confinement by DOCCS [Department of Corrections and Community Supervision] was privileged. The facts leading up to his detention are not in dispute and, after reviewing them, we agree with the Court of Claims that the confinement was not privileged.


Claimant was sentenced to a prison term as the result of his conviction and, "where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged" ... . That being said, DOCCS was "'conclusively bound' by the terms of the sentence and commitment order," which unambiguously directed that claimant be released after 1½ years of confinement ... . DOCCS continued to confine claimant after that period had ended and, given the absence of any order that required it to do so, its actions were not privileged ... . Miller v State of New York, 2015 NY Slip Op 00408, 3rd Dept 1-15-15





Children's Attorney Entitled to Cross-Examine Petitioner's Witnesses Despite Taking a Position Similar to Petitioner's


The Third Department determined the children's attorney was entitled to ask leading questions in the cross-examination of petitioner's witnesses, even though the the attorney for the children had taken a position similar to petitioner's.  The similar positions did not convert petitioner's witnesses to witnesses for the children:


...[W]e reject respondent's contention that Family Court erred by denying her request to require the attorney for the children to cross-examine petitioner's witnesses before respondent's cross-examination, or by permitting the attorney for the children to ask leading questions during cross-examination. Both of these claims are premised on respondent's incorrect view that petitioner's witnesses effectively became witnesses for the attorney for the children when she agreed with petitioner's position. The duty of an attorney for the child is to represent the child and advocate for his or her position (see Family Ct Act § 241...). Contrary to respondent's claim, the fact that here the exercise of this duty resulted in a position similar to that of petitioner did not effectively convert the two parties into one entity. Accordingly, the attorney for the children was entitled to ask leading questions while cross-examining petitioner's witnesses (see Jerome Prince, Richardson on Evidence § 6-230 at 376 [Farrell 11th ed 1995]). Matter of Aniya L, 2015 NY Slip Op 00410, 3rd Dept 1-15-15





Statute Prohibits Petition for Downward Modification of Support After Arrears Accrue/No Appeal Lies from an Order Entered by Consent


The Second Department determined father could not bring a petition for retroactive reduction of child support and a reduction of arrears after the arrears had accrued.  The court noted that father could not appeal an order he consented to:


Family Court Act § 451 provides that the court "shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section." A court "ha[s] no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation" ... . Here, the father petitioned for a downward modification of his child support obligation after the arrears accrued. Thus, any modification was [*2]prohibited.


In any event, the Family Court properly concluded that the father was barred from relitigating the amount of arrears owed. The order dated July 11, 2012, which fixed the amount of arrears that the father owed, and provided the basis for the entry of the money judgment against him, was entered on his consent. On appeal, a party may not collaterally attack an order entered on his or her consent ... . Matter of Cadwell v Cadwell, 2015 NY Slip Op 00369, 2nd Dept 1-14-15





Only Out-of-Pocket Damages Allowed in Fraud Action (Re: a Real Estate Purchase Agreement)


The Third Department affirmed a judgment in favor of the plaintiffs stemming in large part from the fraudulent representation (re: a property information sheet) that a septic system, which failed, was "new." The court noted the out-of-pocket rule for damages based upon fraud (lost profits/rents, etc. not recoverable):


[D]efendants' realtor prepared a property information sheet — to be given to prospective buyers — bearing the notation, "Septic system totally new — le[a]ch field totally replaced — new 5000 gallon holding tank," as well as the general qualification that "all information [was] deemed reliable but not guaranteed." ...[P]laintiffs ... entered into a purchase and sale contract for the property. The contract, which reflected a purchase price of $545,000 and indicated that the buildings on the premises would be sold "as is," also contained a waivable septic system contingency. Plaintiffs ultimately did not avail themselves of this contingency--a decision purportedly based, in part, upon plaintiffs' belief that the property contained a new septic system. * * *


...[T]he case law makes clear that where, as here, a cause of action for fraud has been asserted, "[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong or what is known as the 'out-of-pocket' rule. . . . Damages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained. Under the out-of-pocket rule, there can be no recovery of profits which would have been realized in the absence of fraud" ... . Revell v Guido, 2015 NY Slip Op 00411, 3rd Dept 1-15-15





Totality of the Evidence Established Accident Was "Staged"


The Second Department determined Supreme Court erred when it found a collision was a covered event under a driver's (Trotman's) policy because the totality of the evidence demonstrated the collision was "staged:"


A deliberate collision by an insured is not a covered event under an insurance policy ... . Here, the strong circumstantial evidence at the framed-issue hearing established that Trotman intentionally caused the collision between his vehicle and Young's vehicle. In finding otherwise, the Supreme Court focused entirely on whether Trotman's vehicle suffered any damage, rather than on the totality of the evidence ... . Accordingly, because the evidence at the hearing established that Trotman intentionally caused the collision with Young's vehicle, the collision between the two vehicles was not a covered event under Trotman's policy with GEICO. Matter of Liberty Mut Ins Co v Young, 2015 NY Slip Op 00377, 2nd Dept 1-14-15





"Findings" of Wrong-Doing in Bear Stearns' Settlement Agreements with the Securities and Exchange Commission and the New York Stock Exchange Did Not Constitute an "Adjudication" of Wrong-Doing Which Would Support the Insurer's Affirmative Defense Based Upon the "Dishonest Acts Exclusion" in the Professional Liability Insurance Policy---However, the Insurer's Affirmative Defense Based Upon the Public Policy Precluding Coverage for Intentional Harm to Others Should Not Have Been Dismissed


The First Department, in a full-fledged opinion by Justice Mazzarelli, determined that the "dishonest acts exclusion" in the professional liability insurance policy issued by the defendant to the plaintiff (Bear Stearns) could not be used as an affirmative defense in Bear Stearns' action seeking coverage for settlements paid by Bear Stearns.  Bear Stearns had entered settlement agreements with the Securities & Exchange Commission (SEC) and the New York Stock Exchange (NYSE) in which "findings" of misconduct were made.  The question before the First Department was whether those "findings" constituted an "adjudication" of wrong-doing such that the "dishonest acts exclusion" prohibited recovery from the insurer.  The First Department held that the "findings" did not constitute an adjudciation and the affirmative defense based on the "dishonest acts exclusion" was properly dismissed.  However, the First Department further found the affirmative defense based upon public policy (precluding coverage for monies paid by the insured as a result of intentional harm to others) should not have been dismissed:


Here, the issue is the applicability of the Dishonest Acts Exclusion, so defendants bear the specific burden of demonstrating that a settlement constitutes an "adjudication" for purposes of the exclusion.


In arguing that the term "adjudication" means any resolution of a dispute that has specific consequences for a party, defendants virtually ignore the part of the Dishonest Acts Exclusion that requires that any adjudication "establish that such Insured(s) were guilty of any deliberate, dishonest, fraudulent or criminal act or omission" (emphasis added). Defendants quote the dictionary definition of "adjudication," but fail to note that "establish" is defined, in this context, as "to put beyond doubt" (Merriam—Webster's Collegiate Dictionary [11th ed 2003]). It can hardly be said that the SEC Order and the NYSE Stipulation put Bear Stearns's guilt "beyond doubt," when those very same documents expressly provided that Bear Stearns did not admit guilt, and reserved the right to profess its innocence in unrelated proceedings. Again, in interpreting the policy we are guided by reason, and defendants' position that the settlement documents "establish" guilt is not reasonable. * * *


Because the Dishonest Acts Exclusion does not apply, the motion court properly dismissed defendants' affirmative defense based on that exclusion. However, the court should not have dismissed the affirmative defense invoking the public policy against permitting insurance coverage for disgorgement, to the extent it is based on the settlements with the SEC and the NYSE. Bear Stearns argues that the absence of an adjudication of wrongdoing within the meaning of the Dishonest Acts Exclusion bars defendants from relying on the "findings" in the settlement orders for purposes of the public policy doctrine. Again, however, as the Court of Appeals stated in the prior appeal, one of the two situations in which the contractual language of a policy may be overwritten is where an insured engages in conduct "with the intent to cause injury" ... . JP Morgan Sec Inc v Vigilant Ins Co, 2015 NY Slip Op 00462, 1st Dept 1-15-15





Criteria for Contractual Indemnification Explained


The Second Department determined plaintiff's Labor Law 241(6) cause of action properly survived summary judgment and defendant was entitled to indemnification under the relevant contract.  The court explained the contractual indemnification criteria:


"While owners and general contractors owe nondelegable duties under the Labor Law to plaintiffs who are employed at their worksites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident" ... . A party's right to contractual indemnification depends upon the specific language of the relevant contract ... . A promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances ... . In addition, "a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (...see General Obligations Law § 5-322.1). Shea v Bloomberg LP, 2015 NY Slip OP 00353, 2015 NY Slip Op 00353, 2nd Dept 1-14-15







Photographs Demonstrated Defect Was "Trivial" and Not Actionable


In a slip and fall case, the Second Department reversed Supreme Court and dismissed the complaint, finding the defect "trivial:"


Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury ... . However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip ... . There is no "minimal dimension test or per se rule" that the condition must be of a certain height or depth to be actionable ... . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury" ... . "Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable" .. .


Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony, as well as the photographs of the subject step, which the plaintiff admitted fairly and accurately depicted the step and the "clump" that allegedly caused her to trip and fall. The evidence, and in particular the photographs, established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and, therefore, was not actionable ... . Adler v QPI-VIII. LLC, 2015 NY Slip OP 00320, 2nd Dept 1-14-15




Inherent Smoothness of a Floor Is Not an Actionable Defect


In affirming the dismissal of the complaint in a slip and fall case alleging the presence of water on a vestibule floor, the Second Department noted the allegation that a floor was inherently slippery because of its smoothness is not an actionable defect:


While a "defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain" ... , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action ... .


In support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create any dangerous condition in the vestibule area, or have actual or constructive notice of any such condition prior to the plaintiff's accident ... . In opposition to the defendant's prima facie showing, the plaintiff relied almost exclusively on the affidavit of an expert, which failed to raise a triable issue of fact. To the extent that the expert opined that the vestibule floor was inherently slippery due to its smoothness, that is not an actionable defect ... . Beceren v  Joan Realty LLC, 2014 NY Slip OP 00324, 2nd Dept 1-14-15




Although Defendant Was Not Responsible for the Pedestrian Ramp, There Was a Question of Fact Whether Defendant's Snow Removal (from the Ramp) Created the Dangerous Condition


The Second Department determined a question of fact had been raised about whether defendant is liable for a slip and fall on a pedestrian ramp.  Although, by virtue of a city regulation, defendant was not responsible for the ramp, there was a question whether defendant's snow-removal created the dangerous condition (black ice):


...[T]he defendant established, prima facie, that the area in which the plaintiff alleged that she slipped and fell was part of a pedestrian ramp, for which it was not responsible (see Administrative Code of City of NY § 7-210). However, a property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm ... . Here, the defendant failed to eliminate all triable issues of fact as to whether the black ice condition upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts ... . Herskovic v 515 Ave I Tenants Corp, 2015 NY Slip Op 00334, 2nd Dept 1-14-15





Plaintiff Was Unable to Pinpoint the Cause of Her Fall---"Feigned Issue" Raised In an Affidavit Could Not Stave Off Summary Judgment


The Second Department determined plaintiff's inability to identify the cause of her fall was fatal to the lawsuit:


"A plaintiff's inability to identify the cause of her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" ... . Here, the the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff could not identify the cause of her fall without resorting to speculation ... . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit submitted in opposition to the motion, in which she identified the cause of her fall as "water or cleaning liquid that was on the floor," merely raised what clearly appears to be a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony ... . Trapani v Yonkers Racing Corp, 2015 NY Slip Op 00357, 2nd Dept 1-14-15




Owners/Occupiers of a Single Family Residence Not Responsible for Maintaining Abutting Sidewalk Pursuant to the NYC Administrative Code


The Second Department exercised its discretion to hear an appeal which had been dismissed for failure to perfect and affirmed the dismissal of the complaint.  Defendants owned and occupied a single-family residence.  Therefore, pursuant to the Administrative Code of the City of New York, defendants were not responsible for maintaining the sidewalk abutting the property:


On February 20, 2008, the injured plaintiff allegedly tripped and fell on a sidewalk abutting the defendants' property. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes (see Administrative Code of City of NY § 7-210[b]), thus exempting them from liability pursuant to Administrative Code of the City of New York § 7-210(b) for the alleged failure to maintain the sidewalk abutting their property ... . Saunders v Tarsia, 2015 NY Slip Op 00352, 2nd Dept 1-14-15





Questions of Fact Raised About Whether the Risks of Participating in a Self-Defense Tournament Were Concealed and Unreasonably Increased and Whether Infant Plaintiff Was Negligently Supervised


The Second Department determined the school district's motion for summary judgment was properly denied because plaintiff had raised triable questions of fact about whether infant plaintiff assumed the risk of injury in a self-defense tournament and whether the school was negligent in supervising the self-defense tournament:


The infant plaintiff allegedly was injured while competing in her high school's "self-defense tournament," a voluntary competition open to female students who were enrolled in a self-defense class taught by Joseph Biddy, a physical education teacher. The self-defense class was one of several electives that female students could take to satisfy the district's physical education requirement. The plaintiffs allege, inter alia, that, since the self-defense class was in actuality a mixed martial arts class, the defendant breached its duty of care to the infant plaintiff by allowing the class to be instructed by a person with little martial arts training, and allowing that person to referee the tournament. The plaintiffs contend that the infant plaintiff and the other students in the class were not properly or sufficiently trained and that Biddy did not have the requisite knowledge and experience to recognize the dangers posed by the moves being performed in the tournament. * * *


"Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ... . "[T]he plaintiff's consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist" ... . However, the doctrine of primary assumption of risk does not apply to bar a cause of action where the risks at issue were unassumed, concealed, or unreasonably increased ... . 


On its motion for summary judgment, the defendant failed to establish, prima facie, that by voluntarily participating in the self-defense tournament, the infant plaintiff consented to the risks associated with the move that ultimately caused her injuries. Rather, the defendant's submissions demonstrated that the risks of the move that ultimately caused the infant plaintiff's injuries were concealed and unreasonably increased. Pierre v Ramapo Cent Sch Dist, 2015 NY Slip Op 00348, 2nd Dept 1-14-15




Even Though the Landlords Maintained Offices Adjacent to the Leased Property (a Restaurant), the Plaintiff Was Not Able to Raise a Question of Fact About Whether the Landlords Retained Control Over the Leased Premises Such that the Landlords Would Be Liable for an Assault by Employees and Patrons of the Tenant-Restaurant


The Second Department determined that out-of-possession landlords (AYT and 6010) could not be held liable for an assault by employees and patrons of the tenant restaurant, even though the landlords maintained offices adjacent to the rented property:


An owner is obligated to take reasonable precautionary measures to minimize the risk of criminal acts and make the premises safe for visitors when the owner is aware, or should be aware, that there is a likelihood of conduct on the part of third parties that would endanger visitors (...see generally Restatement [Second] of Torts: Negligence § 344). To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location ... . 


However, an out-of-possession landlord is not liable for injuries that occur on the leased premises due to the criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security ... .   Here, the defendants ... established, prima facie, that they were out-of-possession landlords, and that they did not retain control over the premises and were not contractually obligated to provide security. The mere fact that Sam Fridman, the principal of AYT, had an office "right next door" to the subject premises for approximately 15 years prior the incident, and Abraham Sprei, the principal of 6010, maintained a plumbing business adjacent to the premises, was not sufficient to create a triable issue of fact as to whether AYT and 6010 retained control of the premises  Tambriz v PGK Luncheonette Inc, 2015 NY Slip Op 00356, 2nd Dept 1-14-15





Negligent Supervision Cause of Action Properly Survived Summary Judgment---Question of Fact Raised Whether Criminal Act by Defendant's Employee Was Foreseeable


Plaintiff's child was injured when assaulted by an employee of defendant New York City Transit Authority (NYCTA) during the course of a NYCTA community service program.  The Second Department determined defendant could not be held liable under the doctrine of respondeat superior because the actions of the employee were outside the scope of employment.  However, the cause of action for negligent supervision properly survived the motion for summary judgment because there was a question of fact whether the criminal act of the employee was foreseeable:


"Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" ... . Here, the evidence submitted by the NYCTA demonstrated that Clay's conduct clearly was not in furtherance of the NYCTA's business and was a departure from the scope of his employment, having been committed for wholly personal motives ... . * * *


The Supreme Court properly denied that branch of the NYCTA's motion which was for summary judgment dismissing so much of the complaint as alleged that it negligently supervised the plaintiff's child. The standard for determining whether a duty to supervise a minor was breached is "whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision" ... . "Where third-party criminal acts intervene between defendant's negligence and plaintiff's injuries, the causal connection may be severed, precluding liability. The criminal intervention of third parties may, however, be a reasonably foreseeable' consequence of circumstances created by the defendant" ... . Mayo v New York City Tr Auth, 2015 NY Slip OP 00342, 2nd Dept 1-14-15





Question of Fact Whether Defendant's Snow Removal Efforts Created Dangerous Condition (Black Ice)


The Second Department determined there was a question of fact whether the defendant had created the dangerous condition (black ice) on its property by its snow removal efforts:


A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it ... . Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition ... .


In support of its motion, the defendant failed to eliminate all triable issues of fact as to whether the patch of black ice upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts in the days prior to the accident ... . Smith v New York City Hous Auth, 2015 NY Slip Op 00355, 2nd Dept 1-14-15




Grassy Area Where Plaintiff Fell Was Not Part of a Highway or a Sidewalk--Prior Written Notice of the Defect (to the Town) Not Required


The Third Department determined the town's requirement that it be provided with written notice of a defect before the town can be held liable for a related slip and fall did not apply to the grassy area where plaintiff fell:


Where, as here, a municipality has enacted a prior written notice provision (see Code of the Town of Clifton Park § 176-1 [A]), "a plaintiff may not bring a civil action against [the] municipality for damages as the result of an injury sustained by reason of a defective street, highway, bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective condition has been given" ... . Hence, in order to prevail upon its motion for summary judgment dismissing the complaint, the Town was required to establish as a matter of law that the grassy area in question constituted — insofar as is relevant here — either a highway, a sidewalk or a site that serves the same "functional purpose" as a highway or sidewalk... . 


To be sure, a highway "encompasses the associated shoulders, guardrails, embankments, retaining walls and culverts" (...see Highway Law § 2 [4]...). As relevant here, whether the land adjacent to a highway is paved or otherwise improved does not determine its status as a shoulder; rather, the inquiry is whether the area in question creates "a general right of passage for the traveling public" ... . Here, the Town failed to establish that the grassy area where plaintiff fell was designed or intended to provide a general right of passage; further, it is readily apparent from the photographs contained in the record on appeal that the grassy area where plaintiff's accident occurred is too far removed from the edge of Old Route 146 to be considered an adjacent shoulder or to otherwise fall within the definition of a highway ... .


We reach a similar conclusion with respect to whether the grassy area may be deemed to fall within the definition of a sidewalk. In this regard, "a grass strip between the sidewalk and the pavement of the road [indeed] is part of the sidewalk" ... . Here, however, the grassy area depicted in the relevant photographs does not lie between a sidewalk and a roadway and, contrary to the Town's contention, the mere fact that plaintiff and her son were traversing the grassy area to access the nearby parking lot (owned by Northway 9 Associates) does not render this area the functional equivalent of a sidewalk ... . Cieszynski v Town of Clifton Park, 2015 NY Slip Op 00423, 3rd Dept 1-15-15





Question of Fact About Whether ATV Driven with Owner's Permission Based Upon Owner's Restrictions on Use of the ATV


The Third Department determined a question of fact had been raised about whether an all terrain vehicle (ATV) was being operated with the owner's consent at the time of a collision (a requirement for vicarious liability--Vehicle and Traffic Law 2411).  The owner claimed only his grandson had permission to operate the ATV and operation of the ATV on a public highway was not permitted by him.  The accident occurred when the ATV was driven by someone other than the owner's grandson (with the grandson's permission) on a public highway.  The grandson was driving an ATV which had just been damaged in an accident and they were using the public highway to return to the off-road trails:


Although [the owner] and his grandson both confirm that the restrictions regarding where the ATV could be operated had been imposed, when the "the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury" ... . Here, the testimony of [the owner] is self-interested and his grandson--who is not a party--has no interest of his own in contradicting his grandfather's position. Under these circumstances, we are persuaded that the grandson's alleged directions and assurances to [the driver of the ATV] could imply, when viewed in the light most favorable to plaintiffs, [the owner's] restrictions were flexible and had been lifted under the circumstances. Accordingly, the issue of implied permission should be determined by a jury ... . 

Sepsi v Watson, 2015 NY Slip Op 00414, 3rd Dept 1-15-15




Criteria for Interpreting Ambiguous Property Descriptions in Old Deeds Explained and Applied


The Third Department explained the analytical criteria for determining the location of boundary lines using old deeds which exhibit some ambiguity (thus allowing reference to extrinsic evidence).  The court explained that a hand-written, signed deed was preferred over a subsequent, unsigned type-written description of the property, and that the amount of acreage is the least reliable type of property description:


We agree with Supreme Court that as between the handwritten and typed versions of the April 1885 deed, the handwritten deed is the best evidence of the grantors' intent, as it is the signed original instrument by which the disputed property was conveyed, while the typed version is an unsigned copy created decades later by an unknown transcriber (see Jerome Prince, Richardson on Evidence §§ 10-101, 10-102 [Farrell 11th ed 1995]). We further agree with the court that the disputed mark following the phrase "more or less" in the handwritten deed appears to be a comma; although it is oddly located on the line below the phrase "more or less" and outside the document's left margin, it has the same shape as other commas in the deed, including a mark just before the phrase "more or less," which the parties agree is a comma and which is represented by a comma in the typed version. Nevertheless, the questionable nature of the disputed mark creates an ambiguity that may be clarified by considering extrinsic evidence of the grantors' intent ... . * * *


Where ... discrepancies exist in property descriptions, "the rules of construction require that resort be had first to natural objects, second to artificial objects, third to adjacent boundaries, fourth to courses and distances and last to quantity" ... . According to these rules, a public highway or other artificial monument takes precedence over the amount of acreage specified in a deed, as "quantity is the least reliable of all descriptive particulars" ... . Shattuck v Laing, 2015 NY Slip Op 00413, 3rd Dept 1-15-15





Wrong Valuation Date Did Not Require Striking of Appraisal Report/Presumption of the Validity of the Town's Assessment Rebutted by Appraisal Report


The Third Department determined Supreme Court properly considered petitioner's appraisal, despite the wrong valuation date, and properly reduced the tax assessment. The Third Department explained the criteria for striking an appraisal (not met here) and the proof required to rebut the presumption of the validity of the town's assessment (proof-requirement met here):


...[P]etitioner's appraiser erred in initially using a valuation date of March 1, 2011 rather than July 1, 2010 in his report. Nevertheless, Supreme Court was not required to strike the report.


An appraisal report may be stricken for use of an incorrect valuation date if the use of the correct date would have resulted in a different estimated valuation ... . In that regard, this Court has held that an appraisal report need not be stricken if the appraiser credibly testifies that the "report would not have differed" if the correct valuation date had been used ... . We explained that a six-month difference was a "minor deviation in valuation dates" that caused "no prejudice to [the] respondents . . . so as to warrant striking [the] report" ... . Here, petitioner's appraiser testified that the change in the valuation date did not result in a different final value. Petitioner's appraisal "report was supported by ascertainable and verifiable data" and, thus, "any questions regarding the propriety of [the] assessment would affect only the weight accorded to the appraisal by the court and did not undermine the validity of the entire appraisal" ... .


Similarly lacking in merit is respondents' argument that petitioner did not overcome the presumptive validity of the tax assessment. Inasmuch as "a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority" ..., a petitioner "[i]n an RPTL article 7 tax certiorari proceeding . . . challenging the accuracy of an assessment bears the initial burden of coming forward with substantial evidence that the property was overvalued by the assessor" ... . "Substantial evidence is a minimal threshold standard that simply 'requires that [a] petitioner demonstrate the existence of a valid and credible dispute regarding valuation . . .'" ... . A taxpayer most often meets this burden through submission of "a detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser" ... . Matter of Gran Dev LLC v Town of Davenport Bd of Assessors, 2015 NY Slip Op 00424, 3rd Dept 1-15-15





The Second of Two Ceremonial Marriages Is Presumed Valid/Property Owned by Persons Not Legally Married, But Who Are Described as Married in the Deed, Own the Property as Tenants In Common with Right of Survivorship Pursuant to the Estates, Powers and Trusts Law (EPTL)


The Second Department determined plaintiff's complaint was properly dismissed.  Decedent was plaintiff's mother by her mother's first marriage (in Haiti).  Plaintiff alleged that her mother's subsequent marriage to defendant (in the US) was void because her mother never divorced plaintiff's father. On that basis, plaintiff alleged that her mother and defendant owned real property as tenants in common, not tenants by the entirety, and therefore half of the property passed to her upon her mother's death.  The Second Department held that the second marriage was presumed valid and plaintiff did not rebut the presumption.  The court further noted that, even if decedent and defendant were not legally married, the property would have been owned as a joint tenants with right of survivorship, by virtue of Estates Powers and Trusts Law (EPTL) 6-2.2(d):


Where as here, there are two ceremonial marriages at issue, the second marriage is presumed valid, requiring proof from the challenger that the first marriage was not terminated ... .


The existence of a rebuttable presumption in favor of the defendant established his entitlement to judgment as a matter of law ... . In opposition, the plaintiff failed to raise a triable issue of fact.


Further, even if [plaintiff's mother] were not legally married to the defendant, the deed to the subject property nevertheless created a joint tenancy, with the right of survivorship ... . The deed to the subject property was executed in 1980. Accordingly, EPTL 6-2.2(d), as amended in 1975, governs ... . Pursuant to EPTL 6-2.2(d) "[a] disposition of real property . . . to persons who are not legally married to one another but who are described in the disposition as husband and wife creates in them a joint tenancy, unless expressly declared to be a tenancy in common." Joseph v Dieudonne, 2015 NY Slip OP 00338, 2nd Dept 1-14-15





Remainderman Was Entitled to the Tax and Insurance Payments Made on Behalf of the Holder of the Life Estate/Life Estate Should Have Been Extinguished as a Matter of Equity


Plaintiff is the remainderman of defendant's life estate in real property.  Defendant refused to pay the real estate taxes and insurance for the property.  Plaintiff paid the taxes and insurance and sued for those payments and to have the life estate extinguished. The Second Department determined Supreme Court should have granted summary judgment to the plaintiff:


"The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" ... . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered ... .


The plaintiffs established their prima facie entitlement to judgment as a matter of law on their first cause of action, which alleged unjust enrichment and sought restitution, and their second cause of action, which alleged waste and sought to extinguish the defendant's life estate. As life tenant, the defendant was obligated to pay the property taxes and hazard insurance on the subject property, and the intentional failure to do so constitutes waste ... . It is undisputed that the defendant intentionally failed to pay the property taxes and hazard insurance on the subject property, and he has clearly expressed his intention not to do so in the future. Under these circumstances, the remainder interest in the subject property is in constant danger of forfeiture in a tax lien sale, unless the plaintiffs continue paying the property taxes and hazard insurance premiums the defendant is otherwise obligated to pay. The plaintiffs therefore demonstrated, prima facie, that the defendant was unjustly enriched by the plaintiffs' payment of these expenses for the defendant, and that equity warrants extinguishing his life estate in the subject property. In opposition, the defendant failed to raise a triable issue of fact ... . Main Omni Realty Corp v Matus, 2015 NY Slip OP 00341, 2nd Dept 1-14-15




"Total Industrial Disability" Finding Affirmed---Partially Disabled Claimant Was Deemed Unable to Find Work Based Upon His Age, Education and Work History


The Third Department determined claimant, who had a marked permanent partial disability, was properly found to "totally industrially disabled" because his disability, coupled with his age, limited education and other factors, made it impossible for claimant to find work:


"A claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment" ... . Whether a claimant suffers from a total industrial disability is "a question of fact for the Board to resolve and its determination will not be disturbed if supported by substantial evidence" ... . Matter of Rose v Roundpoint Constr, 2015 NY Slip Op 00421, 3rd Dept 1-15-15




Claimant's PTSD Linked to 6-Day Stint at the Site of the Collapse of the World Trade Center


The Third Department affirmed the Worker's Compensation Board's findings that claimant's post-traumatic stress disorder (PTSD), for which claimant first sought treatment in 2010, was related to his 6-day stint at the site of the collapse of the World Trade Center in 2001.  The court explained the broad applicability of the relevant statutes (Workers' Compensation Law article 8-A) and the criteria for a full Board review (newly discovered evidence or a material change in condition):


At the World Trade Center site, claimant engaged in "perimeter containment" and "transports." He testified that he "help[ed] control who came and left the . . . site," escorted people to the site and brought them materials, equipment and personnel. Based on this evidence, the Board reasoned that claimant's activity constituted participation in World Trade Center rescue, recovery or cleanup operations pursuant to Workers' Compensation Law article 8-A. Generally, the Board requires that the "claimant directly participate in or otherwise have some tangible connection to the rescue, recovery or cleanup operations"...; its reasoning here is consistent with prior Board decisions addressing this issue ... . Claimant's uncontroverted testimony indicated that he supplied direct support and assistance to first responders engaged in rescue and recovery efforts at ground zero; thus, the Board's determination that Workers' Compensation Law article 8-A applies is supported by substantial evidence and will not be disturbed ... . Matter of Regan v City of Hornell Police Dept, 2015 NY Slip Op 00407, 3rd Dept 1-15-15





Courts Should Not Defer to Zoning Board of Appeals' Determination of a Purely Legal Question (the Meaning of a Town Code Provision)


The Third Department determined Supreme Court erred when it deferred to the zoning board of appeals' (ZBA's) interpretation of the town code (because the interpretation was a purely legal issue) and the ZBA erred in its interpretation of the code. The Third Department found that the word "dwelling" was encompassed by the word "building" and, therefore, the code provision at issue allowed the construction of 74 single family dwellings on petitioner's (Boni's) parcel:


Supreme Court erred in deferring to the ZBA's interpretation of the zoning ordinance, and the ZBA erred in its interpretation of the Town Code as it pertains to the Boni parcel. Although courts generally grant deference to a zoning board of appeals regarding its determination, no deference is required if the issue is one of pure legal interpretation of the zoning law ... . Because zoning ordinances are in derogation of common law, they must be strictly construed against the municipality that drafted them, and any ambiguity must be resolved in favor of property owners ... . The Boni parcel is located in a B-1 zoning district, which has 18 listed permitted uses, including one- and two-family dwellings (see Town Code of the Town of Clifton Park § 208-32 [A] [14]). Pursuant to § 208-33 (B) of the Town Code, in a B-1 district, "[n]o preexisting building(s) shall be rehabilitated or remodeled or new building(s) constructed on a vacant lot to a size greater than 12% of the lot size, with no single building to have a maximum square footage exceeding 4,800 square feet. Multiple buildings on a lot are allowed as long as the overall density limitations of this article are not exceeded."


Essentially, petitioners argue that the word "buildings" in the last sentence of § 208-33 (B) of the Town Code includes one-family dwellings, leading to the conclusion that the Town Code permits them to build multiple dwellings on the Boni parcel as long as they comply with the density limitations. * * *


We agree with respondents that respondent Town of Clifton Park probably never envisioned a landowner being able to build 74 one-family dwellings on a single, unsubdivided parcel in a business district. Nevertheless, the plain language of the Town Code, strictly construed against the municipality, must be interpreted as permitting multiple buildings — including one-family dwellings — on a single lot as long as they do not exceed the density limitations ... . Matter of Boni Enters LLC v Zoning Bd of Appeals of the Town of Clifton Park, 2015 NY Slip Op 00428, 3rd Dept 1-15-15



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