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January Page IV

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


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Town Willfully Violated Federal Employee-Safety Regulations Re: Working In Permit-Required Confined Spaces---A Town Employee and a Volunteer Fireman Died After Entering a 20-Foot-Deep Manhole


The Second Department confirmed the determination of the NYS Industrial Board of Appeals finding that petitioner-town had willfully violated provisions of the Code of Federal Regulations (CFR) concerning the safety of employees required or allowed to work in confined spaces.  Here a town worker and a volunteer fireman died of asphyxiation after entering a 20-foot-deep manhole:


"If [an] employer decides that its employees will not enter permit [-required confined] spaces, the employer shall take effective measures to prevent its employees from entering the permit spaces" and shall, inter alia, warn exposed employees of the existence and location of such spaces and the danger posed by them (29 CFR 1910.146[c][3]; see 29 CFR 1910.146[c][2]). Further, "[i]f the employer decides that its employees will enter permit spaces, the employer shall develop and implement a written permit space program that complies with [29 CFR 1910.146]" (29 CFR 1910.146[c][4]).


Here, the evidence established that the petitioner was aware of the requirements of the subject regulations. Although the petitioner allegedly restricted its DPW [Department of Public Works] employees from entering confined spaces, a practice existed in which its DPW employees entered such confined spaces. The evidence also showed that the petitioner did not implement a written permit space program for volunteer firefighters. In addition, the evidence demonstrated that the petitioner's management made little or no effort to communicate the requirements of the subject regulation to its lower level supervisors and employees. Thus, contrary to the petitioner's contention, substantial evidence existed in the record to support the IBA's determination that the petitioner willfully violated 29 CFR 1910.146(c)(3) and (4) ... . Matter of Village of Tarrytown v NYS Dept of Labor, 2015 NY Slip Op 00543, 2nd Dept 1-21-15






Twenty-Day Time-Limit for Making an Application to Stay Arbitration Starts When the Notice or Demand for Arbitration Is Received, Not When It Is Mailed/An Application for a Stay of Arbitration Is "Made" When It Is Filed/Appellate Court May Consider a Purely Legal Issue Raised for the First Time on Appeal


The First Department determined the twenty-day time-limit for an application to stay arbitration, when the notice or demand for arbitration is sent by mail, runs from the date the notice or demand is actually received.  The court further noted that it can rule on a purely legal question raised for the first time on appeal:


Even though CPLR 7503(c) says, "An application to stay arbitration must be made by the party served [with a notice or demand for arbitration] within twenty days after service upon him of the notice or demand" (emphasis added), case law establishes that, when the notice or demand is mailed — as it was in the case at bar — "[t]he notice to arbitrate does not start the time to respond until receipt"... . * * *


The issue of whether an application to stay arbitration is "made" (CPLR 7503[c]) when the petition is filed, as opposed to when it is served, is a purely legal one; hence, it "may properly be considered by this Court for the first time on appeal" ... . In fact, an application is made when the petition is filed ... . Matter of Travelers Prop Cas Co of Am v Archibald, 2015 NY Slip Op 00465, 1st Dept 1-20-15






Custody and Visitation Can Only Be Determined by a Court---Custody and Visitation Arbitration-Award Invalid/However Child Support Can Be the Subject of Arbitration


The Second Department determined Supreme Court should not have confirmed the arbitration award to the extent the award dealt with custody and visitation.  Custody and visitation can be addressed only in the courts.  However, Supreme Court properly confirmed the arbitrator's child support award, as there was no showing the award failed to comply with the Child Support Standards Act:


Although the parties consented to arbitration of custody and visitation matters, they had no power to do so. "Disputes concerning child custody and visitation are not subject to arbitration as the court's role as parens patriae must not be usurped'" ... . Accordingly, that branch of the petition which was to confirm the custody and visitation provisions of the arbitration award should have been denied, and the matter must be remitted to the Supreme Court, Kings County, for a hearing and determination as to the issues of custody and visitation ... .


An arbitration award concerning child support may be vacated on public policy grounds if it fails to comply with the Child Support Standards Act (Domestic Relations Law § 240[1-b]; hereinafter the CSSA) and is not in the best interests of the children ... . Here, the father failed to demonstrate that the award of child support was incompatible with the objectives of the CSSA and that it was not in the best interests of the children. Matter of Goldberg v Goldberg, 2015 NY Slip Op 00539, 2nd Dept 1-21-15






Criteria for Court Review of Disciplinary Actions Taken by a Private School


The Second Department determined Supreme Court properly dismissed the petition seeking reinstatement of a student who had been expelled from a private school (Adelphi) for academic dishonesty.  The Second Department explained the disciplinary procedures required of a private school and the courts' power to review the disciplinary actions taken by a private school:


"[P]rivate schools are afforded broad discretion in conducting their programs, including decisions involving the discipline, suspension and expulsion of their students" ... . Judicial review of the actions of a private school in disciplinary matters is limited to a determination as to whether the school acted arbitrarily and capriciously or whether it substantially complied with its own rules and regulations ... .


Here, Adelphi substantially complied with its own rules and regulations as set forth in its Code of Ethics in suspending and expelling the infant for acts of academic dishonesty. Adelphi was not required to hold hearings before its Disciplinary Committee before imposing discipline, and the petitioner's further challenges to the procedures taken are likewise without merit. Further, the determinations that the infant had committed acts of academic dishonesty which warranted suspension and expulsion were not arbitrary and capricious. "When a private school expels a student based on facts within its knowledge that justify the exercise of discretion', then a court may not review this decision and substitute its own judgment" ... . Matter of Khaykin v Adelphi Academy of Brooklyn, 2015 NY Slip Op 00540, 2nd Dept 1-21-15





Court Has the Discretion to Deny a Motion to Change Venue Where the Statutory Time-Limits for the Demand and Motion Are Not Met---Discretion Not Abused Here


The Second Department explained the rules associated with making a demand and motion for a change of venue.  If the demand and motion are not made within the statutory time-limits, granting the motion is a matter of discretion.  Denial of the motion was not an abuse of discretion here:


A demand to change venue based on the designation of an improper county (see CPLR 510[1]) "shall be served with the answer or before the answer is served" (CPLR 511[a]...). "Thereafter the defendant may move to change the place of trial within [15] days after service of the demand" (CPLR 511[b]). Since the appellants failed to serve a timely demand for a change of venue and failed to make a motion for that relief within the statutory time period, they were not entitled to a change of venue as of right, and their motion became one addressed to the court's discretion ... . Giddings v Century 21 Dept Stores LLC, 2015 NY Slip Op 00493, 2nd Dept 1-21-15




Time-Limit for Serving a Complaint Was Never Triggered Because the Summons with Notice Was Filed But Not Yet Served at the Time Defendants Served a Notice of Appearance and Demand for a Complaint


The Second Department reversed Supreme Court finding that the time-limit associated with a notice of appearance and a demand for a complaint was never triggered because the notice of appearance and demand for a complaint were made before defendants were served with the summons with notice (the summons with notice was filed but never served here):


The plaintiffs commenced this action by filing a summons with notice. It is undisputed that the summons with notice was never served on the defendants... . * * *


An action may be commenced "by filing a . . . summons with notice" (CPLR 304[a]...). "Service of the . . . summons with notice . . . shall be made within one hundred twenty days after the commencement of the action or proceeding" (CPLR 306-b...). "If the complaint is not served with the summons, the defendant may serve a written demand for the complaint" (CPLR 3012[b]). "Service of the complaint shall be made within twenty days after service of the demand" (id.). "If no demand is made, the complaint shall be served within twenty days after service of the notice of appearance" ... . "The court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision" ... .


As this Court has previously recognized, "[n]o provision is made for an appearance or a demand for a complaint before the summons is served" ... . A demand for a complaint pursuant to CPLR 3012(b) prior to service of the summons is premature and does not invoke the time limitations of CPLR 3012(b) ... .


Here, since the summons with notice had never been served, the notice of appearance and demand for a complaint was a nullity and the 20-day period within which the complaint had to be served pursuant to CPLR 3012(b) had not begun to run ... . Accordingly, the Supreme Court did not have the authority to dismiss the action for failure to timely serve a complaint pursuant to CPLR 3012(b) ... . Ryan v High Rock Dev LLC, 2015 NY Slip Op 00519, 2nd Dept 1-21-15






Discovery of Name and Address of Nonparty Patient Alleged to Have Witnessed Negligence or Malpractice Prohibited Because Such Disclosure Would Reveal Privileged Information Re: the Nonparty Patient's Diagnosis and Treatment (by Virtue of the Unit in Which the Nonparty Patient and Plaintiff's Decedent Were Housed)


The Second Department determined plaintiff was not entitled to the name of a psychiatric patient who was a roommate of plaintiff's decedent.  Generally, the name and address of a nonparty patient who is alleged to have observed negligence or malpractice are discoverable.  But CPLR 4505(a) prohibits revealing the nonparty patient's name and address when, as here, the information will reveal privileged information concerning the nonparty patient's diagnosis and treatment:


"As a general rule, disclosure of the name and address of a nonparty patient who may have been a witness to an alleged act of negligence or malpractice does not violate the patient's privilege of confidentiality of treatment" ... . However, where it is not possible to comply with a demand for the name and address of a patient without disclosing privileged information concerning diagnosis and treatment, discovery is prohibited pursuant to CPLR 4504(a) ... .


Contrary to the plaintiff's contention, the Supreme Court properly concluded that [*2]discovery of the decedent's hospital roommate's identifying information was prohibited under CPLR 4504(a). The decedent was housed in a unit of the [hospital] that was designated for patients ages 12 to 15 years old who suffered from certain psychiatric disorders. Since the roommate's location in that unit of the Holliswood Hospital would, by simple deduction, reveal her medical status, disclosure was prohibited ... . Kneisel v QPH Inc, 2015 NY Slip Op 00503, 2nd Dept 1-21-15






"Transacting Business" Criteria for Long-Arm Jurisdiction Met


The Second Department determined Supreme Court should not have granted the Connecticut defendant's motion to dismiss for lack of personal jurisdiction.  Defendant had transacted business in New York within the meaning of the long-arm statute:


Under New York's long-arm statute, "a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state" (CPLR 302[a]), regardless of whether that non-domiciliary has actually entered New York State ... . Whether a defendant has transacted business within New York is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has "purposefully avail[ed] itself of the privilege of conducting activities within [New York]" ... . "Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege[s] of conducting activities within the forum State, thus invoking the benefits and protections of its laws'" ... . Proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, as long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted ... .


Here, the complaint asserts that the defendant, through its agent, solicited the plaintiff's services while present in New York. The record indicates that the defendant's agent traveled to New York for three meetings with the plaintiff before the parties finalized their agreement, and that the defendant's agent subsequently traveled to New York in furtherance of the contract. Moreover, the parties engaged in numerous telephone and email communications regarding the contract. Under the totality of the circumstances, the defendant conducted sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of this action, so as to avail itself of the benefits and protections of New York's laws ... . Paradigm Mktg Consortium Inc v Yale New Haven Hospital Inc, 2015 NY Slip Op 00508, 2nd Dept 1-21-15






Supreme Court Should Not Have Ordered a Unified (Liability and Damages) Trial--Criteria Explained in Some Depth


The Second Department determined Supreme Court should not have granted plaintiff's motion for a unified trial on liability and damages because the plaintiff had not demonstrated that the nature of his injuries had an important bearing on the issue of liability. Plaintiff, who was driving a golf cart,  was injured when he allegedly swerved to avoid defendant's on-coming golf cart.  The court explained the relevant analytical criteria in some depth:


"In furtherance of convenience or to avoid prejudice [a] court . . . may order a separate trial of any claim, or of any separate issue" (CPLR 603). Furthermore, "[a] court may determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue" (CPLR 4011). These statutory provisions simply confirm that "the broad common-law powers of New York judges over conduct in their own courtrooms have been continued and have not been eliminated or impinged upon by any of the explicit CPLR provisions."... .


"Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action" (22 NYCRR 202.42[a]...). "As a general rule, questions of liability and damages in a negligence action represent distinct and severable issues which should be tried and determined separately" ... .


"The decision whether to conduct a bifurcated trial rests within the discretion of the trial court, and should not be disturbed absent an improvident exercise of discretion" (...see CPLR 603, 4011). Unified trials should only be held "where the nature of the injuries has an important bearing on the issue of liability" ... . However, even where a trial is bifurcated, some evidence of injuries may nevertheless be admitted, in the trial court's discretion, to establish liability at the liability phase of the trial, so long as such evidence is probative of liability and accompanied by "an appropriate limiting instruction" ... .


Accordingly, when exercising its discretion in deciding whether to conduct a unified trial or a bifurcated trial, a court should determine whether the nature of the alleged injuries is probative of the issue of liability and, furthermore, should also evaluate the relative importance of such evidence to the parties' dispute ... . In addition, the probative value of such evidence to the issue of liability and its centrality to the parties' dispute should be weighed against the degree to which the gravity of such injuries will likely engender sympathy for the plaintiff and thereby pose a risk of prejudice to the defendant ... . Patino v County of Nassau, 2015 NY Slip Op 00509, 2nd Dept 1-21-15





Defendant's Motion for a Judgment as a Matter of Law, Made Prior to the Close of Plaintiff's Case, Was Premature and Should Not Have Been Granted Irrespective of the Improbability of Plaintiff's Ultimate Success


The Second Department determined Supreme Court should not have granted defendant's motion for a judgment as a matter of law, which was made (and granted) before plaintiff had completed putting in his case.  Plaintiff fell from a ladder at a work site and alleged a violation of Labor Law 200 and common-law negligence:


Prior to the close of the plaintiff's case, the Supreme Court granted the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, concluding that there was no evidence of a dangerous condition at the work site. The Supreme Court thereafter entered judgment in favor of the defendants and against the plaintiff dismissing the complaint. ...


The Supreme Court should have denied the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. "A motion for judgment as a matter of law is to be made at the close of an opposing party's case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party's case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable" ... . Schultz v Hi-Tech Constr & Mgt Serv Inc, 2015 NY Slip OP 00521, 2nd Dept 1-21-15















Petitioners, Who Did Not Represent a Majority of the Elected Board of Directors, Did Not Have Standing the Seek Dissolution of the Corporation Under Business Corporation Law 1102/Criteria for Common-Law Dissolution Not Met


The Second Department determined Supreme Court correctly found that the petitioners did not have standing to seek dissolution of the corporation pursuant to Business Corporation Law 1102.  However, the Second Department found Supreme Court erred when it granted the petition under a common-law dissolution theory, a ground not raised by the parties and not applicable under the facts:


...[T]he Supreme Court properly determined that [petitioners] lacked standing to seek dissolution of Candlewood pursuant to Business Law § 1102, since they do not represent a majority of the corporation's duly elected board of directors ... . However, as the appellants correctly contend, the court should have dismissed the petition rather than grant the petition for dissolution on a ground that was not raised by the petitioners and was inapplicable to the circumstances. "[T]he remedy of common-law dissolution is available only to minority shareholders who accuse the majority shareholders and/or the corporate officers or directors of looting the corporation and violating their fiduciary duty" ... . The petitioners did not allege that a majority of shareholders, the directors, or the officers looted the corporation or breached a fiduciary duty to ... a minority shareholder. Matter of Candlewood Holdings Inc ..., 2015 NY Slip Op 00533, 2nd Dept 1-21-15






Failure to Warn Defendant His Guilty Plea Could Lead to Deportation, Prior to the Supreme Court's 2010 Decision in Padilla v Kentucky, Did Not Constitute Ineffective Assistance of Counsel


The Second Department determined that the failure to notify the defendant prior his guilty plea (in 2000) could be the basis of deportation proceedings did not constitute ineffective of counsel:


On March 31, 2010, the United States Supreme Court held in Padilla v Kentucky (559 US 356) that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. However, Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided ... . Without the benefit of the Padilla rule, the alleged failure of the defendant's attorney to properly advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under the United States or New York Constitutions. At the time that the defendant entered his plea of guilty in 2000, defense counsel's performance was governed by the rule that "the failure of [defense] counsel to warn [a] defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel" ... . People v Taylor, 2015 NY Slip Op 00563, 2nd Dept 1-21-15





Conviction Reversed Because Court Failed to Inquire About the Reasons for Defendant's Request for Substitution of Counsel After Trial Began


The Second Department, over a dissent, reversed defendant's conviction because the trial judge did not take any steps to determine the reasons for defendant's request for new counsel after the trial had started:


Defendant is entitled to a new trial because the court improperly denied his request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary ... . At the beginning of the fourth day of trial, defendant asked to speak to the court. In denying his request, the court clearly assumed that he wanted to make a statement pertaining to his defense, even after defendant indicated that the subject matter was "my attorney and advice" and that the attorney was not "doing his proper work." Defendant then asked to hand up papers that defense counsel immediately identified as "a notice of motion for reassignment of counsel," but the court refused to look at the papers, and stated, "I will not reassign counsel. The motion is denied."


...In People v Sides (75 NY2d 822 [1990]), for instance, the trial court was found to have erred in failing to ask "even a single question" about the nature of the disagreement after both the defendant and his counsel spoke of a breakdown in communications and trust ... . Here, the court did not even learn the nature of the disagreement, let alone ask any questions about it. While not all requests for new counsel contain the specific factual allegations to show that the complaints and request are "serious," which then triggers the court's obligation to make a "minimal inquiry" into the nature of the disagreement and its potential for resolution ..., here defendant was not given an opportunity to make any allegations. This is not a situation where a defendant rested on unelaborated claims; the court expressly declined to listen to defendant or read his submissions ... . People v McCummings, 2015 NY Slip Op 00610, 1st Dept 1-22-15





Error for Prosecutor to Imply that Communicating with an Attorney Manifests a Consciousness of Guilt (Error Deemed Harmless Here)


The Second department noted that the prosecutor's comment implying that communicating with an attorney manifests a consciousness of guilt was error:


In response to evidence proffered by the People that the defendant relocated to a motel after the subject shooting, the defendant called as a witness an attorney whom she had retained after the shooting. To rebut the People's theory that the relocation indicated a consciousness of guilt, the defendant elicited testimony from that attorney that the defendant intended to surrender to the police, but that the police arrested her before she was able to do so. During summation, the prosecutor posed the rhetorical question: "[I]f you didn't do anything and you don't know that detectives are looking for you in respect to a shooting, why did you get an attorney?" The defendant correctly contends that this comment was improper, since the defendant's retention of an attorney was not probative of her consciousness of guilt ... . Nevertheless, contrary to the defendant's contention, under the circumstances of this case, the error did not deprive the defendant of a fair trial and otherwise does not require reversal ... . People v Credle, 2015 NY Slip Op 00548, 2nd Dept 1-21-15




No Foundation Provided for Use of a Notarized Statement for Impeachment (As a Prior Inconsistent Statement)


The Second Department determined the trial court had properly prohibited the defense from cross-examining a complaining witness about a notarized statement the witness denied signing.  The court explained the foundation-requirements for admitting a prior inconsistent statement:


The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. "[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement" ... . "If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial" ... . Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, "the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence'" ... . People v Haywood, 2015 NY Slip Op 00555, 2nd Dept 1-21-15





Conviction Reversed---Court Denied For Cause Challenge to Biased Juror Without Eliciting an Unequivocal Assurance the Juror Will Be Impartial


The Second Department reversed defendant's conviction because an admittedly biased juror was not eliminated after defendant's "for cause" challenge.  (Defendant exhausted his peremptory challenges.):


When a question is raised regarding a prospective juror's ability to render an impartial verdict, the prospective juror must expressly state in unequivocal terms that "his prior state of mind concerning either the case or either of the parties will not influence his verdict, and he must also state that he will render an impartial verdict based solely on the evidence" ... . In considering whether such statements are unequivocal, the juror's testimony must be taken as a whole, and where there remains any doubt, the prospective juror should be discharged for cause ... . Thus, when a potential juror states that he or she questions or doubts that he or she can be fair in the case, the trial judge should either elicit some unequivocal assurance of the juror's ability to be impartial or excuse the juror ... .


Here, as the prospective juror stated that she could not believe that police officers would get on the witness stand and lie about a person selling drugs, the court erred in denying the defendant's challenge for cause without first eliciting some unequivocal assurance of the juror's ability to be impartial ... . People v Harris, 2015 NY Slip Op 00554, 2nd Dept 1-21-15





Criteria for Restarting the Statute of Limitations by Acknowledging a Debt Explained (Criteria Not Met Here)


Although the criteria was not met here. the Second Department explained when a writing will restart the statutory limitations period for collecting on a debt:


General Obligations Law § 17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt" ... . "To constitute an acknowledgment of a debt, a writing must recognize an existing debt and contain nothing inconsistent with an intention on the part of the debtor to pay it" ... . Mosab Constr Corp v Prospect Park Yeshiva Inc, 2015 NY Slip Op 00505, 2nd Dept 1-21-15




One Incident Where Young Children Were Left Alone Overnight Not Enough to Support a Neglect Finding/No Showing of Imminent, as Opposed to Merely Possible, Danger of Impairment to the Children


The Third Department reversed Family Court and determined a single incident of mother's leaving young children (9 and 3) home alone overnight was not enough to support a neglect finding.  The court explained the proof requirements in some depth:


To satisfy its burden on the neglect petition, petitioner had to prove by a preponderance of the evidence that respondent's failure "to exercise a minimum degree of care" in providing proper supervision or guardianship resulted in the children's "physical, mental or emotional condition" being impaired or placed "in imminent danger of becoming impaired" (Family Ct Act § 1012 [f] [i]; see Family Ct Act § 1046 [b] [i]...). There are two prongs: actual or imminent danger, and failure to exercise a minimum degree of care ... . The Legislature's requirement of actual or imminent danger of impairment prevents state intrusion into private family life in the absence of "serious harm or potential harm to the child, not just . . . what might be deemed undesirable parental behavior" ... . "Imminent danger, however, must be near or impending, not merely possible" ... . * * *


...[T]he record does not indicate that petitioner established the first prong, that the three youngest children were in imminent danger of impairment, when respondent left them alone overnight. One police officer testified that the children were visibly upset when he first arrived at the house. That testimony is too vague to establish impairment of mental or emotional condition, and the record does not contain any expert opinion to that effect ... . Even if that testimony was sufficient to show some impairment, it is unclear if the children were upset because of respondent's actions in leaving them alone ... . Leaving young children home alone overnight cannot be condoned, and such behavior satisfies the second prong of neglect in that respondent failed to exercise a minimum degree of care, did not provide proper supervision and her actions fell below what a reasonable and prudent parent would do in those circumstances. Nevertheless, one incident of this improper and irresponsible behavior does not qualify as neglect without a showing of imminent---rather than merely possible---danger of impairment to the children ... . Matter of Javan W, 2015 NY Slip Op 00577, 3rd Dept 1-22-15





"Warranty" Need Not Be Set Forth In Any Special Manner---Here the Language on the Declaration Page that "Warranted" a Fire Alarm Will Be "Fully Operational" Was a Valid Condition Precedent to the Insured's Liability---Summary Judgment In Favor of Insurer Properly Granted


The Second Department determined the language on the declaration page of a fire insurance policy constituted a "warranty" that the fire alarm will be "fully operational," meaning that the alarm must be activated at the time of the fire or coverage can be disclaimed The alarm was not activated at the time of the fire and defendant's motion for summary judgment was therefore properly granted:


Insurance Law § 3106(a) provides:


"In this section warranty means any provision of an insurance contract which has the effect of requiring, as a condition precedent of the taking effect of such contract or as a condition precedent of the insurer's liability thereunder, the existence of a fact which tends to diminish, or the non-existence of a fact which tends to increase, the risk of the occurrence of any loss, damage, or injury within the coverage of the contract" (Insurance Law § 3106[a] [emphasis added]).


"As a general matter, warranties represent a promise by the insured to do or not to do some thing that the insurer considers significant to its risk of liability under an insurance contract" ... . Here, the provision in the "special conditions" section of the declaration page which states "[w]arranted . . . burglar alarm[] will be [f]ully operational throughout the period of the policy" meets the definition of a warranty pursuant to the Insurance Law, since requiring the plaintiff to have a fully operational burglar alarm would be significant to the defendant's risk of liability under the insurance policy. Contrary to the plaintiff's contention, there is no requirement that the warranty be set forth in any particular manner, as long as its effect is to create a condition precedent to the insurer's liability. Indeed, the use of the term "warranted" at the beginning of the subject provision establishes that the provision was a warranty as defined by the Insurance Law ... . Triple Diamond Cafe Inc v Those Certain Underwriters at Lloyd's London, 2015 NY Slip Op 00527, 2nd Dept 1-21-15






The Meaning of "Manifest Intent" in the Context of a Fidelity Bond Insuring the Employer Against Dishonest Acts by an Employee Explained


The First Department explained what the term "manifest intent" means as the term appeared in a fidelity bond which insured the employer from dishonest acts by an employee. The coverage was triggered only when the employee acted with the "manifest intent" to cause the insured to sustain loss or to obtain financial benefit for the employee or a third party:


Manifest intent involves a continuum of conduct, ranging from embezzlement, where the employee necessarily intends to cause the employer the loss, to the other end of the continuum, which does not trigger fidelity coverage, where "the employee's dishonesty at the expense of a third party is intended to benefit the employer, since the employee's gain results from the employer's gain"... .


Manifest intent to injure an employer exists as a matter of law where an employee acts with substantial certainty that his employer will ultimately bear the loss occasioned by his dishonesty and misconduct... . Keybank Natl Assn v National Union Fire Ins Co of Pittsburgh PA, 2015 NY Slip Op 00614, 1st Dept 1-22-15






Safety Regulation Asserted to Be the Basis of the Labor Law 241 (6) Cause of Action Did Not Apply to the Defect Which Caused the Injury


The Third Department determined plaintiff's injury from his use of a utility knife did not entitle him to recovery pursuant to Labor Law 241 (6).  The safety regulation alleged to have been violated prohibited a contractor from supplying tools with split or loose handles.  The problem with the utility knife was a loose locking mechanism.  The court refused to stretch the meaning of "loose or split handles" to include a loose locking mechanism:


Plaintiffs allege in their bill of particulars that defendant violated 12 NYCRR 23-1.10 (a), which states, in pertinent part, that unpowered hand tools with "[s]plit or loose tool handles shall not be used." Notably, this regulatory provision does not merely impose a general duty to keep unpowered hand tools in a "safe," "proper" or "adequate" condition ..., nor does it proscribe the usage of hand tools with "unsafe" or "defective" handles, but, rather, specifically prohibits the use of hand tools with "[s]plit or loose . . . handles."


Having determined that plaintiffs have asserted a violation of a regulatory provision that "'sets forth a specific standard of conduct'" for general contractors and owners ..., thereby providing a predicate basis for a claim under Labor Law § 241 (6), we are left to decide whether the regulation applies to the facts presented in this case [FN2]. Plaintiff explained during his examination before trial that, while he was cutting a piece of plastic with a utility knife, the locking mechanism that secures the retractable blade was loose, causing the blade to break in half and cut plaintiff's wrist. Whether the dysfunctional locking mechanism can fairly be considered to be a "[s]plit or loose tool handle[]" is a question of law to be decided by the courts ... . A fair reading of the regulation upon which plaintiffs rely, however, does not compel us to conclude that the looseness of the locking mechanism — an internal component of the knife and not a visible or functional part of the handle itself — was what the Commissioner of Labor had contemplated in his promulgation of 12 NYCRR 23-1.10 (a) ... . We are well aware that the Industrial Code "should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace" ... . However, while the regulation sets forth a strict prohibition against using tools that have loose or split handles, it makes no mention whatsoever of the locking mechanism found within a hand tool, and we are thus constrained to determine that it is inapplicable. Boots v Bette & Cring LLC, 2015 NY Slip Op 00588, 3rd Dept 1-22-15





Annexation of Petitioners' Land (Located in the Town) by the City Deemed in the Overall Public Interest


The Third Department determined the city's annexation of petitioners' land, located in the adjoining town, was in the overall public interest:


A municipality seeking annexation pursuant to General Municipal Law article 17 "has the burden of proving that annexation is in the overall public interest" (...see NY Const, art IX, § 1 [d]; General Municipal Law § 712 [10]). Factors to be considered include "the benefit or detriment to the annexing municipality, the territory proposed to be annexed, and the remaining governmental unit from which the territory would be taken" ... . "'Benefit and detriment are customarily defined in terms of municipal services such as police and fire protection, health regulations, sewer and water service, public utilities and public education'" ... . "Another factor entering into the balance is whether the annexing municipality and the territory proposed to be annexed have the requisite unity of purpose and facilities to constitute a community" ... . 


Here, petitioners established that the lack of municipal water and sewer services in the Town are a major impediment to the development of the property. Mauro testified that he has marketed the property for three years, but potential developers are not interested in it because it lacks access to these services. The services would, however, be available if the property were to be annexed to the City. * * *


The City also established that it provides professional fire and police protection that is better trained and more readily available than the emergency protection services available in the Town. The City bears the expense of full-time, fully-equipped police and fire departments covering a smaller geographic area, while the Town relies on the County Sheriff and volunteer fire departments. As a result, the City's fire insurance rating is considerably better than that of the Town. Further, any development that occurs in the City will generate more tax revenue to defray the burden on the City's taxpayers of the expense of maintaining professional police and fire departments, based on the City's higher tax rate of $21.41 per thousand. For its part, the Town will lose only the minimal annual tax revenue of $51.06, based upon its 2013 tax rate of $1.36 per thousand. Although the Town argues against annexation based on the potential loss of taxes should the parcel be developed, "ordinarily expected adverse tax consequence[s] . . . [are] generally insufficient to defeat an annexation which is otherwise in the over-all public interest"... . Matter of City of Gloversville v Town of Johnston, 2015 NY Slip Op 00575, 3rd Dept 1-22-15





Marching Band Director Did Not Assume the Risk of Injury Caused by a Defect in the Roadway


The Second Department determined the doctrine of primary assumption of risk was not available where the plaintiff, the music director of a marching band, was injured by a defect in the roadway where the band was marching.  The court noted that extending the assumption of risk doctrine to persons using streets or sidewalks would constitute an unwarranted diminution of the duty to keep sidewalks and streets reasonably safe:


The doctrine of primary assumption of the risk is inapplicable in this case. It cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County ... . "[E]xtension of the doctrine [of primary assumption of the risk] to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of landowners--—both public and private--—to maintain their premises in a reasonably safe condition" ... . Behr v County of Nassau, 2015 NY Slip Op 00485, 2nd Dept 1-21-15






Question of Fact Whether Licensed Driver Properly Supervised Young Driver with a Learner's Permit


In an automobile collision case, the Second Department determined defendant's motion for summary judgment was properly denied because a question of fact had been raised about whether defendant properly supervised the young driver who held a learner's permit. The court explained the relevant law:


The learner-driver with a permit "may only operate a motor vehicle while under the immediate supervision and control of a duly licensed driver" (...see Vehicle and Traffic Law § 502[5][a][ii]). A licensed driver "is under a duty to use general or reasonable care in the instruction and supervision of the learner-driver" ..., and also must "take necessary measures to prevent negligence on the part of the driver with the learner's permit" ... . Mejia v Kennedy, 2015 NY Slip Op 00504, 2nd Dept 1-21-15





Question of Fact Whether Out-of-Possession Landlord Created the Dangerous Condition Which Caused Gas Escaping from a Propane Tank to Ignite/Question of Fact Whether the Injured Employee's Negligent Act (the Employee, Against the Direction of His Supervisor, Brought a Partially-Filled Propane Tank Inside the Building) Was Foreseeable


The Third Department determined a question of fact had been raised about the out-of-possession landlord's liability for an accident which ignited gas from a propane tank.  The landlord had converted the building where the accident occurred for the operation of a propane tank refinishing business.  The business was continued by the tenant.  An expert concluded that there were several ignition sources within the building, installed by the landlord, which could have ignited the gas.  Therefore, there was a question of fact whether the out-of-possession landlord had created the dangerous condition.  In response to the argument that the negligence of injured employee (who brought a propane tank which still had gas in it into the building) was the sole proximate cause of the accident, the Third Department determined there was a question of fact about whether bringing such a partially filled tank inside the building (something employees were directed not to do) was foreseeable:


... [I]t is well established that, generally, "once possession has been transferred to a tenant, an out-of-possession landlord will not be held responsible for dangerous conditions existing upon leased premises" ... . Exceptions to the general rule do exist, including situations where the landlord retains control over the leased premises, has agreed to repair or maintain the premises or "has affirmatively created the dangerous condition" ... .


... [Landlord and tenant-employer] assert that the reckless conduct of [tenant's] employees was the sole proximate cause of the explosion and that defendant cannot be held liable to plaintiffs merely because it allegedly furnished the condition that allowed for the accident. In order to sever the causal connection in this matter, it must be demonstrated that the employees' actions were "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from ... defendant's conduct" ... . Certainly, the act of the [tenant's] new employee of bringing a tank that was not marked as empty into the building --against the direct instructions of his supervisor--was negligent. Nonetheless, defendant and third-party defendant have failed to show that such conduct was unforeseeable, thereby "sever[ing] any causal link between [defendant's] negligence and [decedent's] injuries" ... . Miller v Genoa AG Ctr Inc, 2015 NY Slip Op 00586, 3rd Dept 1-22-15






Pulling Into Traffic Without Activating Lights and Siren Did Not Constitute Reckless Disregard for the Safety of Others


The Third Department determined the vehicle accident was not the result of "reckless disregard for the safety of others" (vehicle and Traffic Law 1104) on the part of a police officer responding to an emergency.  Apparently the officer (Derkowski) had just began a pursuit and was pulling into traffic without his lights or siren activated when the collision occurred:


Derkowski intended to pursue a fleeing suspect in his patrol car, a pursuit that gained additional urgency when he spotted the suspect driving north on Lafayette Street (cf. Muniz v City of Schenectady, 38 AD3d at 991). Prior to turning onto the street in order to follow the suspect, Derkowski looked in both directions to ensure that no traffic was coming. His view of the southbound lane was obscured, however, by several illegally parked vehicles. Derkowski then turned left onto the street and collided with plaintiff. Derkowski did not activate his emergency lights or siren prior to turning, and plaintiff testified that it did not appear that Derkowski had his headlights on. Inasmuch as the pursuit had just commenced and Derkowski checked for oncoming traffic before turning, his failure to have lights and sirens on constituted nothing more than "a momentary lapse in judgment not rising to the level of 'reckless disregard for the safety of others'" ... . Rouse-Harris v City of Schenectady Police Dept, 2015 NY Slip Op 00591, 3rd Dept 1-22-15






Inference of Defendant's Negligence Was Not "Inescapable"---Summary Judgment Should Not Have Been Granted to Plaintiff Pursuant to the Doctrine of Res Ipsa Loquitur


The Second Department reversed Supreme Court's grant of summary judgment to the plaintiff based upon the doctrine of res ipsa loquitur.  Plaintiff was struck by a box which fell from a shelf in a retail store.  The evidence submitted by the plaintiff did not make the inference of defendant's negligence "inescapable:"


"The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident" ... . Since "the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent . . . res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment . . . even if the plaintiff's circumstantial evidence is unrefuted" ... . "[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment" ... . "That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" ... .


Here, the plaintiffs' submissions on the issue of res ipsa loquitur were insufficient to establish, prima facie, their entitlement to judgment as a matter of law on the issue of liability. The plaintiffs did not establish, by sufficiently convincing circumstantial proof, "that the inference of defendant's negligence is inescapable" ... . Hoeberlein v Bed Bath & Beyond, 2015 NY Slip Op 00497, 2nd Dept 1-21-15






Defendants Not Liable for Assault by a Contractor-Security Guard---No Showing Defendants Were Aware of Security Guard's Propensity for Violence---Security Guard's Actions Were Outside the Scope of Employment


The Second Department reversed Supreme Court finding that summary judgment should have been granted to defendants (a residential facility for the elderly/disabled and a related management company) in an action stemming from an assault by a contractor/security guard.  The evidence did not demonstrate defendants knew or should have known of the contractor's propensity for violence and the contractor had acted outside the scope of employment:


"[A] party may be held liable for a contractor's negligence under theories of negligent hiring, negligent retention, and negligent supervision" ... . To hold a party liable under theories of negligent retention and negligent supervision, "a plaintiff must establish that the party knew or should have known of the contractor's propensity for the conduct which caused the injury" ... . Here, the appellants demonstrated, prima facie, that they did not know or have reason to know of Lewis's alleged propensity for violence... . The appellants also demonstrated, prima facie, that they were not vicariously liable for the conduct of Lewis under the doctrine of respondeat superior, since Lewis's alleged acts were not part of his job and were not incidental to the furtherance of the appellants' business ... . Robert v BHAP Hous Dev Fund Co, 2015 NY Slip Op 00520, 2nd Dept 1-21-15




Criteria for a "Special Exception Permit" (Versus a "Variance") Explained


The Second Department, in upholding the zoning board's denial of a special exception permit and a variance, explained the criteria for a special exception permit:


"Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right" ... . Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance ... . The owner must show compliance with legislatively imposed conditions pertaining to the intended use before a special exception permit may be granted ... . The denial of a special exception permit must be supported by evidence in the record and may not be based solely upon community objection ... . However, where such evidence exists, deference must be given to the discretion of the board authorized to rule upon the application. A court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record ... .


Here, the Board's determination that the petitioner failed to establish compliance with the legislatively imposed conditions for issuance of the requested special exceptions was supported by evidence in the record, and was not affected by an error of law, was not arbitrary and capricious, was not an abuse of discretion, and was not irrational... . Matter of M & V 99 Franklin Realty Corp v Weiss, 2015 NY Slip Op 00541, 2nd Dept 1-21-15




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