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July Page I

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


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Grossly Negligent and Reckless Driving Did Not Support Conviction for Depraved Indifference Murder


The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that the actions of the defendant, who killed a pedestrian during a police chase, did not meet the criteria for depraved indifference murder.  Although the defendant drove in a grossly negligent and reckless manner, there was evidence he took measures to avoid injuries to others and therefore was not indifferent to the effects of his actions:


A person is guilty of depraved indifference murder when, "[u]nder circumstances evincing a depraved indifference to human life [such person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). Depraved indifference is a culpable mental state which "is best understood as an utter disregard for the value of human life" ... . Thus, "a depraved and utterly indifferent actor is someone who does not care if another is injured or killed" (id. [internal quotation marks and citation omitted]). Due to the wanton nature of this mens rea, "depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder" ... .


A defendant who knowingly pursues risky behavior that endangers others does not necessarily evince depraved indifference by engaging in that conduct. As we have explained, "[a] person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out" ... . "The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created" ... . In short, the mens rea of depraved indifference will rarely be established by risky behavior alone. People v Maldonado, 2014 NY Slip Op 04878, Ct App 7-1-14





Albany County Cyberbullying Criminal Statute Overly Broad


The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined that a statute passed by the Albany County Legislature, aimed at criminalizing cyberbullying, was too vague and broad to survive strict scrutiny under the First Amendment:


Based on the text of the statute at issue, it is evident that Albany County "create[d] a criminal prohibition of alarming breadth"... . The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children ... . As written, the Albany County law in its broadest sense criminalizes "any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person." On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children. The county law also lists particular examples of covered communications, such as "posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail." But such methods of expression are not limited to instances of cyberbullying — the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to "harass, annoy . . . taunt . . . [or] humiliate" any person or entity, not just those that are intended to "threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on" a child. In considering the facial implications, it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.  People v Marquan M, 2014 NY Slip Op 04881, Ct App 7-1-14





Reversible Error to Give a Modified Malpractice Jury Instruction in a Negligent/Defective Design Case


The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, reversed a $10 million judgment against Volvo, finding that one of the jury instructions, which was a modified version of the jury instruction for a malpractice case, should not have been given.  The plaintiff lost a leg when the ignition of the manual transmission car was switched on and the car lurched forward, pinning the plaintiff.  A central issue in the trial was whether the car should have been equipped with a device which would have prevented the car from starting when it was in gear.  In addition to the jury instruction issue, the court discussed the redundancy of instructions for negligent design and defective design, the appeal as of right and by permission pursuant to CPLR 5601 and 5602, and the inconsistency of the verdict.  With respect to the malpractice jury instruction, the court wrote:


[PJI 2:15] should not have been given in this case. It was designed for malpractice cases. As the Committee on Pattern Jury Instructions says: "The principle stated in the pattern charge is the underlying basis of malpractice actions" (1A NY PJI3d 2:15 at 259 [2014]). The Committee goes on to say that "[t]he principle extends to skilled trades and to professions not generally thought of in connection with malpractice" (id.), but we know of no basis for including automobile manufacturers in that category. This is not a malpractice case, but a negligent design or (what amounts to the same thing) a design defect case.


PJI 2:15 is reserved for malpractice cases because the standards of care applicable to malpractice cases and to other negligence cases are different. In a malpractice case against, for example, a doctor or a lawyer, the defendant is generally held to the level of skill and care used by others in the community who practice the same profession ... . In negligence cases generally, by contrast, the jury must compare the defendant's conduct to that of a reasonable person under like circumstances (Restatement [Second] of Torts § 283...). In negligent design/design defect cases, the reasonable-person standard has been given more specific form: the question is whether the product is one as to which "if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner" ... .  Reis v Volvo Cars of N Am, 2014 NY Slip Op 04880, Ct App 7-1-14





Unearned Hourly Fees and Contingency Fees Are Not the Property of a Dissolved Law Partnership


The Court of Appeals, in a full-fledged opinion by Judge Read, determined that unearned hourly fees and contingency fees are not the property of a dissolved law firm such that a bankruptcy trustee can reach them on behalf of creditors:


In New York, clients have always enjoyed the "unqualified right to terminate the attorney-client relationship at any time" without any obligation other than to compensate the attorney for "the fair and reasonable value of the completed services" ... . In short, no law firm has a property interest in future hourly legal fees because they are "too contingent in nature and speculative to create a present or future property interest" ..., given the client's unfettered right to hire and fire counsel. Because client matters are not partnership property, the trustees' reliance on Partnership Law § 4 (4) is misplaced. 


... New York courts have never suggested that a law firm owns anything with respect to a client matter other than yet-unpaid compensation for legal services already provided. Appellate Division decisions dealing with unfinished business claims in the context of contingency fee arrangements uniformly conclude that the dissolved partnership is entitled only to the "value" of its services... . Matter of In re: Thelen LLP, 2014 NY Slip Op 04879, Ct App 7-1-14







Termination of Teacher for Failure to Control Special-Education Class to Which He Was Assigned After an Unblemished 18-Year Career Shocked the Court's Sense of Fairness


The First Department, over a two-justice dissent, determined that the termination of a teacher shocked the court's sense of fairness. The teacher had an unblemished 18-year record before being assigned to a special-education class.  Although the court agreed that the teacher's inability to control the class had been demonstrated, the punishment was deemed too severe:


While we do not dispute the specific findings of the Hearing Officer concerning petitioner's deficiencies in the management of this one special education class, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness ... . Matter of Russo v New York City Department of Educ, 2014 NY Slip Op 05032, 1st Dept 7-3-14





Adirondack Park Agency Properly Approved the Construction of a Resort Within the Confines of the Park


In a full-fledged opinion by Justice Rose, the Third Department determined the Adirondack Park Agency (APA) properly approved the construction of a club and resort project which will include a ski area, an inn, single family residences, camps and a marina.  The court went through each of the required findings and found them supported by substantial evidence.  The court explained its review role as follows:


Judicial review of the APA's determination, made after a hearing at which evidence was taken pursuant to law, is limited to whether the decision is supported by substantial evidence (see CPLR 7803 [4]...). Substantial evidence does not require overwhelming evidence or even a preponderance of the evidence ... . Rather, all that is required is "'relevant proof [that] a reasonable mind may accept as adequate to support a conclusion or ultimate fact'" ... . Additionally, "[t]he fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination" ... .


To the extent that petitioners argue that the APA's determination was affected by errors of law (see CPLR 7803 [3]), this Court's "review of these arguments, made in a CPLR article 78 proceeding following a hearing, is limited to whether the [APA] exceeded its authority, violated a controlling law or otherwise acted in an arbitrary and capricious manner" ... . Matter of Protect the Adirondacks! Inc v Adirondack Park Agency, 2014 NY Slip Op 04992, 3rd Dept 7-3-14





Two Asbestos Cases Properly Consolidated


The First Department, in a full-fledged opinion by Justice Mazzarelli, over a two-justice dissent, determined Supreme Court properly consolidated two cases alleging injury related to asbestos exposure.  One case involved a worker injured by asbestos dust from drywall sanding at a construction site.  The other involved a navy boiler technician who maintained steam valves containing asbestos.  The court determined that the cases had more commonality than differences:


Consolidation of cases is authorized by CPLR 602(a), which provides:


"When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."


As the statutory language suggests, joining cases together is designed to "reduce the cost of litigation, make more economical use of the trial court's time, and speed the disposition of cases" ... . Further, "[g]reat deference is to be accorded to the motion court's discretion" in joining cases together ... .


Malcolm v National Gypsum Co. (995 F2d 346 [2d Cir 1993]) is the seminal case concerning consolidation in asbestos cases. There, the Second Circuit endorsed "[a standard set of] criteria . . . as a guideline in determining whether to consolidate asbestos exposure cases[, including]: (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged" ... .


The court entertaining a consolidation motion is further required to take into consideration the number of separate cases (id. at 352). This Court has applied the Malcolm factors to asbestos cases ... . Not all of the factors need be present; consolidation is appropriate so long as "individual issues do not predominate over the common questions of law and fact" (id.). However, in asbestos cases, it has been "routine" to join cases together for a single trial ... . Matter of New York City Asbestos Litig, 2014 NY Slip Op 05054, 1st Dept 7-3-14






Cause of Action Accruing Outside New York Brought by a Nonresident Deemed Untimely---Relevant Law Explained


In finding an action brought by a nonresident based upon a cause of action which accrued outside New York untimely, the Second Department explained the applicable law:


" [W]hen a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation periods of both New York and the jurisdiction where the cause of action accrued'" ... . When borrowing the foreign jurisdiction's statute of limitations, its tolling provisions are also borrowed ... .


Here, it is undisputed that the applicable limitations period is three years under either New York law or Kazakh law (see CPLR 214[2]; Kazakh Civil Code Article 178). In general, "the applicable Statute of Limitations is triggered once a cause of action accrues" ... . "A cause of action accrues, for the purpose of measuring the period of limitations, when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court'" .... An action to recover for a liability created or imposed by statute must be instituted "according to the language of the statute generating the liability" ... . Grynberg v Giffen, 2014 NY Slip Op 04901, 2nd Dept 7-2-14





Capacity to Sue Does Not Go to the Jurisdiction of the Court---Court Can Not Dismiss a Complaint Sua Sponte On that Ground---Capacity to Sue Must Be Raised as a Defense in the Answer or in a Pre-Answer Motion


The Third Department determined Supreme Court did not have the authority to dismiss a complaint sua sponte based upon the plaintiff's capacity to sue.  The capacity to sue is not jurisdictional and must be raised as a defense:


"The issue of lack of capacity to sue does not go to the jurisdiction of the court . . . . Rather, lack of capacity to sue is a ground for dismissal which must be raised by [pre-answer] motion [or in the answer] and is otherwise waived" ... . Here, plaintiff's capacity to sue was not raised by pre-answer motion or in defendant's answer. Consequently, Supreme Court erred in raising the issue sua sponte and dismissing the complaint on that basis (see CPLR 3211 [e]). As such, the order must be reversed and the complaint reinstated. Town of Delhi v Telian, 2014 NY Slip Op 05008, 3rd Dept 7-3-14




Plaintiff Sufficiently Demonstrated the Possibility of Long-Arm Jurisdiction to Warrant Discovery


The Third Department determined Supreme Court should not have dismissed an attorney's suit for fees on lack-of-personal-jurisdiction grounds. The underlying action was brought by a New York resident (Swanson) injured in Massachusetts.  In explaining the general principles of long-arm jurisdiction, the court noted that some discovery may be necessary to determine the jurisdiction issue:


New York courts "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] [1]). Inasmuch as CPLR 302 (a) (1) is a "single act statute . . . proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" ... . With respect to the requirement of a substantial relationship, "the existence of some articulable nexus between the business transacted and the cause of action sued upon" is "[e]ssential to the maintenance of a suit against a non-domiciliary under CPLR 302 [(a) (1)]" ... . Although plaintiff bears the burden of proof as the party seeking to assert jurisdiction, that burden "does not entail making a prima facie showing of personal jurisdiction; rather, plaintiff need only demonstrate that it made a 'sufficient start' to warrant further discovery" ... . In that regard, we note that the issue of whether long-arm jurisdiction exists often presents complex questions; "[d]iscovery is, therefore, desirable, [*3]indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits" ... .


In our view, plaintiff has made a "sufficient start" and demonstrated that additional facts establishing personal jurisdiction "may exist" but are within defendants' exclusive control ... . Specifically, plaintiff raised questions of fact regarding whether defendants interjected themselves into Swanson's New York workers' compensation proceeding, ultimately negotiating the workers' compensation lien on the settlement proceeds from Swanson's personal injury action. Gottlieb v Merrigan, 2014 NY Slip Op 05011, 3rd Dept 7-3-14




Motion to Quash Subpoena for Billing Records Re: the Insurance Company's Examining Physician Properly Denied


The Fourth Department determined a motion to quash a subpoena duces tecum was properly denied, even though the billing documents for the insurance company's (State Farm's) examining physician were sought for cross-examination and impeachment purposes:


State Farm moved to quash the subpoena pursuant to CPLR 2304 on the ground that it was plaintiff's intent to use the subpoenaed materials to impeach the examining physician's general credibility. Plaintiff opposed the motion on the ground that she intended to use the subpoenaed documents to cross-examine the examining physician at trial with respect to his bias or interest. Supreme Court denied the motion, and we affirm.


"It is . . . well settled that a motion to quash a subpoena duces tecum should be granted only where the materials sought are utterly irrelevant to any proper inquiry" ... . "Moreover, the burden of establishing that the requested documents and records are utterly irrelevant is on the person being subpoenaed" ... . It is "proper to allow cross-examination of a physician regarding the fact that the defendant's insurance company retained him to examine the plaintiff in order to show bias or interest on the part of the witness" ... . Questions concerning the bias, motive or interest of a witness are relevant and should be "freely permitted and answered" ...  and, thus, plaintiff is entitled to discovery materials that will assist her in preparing such questions. In light of the foregoing, we conclude that the court did not abuse its discretion in denying the motion. Dominici v Ford, 2014 NY Slip Op 05081, 4th Dept 7-3-14





Service Requirements of Business Corporation Law Trumped CPLR


The Third Department determined the service requirements of the Business Corporation Law trumped the CPLR:


It is well settled that the CPLR "govern[s] the procedure in civil judicial proceedings . . . except where the procedure is regulated by inconsistent statute" (CPLR 101...). As is relevant here, the procedure for the judicial dissolution of corporations is governed by Business Corporation Law article 11. Business Corporation Law § 1106 in particular provides that an order to show cause is to be served upon, among others, "the corporation[s] and upon each person named in the petition" (Business Corporation Law § 1106 [c]), while the petition need only be filed with the county clerk (see Business Corporation Law § 1106 [d]). As this is inconsistent with the requirements of CPLR 406 (b), the specific requirements of Business Corporation Law § 1106 control in this circumstance ... . Matter of Gould Erectors & Rigging Inc, 2014 NY Slip Op 05004, 3rd Dept 7-3-14



Defendant Not Afforded Right to Testify Before Grand Jury---Indictment Dismissed


The Second Department determined the indictment must be dismissed (without prejudice) because the defendant was not afforded his right to testify before the grand jury:


CPL 190.50(5) provides that a defendant has a right to appear and testify before a grand jury if he or she serves written notice of his or her intent to do so upon the District Attorney before an indictment is filed. "[T]he opportunity to testify prior to any Grand Jury vote is qualitatively different from and more advantageous than the opportunity to testify . . . after the Grand Jury ha[s] committed itself to a vote based on the prosecution's ex parte presentment of evidence" ... . Thus, a defendant who provides timely notice "prior to the prosecution's presentment of evidence and prior to the Grand Jury vote on an indictment [is] entitled to testify before the vote" ... .


Where, as here, the defendant has been arraigned upon an undisposed felony complaint, the People must notify the defendant of the grand jury proceeding and accord him or her a reasonable time to appear (see CPL 190.50[5][a]...). Here, the People's notice pursuant to CPL 190.50 indicated that the defendant was "scheduled to testify" before the grand jury on June 8, 2010, and that his testimony was required to have been given before 5:00 p.m. on that date. The record reveals that the defendant provided the People with written notice of his intent to testify before the grand jury pursuant to CPL 190.50, at the latest, by 3:37 p.m. on June 7, 2010. Thus, the defendant provided the People with the requisite notice more than 24 hours in advance of his proposed appearance. Under these circumstances, the defendant was entitled to testify prior to the grand jury's vote. People v Ellison, 2014 NY Slip Op 04957, 2nd Dept 7-2-14




County Court Should Have Afforded Defendant Opportunity to Withdraw His Plea Before Imposing an Enhanced Sentence Based Upon Post-Plea Events


The Third Department determined County Court should not have imposed an enhanced sentenced based upon post-plea events without affording the defendant the opportunity to withdraw his plea:


A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed ... . Here, County Court enhanced defendant's sentence due to defendant's arrest while on release pending sentencing. However, the record reflects that defendant was never warned that County Court would not be bound by its sentencing commitment if he were arrested while out on release ... . Consequently, County Court erred in imposing an enhanced sentence without first providing defendant an opportunity to withdraw his plea... . People v Tole, 2014 NY Slip Op 04980, 3rd Dept 7-3-14




Court's Failure to Conduct an Inquiry After Learning of a Juror's Comments During Trial Indicating Her Lack of Impartiality Required Reversal


The Second Department determined that the trial judge had been made aware of information raising the possibility that a juror would not be impartial and erred in not conducting an inquiry:


The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case ... . In addition, the "trial court's reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror" ... . Although the Court of Appeals acknowledged that an "in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror's impartiality could be affected and that there is no reason to question the juror" (People v Buford, 69 NY2d 299 n 4), here, defense counsel wanted the juror to be questioned.


The Supreme Court erred in failing to conduct an in camera "probing and tactful inquiry" (id. at 299) of juror number seven, during the trial, when it was alleged that he had stated "the evidence speaks for itself or they got themsel[ves] into this situation" ..., and subsequently, after deliberations had commenced, when it was alleged that juror number seven had engaged in flirtatious conduct with someone connected to the defendant as well as someone connected to the codefendant ... . Since the court's general inquiry of the jurors with respect to the first incident failed to meet the requirements of Buford ..., and no inquiry at all was made with respect to the later incidents ..., it is unknown whether the juror held an opinion that affected his ability to be impartial ... . Such an error is not subject to harmless error analysis and, thus, the conviction must be reversed ... . People v Henry, 2014 NY Slip Op 04962, 2nd Dept 7-2-14




Court's Refusal to Allow Defendant to Inspect His Laptop Computer, Evidence from Which Was Central to the People's Case, Was Reversible Error


The Second Department determined that denial of defendant's request to inspect his laptop computer, from which evidence was extracted to prosecute him, was reversible error:


The trial court erred in denying the defendant's motion to compel the People to provide the defendant with the opportunity to inspect the laptop computer that was seized from his home and for an adjournment of the trial, in order to permit the defense to examine that computer (see CPL 240.20[1][f]...). The defendant was entitled to inspect the laptop computer, pursuant to CPL 240.20(1)(f), and the defendant made a timely demand to inspect the laptop computer (see CPL 240.20[1][f]...).


Further, the laptop computer was central to the People's case against the defendant; the People's expert witness testified, at length, as to his examination of the laptop computer, the evidence that was extracted from that computer, and the basis for his conclusion that such evidence was accessed from or uploaded to the internet by the defendant. Additionally, the prosecution provided no reason for its failure to provide the computer to the defense. Under these circumstances, this error warrants reversal ... . People v Naran, 2014 NY Slip Op 04969, 2nd Dept 7-2-14




Court Erred In Failing to Hold a Restitution Hearing---No Support In Record for Amount Imposed


The Third Department determined County Court erred by imposing $100,000 restitution without a hearing.  The People had determined the $100,000 figure was excessive and had requested restitution in the approximate amount of $32,000:


....[W]e agree with defendant that County Court erred in ordering restitution in the amount of $100,000 without a hearing. By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, "[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing" (Penal Law § 60.27 [2]...). Defendant sufficiently preserved this challenge to the increased amount of restitution, in that defense counsel and the People questioned it at sentencing ... . Upon review, we find that there is no evidence in the record to support the court's imposition of $100,000 in restitution. To the contrary, at sentencing the People characterized such figure as "excessive," stated that they "lacked sufficient documentation and proof" to support that amount, and proffered evidence supporting restitution in the amount of $32,240, a figure to which the victim, the court and defendant had all agreed. Further, there are statutory limits on the amount of restitution, which may be exceeded, as relevant here, provided "'the amount in excess [is] limited to the return of the victim's property, including money, or the equivalent value thereof'" ... . Accordingly, the matter must be remitted for a restitution hearing or a redetermination of restitution consistent with the plea agreement. Given that "[a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea" ..., under the circumstances here, upon remittal, defendant must be afforded an opportunity to withdraw his guilty plea if a hearing is held and the amount of restitution imposed exceeds the originally agreed upon amount, i.e., $32,240. People v Pleasant, 2014 NY Slip Op 04981, 3rd Dept 7-3-14




Denial of For Cause Challenge to Juror Required Reversal


The Third Department determined the trial court erred in denying defendant's "for cause" challenge to a juror:


"Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused" ... . Here, during jury selection, juror No. 153 stated that he was "very uncomfortable" about the alleged use of a firearm during the commission of the charged crimes. When asked by defense counsel if his stated discomfort was something that would affect his ability to keep an open mind, juror No. 153 responded, "It might. I can't say for sure what it is, but it's a concern to me."


After questioning of this panel had concluded, and out of the presence of the prospective jurors, defense counsel challenged juror No. 153 for cause. County Court, stating that defense counsel failed to ask any follow-up questions of juror No. 153 at the time the juror made the subject statements in order to make out an appropriate foundation for cause, denied the challenge. Having heard the statements by juror No. 153, County Court should have either granted the challenge for cause or conducted a further inquiry of that juror and obtained express, unequivocal assurances on the record of his impartiality ... . People v Young, 2014 NY Slip Op 04975, 3rd Dept 7-3-14




Conditioning Plea Offer Upon Withdrawal of a Constitutional Speedy Trial Motion Is an Inherently Coercive Mode of Proceedings Error


The Third Department determined that the People's conditioning of a plea bargain on the defendant's withdrawal of his constitutional speedy trial motion was a mode of proceedings error requiring reversal:


...[T]he Court of Appeals has recently cited to People v Blakley (34 NY2d at 315) as an example of the "mode of proceedings" exception to the preservation rule (People v Hanley, 20 NY3d 601, 604, 605 n 2 [2013]). In that case, the Court held that conditioning a plea on a waiver of a constitutional speedy trial claim is "inherently coercive" (People v Blakley, 34 NY2d at 313). The narrow mode of proceedings exception speaks to fundamental flaws that implicate "rights of a constitutional dimension that go to the very heart of the process" ... . Where, as in Blakley, the People condition a plea offer on the defendant's waiver of his or her constitutional speedy trial claim, the integrity of the judicial process has been undermined ... .


Here, the People expressly conditioned the plea offer on defendant's withdrawal of his constitutional speedy trial motion, while the hearing on this issue was still pending. To make matters worse, the offer was set to expire as soon as the hearing resumed ... . This is the type of prosecutorial bartering expressly prohibited as "inherently coercive" in People v Blakley (34 NY2d at 313). A trial court has a core obligation to recognize and prevent such an unfair tactic, but here the court simply reiterated the impermissible condition of the plea and waiver ... . People v Wright, 2014 NY Slip Op 04976, 3rd Dept 7-3-14



People v Rudolph (Requiring Sentencing Court to Consider Youthful Offender Status for All Eligible Defendants) Applied Retroactively to 2008 Conviction (on Direct Appeal)


The Third Department determined the ruling in People v Rudolph (21 NY3d 497 [2013]), requiring that courts always consider youthful offender status for eligible defendants, applied retroactively to a 2008 conviction by guilty plea in which the defendant agreed he would not receive youthful offender status:


In People v Rudolph (supra), the Court of Appeals, overruling precedent, held that the statutory command in CPL 720.20 (1) that the sentencing court address youthful offender status when a defendant is eligible for such status "cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request" (id. at 499). When addressing such status, the sentencing court should set forth factors considered in its determination ..., particularly when denying youthful offender status ... .


The People * * * assert that, since the sentence was consistent with prevailing precedent when imposed ...., the holding in Rudolph should not be applied retroactively. However, notwithstanding the lengthy delay in perfecting this appeal, this case is before us on direct appeal — not a collateral attack — and the law as it now exists controls... . People v Calkins, 2014 NY Slip Op 04977, 3rd Dept 7-3-14




Prosecutor's Remarks In Summation Required Reversal


The Third Department determined the prosecutor's remarks in summation required reversal:


Counsel is afforded wide latitude in advocating for his or her case during summation, but "[t]here are certain well-defined limits" that may not be exceeded ... . Here, the prosecutor strayed beyond those parameters by, among other things, repeatedly making remarks that impermissibly shifted the burden of proof from the People to defendant ... . He described defense counsel's summation as "throwing mud," which he characterized as something done by people who "don't have a reasonable excuse as to crimes that they've committed" — thus not only denigrating the theory of defense, but suggesting that it was defendant's affirmative burden to present such an excuse. He then averred that nothing in the trial record established that defendant had not committed the alleged acts. * * * He stated that, in order to find defendant not guilty, jurors would have to believe that police officers were engaged in a scheme whereby they staged audio recordings of the controlled buys and planted evidence on defendant to frame him, referencing a comedy skit in which police purportedly got away with mistreating people "by sprinkling drugs on them." * * *


The prosecutor also repeatedly and improperly expressed his personal opinion in an effort to vouch for the credibility of witnesses .... . When discussing a forensic chemist's testimony that the substances allegedly sold and possessed by defendant were heroin, the prosecutor stated that the issue was "done" and that it was "a closed case." He repeatedly described his witnesses as honest or declared that they had told the truth. He told the jury to take the male CI's word for what had happened during one of the controlled buys, adding that he "believe[d] that [the male CI] was more than credible."* * *  People v Casanova, 2014 NY Slip Op 04978, 3rd Dept 7-3-14




Assault Counts Should Have Been Dismissed As Inclusory Concurrent Counts of the Counts Charging Assault in the First Degree as a Sexually Motivated Felony


The Fourth Department determined that counts of an indictment should have been dismissed as inclusory concurrent counts:


We agree with defendant ... that the fourth and sixth counts of the indictment, each charging him with assault in the first degree, must be reversed and dismissed pursuant to CPL 300.30 (4) as inclusory concurrent counts of counts five and seven, each charging him with assault in the first degree as a sexually motivated felony. We therefore modify the judgment accordingly. CPL 300.30 (4) provides in pertinent part that "[c]oncurrent counts are inclusory' when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater." A crime is a lesser included offense of another where "it is theoretically impossible to commit the greater crime without at the same time committing the lesser . . . [, as] determined by a comparative examination of the statutes defining the two crimes, in the abstract" ... . Here, "defendant could only commit the sexually motivated felon[ies] if it was proven that he had committed the underlying [assaults] and that the [assaults were] committed for his own sexual gratification" ... . Thus, the underlying assault counts charging assault in the first degree should have been dismissed as inclusory concurrent counts of the counts charging assault in the first degree as a sexually motivated felony upon defendant's conviction of the latter crime... .  People v Dallas, 2014 NY Slip Op 05083, 4th Dept 7-3-14




Court Should Not Have Imposed a Greater Sentence Based Solely on Bare Fact Defendant Had Been Arrested Since His Guilty Plea


The Fourth Department determined County Court erred when it enhanced defendant's sentence based solely on the indication in the presentence report that he had been arrested after his guilty plea:


On the day of sentencing, the court noted that, two weeks after defendant's plea of guilty, defendant was arrested in the Town of Allegany and charged with a violation and a class A misdemeanor. The court thereafter imposed on defendant a term of imprisonment, rather than one of the lesser alternatives it had previously mentioned, based upon defendant's postplea arrest. The record is clear that the court based its determination to impose a term of imprisonment solely on the information contained in the presentence report that defendant had been arrested and charged with the violation and misdemeanor. Notably, in response to the court's inquiry concerning "what was happening" with that matter, defense counsel responded that he did not represent defendant on the matter and that it was still pending in local court. Thus, we conclude that, in imposing a term of imprisonment, the court erred in relying on the " mere fact' " that defendant had been arrested ..., and that it failed to "carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis" for defendant's arrest ... . People v Kolata, 2014 NY Slip Op 05101, 4th Dept 7-3-14




Court Has Discretion to Order an Informal Psychological Assessment in Response to Defense Counsel's Request for an Article 730 Assessment to Determine Whether Defendant Is Competent to Stand Trial 


The Fourth Department noted that Supreme Court had the discretion to order an informal psychological assessment in response to defense counsel's request for an examination pursuant to Criminal Procedure Law Article 730 to determine whether defendant was competent to stand trial:


...[D]efendant contends that Supreme Court erred in failing to follow the requirements of CPL article 730 to determine whether he was competent to stand trial at the time his case was presented to the grand jury (see CPL 730.30 [1]). We reject that contention. The record establishes that the court granted defense counsel's request for a "forensic examination" of defendant by ordering only an informal psychological examination and not by issuing an order of examination pursuant to CPL article 730. We conclude that "[t]he decision of the court to order an informal psychological examination was within its discretion . . . and did not automatically require the court to issue an order of examination or otherwise comply with CPL article 730' "... . People v Castro, 2014 NY Slip Op 05102, 4th Dept 7-3-14





Hearsay Evidence of Another's Admission to the Crime Warranted a Hearing Pursuant to Defendant's Motion to Set Aside the Conviction


The Third Department determined newly discovered evidence, including hearsay evidence of the admission of another (Melton) to the commission of the crime, warranted a hearing pursuant to the defendant's motion to set aside his conviction:


"[A] defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged" ... . "Depriving a defendant of the opportunity to offer into evidence another person's admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense" ... . The People's claims regarding Melton's unwillingness to testify were themselves hearsay, and simply created issues of fact as to whether he was available and, if not, whether his posttrial statements were admissible as declarations against his penal interest ... . A statement is admissible under this hearsay exception if (1) the declarant is unavailable because of death, absence or a refusal to testify on constitutional grounds, (2) the declarant knew when making the declaration that it was contrary to his or her penal interest, (3) he or she had competent knowledge of the facts, and (4) other independent evidence supports the reliability and trustworthiness of the declaration ... . Where, as here, the statement at issue tends to exculpate a criminal defendant, a more lenient standard of reliability is applied than to inculpatory statements; an exculpatory declaration is admissible if competent independent evidence "establishes a reasonable possibility that the statement might be true" .. . .  People v Sheppard, 2014 NY Slip Op 04982, 3rd Dept 7-3-14




Evidence which Should Have Been Presented In the People's Direct Case Should Not Have Been Allowed in Rebuttal


The Second Department determined the trial court erred in allowing the People to present more evidence after the defense rested. The charges were based upon allegations the defendant caused injuries to her baby by shaking the baby.  The People's evidence demonstrated the defendant denied knowing that shaking the baby could cause injury.  The People were allowed to present evidence, after the defense had rested, that a nurse had explained the dangers of shaking to the defendant:


A court has the discretion to permit a party to present evidence in rebuttal, which, more properly, should have been presented in that party's original case (see CPL 260.30[7]...). The Court of Appeals has approved the exercise of this discretion where the evidence proffered relates to an element of the offense which is "simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense" ... .


Here, the missing element of the People's case was not a simple, uncontested fact, but, instead, was the mens rea of the subject offense ... . Indeed, the People's own evidence established that the defendant denied knowing that her actions could result in injury to the child. Furthermore, the parties' expert witnesses " hotly contested'" ... whether shaking could cause the type of injuries at issue and, if so, how much force would be necessary to cause such injuries, and there was no evidence that the defendant knew of the point when rocking or shaking could become potentially injurious. 


Because this case does not fit within "the narrow circumstances where . . . the missing element is simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense" ..., the Supreme Court improvidently exercised its discretion in granting the People's application to present the nurse's testimony in rebuttal. Without this testimony, the People's evidence was legally insufficient to establish the mens rea element of endangering the welfare of a child beyond a reasonable doubt ... . People v Robinson, 2014 NY Slip Op 04970, 2nd Dept 7-2-2014






Statement by Reporter About a Judicial Proceeding Entitled to Absolute Privilege


The Fourth Department determined a reporter's (Velez-Mitchell;s) statements about a judicial proceeding were entitled to absolute privilege under Civil Rights Law 74.  The report concerned a lawsuit brought by a transgender woman and included reference to a DVD the woman had received from plaintiff Most Holy Family Monastery (MHFM).  The DVD was entitled "Death and the Journey to Hell." The plaintiff contended the report falsely asserted that the Most Holy Family Monastery advocated putting homosexuals to death:


...[D]efendants are entitled to the absolute privilege set forth in Civil Rights Law § 74 ... . The ... statement was made in the context of the interview conducted by Velez-Mitchell, which concerned, inter alia, pending judicial proceedings commenced by the woman in California after her personal information had allegedly been misused by the DMV employee. During the interview, the woman and her attorney explained that the woman had obtained a temporary restraining order against the DMV employee based upon that employee's misuse of her personal information, and that she had thereafter received the package from MHFM. The broadcast of the interview was twice promoted as a transgender woman "suing," and a caption beneath the woman's image stated, inter alia, "Transgender Woman Suing DMV." Velez-Mitchell questioned a former prosecutor regarding the viability of an anticipated lawsuit against the DMV, and the woman's attorney stated that "[t]he Human Rights Commission filed a complaint" concerning the incident and the "big picture is about privacy and the legal right to have [one's] privacy protected."


"When examining a claim of libel, we do not view statements in isolation. Instead, [t]he publication must be considered in its entirety when evaluating the defamatory effect of the words' " ... . Here, "[r]ealistically considered," the first statement provided background facts for the woman's claims in pending and anticipated judicial proceedings, and the broadcast as a whole was a " substantially accurate' " report of the judicial proceedings ... . Consequently, the first statement is entitled to the absolute privilege set forth in Civil Rights Law § 74. Dimond v Time Warner Inc, 2014 NY Slip Op 05060, 4th Dept 7-3-14





Former Assistant Principal Entitled to Full Report Generated In Response to Her Allegations of Harassment and Discrimination Against Superintendent


The Third Department determined a former assistant principal was entitled to the full report generated by special counsel at the request of the school board in response to her allegations of harassment and discrimination against the school superintendent:


In our view, the [school] Board's interpretation [of its regulation] is inconsistent with the language of the regulation, which is mandatory and dictates that the complainant and the accused will have received at least one report "pertaining to the investigation/outcome of the formal complaint" prior to the Board holding a hearing on the matter. Even assuming that [counsel who wrote the report] was appointed to perform only the complaint officer's role — as opposed to the superintendent's role — in the adjudicatory structure set forth in the regulation, a complainant is entitled to a copy of the complaint officer's report under the regulation. Nevertheless, respondents failed to provide either the complainant or this Court with a copy of the report. Matter of Yager v Massena Cent Schoo Dist, 2014 NY Slip Op 05014, 3rd Dept 7-3-14





Flawed Appraisals Would Not Allow a Determination of the Highest and Best Use of the Taken Land


The Third Department determined the appraisal reports submitted for both side were flawed such that the highest and best use of the taken land could not be determined.  The matter was sent back to the Court of Claims.  The court explained the operative principles:


When private property is appropriated for public use, just compensation must be paid, which requires that the owner be placed in the financial position that he or she would have occupied had the property not been taken ... . Upon a partial taking of real property, an owner is not only entitled to the value of the land taken — i.e., direct damages — but also to consequential damages, which consist of the diminution in value of the owner's remaining land as a result of the taking or the use of the property taken ... . Damages must be measured based upon the fair market value of the property as if it were being put to its highest and best use on the date of the appropriation, whether or not the property was being used in such manner at that time ... . Matter of State of New York..., 2014 NY Slip Op 05002, 3rd Dept 7-3-14





Petitioners Did Not Have Standing to Contest County's Negative Declaration After a SEQRA Review


The Fourth Department determined petitioners did not have standing to contest the county's negative declaration pursuant to a State Environmental Quality Review Act (SEQRA) review.  The action involved the county's permitting the Monroe County Fair and Recreation Association, Inc. to operate a four-day agricultural festival on county land:


Where, as here, the proceeding does not involve a "zoning-related issue . . . , there is no presumption of standing to raise a SEQRA challenge" based solely on a party's proximity ... . In such a situation, parties seeking to establish standing must establish that the injury of which they complain "falls within the zone of interests,' or concerns, sought to be promoted or protected" ..., and that they "would suffer direct harm, injury that is in some way different from that of the public at large" ... . Contrary to petitioners' contention, we conclude that the court properly determined that the environmental effects relied on by each petitioner to establish his or her standing are no different in either kind or degree from that suffered by the general public ... . We further conclude that the alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact ... . Thus, the court did not err in concluding that none of the petitioners has standing ... . Matter of Kindred v Monroe County, 2014 NY Slip Op 05069, 4th Dept 7-3-14





Court Should Not Have Precluded Expert Evidence About the Quality of Representation Received by Indigent Defendants


The Third Department determined Supreme Court (acting as the trier of fact) should not have precluded the presentation of expert evidence in a case concerning the quality of legal services received by indigent criminal defendants:


Under familiar rules, expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence" of the trier of fact ... . "[T]his principle applies to testimony regarding both 'the ultimate questions and those of lesser significance'" ... . Notably, expert testimony is "appropriate to clarify a wide range of issues calling for the application of accepted professional standards" ... .


Here, the experts possess the requisite skill, training, education, knowledge and/or experience to qualify as experts on the operation of indigent defense systems and the evaluation of such systems in light of prevailing professional standards ... . * * *


At its core, this litigation is about system-wide conditions relating to and affecting the delivery of public defense — such as caseloads, funding and oversight, among others — and whether these conditions in the defendant counties are such that "the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet" ... . By virtue of their extensive experience, the experts possess specialized knowledge with respect to the operation of public defense systems, the professional standards applicable to such systems, and the impact of systemic shortcomings on the provision of counsel to indigent criminal defendants at all critical stages. Such particularized knowledge is, manifestly, beyond that of a typical Supreme Court Justice, whose experience is oft confined to case-by-case determinations ... . Hurrell-Harring v State of New York 2014 NY Slip Op 05010, 3rd Dept 7-3-14





Family Court Should Have Determined Child Eligible to Apply for Special Immigrant Juvenile Status


The Second Department reversed Family Court finding that an order making the requisite Special Immigrant Juvenile Status findings should have been granted:


Here the Family Court properly found that the child is under the age of 21, unmarried, and that it would not be in his best interests to be returned to Honduras ... . In addition, inasmuch as the Family Court granted the guardianship petition, the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i)... . However, contrary to the court's determination, based upon our independent factual review, we find that the record, including detailed affidavits from the child, fully supports the petitioner's contention that, because his father neglected and abandoned him, reunification with his father is not a viable option ... . The fact that the child's mother did not also neglect and abandon him does not preclude the issuance of the order requested ... . Matter of Miguel C, -N, 2014 NY Slip Op 04923, 2nd Dept 7-2-14



Same result in Matter of Gabriela Y U M..., 2014 NY Slip Op 04937, 2nd Dept 7-2-14




Procedure Used by Family Court in Custody-Modification Proceeding Did Not Meet the Criteria for a Fact-Finding Hearing


The Third Department determined the proceeding Family Court used in a custody-modification proceeding did not meet the criteria for the required fact-finding hearing:


Family Court erred in failing to conduct a fact-finding hearing. The final appearance was not a true hearing; the parties should have been "afforded a full and fair opportunity to be heard" ... . While Family Court stated at the outset of the August 2013 appearance that the matter was set for a hearing that day, the court then allowed each party to deliver a long, unsworn narrative comprised mostly of hearsay — as the court had permitted the parties to do at each previous appearance. After the parties had discussed their views of the situation for an extended time, they were asked to swear to the statements they had made, following which the court rendered a determination without any opportunity for the parties to avail themselves of the usual attributes of a hearing, including the opportunity to present opening and closing statements, to present any other evidence or to conduct cross-examination (see id.). Thus, the court erred in modifying the prior order without holding a fact-finding hearing ... . Matter of McCullough v Harris, 2014 NY Slip Op 04984, 3rd Dept 7-3-14




Summary Judgment Properly Awarded in Derivative Child-Neglect Proceeding


The Third Department determined summary judgment was properly awarded in a derivative child-neglect proceeding, based in large part on findings made in prior neglect proceedings:


"'Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists'" ... . Neglect or abuse of one child typically may not serve as the sole support for a finding of derivative abuse or neglect; however, where the proof of "past neglect and abuse demonstrably 'evidence[s] fundamental flaws in the respondent's understanding of the duties of parenthood, proof of abuse or neglect of other children is alone sufficient to sustain a finding of abuse or neglect of another child'" ... . A prior determination should be "sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist" ..., but "there is no 'bright-line, temporal rule beyond which we will not consider older child protective determinations'" ... .


Here, petitioner established a prima facie case for summary judgment with the affidavit of its counsel setting forth the prior proceedings, the Family Court records of such proceedings and an affidavit from a caseworker. The nature of the acts that Family Court had found in the 2010 proceedings as having been perpetrated upon a child entrusted to respondent's care established a fundamental defect in respondent's understanding of parental duties. The caseworker set forth, among other things, respondent's failure to complete preventive services, including sex offender treatment. Although respondent's affidavit in opposition offered explanations for his inability to complete some services, he acknowledged that he had not yet completed sex offender treatment. Given the nature of the 2008 acts found in the 2010 proceedings, together with the fact that respondent is still in, but has not yet successfully completed, sex offender treatment, we are unpersuaded that Family Court erred in granting summary judgment... . Matter of Ilonni I..., 2014 NY Slip Op 04987, 3rd Dept 7-3-14





Admissible Hearsay Concerning the Child's Injuries and Evidence Relevant to the Child's Motivation to Lie Should Not Have Been Excluded from the Neglect Proceeding


The Second Department determined Family Court erred in excluding evidence from a neglect proceeding.  The excluded evidence included hearsay statements by a police officer included in the Investigative Progress notes indicating the child's (Jonell H's) bruises were not severe, and evidence relevant to the child's motivation to lie:


At the fact-finding hearing, the Family Court erred in excluding from evidence Investigation Progress notes dated April 18, 2010, indicating that a police officer had informed a caseworker that the officer had visited Jonell H. shortly after the alleged neglect took place and observed that the bruises on her right arm were "not serious" and that "[t]here [are] not other visible bruises/marks observed" on her. These notes were admissible under the business records exception to the hearsay rule since the caseworker was under a duty to maintain a comprehensive case record for Jonell H., and the officer had a duty to report his or her observations of her condition ... .


The Family Court also erred in precluding the mother from calling four particular witnesses to testify. Those witnesses would have given testimony pertaining to Jonell H.'s motivation to lie. Extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground ... . Similarly, the court should not have excluded from evidence Family Service Progress notes containing statements by Jonell H.'s foster parents relevant to her motivation to lie. Foster parents are "employees who [are] under a business duty to timely record and report all matters concerning the physical, mental, and emotional conditions of the children in their care to the foster care agency" ... .  Matter of Grayson J, 2014 NY Slip Op 04934, 2nd Dept 7-2-14





Fraud Cause of Action Seeking Only Lost Profits as Damages Must Be Dismissed


The Third Department determined that plaintiff's fraud cause of action could not go forward because plaintiff sought only lost profits as damages.  Also dismissed and briefly discussed were "conspiracy to commit fraud (not a valid separate cause of action)," prima facie tort and a demand for punitive damages:


Plaintiff's cause of action alleging fraud requires "a misrepresentation or omission of a material fact known to be false and made with the intent to deceive, as well as justifiable reliance and damages" ... . * * * "The true measure of damage [for fraud] 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 for fraudulent acts should "compensate plaintiffs for what they lost because of the fraud, not for what they might have gained" ... . As plaintiff does not dispute that it seeks only the lost profit it anticipated earning as a result of conveying the property to BLP, defendants are entitled to summary judgment dismissing the first cause of action ... .


Plaintiff's second cause of action alleging a conspiracy to commit fraud must also be dismissed because "'a mere conspiracy to commit a [tort] is never of itself a cause of action'" ... . Plaintiff's third cause of action for prima facie tort "requires a showing of an intentional infliction of harm, without excuse or justification, by an act or series of acts that would otherwise be lawful" ... . Significantly, "[s]uch acts must be motivated solely by malevolence" ... . Plaintiff ... makes no claim that defendants were motivated — even in part — by malevolence. As for plaintiff's fourth cause of action for declaratory relief, it too must be dismissed as entirely unnecessary under the circumstances here ... .


Nor, in light of our determination that plaintiff failed to establish its causes of action for fraud and prima facie tort, is this a case for punitive damages. There is no basis upon which to conclude that defendants' conduct "'evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'" ... . Route 217, LLC v Greeg, 2014 NY Slip Op 04998, 3rd Dept 7-3-14





Cleaning Cement Truck After Cement-Delivery Not Covered by Labor Law 240


The Fourth Department, over a dissent, determined plaintiff was not engaged in an activity protected by Labor Law 240 at the time of the injury.  Plaintiff had just delivered concrete to the defendant farm and was cleaning his truck when he fell from a ladder attached to the truck:


...[W]e agree with defendant that the activity in which plaintiff was engaged at the time of his injury, i.e., the routine cleaning of his employer's cement truck after making a delivery, "was not the kind of undertaking for which the Legislature sought to impose liability under Labor Law § 240' " ... . Specifically, plaintiff "was not engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing' of a building or structure' within the intended meaning of Labor Law § 240 (1)" ... . Rather, he was "engaged in routine maintenance" of the cement truck, "which is not a protected activity under Labor Law § 240 (1)" ... .


We reject the dissent's view that this case is distinguishable from Koch because the plaintiff in that case was "merely a delivery driver" while "there is evidence here that plaintiff operated the machinery of the cement truck to assist in the pouring of the concrete as part of the construction of the silo." Any such distinction, even if supported by the record, is irrelevant to the applicability of Labor Law § 240 (1).  Bish v Odell Farms Partnership, 2014 NY Slip Op 05063, 4th Dept 7-3-14




Plaintiff's Labor Law 240 and 200 Actions Against the Town Should Have Been Dismissed---Although the Town Hired Plaintiff to Do Work on the Town's Right of Way, the Accident Occurred on Adjacent Private Property---Labor Law 200 Action Against the Property Owners Should Not Have Been Dismissed


The Fourth Department, over a dissent, determined the Labor Law 240 and 200 actions against the town should have been dismissed because the injury occurred on private land, not town land.  The court further determined that the Labor Law 200 action against the landowners (the Hersheys) should not have been dismissed because the owners did not demonstrate as a matter of law their lack of notice of the dangerous condition.  The plaintiff had been hired by the town to do sidewalk and driveway work on the town's right of way next to the Hersheys' property. The plaintiff was parking a backhoe on the Hersheys' property, with the Hersheys' permission, when it tipped over into a ravine:


...[W]e agree with the Town that the court erred in denying the Town's motion for summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) causes of action against it, inasmuch as the Town is not an "owner" for purposes of those statutes ... . It is well settled that "the term owner' is not limited to the titleholder of the property where the accident occurred and encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit' " ... . Here, the accident occurred well outside of the Town's right-of-way, and the Town had no other interest in or legal authority over the landing area, which was located entirely on the Hersheys' private property ... . The Town established that it was Kenneth Hershey, not the Town, who gave plaintiff permission to park in the landing area; that the Town had no authority to grant such permission to plaintiff; and that Kenneth Hershey directed plaintiff where to park. Further, the Town established that the landing area was not part of the construction site ... . No work was being performed in the landing area, and the landing area was not contiguous or in proximity to the construction site ... . Moreover, the Town established that it was not necessary for plaintiff to park the backhoe in the landing area. The Town provided plaintiff with parking in a municipal garage, which was located a few miles from the work site. Plaintiff, however, testified at his deposition that he chose to use the landing area because it was closer to the work site and more "convenient" to do so ... . Farruggia v Town of Penfield, 2014 NY Slip Op 4th Dept 7-3-14




Questions of Fact Raised About Labor Law 240(1), 240(6) and 200 Causes of Action---Labor Law 200 Actions Are Not Limited to Construction Work (Question of Fact About Unsafe Work Site Will Support Labor Law 200 Cause of Action)


The Fourth Department noted that Labor Law 200 causes of action are not limited to construction work and, with respect to one of the defendants,  a question of fact had been raised about the safety of the work site.  Plaintiff was injured when he drove a forklift over plywood covering a pit used to store linens in an industrial laundry operation. Questions of fact had also been raised about whether work being done by the plaintiff was covered by Labor Law 240(1) and Labor Law 240 (6). With respect to the Labor Law 240(1) cause of action against two of the defendants, the court wrote:


...[T]he court properly denied [defendants'] respective motions for summary judgment with respect to the Labor Law § 240 (1) claim because there are issues of fact whether plaintiff was engaged in an activity covered by that section. To fall under the protection of Labor Law § 240 (1), "the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, [or] altering . . . of a building or structure' " or must have "involve[d] . . . such activities" ... . Here, the parties' submissions raise an issue of fact whether plaintiff himself was "altering" or making a "significant physical change to the configuration or composition of the building or structure" at the time of his injury ... . Specifically, the record is unclear whether plaintiff was in the process of simply moving a "towel folder," which would not afford him the protection of section 240 (1) ..., unless that activity "was . . . ancillary" to the ongoing renovation work ... ; or, whether he was removing an old machine weighing approximately 1,000 pounds and then installing and securing to the cement floor a new machine as a replacement, which would afford him the protection of section 240 (1) ... . Foots v Consolidated Bldg Contrs Inc, 2014 NY Slip Op 05058, 4th Dept 7-3-14





Sex Offender May Not Avoid Civil Commitment Proceeding by Renouncing Citizenship and Leaving the Country


The Third Department determined the respondent in a Mental Hygiene Law 10.06 proceeding (called a SOMTA proceeding) to determine whether he, as a sex offender, should be committed to a secure mental health treatment facility, could not defeat the proceeding by renouncing his citizenship and leaving the country:


It is well established that "Congress has broad authority to set the conditions and procedures that an individual must satisfy in order to renounce his [or her] citizenship" ... . In accord with its authority, Congress enacted 8 USC § 1481, which, in relevant part, provides that "[a] person who is a national of the United States whether by birth or naturalization, shall lose his [or her] nationality by voluntarily performing [certain enumerated] acts with the intention of relinquishing United States nationality" ... . A citizen seeking to renounce his or her nationality must make an application therefor and, generally, must be outside the United States to do so ... . To this end, respondent argues that the SOMTA petition must be dismissed so that he may be released from DOCCS's custody in order to leave the United States and return to Israel, where he will effectuate his expatriation... .


We flatly reject this argument, which presupposes, among other things, that respondent would actually exit this country if he were released from custod. Even if he did leave, the state is not required to bear the risk that petitioner — an experienced international fugitive — would not return to New York thereafter. In any event, at this juncture, respondent remains a United States citizen confined in New York who is a sex offender alleged to have a mental abnormality and in need of civil management, and petitioner continues to have a legitimate interest in protecting society from the risks he poses... . Matter of State of New York v Horowitz, 2014 NY Slip Op 05001, 3rd Dept 7-3-14





Proof Vehicle Was Stolen at the Time of the Accident Defeated Action Based Upon Vehicle-Owner's Vicarious Liability


The Second Department determined defendant's evidence that her vehicle had been stolen at the time of the accident entitled her to summary judgment in an action based upon the vehicle-owner's vicarious liability:


Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law ..., the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle with the owner's express or implied consent ... . This statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission ..., which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent ... . Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use ... . Fuentes v Virgil, 2014 NY Slip Op 04899, 2nd Dept 7-2-14




Lack of Notice of Alleged Dangerous Condition Established by Custodian's Testimony


The Second Department determined that the testimony of the school custodian that he had inspected the floor shortly before plaintiff allegedly slipped and fell on accumulated water entitled the defendant school to summary judgment:


" To impose liability on a defendant for a slip and fall on an allegedly dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time'" ... . " A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected'" ... . "To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" ... .


Here, the Board of Education established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the custodian engineer assigned to clean the school. He testified that he inspects the school, including the bathrooms, every morning to make sure that it is safe and clean. He further testified that he had last inspected the subject bathroom approximately two to two and one-half hours before the infant plaintiff allegedly was injured, and that there was no liquid on the floor at that time. The Board of Education also submitted the affidavit of a school administrator who averred that the school had not received any complaints regarding water on the floor of the subject bathroom between the time of the inspection and the time of the alleged accident. Additionally, the Board of Education submitted the deposition testimony of the infant plaintiff's mother, who admitted that, prior to the accident, the infant plaintiff never complained to her about water accumulation on the bathroom floors ... . Farren v Board of Educ of City of NY, 2014 NY Slip Op 04896, 2nd Dept 7-2-14





Amendment of Notice of Claim Including Substantive Changes to the Facts and New Theories of Liability Should Not Have Been Allowed---Original Notice of Claim Inadequate


The Second Department reversed Supreme Court finding that plaintiff's motion to amend the notice of claim should have been denied and the complaint dismissed:


Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial "technical mistakes, defects, or omissions, not substantive changes in the theory of liability" ... . Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff's cross motion for leave to serve and file an amended notice of claim. The proposed amendments to the notice of claim included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) ... . Granting leave to serve and file the proposed amended notice of claim would prejudice the Housing Authority by depriving it of the opportunity to promptly and meaningfully investigate the claim ... .


Moreover, the Supreme Court should have granted the Housing Authority's motion to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was inadequate. A notice of claim must provide timely notice of the essential facts and legal theories supporting the claims alleged in the complaint ... . The test of the sufficiency of a notice of claim is whether it includes enough information to enable the defendant to promptly investigate the allegations at issue ... . The plaintiff's original notice of claim did not sufficiently apprise the Housing Authority of the relevant facts or legal theories supporting the plaintiff's claims to enable the Housing Authority to promptly and adequately investigate the allegations at issue in the complaint, resulting in prejudice to the Housing Department ... . Ahmed v New York City Hous Auth, 2014 NY Slip Op 04883, 2nd Dept 7-2-14




Pedestrian's Action, In Violation of City Pedestrian Rules, Was the Proximate Cause of Pedestrian's Injuries (Pedestrian Was Struck by a Car)


The Second Department determined Supreme Court properly refused to set aside the verdict in favor of the defendant.  Plaintiff, a pedestrian, had been struck by a car just as he stepped off the curb in violation of city rules for pedestrians:


Here, a fair interpretation of the evidence supported the jury's finding that an unknown operator of a motor vehicle involved in an accident with the plaintiff, a pedestrian, was not negligent. Rules of City of New York Department of Transportation (34 RCNY) § 4-04(b)(1), entitled "Operators to yield to pedestrians in crosswalk," provides that "[w]hen traffic control signals or pedestrian control signals are not in place or not in operation, the operator of a vehicle shall yield the right of way to a pedestrian crossing a roadway within a crosswalk when the pedestrian is in the path of the vehicle or is approaching so closely thereto as to be in danger." Rules of City of New York Department of Transportation (34 RCNY) § 4-04(b)(2), entitled "Right of way in crosswalks," provides that "[p]edestrians shall not cross in front of oncoming vehicles. Notwithstanding the provisions of (1) of this subdivision (b), no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the operator to yield." Rules of City of New York Department of Transportation (34 RCNY) § 4-04(c)(2) provides that "[n]o pedestrian shall cross any roadway at an intersection except within a cross-walk." According to the plaintiff, he stepped off a sidewalk approximately one car length away from the corner in an attempt to cross Rockaway Beach Boulevard at Beach 96th Street in Queens. The plaintiff conceded that there was no designated crosswalk at that intersection. Almost immediately after the plaintiff had stepped off the curb, his leg came into contact with the right side of the unidentified motor vehicle after he had walked approximately two feet into the roadway. Thus, there was ample evidence adduced at trial from which the jury could have reasonably found that the plaintiff violated Rules of City of New York Department of Transportation (34 RCNY) §§ 4-04(b)(2) and (c)(2), and that those violations, rather than any conduct on the part of the unknown motorist, proximately caused the accident ... . Rivera v Motor Veh Acc Indem Corp, 2014 NY Slip Op 04911, 2nd Dept 7-2-14




Resident Who Assisted Supervising Physician But Who Exercised No Independent Medical Judgment Entitled to Summary Judgment


The Fourth Department determined defendant should have been granted summary judgment in a medical malpractice action. Defendant was a resident who assisted the supervising physician (Dr. Hall).  The court determined defendant had demonstrated he exercised no independent medical judgment during the treatment of the plaintiff (David Green):


It is well settled that a "resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor's directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene" .. . Here, in support of his motion, defendant submitted evidence establishing that defendant Walter Hall, M.D., the supervising physician, conducted the initial meeting with plaintiff David Green, the patient. Defendant also submitted evidence establishing that Dr. Hall supervised defendant throughout all of the surgeries involved, reviewed all notes that defendant wrote, determined which surgical method would be used, decided to discontinue the first operation to obtain further information about the cyst or tumor that was to be excised, and decided to perform the subsequent operations. Furthermore, "[a]lthough the evidence demonstrated that [defendant] played an active role in [Dr. Hall's] procedure, it did not demonstrate the exercise of independent medical judgment" by defendant ... . Green v Hall, 2014 NY Slip Op 05084, 4th Dept 7-3-14




Statement Made Before Any Possible Motive to Falsify Should Have Been Admitted to Rebut Assertion of Recent Fabrication


The Second Department determined the trial court committed reversible error by excluding a statement made to medical personnel by the infant plaintiff.  It was crucial to the plaintiff's case to demonstrate that she was injured falling from the monkey bars at the school's playground.  The case sounded in negligent supervision and students plaintiff's age were not permitted on the monkey bars. When receiving medical treatment plaintiff said she fell from the monkey bars and her statement was included in the medical records. The Second Department deemed the statement admissible to rebut the assertion of recent fabrication and, in addition, because the statement was germane to her treatment:


The Supreme Court erred in precluding the plaintiffs from admitting the proffered medical record into evidence and in denying their renewed request to introduce the medical record. Ordinarily, "[t]he testimony of an impeached or discredited witness may not be supported or bolstered by proving that he [or she] has made similar declarations out of court" ... . However, an out-of-court statement "made at a time before a motive to falsify exists may be received in evidence after the testimony of the witness is attacked as a recent fabrication" ... . Here, the focus of the defense was not merely that the infant plaintiff was mistaken or that she was confused or could not recall her accident, but that she was coached to tell a "false story well after the event" and, as such, it was a recent fabrication ... . Moreover, the statement fell within another exception to the hearsay rule, as it was germane to the infant plaintiff's medical treatment on the date of the incident .... Nelson v Friends of Associated Beth Rivka School for Girls, 2014 NY Slip Op 04908, 2nd Dept 7-2-14





Village's Actual Notice of a Sidewalk Defect Does Not Override Written Notice Requirement


The Second Department determined that actual notice of a defect in a sidewalk does not override the requirement of written notice. The abutting landowner had notified Village personnel of the defect orally and the Village architect had indicated the defect would be repaired:


The Village established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the affidavit of its Village Clerk, who averred that her search of the Village's records revealed no prior written notice of any hazardous condition on the sidewalk where the accident occurred ... . In opposition, the plaintiff and the homeowners failed to raise a triable issue of fact. Their submissions failed to show that the Village affirmatively created the alleged hazardous condition ..., or caused the alleged hazardous condition to occur by its special use of the sidewalk .... Actual notice of the alleged hazardous condition does not override the statutory requirement of prior written notice of a sidewalk defect ... . Velho v Village of Sleepy Hollow, 2014 NY Slip Op 04916, 2nd Dept 7-2-14





Police Officer Involved In Accident Acted Appropriately In an Emergency Operation---Defendants Not Liable As a Matter of Law


The Fourth Department determined the city's motion for summary judgment should have granted in an action resulting from a collision with a police vehicle responding to an emergency.  The court determined the defendants demonstrated as a matter of law that the officer did not act with conscious indifference to the consequences of his actions:


At the time of the collision, defendant officer was responding to a police call and was therefore operating an authorized emergency vehicle while involved in an emergency operation ... . We further conclude that, by failing to yield the right of way while attempting to execute a left turn at a green light, defendant officer was "engage[d] in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)" ... , i.e., he was "exercis[ing one of] the privileges set forth in" the statute at the time of the accident (§ 1104 [a]...).


We further conclude that defendants established as a matter of law that defendant officer's conduct did not rise to the level of reckless disregard for the safety of others ..., and that plaintiff failed to raise a triable issue of fact in opposition to the cross motion ... . Defendant officer testified that, as he was approaching the intersection in a southbound direction, the only traffic he observed was a line of northbound vehicles waiting to turn left. When he reached the intersection, he stopped for a "few seconds" to ensure that the intersection was clear. Defendant officer testified that he could see a distance of approximately three car lengths in the right northbound lane and that he did not see any traffic in that lane when he started his turn. He then "cre[pt] into the intersection, making sure . . . nobody was passing on the right of the vehicles stopped to make a left." Plaintiff similarly testified that there was a line of cars in the northbound lane preparing to turn left, that she "veered to the right" around the line of cars in order to proceed straight through the intersection, and that the accident occurred in the intersection. We thus conclude that, "[g]iven the evidence of precautions taken by [defendant officer] before he attempted his [left] turn, . . . he did not act with conscious indifference' to the consequences of his actions" ... . Williams v Fassinger, 2014 NY Slip Op 05085, 4th Dept 7-3-14





Request to File Late Notice of Claim Against School District Stemming from Alleged Sexual Abuse of the Plaintiff by a Teacher Should Not Have Been Granted---School Did Not Have Actual Notice---No Good Reason for Delay in Filing


The Third Department determined the request to file a late notice of claim against a school district should have been denied.  The underlying action relates to alleged sexual abuse of a student (plaintiff) by a teacher.  The plaintiff and the teacher had initially both denied the existence of relationship.  Therefore, the court determined the school did not have actual knowledge of it.  The lack of actual knowledge coupled with the delay in filing the notice of claim after the plaintiff turned 18 required denial of the application:


..."[I]n determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, (2) the [plaintiff] was an infant at the time the claim arose and, if so, whether there was a nexus between the [plaintiff's] infancy and the failure to serve a timely notice of claim, (3) the [plaintiff] demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits" ... . Although no one factor is determinative ... , the case law makes clear that actual knowledge "is a factor which should be accorded great weight" ... . Notably, actual knowledge of the essential facts underlying the claim requires more than "mere notice of the underlying occurrence" ... and the fact that some sort of injury occurred... . Babcock v Walton Cent School Dist, 2014 NY Slip Op 05013, 3rd Dept 7-3-14





Possible Error of Law Committed by Judge Did Not Warrant a Prohibition Action


The Fourth Department determined the prosecutor's prohibition action against a judge should have been dismissed.  The judge had ordered a competency hearing to determine if the complainant in a criminal case was competent to testify in light of her intoxication:


Here, petitioner argued — and Supreme Court agreed — that respondent acted in excess of her authority in ordering a competency hearing because a witness' level of intoxication at the time of the incident in question and its effect on his or her ability to recall the events has no bearing on whether such witness is competent to testify at trial. It is manifest, however, that a trial court has the authority to make a preliminary inquiry as to a witness' competency to testify at trial (see CPL 60.20 [1]...). As such, any error in respondent's decision to hold a competency hearing would, at most, amount to a mere substantive error of law that does not justify the invocation of this extraordinary remedy. "[P]rohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power" ... . Matter of Getman, 2014 NY Slip Op 05012, 3rd Dept 7-3-14





Adverse Possession Criteria Explained


The Second Department determined the acquisition of  title to property by adverse possession had been demonstrated.  The court explained the criteria as follows:


...[T]he respondents..., who sought to obtain title to the subject property by adverse possession, were obligated to prove that the possession was hostile and under claim of right, actual, open and notorious, exclusive, and continuous for a period of 10 years ... . Further, because the adverse possession claim was not founded upon a written instrument, in order to obtain title to the subject property, the respondents were obligated to establish, in accordance with the law in effect at the time the claim allegedly ripened ..., that they " usually cultivated, improved, or substantially enclosed the land'" ... . "Because the acquisition of title by adverse possession is not favored under the law, these elements" had to "be proven by clear and convincing evidence" ... . Scalamander Cove LLC v Bachmann, 2014 NY Slip Op 04914, 2nd Dept 7-2-14




Easement Grants Only the Right to Ingress and Egress, Not a Right to the Physical Passageway Itself


The Third Department determined Supreme Court should not have ordered defendant to remove a gravel driveway.  The easement over defendant's land gave plaintiffs the right of ingress and egress.  Installing the gravel driveway did not impair plaintiff's right to ingress and egress:


"[W]here the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder" ... . Accordingly, "in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired" ... .


Here, the deed establishing the right-of-way states that it is "for the purpose of ingress and egress to" plaintiffs' property. The uncontroverted evidence established that, while the turnaround was previously comprised of hard-packed dirt, defendant installed a gravel driveway on the turnaround. Plaintiffs did not submit any evidence establishing that the gravel driveway impeded their use of the turnaround. Although plaintiffs established that they had a right of passage for the purpose of ingress and egress, they failed to further establish that defendant's addition of a gravel driveway impaired that right to any extent. Thibodeau v Martin, 2014 NY Slip Op 04996, 3rd Dept 7-3-14





Aggravation of Prior Injury Entitled Petitioner to Disability Benefits


Reversing the Comptroller, the Third Department determined that aggravation of a prior injury entitled petitioner to disability benefits:


This Court has repeatedly held that "'when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability'" ,,, . Here, although the Retirement System's expert speculated that petitioner may have had some low level symptoms that he had learned to manage, there is no dispute that petitioner was not incapacitated prior to the February 2009 incident. The expert characterized the exacerbation of petitioner's underlying conditions after that point as temporary, but could not explain why petitioner's conceded disability had not resolved as of the date of the hearing, 3½ years after the accident. Under these circumstances, the Comptroller's determination is not supported by substantial evidence and must be annulled ... . Matter of Scannella v New York State Comptroller, 2014 NY Slip Op 05007, 3rd Dept 7-3-14





Adjunct Professor Entitled to Unemployment Benefits Between Spring and Fall Semesters


The Third Department determined an adjunct professor who taught two courses in the spring and was offered two courses in the fall was entitled to unemployment benefits for the period between the spring and fall semesters:


A professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment" ... . "[T]he question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board's findings in that regard are supported by substantial evidence, they will not be disturbed". .. . Here, the Board found that reasonable assurance was lacking, based upon a contingency in the employer's offer that current full-time professors could, at any time up to the first day of classes, displace claimant and teach the courses assigned to him themselves. Under these circumstances, we conclude that the Board's decision is supported by substantial evidence and, therefore, it will not be disturbed. Matter of Cardin ..., 2014 NY Slip Op 04995, 3rd Dept 7-3-14





Work-Related Call to Coworker Which Triggered Harassment by Coworker's Husband Was Proper Basis for Workers' Compensation Benefits


The Third Department determined the claimant was properly awarded workers' compensation benefits for exacerbation of post traumatic stress disorder.  A work-related phone call made by the claimant to a coworker caused the coworker's husband to suspect a romantic relationship between claimant and the coworker.  The coworker's husband undertook a course of threatening conduct which culminated in an unsuccessful murder-for-hire plot:


Whether the injury producing event arose out of and in the course of claimant's employment depends upon whether it "originated in work-related differences or purely from personal animosity" ... . If there is "any nexus, however slender, between the motivation for the assault and employment," an award of workers' compensation benefits is appropriate ... . Here, the work-related phone call from claimant to his coworker's home was the basis for the subsequent harassment of claimant at his place of employment, the employer's internal investigation and claimant's request for a transfer — all of which exacerbated claimant's preexisting stress disorder. As the record reveals no connection between claimant and the coworker's husband outside of claimant's work-related duties, the Board properly found the required nexus between the threatening conduct that exacerbated claimant's preexisting condition and claimant's employment ...  Matter of Mosley v Hannaford Bros Co, 2014 NY Slip Op 04997, 3rd Dept 7-3-14




Psychological Injury Related to Threat of Violence Compensable


The Third Department determined psychological injury stemming from a surgeon's threat of physical violence made to the claimant (a physician's assistant) during a surgical procedure was a compensable injury:


"For a mental injury premised on work-related stress to be compensable, the stress must be greater than that which usually occurs in the normal work environment . . .[, which is] a factual question for the Board to resolve" ... . Here, the employer argues that the surgeon's verbal threat could not give rise to a compensable stress claim, noting mitigating factors such as the presence of others in the operating room and claimant's familiarity with the surgeon's "difficult" personality. However, in adopting the findings of the Workers' Compensation Law Judge, the Board determined that claimant's uncontroverted psychiatric diagnoses were caused by the incident, and that, under the circumstances here, threats of physical violence made by her supervisor constituted greater stress than that which normally occurs in similar work environments. Inasmuch as such determination is supported by substantial evidence and this Court cannot "reject the Board's choice simply because a contrary determination would have been reasonable," it must be upheld ... . Matter of Lucke v Ellis Hosp, 2014 NY Slip Op 05009, 3rd Dept 7-3-14




Precedent Precluded Denial of Benefits


The Third Department, reversing the Workers' Compensation Board, determined precedent required that benefits be afforded the claimant because his testimony he was engaged in a job search was deemed credible by the Board:


..."[E]ven though there is in the record substantial evidence to support the determination made," the Board's "failure to conform to [its] precedent will . . . require reversal on the law as arbitrary" if the Board has failed to explain the reason for its departure ... . As relevant here, the Board has previously determined that a claimant remains attached to the labor market when he or she is actively participating in, among other things, a job-location service — such as One-Stop Career Centers — or Board-approved vocational rehabilitation, and that a claimant's credible testimony regarding that participation is sufficient to establish attachment to the labor market (see Employer: Classic Bindery, Inc., 2011 WL 3612749, *2, 2011 NY Wrk Comp LEXIS 3997, *5-6 [WCB No. G021 5031, July 27, 2011]). The Board here expressly found claimant's testimony that he was actively participating with One-Stop to be credible but, because claimant did not provide documentation of his participation, the Board concluded that he failed to adequately demonstrate attachment to the labor market. The Board purported to rely upon a prior decision, Employer: American Axle ..., in determining that documentation was necessary but, while American Axle held that documentary evidence of active participation in One-Stop constitutes evidence of attachment to the labor market, it required documentary evidence only in connection with a claimant's independent job search (id.). American Axle, therefore, does not provide an adequate basis for distinguishing Classic Bindery.  Matter of Winters v Advance Auto Parts, 2014 NY Slip Op 05005, 3rd Dept 7-3-14


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