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July Page II

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


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Grievance Did Not Relate to Provisions of Collective Bargaining Agreement


In finding that one of two grievances was not arbitrable because the grievance (overtime pay for police officers privately employed as security officers at the airport) did not relate to the provisions of the collective bargaining agreement (CBA), the Fourth Department explained the operative criteria:


It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, we do not determine the merits of the grievance and instead determine only whether the subject matter of the grievance is arbitrable (see CPLR 7501...). "Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance' . . . If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act" ... .


"Where, as here, the [CBA] contains a broad arbitration clause, our determination of arbitrability is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA' " ... . If such a "reasonable relationship" exists, it is the role of the arbitrator, and not the court, to "make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them" ... .

Matter of City of Syracuse v Syracuse Police Benevolent Assn Inc, 2014 NY Slip Op 05251, 4th Dept 7-11-14





Plaintiffs Could Not Demonstrate the Alleged Malpractice Was Proximate Cause of Damages---Summary Judgment Properly Granted to Defendants---Elements of Attorney Malpractice Action Explained


The Second Department determined that any deficiencies in the attorney's motion papers, seeking to vacate a default, were not the proximate cause of the plaintiffs' damages, therefore the malpractice action was properly dismissed.  The court explained the elements of an attorney malpractice action:


To sustain a cause of action alleging legal malpractice, a plaintiff must establish that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and that the attorney's breach of this duty proximately caused the plaintiff actual and ascertainable damages ... .


Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney's negligence ... . "[A]s to [this] second prong, the plaintiff must plead and prove actual, ascertainable damages as a result of an attorney's negligence" ... .


"To obtain summary judgment dismissing a complaint in an action to recover damages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of [his or her] legal malpractice cause of action"... . Di Giacomo v Langella, 2014 NY Slip Op 05150, 2nd Dept 7-9-14




Complaint Stated Cause of Action for Legal Malpractice/Court Rejected Argument that Defect in Service Could Have Been Cured by Successor Counsel as Speculative


The Second Department determined the complaint sufficiently stated a cause of action for legal malpractice.  The court rejected the defendants' argument that successor attorneys could have remedied the defect in service as speculative because, in order to remedy the defect, Supreme Court would have had to exercise discretion:


To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care ... . To establish proximate cause, it must be demonstrated that a plaintiff would have prevailed in the underlying action but for the attorney's negligence ... .


On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory ... . Grant v La Trace, 2014 NY Slip Op 05155, 2nd Dept 7-9-14





Default for Failure to File Note of Issue Within 90 Days of Demand Properly Excused


In affirming Supreme Court's denial of defendants' motion to dismiss for failure to file and note of issue after a 90-day demand, the Second Department noted the court's discretion in this area:


Where, as here, a plaintiff has been served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period ... . Here, the plaintiff failed to do either within the 90-day period. Therefore, in order to excuse his default, the plaintiff was required to demonstrate a justifiable excuse for his failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action ... . The determination of what constitutes a reasonable excuse lies within the discretion of the motion court ... .


Nevertheless, CPLR 3216 is "extremely forgiving" ..., in that it "never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" ... . Thus, "the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay, and potentially a meritorious cause of action" ..., but depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal ... .


In this case, the plaintiff demonstrated that he did not intend to abandon the action and that there were ongoing discovery proceedings conducted during the time period involved. Belson v Dix Hills AC Inc, 2014 NY Slip Op 05144, 2nd Dept 7-9-14




Defense of Lack of Personal Jurisdiction Is Not Waived by Making a Motion to Dismiss on that Ground/Process Server's Testimony About Attempts to Locate Defendant Lacked Credibility


The Second Department determined the defendant did not waive the defense of lack of personal jurisdiction by submitting a motion to dismiss on that ground.  The court further determined that Supreme Court properly dismissed the complaint based upon the process server's lack of credibility about his attempts to locate the defendant:


A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss ... . A defendant may also waive lack of personal jurisdiction by entering into a stipulation of settlement of the action ... . Additionally, a defendant may waive lack of personal jurisdiction by making payments pursuant to a judgment or wage garnishment for a substantial period of time ...  However, where the defendant's only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived ... . * * *


Service of process pursuant to the affix-and-mail provisions of CPLR 308(4) is only permitted where service by personal delivery under CPLR 308(1) or by delivery to a person of suitable age and discretion and a subsequent mailing pursuant to CPLR 308(2) "cannot be made with due diligence" (CPLR 308[4]). " For the purpose of satisfying the due diligence requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment'" ... . The process server's testimony that he inquired as to the defendant's whereabouts from a neighbor was not credible, since he was unable to provide any description of the neighbor—even a description of the neighbor's sex. The affidavit of service referred to the "person spoken to," but provided no further description, although spaces were provided to insert the person's sex, skin color, hair color, approximate age, height, and weight.


The determination of the hearing court as to the credibility of the process server should not be disturbed since the hearing court had the advantage of seeing and listening to that witness. Cadlerock Joint Venture LP v Kierstedt, 2014 NY Slip Op 05147, 2nd Dept 7-9-14




Criteria for Discovery from Non-Party Explained/Criteria for Discovery of Trade Secrets Explained


The Second Department explained the criteria for discovery demanded of a non-party [Morgan Stanley] and described the relevant considerations when discovery is opposed on the ground that the material requested constitutes trade secrets.  The court concluded Morgan Stanley had demonstrated certain of the discovery requests related to protected trade secrets:


Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the "circumstances or reasons" requiring disclosure. Pursuant to the Court of Appeals' recent decision in Matter of Kapon v Koch ( ____ NY3d ____, 2014 NY Slip Op 02327 [2014]), disclosure from a nonparty requires no more than a showing that the requested information is "material and necessary," i.e. relevant to the prosecution or defense of an action (id., *1). However, "the subpoenaing party must first sufficiently state the circumstances or reasons' underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), and the witness, in moving to quash, must establish either that the discovery sought is utterly irrelevant' to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'" (id.). Should the nonparty witness meet this burden, "the subpoenaing party must then establish that the discovery sought is material and necessary' to the prosecution or defense of an action, i.e., that it is relevant" (id.). * * *


Notwithstanding New York's policy of liberal discovery (see id., * 4-5), a party seeking disclosure of trade secrets must show that such information is "indispensable to the ascertainment of truth and cannot be acquired in any other way" ... . A witness who objects to disclosure on the ground that the requested information constitutes a trade secret bears only a minimal initial burden of demonstrating the existence of a trade secret ... . Contrary to [plaintiff's] contention, Morgan Stanley met its minimal initial burden of showing that the documents requested in paragraphs 11 through 19 in the section of the subpoena duces tecum entitled "Requests for Production" contained trade secrets ... . Thus, the burden shifted to [plaintiff] to demonstrate that the information contained in those documents was indispensable to the ascertainment of truth, and could not be acquired in any other way ... . Ferolito v Arizona Beverages USA LLC, 2014 NY Slip Op 05153, 2nd Dept 7-9-14




Affidavits, Deposition Testimony, and Letters Are Not Considered "Documentary Evidence" Within the Meaning of CPLR 3211(a)(1)


The Second Department described the types of documents which will not support a motion to dismiss pursuant to CPLR 3211(a)(1):


"A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim'" ... . "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)"... . Contrary to the defendant's contention, an affidavit by a ... project manager did not constitute documentary evidence with the intendment of CPLR 3211(a)(1) ... . JA Lee Elec Inc v City of New York, 2014 NY Slip Op 05159, 2nd Dept 7-9-14





Rationale for Allowing a Late Motion for Summary Judgment When It Is Identical in Substance to a Timely Motion for Summary Judgment Made by Another Party Explained


The Second Department determined an untimely motion for summary judgment should not have been granted.  The court explained that an untimely motion may be entertained when it is identical in substance to a timely summary judgment motion made by another party in the action.  But that was not the case here.  The timely motion made by the MTA defendants, who were deemed not liable, did not determine the liability of the LIPA defendants.  Therefore, plaintiff's untimely motion for summary judgment against the LIPA defendants could not "rely" on the motion made by the MTA defendants:


The plaintiff's motion for summary judgment on the issue of liability was made more than 90 days after the filing of the note of issue, in violation of the terms of a certification order requiring motions for summary judgment to be filed within 90 days of the filing of a note of issue (see CPLR 3212[a]...). Although an untimely motion or cross motion for summary judgment may be considered by the court, in the exercise of its discretion, where a timely motion for summary judgment was made on nearly identical grounds ..., that rule did not apply here. The reason why an untimely motion for summary judgment may be considered if another party made a motion on nearly identical grounds is that, pursuant to CPLR 3212(b), the court has the authority, on a motion for summary judgment, to search the record and award relief to a nonmoving party ... . In the instant case, the MTA defendants, the original movants, established as a matter of law that they were not at fault in the happening of the accident. However, the fact that the MTA defendants were not at fault in the happening of the accident did not mean that the LIPA defendants were at fault and, therefore, that the plaintiff was entitled to summary judgment against the LIPA defendants. Accordingly, the plaintiff's motion for summary judgment on the issue of liability against the LIPA defendants should have been denied as untimely.  Williams v Wright, 2014 NY Slip Op 05172, 2nd Dept 7-9-14





Subsequent Action Which Included Claims Which Could Have Been Raised in the First Action Precluded by Doctrine of Res Judicata


The Third Department determined that a prior ruling had res judicata effect even though the subsequent action sought damages for a different period of time:


Under the doctrine of res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" ... , so long as "the party to be barred had a full and fair opportunity to litigate any cause of action arising out of the same transaction and the prior disposition was a final judgment on the merits" ... . Thus, where those requirements have been met, if "a plaintiff in a later action brings a claim for damages that could have been presented in a prior [action] against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata" ... . Stated another way, "when a plaintiff brings an action for only part of his [or her] cause of action, the judgment obtained in that action precludes him [or her] from bringing a second action for the residue of the claim" ... .


Here, the record reflects that plaintiff had a full opportunity to litigate the issues relating to his small claim for unpaid wages in City Court and such court's disposition was a final decision on the merits. It is also evident that the claim brought by plaintiff in City Court and the instant action arise out of the same series of transactions in connection with his work for defendants. Although the present action concerns wages allegedly owed for a different time period than the City Court claim, inasmuch as it had matured at the time that plaintiff commenced the prior action ..., plaintiff could have also raised the current claim at that time ... . Tovar v Tesoros Prop Mgt LLC, 2014 NY Slip Op 05233, 3rd Dept 7-10-14




Statutory and Due-Process Criteria for Long-Arm Jurisdiction Over a Nondomiciliary Defendant Described


The Third Department determined Supreme Court properly exercised jurisdiction over defendant under the long-arm statute and under federal due process principles:


In deciding whether an action may be maintained in New York against a nondomiciliary defendant, the court must first determine whether jurisdiction exists under New York's long-arm statute (see CPLR 302) based upon the defendant's contacts with this state; and, if it does, the court then determines "whether the exercise of such jurisdiction comports with due process" ... . The ultimate burden is on the plaintiff to demonstrate that such requirements have been met ... .


Here, plaintiffs assert that defendant's conduct falls within the provisions of CPLR 302 (a) (3) (ii), which confers jurisdiction when a defendant commits a tortious act outside New York that causes injury to a person or property within the state and the defendant "expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce" ... . *  *  *


Based on the record before us, we likewise find that the exercise of jurisdiction over defendant is compatible with federal due process standards. Generally, "a State may constitutionally exercise jurisdiction over non-domiciliary defendants, provided they had certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" ... . The relevant inquiry is whether a defendant "purposefully avai[led] itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws" ... . Under the circumstances here, inasmuch as defendant targeted New York consumers through a network of distributors that rendered it likely that its products would be sold in New York, "it is not unreasonable to subject it to suit in [this state] if its allegedly defective merchandise has . . . been the source of injury to [a New York resident]" ... . Darrow v Hectronic Deutschland, 2014 NY Slip Op 05239, 3rd Dept 7-10-14





New York's Seatbelt Defense Applies to Action Stemming from Pennsylvania Accident (Where There Is No Seatbelt Defense)---Defense Is Not a Conduct-Regulating Law (Which Would Trigger the Application of Pennsylvania Law)---Rather the Defense Relates to the Allocation of Damages (Which Supports the Application of New York Law)


The Fourth Department determined New York's "failure to wear a seatbelt" defense applied in an action stemming from an accident in Pennsylvania involving New York residents.  The court explained the operative criteria:


Plaintiff contends that the court erred in denying her motion because New York's seat belt affirmative defense regulates conduct, and thus does not apply in a tort dispute arising from an accident that occurred in Pennsylvania. We reject that contention. "Conduct-regulating rules have the prophylactic effect of governing conduct to prevent injuries from occurring" ... . " If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders' " ... . Conversely, where the conflicting laws serve only to allocate losses between the parties, such as vicarious liability or comparative negligence rules, the jurisdiction where the tort occurred has only a minimal interest in applying its own law ... .


Here, the conflicting laws relate to whether there is a valid affirmative defense of seat belt nonuse. Pennsylvania law prohibits the presentation of evidence of seat belt nonuse ... , while New York law allows the trier of fact to consider a plaintiff's failure to wear an available seat belt only in assessing damages and the plaintiff's mitigation thereof ... . We therefore conclude that the court properly determined that the seat belt defense "allocate[s] losses after the tort occurs" ... . Lankenau v Patrick K Boles, M & S Leasing Co LLC, 2014 NY Slip Op 05255, 4th Dept 7-11-14





Failure to Comply with a Time-Limit for a Buy-Out in a Shareholders' Agreement Was Trumped by the Overall Purpose of the Agreement---Shareholder Properly Compelled to Sell His Shares


The Third Department determined a shareholders' agreement. although it did not address the particular problem at issue, must be read to avoid a result which would be at odds with the clear purposes of the agreement.  One of the three shareholders of the closely held corporation (the defendant) was convicted of a felony and the other shareholders terminated his employment and sought to buy his shares. The defendant sought to prohibit the buy-out by arguing it was untimely under the terms of the shareholders' agreement.  Because the corporation distributed alcoholic beverages, if the defendant remained a shareholder the corporation would lose its distributor's license:


A shareholders' agreement — like any other contract — should be enforced according to its terms ... . In so doing, "[t]he contract must be read as a whole to determine its purpose and intent, and it should be interpreted in a way [that] reconciles all its provisions, if possible" ... . To that end, "the goal should be a practical construction of the language used so that the reasonable expectations of the parties are realized" ..., and "the contract must be interpreted so as to give effect to, not nullify, its general or primary purpose" ... .


Here, the shareholders' agreement reflects "[t]he shareholders['] desire to establish a market value for their shares, to effectively control the management of the company, for their mutual best interests, and to protect against divisive relationships which would arise if outsiders with incompatible management philosophies gained interests in the company." Consistent with that stated objective, the agreement further recognizes that "[t]he company is dependent upon and derives substantial benefit from the continued active interest and participation of those shareholders who participate in the management of the company." In an attempt to preserve the closely-held nature of the corporation, the agreement provides that when a shareholder's employment with the corporation ceases, "he or she shall be treated as though he or she were selling all of his or her shares under paragraph A of . . . [s]ection [t]wo [of the agreement]," which outlines the procedures to be followed when a shareholder, during the course of his or her lifetime, "transfer[s] any of his or her shares to anyone other than a family member." In such case, the shareholder is to give notice of his or her intention to sell and, "[f]or a period of thirty [30] days after the notice is delivered, the [corporation] shall have an option to purchase all or any part of the offered shares on the payment terms specified in [s]ection [f]our [of the agreement]." If the corporation does not exercise such option, then the remaining shareholders are granted an additional 30-day option to purchase any or all of the available shares. * * *


...[R]eading the agreement as a whole and affording it a practical construction that is consistent with and gives proper effect to the parties' stated intentions ..., we are satisfied that Supreme Court properly granted plaintiffs' motion to compel [defendant] to sell his shares to the corporation — even if that option to purchase was not timely exercised. To hold otherwise and permit [defendant] to retain his shares due to the asserted noncompliance with the time period set forth in the shareholders' agreement not only would effectively rewrite the parties' agreement and undermine its stated purpose, i.e., to retain managerial control within the closely-held family corporation, but would place the corporation at risk of losing its distributor's license, thereby rendering its stock worthless... . A Cappione Inc v Cappione, 2014 NY Slip Op 05230, 3rd Dept 7-10-14





Proof of "Physical Injury" Was Legally Insufficient


The Second Department determined the "physical injury" element of robbery in the second degree had not been proven:


"Physical injury" is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00[9]). The subject complainant testified that he sustained an injury to his left ring finger after he was attacked from behind and fell to the ground. The complainant went to the hospital after the incident, where his bruised finger was bandaged and placed in a splint, but X rays revealed no broken bones and there was no evidence presented that he was prescribed pain medication. A "bruise" was still present four years after the incident, but the complainant only testified generally that he felt pain on his hand and arms immediately after the incident, and he did not testify that the injury limited or diminished his ability to use his finger for any length of time. Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of physical condition ... . People v Boney, 2014 NY Slip Op 05197, 2nd Dept 7-9-14



Even In a Nonjury Trial, a Defendant Should Not Be In Shackles Unless Reasons Are Placed on the Record


The Third Department found the error harmless, but it noted that, even in a nonjury trial, the defendant should not be in shackles in the courtroom unless reasons for the restraint are put on the record:


Even in a nonjury trial, a defendant should not remain restrained in the courtroom unless the trial court sets forth particularized reasons for such restraint on the record ... . People v Whitehead, 2014 NY Slip Op 05213, 3rd Dept 7-10-14




Alleged Error Did Not Raise a Question of Jurisdiction or Constitute a Constitutional Defect---Therefore the Alleged Error Did Not Survive the Guilty Plea


The Third Department described the types of fundamental errors which survive a guilty plea. The prosecutor's alleged failure to inform the grand jury of defendant's request to call witnesses in not one of them:


By his plea of guilty, defendant forfeited this argument. "As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered" ... . As relevant here, a claim "that the District Attorney did not inform the grand jury of defendant's request to call witnesses to testify on his behalf as required by CPL 190.50 (6) . . . does not activate a question of jurisdiction or constitute a constitutional defect and, thus, does not survive a guilty plea" ... . People v McCommons, 2014 NY Slip Op 05215, 3rd Dept 7-10-14




Insufficient Proof of Value of Stolen Property, Evidence of Prior Crimes Improperly Admitted, Identification Testimony Improperly Admitted, Prosecutor Improperly Vouched for Witnesses---New Trial Ordered


In reversing the defendant's grand larceny conviction, the Fourth Department determined the evidence of the value of the property was "conclusory" consisting only of "rough estimates" and was therefore legally insufficient.  The court also determined evidence of uncharged crimes and identification testimony should not have been admitted, and noted the prosecutor improperly vouched for the credibility of prosecution witnesses. With respect to the uncharged crimes and identification evidence, the court wrote:


...[W]e agree with defendant that County Court erred in allowing the People to introduce evidence concerning an uncharged burglary to prove his identity as the perpetrator of the burglary and petit larceny charged in the indictment. The instant crime is "not so unique as to allow admission of evidence of the [uncharged burglary] on the theory of the similarity of the modus operandi" ... . The court further erred in admitting the testimony of a witness who identified defendant in an out-of-court photo array procedure and thereafter identified him in court. The People failed to satisfy their obligation pursuant to CPL 710.30 inasmuch as no statutory notice was given by the People with respect to their intent to offer "testimony regarding an observation of the defendant at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such" (CPL 710.30 [1]...). The errors in admitting evidence of the uncharged burglary and the identification of defendant are not harmless, considered singularly or in combination, inasmuch as the proof of defendant's guilt is not overwhelming, and there is a significant probability that the jury would have acquitted defendant had it not been for either of the errors... . People v Walker, 2014 NY Slip Op 05254, 4th Dept 7-11-14




Dissenters Would Have Reduced the Defendant's Sentence---Defendant Was 16 Years Old at the Time of the Offenses and Was Offered a Lower Sentence as Part of a Plea Bargain


Although the Fourth Department affirmed defendant's conviction and sentence, two dissenting justices would have reduced the defendant's sentence.  The dissenters noted that the defendant was 16 years old at the time of the offenses and there was a great disparity between the sentence after trial and the sentence offered as part of a plea bargain.  People v Angona, 2014 NY Slip Op 05257, 4th Dept 7-11-14





Petition to Vacate Hearing Officer's Decision Terminating Petitioner (a School Administrator) Was Not Properly Served Upon a "School Officer"


The petitioner, an elementary school administrator, was terminated for misconduct after a hearing.  Petitioner then filed a petition to vacate the hearing officer's (HO's) decision.  Supreme Court dismissed the petition as untimely and improperly served.  The Fourth Department, over a two-justice dissent, determined the petition was timely, but it was not properly served. The dissenters argued that the petition was not timely filed as well:


...[W]e conclude that the phrase "receipt of the hearing officer's decision" in Education Law § 3020-a (5) (a) refers to the receipt of such decision from the SED [State Education Department]. We thus reject respondents' contention that section 3020-a provides that the 10-day period in which to appeal runs from the receipt of the HO's decision by email, not the receipt of the HO's decision through mail sent by the SED. Rather, we agree with petitioner that, by concluding that the 10-day period to appeal commenced upon petitioner's receipt of the HO's decision by email, the court rendered the notification process contained in Education Law § 3020-a (4) superfluous.  * * *


...[W]e agree with the court that petitioner's service of the petition was defective. The decision of the Second Department in Matter of Franz v Board of Educ. of Elwood Union Free Sch. Dist. (112 AD2d 934 ...) is instructive. There, "[t]he notice of petition was personally delivered to [the] respondent [Board of Education]'s secretary," whom the Second Department concluded was "not a school officer' as set forth in . . . Education Law [§ 2 (13)]" (id. at 935). In support of that conclusion, the Second Department noted that "[t]he courts of this State have consistently required strict compliance with the statutory procedures for the institution of claims against the State and its governmental subdivisions, and where the Legislature has designated a particular public officer for the receipt of service of process, we are without authority to substitute another" ... . We likewise conclude here that the payroll clerk employed in the District's business office was not a "school officer" under the Education Law. Matter of Puchalski v Depew Union Free School Dist..., 2014 NY Slip Op 05271, 4th Dept 7-11-14





Child Should Have Been Placed with Grandmother---Placement Criteria Explained


The Second Department determined Family Court should not have denied the petition to place the child with the grandmother.  The court explained the placement procedure and criteria:


Family Court Act § 1017 sets out the steps to be followed in determining the appropriate placement of a child when the child is initially removed from his or her home. When the decision to remove the child was made, the DSS was obligated to locate the child's relatives, including her grandmother, and inform them of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child (see Family Ct Act § 1017[1]). The Family Court was then required to determine if the child could suitably reside with any such relative (see Family Ct Act § 1017[1][a], [b]). If a suitable relative existed, the Family Court would either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent (see Family Ct Act § 1017[2][a]). Only if no suitable relative could be located would the Family Court consider whether another placement would be appropriate (see Family Ct Act former § 1017[2][b]). With respect to an out-of-state relative, Social Services Law § 374-a requires that an ICPC home study must first be conducted before placing the child with that individual.


"One purpose of Family Court Act § 1017 is to help safeguard the infant's physical, mental and emotional well-being. . . Placement with a suitable relative can help the child by maintaining family ties and reducing the trauma of removal. In making a determination of placement [the] Family Court must consider not only the custodian's ability to provide adequate shelter, but all the facts and circumstances relevant to the child's best interest" ... . Matter of Paige G, 2014 NY Slip Op 05182, 2nd Dept 7-9-14



Where There Has Been a Failure of a Material Condition of a Judicial Instrument of Surrender (of Guardianship and Custody of a Child), the Parent May Bring an Action to Revoke the Surrender Instrument


The Third Department, in a full-fledged opinion by Justice Devine, determined, where a parent agrees to surrender guardianship and custody of a child pursuant to a judicial instrument of surrender, a substantial failure of a material condition of the instrument allows the parent to bring an action to revoke the instrument.  In this case the persons specified in the surrender would not adopt the child:


In Matter of Christopher F. (supra), we were presented with a biological parent's application to revoke a judicial instrument of surrender. We concluded that, although no procedures beyond notification of the parent were set forth in the statute at that time (see Social Services Law § 383-c [6] [former (c)], as added by L 1990, ch 479, § 2), "based upon our common-sense interpretation of the applicable statutory framework," the failure of the provision of the surrender instrument conditioning the biological parent's surrender on adoption of the child by the person specified in the surrender "permitted [the biological parent] to revoke her consent to the adoption" ... . Accordingly, we granted the parent's application for revocation of the judicial surrender. "'The Legislature is . . . presumed to be aware of the decisional and statute law in existence at the time of an enactment'" ... . Since the subsequent statutory amendments did nothing to abrogate or replace the relevant portions of our holding in Matter of Christopher F. (260 AD2d at 99-101), we conclude that, when there has been a substantial failure of a material condition of a judicial instrument of surrender, the procedure we endorsed in Matter of Christopher F. (supra) remains the appropriate procedure. In such a circumstance, the surrendering parent may bring an application before the court — either by petition or by motion — for revocation of the instrument (see id. at 101). Matter of Bentley XX, 2014 NY Slip Op 05222, 3rd Dept 7-10-14




Substantial Evidence Supported Finding that Allowing a Child to Wander Away Near a Four-Lane Highway Constituted Maltreatment


The Third Department determined the Commissioner of Children and Family Services properly denied a petition to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged.  Petitioner called law enforcement because her grandchild had wandered away from her front yard and was found unharmed about 200 yards away.  There was no fence and the home faced a four-lane highway:


Substantial evidence supports the finding of maltreatment. In order to establish maltreatment, the agency was required "to demonstrate by a fair preponderance of the evidence that 'the child's physical, mental or emotional condition ha[d] been impaired or [was] in imminent danger of becoming impaired as a result of the [caregiver's] failure to exercise a minimum degree of care'" in providing the child with appropriate supervision ... . Upon review of such an administrative determination, "this Court's inquiry is limited to whether the decision is rational and supported by substantial evidence" ... . A determination is supported by substantial evidence "when reasonable minds could adequately accept the conclusion or ultimate fact based on the relevant proof" ... . 


Although petitioner's home is at the end of a dead-end street, testimony by respondent Michelle Kelley, a caseworker for the Saratoga County Department of Social Services, and photographs introduced into evidence established that the home also faces a four-lane divided highway with a speed limit ranging from 45 to 55 miles per hour. Notably, the same evidence showed that there is no fence, or any similar physical barrier, directly between petitioner's front yard and this highway. Matter of Cheryl Z v Carrion, 2014 NY Slip Op 05226, 3rd Dept 7-1014




As a Matter of Discretion, the Court Can Grant a Separate Property Credit for Property Which Was Originally Separate But Which Was "Transmuted" into Marital Property (Overruling Precedent)---the Credit Was Properly Denied Here


The Third Department determined that, under the facts of the case, Supreme Court properly denied the wife a credit for the marital home which originally was her separate property.  The wife subsequently put the property in both her and her husband's names and the property was used to consolidate the debts of both husband and wife.  However, the Third Department took the opportunity to explain that property which is originally separate but which is then "transmuted" to marital property can be the basis of a separate-property credit, overruling a case relied upon by Supreme Court to deny the credit.  The credit can be applied as a matter of discretion:


...[T]o the limited extent that Campfield [95 AD3d 1429] may be read to limit a court's discretion to award a separate property credit to a spouse, like the wife, who transmutes separate property into marital property without changing the nature of the property itself, it should no longer be followed. As we have subsequently noted without reference to the way in which a marital asset was acquired, credits are often given for the value of the former separate property (see Murray v Murray, 101 AD3d at 1321). We have also subsequently explained that the decision to award a separate property origination credit in such a situation is a determination left to the sound discretion of Supreme Court (see Alecca v Alecca, 111 AD3d at 1128; Murray v Murray, 101 AD3d at 1321). Therefore, our own jurisprudence subsequent to Campfield indicates that such credit is not precluded as a matter of law when separate property has been transmuted into marital property. Myers v Myers, 2014 NY Slip Op 05228, 3rd Dept 7-10-14





Material Misrepresentation Justified Rescission of Policy


The Second Department determined that plaintiff's representation to the insurance carrier that the property was a two-family dwelling, when it actually was a three-family dwelling, was a material misrepresentation justifying rescission of the policy:


"To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy" ... . "A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented" ... . "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application" ... . * * *


...[T]he defendant submitted an affidavit from its underwriting manager and its "Homeowners Selection Rules," which showed that it would not have issued the same policy if the application had disclosed that the subject premises was a three-family dwelling ... . Lema v Tower Ins Co of NY, 2014 NY Slip Op 05162, 2nd Dept 7-9-14




Policy Language Interpreted to Support Plaintiff's Allegation the Insurer Was Timely Notified of Injured Worker's Claim


The Fourth Department, over a two-justice dissent, reversed Supreme Court finding that the documentary evidence did not demonstrate the insurer had not been timely notified of the claim (within the meaning of the policy language) as a matter of law.  In the course of the decision, the court interpreted the policy terms "occurrence," "claim" and "suit" as well as the phrase "see to it that defendant was notified:"


Initially, we conclude that the December 2009 letter was a notice of an "occurrence . . . which may result in a claim" and not a "claim" under the policy. The terms "occurrence," "claim," and "suit" are separately used in the policy, and thus each term must be " deemed to have some meaning' " ... . The policy defines "[o]ccurrence" as "an accident." The term "[c]laim" is not defined in the policy, but such term has been interpreted to mean " an assertion of legally cognizable damage,' " i.e., " a type of demand that can be defended, settled and paid by the insurer' " ... . Here, the December 2009 letter "neither makes any demand for payment nor advises that legal action will be forthcoming" ... . Rather, the letter advised plaintiff that [the injured worker] had retained an attorney in connection with personal injuries he had sustained during the course of his work on the construction project, requested that plaintiff forward the letter to its insurance carrier, and warned plaintiff that failure to notify its carrier could result in a denial of coverage and "personal responsibility for any obligations that may arise" from [the] accident.


We further conclude that the January 2010 letter and form ... sent to defendant at plaintiff's request satisfied the insured's duty under the policy to "see to it" that defendant was notified of the occurrence "as soon as practicable" .... Contrary to the court's conclusion, the policy did not require that written notice of an occurrence come directly from plaintiff; it simply required that plaintiff "see to it" that defendant was "notified" ... . Moreover, to the extent that the phrase "see to it that we are notified" is ambiguous, that ambiguity must be construed in plaintiff's favor ... .   Inasmuch as the January 2010 letter constituted notice of an "occurrence," we conclude that the May 2010 letter constituted notice of a "claim" or "suit" based upon [the injured worker's] April 15, 2010 commencement of the underlying action. We therefore agree with plaintiff that the court erred in dismissing the complaint against defendant inasmuch as the documentary evidence does not conclusively establish a defense to plaintiff's claim as a matter of law... . Spoleta Constr LLC v Aspen Ins UK Ltd, 2014 NY Slip Op 05250, 4th Dept 7-11-14





Judges Not Entitled to Retroactive Monetary Damages Re: Legislature's Failure to Enact Cost of Living Increases Since 2000


The First Department, with concurring and dissenting opinions, affirmed Supreme Court's declining to award the plaintiffs-judges retroactive monetary damages based upon the legislature's failure to enact cost of living increases since 2000.  In his concurring opinion, Justice Tom determined that the Court of Appeals, in Matter of Maron v Silver, 14 NYU3d 230 (2010), did not authorize the courts to award such damages, rather the Court of Appeals left it to the legislature to remedy the problem:


There is no lingering question whether the legislature acted properly during the time period when judges' salary remained stagnant for years - it did not - nor was there any serious controversy regarding the merits of an increase in judicial compensation. Now that the legislature has acted, the issue presented is whether the pay increases that were authorized were themselves constitutionally deficient. However, plaintiffs are conflating an understandable lack of satisfaction with the financial outcome with an analysis more properly relegated to the constitutionality of the process. Relatedly, we are constrained by the text of the Court of Appeals decision, in Maron, which analyzed the prior process in terms of the conflict between the legislature's constitutional prerogatives, and its budgetary policies that are outside the purview of those boundaries. * * *


In the final analysis, however, the viability of the remedy which plaintiffs seek is solely governed by the existing Court of Appeals ruling. The decision did not directly define the outer boundaries of judicial power should the legislature not provide for retroactive compensation, but seemingly left the nature and extent of compensation with the legislature. Thus, I do not find that the legislature, having abandoned its constitutionally offensive policy of linkage when recently increasing judicial salaries, has constitutionally offended by acting only prospectively, nor do I see a basis to conclude that the directives of the Court of Appeals were transgressed.  Larabee v Governor of the State of NY, 2014 NY Slip Op 05246, 1st Dept 7-10-14





Block Falling from Pallet Covered Under Labor Law 240(1)/Criteria for Common Law Indemnification Explained


The Second Department determined injury from a stone block falling from a pallet was covered by Labor Law 240(1).  The court also explained the requirements for common law indemnification:


The defendants failed to establish their prima facie entitlement to judgment as a matter of law. Labor Law § 240(1) mandates that owners and contractors "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." The statute imposes absolute liability on owners and contractors whose failure to "provide proper protection to workers employed on a construction site" proximately causes injury to a worker ... . The defendants failed to show that the injured plaintiff's alleged injuries resulted from a general hazard encountered at a construction site and were not "the direct consequence of a failure to provide" an adequate device of the sort enumerated in Labor Law § 240(1) ... . Those devices are intended to protect "against a risk arising from a physically significant elevation differential" (id. at 603). The defendants' submissions did not establish that the accident was not the result of a failure to provide a protective device contemplated by the statute ... . * * *


The key element of a cause of action for common-law indemnification is not a duty running from the indemnitor to the injured party, but rather, is a separate duty owed the indemnitee by the indemnitor ... . " Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'"... . Desena v North Shore Hebrew Academy, 2014 NY Slip Op 05149, 2nd Dept 7-9-14





Portion of Assisted Outpatient Treatment (AOT) Order Not Supported by Testimony Should Not Have Been Included


The Second Department determined Supreme Court did not have the authority, under Mental Hygiene Law 9.60, to go beyond the treatment plan and recommendations testified about by the psychiatrist in a proceeding to order Raymond G to comply with Assisted Outpatient Treatment (AOT).  In the absence of any recommendations about Raymond G's use of his car, the court ordered the impoundment of his car. The Second Department reversed that part of the AOT order and explained what can be included in an AOT order under the terms of the controlling statute:


Mental Hygiene Law § 9.60, commonly known as Kendra's Law, "provides a framework for the judicial authorization of involuntary outpatient treatment programs for persons suffering from mental illnesses" (Matter of William C., 64 AD3d 277, 279). It sets forth, inter alia, the types of outpatient services that may be ordered by the court as part of an AOT plan, the requirements for the petition, and the procedures for a hearing on the petition (see Mental Hygiene Law § 9.60[a][1]; [e][2]-[3]; [h][1]). * * *


The statute requires that the petition be accompanied by an affirmation or affidavit of an examining physician who recommends AOT (see Mental Hygiene Law § 9.60[e][3][I]), and directs that the court "shall not order [AOT]" unless it is provided with a proposed written treatment plan developed by a physician appointed by the applicable community services or hospital director, which includes "all categories of services, as set forth in [§ 9.60(a)(1)], which such physician recommends that the [patient] receive," "no later than the date of the hearing on the petition" (Mental Hygiene Law § 9.60[i][1]). Further, the statute provides that the court "shall not order [AOT] unless [the] physician appearing on behalf of [the] director testifies to explain the written proposed treatment plan [and] state[s] the categories of [AOT] recommended, the rationale for each such category, [and] facts which establish that such treatment is the least restrictive alternative" (Mental Hygiene Law § 9.60[i][3]).


Following the hearing, the court "may" order AOT if it finds by "clear and convincing evidence that the [patient] meets the criteria for [AOT], and there is no appropriate and feasible less restrictive alternative" (Mental Hygiene Law § 9.60[j][2]). The order must include specific findings "by clear and convincing evidence that the proposed treatment is the least restrictive treatment appropriate and feasible for the [patient]," and "state an [AOT] plan, which shall include all categories of [AOT], as set forth in [§ 9.60(a)(1)], which the [patient] is to receive" (Mental Hygiene Law § 9.60[j][2]). The order "shall not include any such category that has not been recommended in both the proposed written treatment plan and the [physician's hearing] testimony" (Mental Hygiene Law § 9.60[j][2]).  Matter of Raymond G..., 2014 NY Slip Op 05183, 2nd Dept 7-9-14





Attributes of Equitable Mortgage Explained


In affirming the denial of plaintiff's motion for summary judgment based upon allegations of the existence of an equitable mortgage, the Fourth Department explained the attributes of an equitable mortgage:


"Equity generally will keep an encumbrance alive, or consider it extinguished, as will best serve the purposes of justice' " ... . "The whole doctrine of equitable mortgages is founded upon [the] cardinal maxim of equity which regards that as done which has been agreed to be done, and ought to have been done" ... .


" [A]n equitable mortgage may be constituted by any writing from which the intention so to do may be gathered, and an attempt to make a legal mortgage, which fails for the want of some solemnity, is valid in equity' " ... . "While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation' . . . , it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances' " . .. . Canandaigua Natl Bank & Trust Co v Palmer, 2014 NY Slip Op 05263, 4th Dept 7-11-14





Matter Determined After a Public Hearing, As Opposed to a Quasi-Judicial Evidentiary Hearing, Is Reviewed Under the "Arbitrary and Capricious," Not "Substantial Evidence," Standard/Village's Higher Rate for Water Delivered to Customers Outside Its Borders Was Rational


The Second Department determined that, because there was a public hearing, not a quasi-judicial evidentiary hearing, on whether the village could charge a higher rate for water supplied outside its borders, Supreme Court should have determined the matter under the arbitrary and capricious standard. In applying that standard, the Second Department found the higher rate had a rational basis:


The Supreme Court erred in characterizing the proceeding as one in the nature of certiorari in which the "substantial evidence" inquiry applied (CPLR 7804[g]). Rate-making determinations may be considered "judicial in the sense that they are reviewable by certiorari or a proceeding in the nature of certiorari" where notice and a hearing are prescribed by statute ... . However, "there are different types of hearings with different legal consequences" ... . Here, the Village Code required the Board to conduct a hearing in advance of changing the rates it charged for water service, and the Board held a public hearing, as opposed to a quasi-judicial evidentiary hearing (see Code of the Village of Williston Park § 225-20[A]). As such, judicial review of the determination was limited to "whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational" ... . * * *


The Board's determination to increase rates was rational, and was not arbitrary and capricious or illegal. A municipal water supplier may charge a higher rate to customers outside its borders, including other municipalities, so long as the difference has a rational basis ... . Moreover, a municipal corporation operating a public water utility is entitled to earn a "fair return" on its investment in the utility's facilities "over and above costs of operation and necessary and proper reserves" in addition to "an amount equivalent to taxes which [the utility], if privately owned, would pay to such municipal corporation" (General Municipal Law § 94; see NY Const art IX, § 1[f]). The actual rate the Board determined to charge also was rational ... . In addition, the petitioner has not made any showing that the profits earned by the Incorporated Village of Williston Park under the new rate schedule, as compared to the "value of the property used and useful in such public utility service, over and above costs of operation and necessary and proper reserves," were in excess of a "fair return" ... . Matter of Board of Trustees of Inc Vil of Williston v Board of Trustees of Inc Vil of Williston Park, 2014 NY Slip Op 05179, 2nd Dept 7-9-14




No Sanction for Automatic Destruction of Video Recordings of Accident Scene after 21 Days---Counsels' Original Request for Video Recording at the Time of the Accident Was Complied With---Counsel Subsequently Asked for Six Hours of Recording Prior to the Accident---By the Time of that Request the Videotape Had Been Automatically Destroyed


The First Department, over a dissent, determined Supreme Court properly denied plaintiff's motion for sanctions based upon allegations of spoliation of evidence.  In response to plaintiff's counsel's initial request, 84 seconds of videotape depicting plaintiff's slip and fall were preserved. Subsequently plaintiff's attorney requested video of the six hours preceding the accident.  By that time, however, the tapes had been automatically erased:


On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind," which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense ... . In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness ... . The burden is on the party requesting sanctions to make the requisite showing ... . * * *


While it is true that a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and "should not be compelled to accept defendant's self-serving statement concerning the contents of the destroyed tapes" ... , this principle does not translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff's request for them. That obligation would impose an unreasonable burden on property owners and lessees.   Duluc v AC & L Food Corp, 2014 NY Slip Op 05243, 1st Dept 7-10-14




Jury's Finding a Party Was at Fault But Such Fault Was Not the Proximate Cause of the Accident Should Not Have Been Set Aside as Inconsistent and Against the Weight of the Evidence


The Second Department determined plaintiff's motion to set aside the verdict as contrary to the weight of the evidence should not have been granted.  Plaintiff was injured when he dove to catch a ball in an area which had poles sticking up out of the ground.  The plaintiff, who was 10 years old at the time, knew the poles were there.  The jury found that the property owner was at fault but that such fault was not the proximate cause of the accident.  The Second Department held that the verdict was not inconsistent and against the weight of the evidence:


"A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" ... . " [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view'" ... . Here, a fair interpretation of the evidence supports the conclusion that the infant plaintiff's own negligence was the sole proximate cause of his accident ... . Henry v Town of Hempstead, 2014 NY Slip Op 05157, 2nd Dept 7-9-14




Whether Lost Evidence Was Relevant to Plaintiff's Case Presented a Jury Question---Only If the Jury Determines the Evidence Was Relevant Can the Jury Consider the Adverse Inference Charge for Spoliation of Evidence


The Second Department determined there was a question of fact whether the failure to preserve a broken jar, the cause of plaintiff's injury, warranted an adverse inference charge.  Whether the jar was relevant to the plaintiff's case was a question raised by conflicting expert opinions. The question of fact must first be resolved by the jury before the adverse inference charge could be applied by the jury:


While the lesser sanction of an adverse inference may be appropriate for spoliation of the subject jar ..., under the circumstances of this case, an issue of fact exists as to whether spoliation of relevant evidence occurred. The sanction of an adverse inference for spoliation of evidence is not warranted when the evidence destroyed is not relevant to the ultimate issues to be determined in the case ... . ...[T]he plaintiff submitted an expert affidavit averring that she could have determined how long the jar had been broken by analyzing the mold contained in the jar, and the defendant submitted an expert affidavit disputing that such a conclusion could have been reached. If the opinion of the defendant's expert were credited, then an adverse inference would not be warranted, because the lost evidence would not have been relevant to the plaintiff's case ... . Thus, this issue of fact should be placed before the jury, along with the inferences to be drawn therefrom ... . The jury should be instructed that, if it credits the opinion of the defendant's expert that no conclusion could have been reached with reasonable certainty regarding how long the jar had been broken by analyzing the mold contained in the jar, then no adverse inference should be drawn against the defendant. On the other hand, the jury should be advised that, if it credits the opinion of the plaintiff's expert that she could have determined how long the jar had been broken by analyzing the mold inside, then it would be permitted to draw an adverse inference against the defendant ... . Pennachio v Costco Wholesale Corp, 2014 NY Slip Op 05165, 2nd Dept 7-9-14





Party Moving for Summary Judgment May Not Submit Expert Affidavits With the Identity of the Expert Redacted


In the summary judgment context, the Third Department determined the moving party in a medical malpractice action, unlike the non-moving party, could not submit affidavits from experts with the names of the experts redacted:


In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to "tender[] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact" ... . Among other submissions, defendants provided an affidavit from a medical expert whose identity was redacted and who opined on the appropriateness of plaintiff's medical care and the adequacy of the warnings given to plaintiff.efendants also submitted an unredacted version of the affidavit for Supreme Court's in camera review. Because defendants were the movants for summary judgment, their submission of an anonymous expert affidavit was incompetent evidence not proper for consideration upon the motion ... .


While the Legislature has allowed for some protection from disclosure of the identities of medical experts during "[t]rial preparation" (CPLR 3101 [d] [1] [i]), and, consistent with this intention, courts have found it appropriate to allow nonmovants in the summary judgment context to also withhold experts' identities from their adversaries upon the reasoning that such parties did not choose to abandon the disclosure protections provided during trial preparation ..., the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action. Further, we see no compelling reason to allow for such anonymity that would outweigh the benefit that accountability provides in promoting candor ... . Requiring a movant to reveal an expert's identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant field prior to any possible resolution of the case on the motion ... . Further, any expert who anticipates a future opportunity to espouse a contradictory opinion would be on notice that public record could be used to hold him or her to account for any unwarranted discrepancy between such opinions ... . For these reasons, we will not consider the incompetent affidavit of defendants' medical expert. Rivera v Albany Med Ctr Hosp, 2014 NY Slip Op 05236, 3rd Dept 7-10-14





Claimant's Inculpatory Statement Demonstrated to Be Product of Police Misconduct


Fourth Department affirmed the judgment against the state for wrongfull conviction and imprisonment.  After nine years of imprisonment for attempted murder, another came forward and credibly confessed to the crime.  The claimant was released and sued the state.  The state argued on appeal that, because the claimant made an inculpatory statement, the proof that he did not bring about his own conviction was insufficient.  In rejecting that argument, the court explained:


Claimant consistently maintained his innocence and contended that his inculpatory statement was coerced. "[A] coerced false confession does not bar recovery under section 8-b because it is not the claimant's own conduct' within the meaning of the statute" ... . It is well settled that "[t]he voluntariness of a confession can only be determined through an examination of the totality of the circumstances surrounding the confession" ... . "Relevant criteria include the duration and conditions of detention, the manifest attitude of the police toward the detainee, the existence of threat or inducement, and the age, physical state and mental state of the detainee" ... . The use or misuse of a polygraph examination is also a factor to be considered in determining whether there was impermissible coercion ... .


Here, we conclude that the record fully supports the court's determination that claimant's inculpatory statement was the product of police misconduct ... . Claimant was awake for 34 hours before making his only inculpatory statement, which was the second statement he made. He had been interrogated for 15 hours in a six- by eight-foot windowless room. He ate nothing and drank only one can of soda and, although he was a heavy smoker, he had no cigarettes in the prior four or five hours. He remained under the severe emotional trauma of having seen his wife in a horrible bloodied and battered condition. Claimant was advised that, if he took a polygraph exam and passed, he would be permitted to go home.


Notably, the polygraph operator expressed significant concern to fellow officers about the reliability of the polygraph exam because claimant was "somewhat physiologically unresponsive to the polygraph." Gristwood v State of New York, 2014 NY Slip Op 05259, 4th Dept 7-11-14





Off-Duty Corrections Officer Was Not Acting Within the Scope of His Employment When Decedent Was Shot


The Second Department determined that an off-duty corrections officer (Maldonado) was not acting within the scope of his employment when he shot and killed a man:


"Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment" ... . "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment" ... . However, an employer may not be held vicariously liable for its employee's alleged tortious conduct if, at the time of the underlying incident, the employee was acting solely for personal motives unrelated to the furtherance of the employer's business ... .


Here, the claimant's decedent was shot by an off-duty New York State Corrections Officer, Emilio Maldonado, after a dispute. The record showed, inter alia, that Maldonado was assaulted by the claimant's decedent and his brother following a traffic dispute. At the time of the incident, Maldonado was driving his personal vehicle, and was accompanied by family members. He was carrying his own privately-owned weapon as well as a badge. * * *


Although Maldonado testified in a related criminal action that he intended or planned to "cuff" and detain the assailants, it is undisputed that he never took any affirmative steps toward effecting a detention. In particular, he did not order the assailants to halt, and he did not physically attempt to handcuff or detain them. It is also undisputed that after the shooting, Maldonado did not attempt to detain the fleeing assailants. Under these circumstances, the claimant failed to raise a triable issue of fact as to whether Maldonado acted within the scope of his official duties... . Wood v State of New York, 2014 NY Slip Op 05173, 7-9-14




Defendant Failed to Prove Three Elements of Adverse Possession


The Third Department determined that defendant failed to demonstrate it had acquired plaintiff's property by adverse possession:


To establish adverse possession, defendant was required to demonstrate, by clear and convincing evidence, that its possession was "(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required [10-year] period" ... . Additionally, where, as here, the claim of right is not founded upon a written instrument, it was necessary for defendant to "establish that the land was 'usually cultivated or improved' or 'protected by a substantial inclosure'" ... . Upon our review of the record, we agree with Supreme Court's conclusion that defendant failed to raise an issue of fact with respect to more than one of these elements.


Specifically, defendant has failed to establish that its use of the disputed parcel was continuous or exclusive * * * [and] ... defendant presented no evidence that it cultivated or improved the disputed parcel during the relevant period.  Salerno v CE Kill Inc, 2014 NY Slip Op 05224, 3rd Dept 7-10-14






Surrogate's Court Properly Declined to Suspend the Fiduciaries' Letters Testamentary and Letters of Trusteeship Pending a Hearing to Determine the Contested Facts


The Second Department determined Surrogate's Court properly declined to suspend the fiduciaries' letters testamentary and letters of trusteeship pending the outcome of an accounting proceeding.  Although allegations of comingling property would support such a suspension, the allegations were contested and it would be an abuse of discretion to order the suspension without a hearing:


The removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to "a judicial nullification of the testator's choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established" ... .


Nevertheless, pursuant to SCPA 719(7), "letters [issued to a fiduciary] may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process. . . . [w]here he mingles the funds of the estate with his own or deposits them with any person, association or corporation . . . in an account other than as fiduciary" (SCPA 719[7] [emphasis added]). Fiduciary letters also may be suspended without process "[w]here any of the facts provided in 711 are brought to the attention of the court" (SCPA 719[10]).


However, as noted in Matter of Duke (87 NY2d 465),


"[w]hile the Surrogate is clearly granted the exceptional authority to summarily remove executors without the formality of commencing a separate proceeding, the authority to exercise the ultimate sanction summarily is not absolute. The Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary's in-court conduct causes such facts to be within the court's knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding" (Matter of Duke, 87 NY2d at 472-473 [internal citations omitted; emphasis added]).


Thus, revoking a fiduciary's letters without a hearing pursuant to SCPA 719 will constitute an abuse of discretion "where the facts are disputed, where conflicting inferences may be drawn therefrom . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy" ... .


Contrary to the appellants' contention, the allegations in this case are sharply disputed and give rise to conflicting inferences regarding the Fiduciaries' alleged misconduct. Matter of Mercer, 2014 NY Slip Op 05186, 2nd Dept 7-9-14




Petitioner Sufficiently Alleged She Is a Nonmarital Child of the Decedent---Probate Decree Properly Vacated


The Second Department determined Surrogate's Court properly vacated a probate decree based upon petitioner's assertion she is a nonmarital child of the decedent:


Here, the petitioner ... sufficiently alleged that the decedent ... "openly and notoriously acknowledged [her] as his own [child]" and, thus, she may be entitled to inherit from him (EPTL 4-1.2[a][2][C][ii]...). Accordingly, the Surrogate's Court properly denied the executor's motion pursuant to CPLR 3211(a) to dismiss the petition.


" Because vacatur disrupts the orderly process of administration and creates a continual aura of uncertainty and nonfinality, a probate decree will be vacated only in extraordinary circumstances'" ... . "However, it is equally true that the Court should also be slow to say that an injustice may not be corrected'" ... . "A petitioner seeking to vacate a probate decree must establish with some degree of probability that his claim is well founded, and that, if afforded an opportunity, he will be able to substantiate it'" ... . An application to vacate a probate decree is committed to the discretion of the court ... . Here, the petitioner showed with some degree of probability that she is a nonmarital child of the decedent and that, if afforded an opportunity, she will be able to substantiate her claim. Matter of Saginario, 2014 NY Slip Op 05192, 2nd Dept 7-9-14




"Confidential Relationship" With Decedent Not Demonstrated As a Matter of Law


The Third Department determined Supreme Court properly ruled that petitioners had not demonstrated, as a matter of law,  the existence of a confidential relationship between the decedent and respondent. Where a confidential relationship is demonstrated, the stronger party has the burden of showing by clear and convinciing evidence that a particular transaction from which the stronger party benefitted was not the result of undue influence.  The court explained the operative criteria for a confidential relationship:


A confidential relationship is one that is "of such a character as to render it certain that [the parties] do not deal on terms of equality" ... . Such inequality may occur from either one party's "superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence" or from the other's "weakness, dependence, or trust justifiably reposed" on the stronger party ... .


The limited issue presented on this appeal is whether Supreme Court erred when it declined to find, as a matter of law, that there was a confidential relationship between respondent and decedent. The basis for petitioners' claim that such a relationship existed was, in part, the familial relationship between respondent and decedent. A familial relationship, however, is not necessarily a confidential relationship ... . Importantly, the existence of a confidential relationship is ordinarily a factual determination based upon "evidence of other facts or circumstances showing inequality or controlling influence"... . Matter of Bonczyk v Williams, 2014 NY Slip Op 05231, 3rd Dept 7-10-14

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