JUST RELEASED

July Page II

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

 

Click on the Case Name to View Full Decision

 

 

ANIMAL LAW/NEGLIGENCE

 

Escaped Calf Furnished the Condition or Occasion for Plaintiff's Decedent's Presence in the Road When She Was Struck, But Was Not the Proximate Cause of Plaintiff's Decedent's Being in the Road

 

The Fourth Department, over a dissent, determined that defendant's motion for summary judgment should have been granted. A calf escaped from defendant farm. Plaintiff's decedent stopped her car and got out to aid the calf.  Both plaintiff's decedent and the calf were struck by a car when they were in the road, although there was no evidence decedent stopped her car because the calf blocked the road. The Fourth Department held that the escape of the calf did not "cause" the decedent to be in the road. Rather the escape of the calf furnished the condition or occasion for decedent to be in the road:

 

Although "a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal . . . is negligently allowed to stray from the property on which the animal is kept" ..., "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" ... . Here, in support of its motion, Drumm Farm established that any negligence on its part in allowing the calf to escape merely "created the opportunity for plaintiff to be standing [in the roadway], [but] it did not cause [her] to stand" there ... . "In short, the [alleged] negligence of [Drumm Farm] merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated" ... . Importantly, plaintiff does not contend, and did not submit any evidence that would establish, that the calf's presence in the road blocked decedent's ability to travel in the southbound lane or otherwise forced decedent to stop her vehicle. Thus, Drumm Farm established as a matter of law that its "alleged negligent act, at most, caused the [calf to wander] out of the field, which was not the immediate cause of the accident" ... , and plaintiff failed to raise a triable issue of fact in opposition ... . Hain v Jamison, 2015 NY Slip Op 06074, 4th Dept 7-10-15

 

 

 

 

CIVIL PROCEDURE

 

Demand for Jury Trial Should Not Have Been Struck Despite Request for a "Declaration" in the Complaint---Crux of the Case Was a Request for Monetary Relief

 

The Fourth Department determined that plaintiffs' demand for a jury trial should not have been struck. Defendants attempted to recoup alleged overpayments made to plaintiffs for ambulance services by reducing payments for ongoing services. Plaintiffs brought suit challenging defendant's right to recoup the alleged overpayments. As part of their complaint, the plaintiffs sought "a declaration that [defendant] is not entitled to offset or recoup any funds from [p]laintiffs." The Fourth Department held that, despite the request for a "declaration," the crux of the lawsuit was for monetary relief and the demand for a jury trial was therefore appropriate:

 

... [T]he court erred in granting defendant's motion to strike their demand for a jury trial, and we therefore modify the order accordingly. The question whether plaintiffs are entitled to a jury trial turns on whether "the underlying claims set forth in the complaint are legal rather than equitable in nature" ... . Here, we conclude that plaintiffs' request for "a declaration that [defendant] is not entitled to offset or recoup any funds from [p]laintiffs" is incidental to their request for monetary relief. "[V]iewed in its entirety, the primary character of the case is legal" ... , and "the complaint contains demands and sets forth facts which would permit a judgment for a sum of money only' "... . Canandaigua Emergency Squad, Inc. v Rochester Area Health Maintenance Org., Inc., 2015 NY Slip Op 06056, 4th Dept 7-10-15

 

 

CRIMINAL LAW

 

Defendant Entitled to Jury Instruction on Agency Defense Re: Drug Sale and Possession Charges

 

The Third Department determined defendant was entitled to a jury instruction on the agency defense to drug sale and possession charges. Because the request for the instruction was denied, the defendant was granted a new trial.  The Third Department explained the relevant facts and law:

 

"Under the agency doctrine, 'a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer'" ... . "The issue of whether a defendant is criminally responsible as a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve on the circumstances of the particular case" ... . "A trial court must grant a request for an agency charge when, viewed in the light most favorable to the defendant, some evidence, however slight[,] supports the inference that the [defendant] was acting, in effect, as an extension of the buyer" ... .

 

Here, defendant did not initiate the subject transactions. Rather, the CI, who was acquainted with defendant, contacted him to initiate both buys. Before the first buy, defendant said to the CI, with regard to the supplier, "when she meets me and you she's going to sell us the eight," which shows that defendant aligned himself with the CI on the buyer's side of the transaction. At the time of the first buy, defendant and the CI met in defendant's driveway and talked about defendant's girlfriend, car and job while they waited for the supplier to arrive with the drugs. When the supplier arrived, the CI asked defendant to get the drugs from her so that he could see them before he paid, and defendant complied. Defendant retrieved nine bags of heroin from the supplier, explaining to the CI that there were "nine here cause [he was] gonna get one too"; again, he was identifying himself on the buyer's side of the transaction. Defendant's girlfriend testified that he did not benefit from the sales to the CI. People v Nowlan, 2015 NY Slip Op 05973, 3rd Dept 7-9-15

 

 

 

CRIMINAL LAW/APPEALS

 

Evidence Did Not Support Conviction for Attempted Possession of Burglar's Tools---
Conviction Was Against the Weight of the Evidence

 

The First Department determined the evidence was not sufficient to support a conviction for attempted possession of burglar's tools (the conviction was against the weight of the evidence). The defendant had tools in his possession and stopped his bicycle to look inside two or three cars (in broad daylight).  However the defendant did not touch the tools. Therefore the element of the offense which requires circumstances indicating the tools were about to be used to commit a burglary was not supported:

 

"A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00.) "While the statutory formulation of attempt would seem to cover a broad range of conduct—anything tend[ing] to effect' a crime—case law requires a closer nexus between defendant's acts and the completed crime" ... . The accused must engage in conduct that comes "dangerously close" to a completed crime before it can be combined with a criminal intent to constitute an attempted crime ... 

 

"A person is guilty of attempted possession of burglar's tools when, with the intent to possess burglar's tools, he tries to possess any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving larceny by a physical taking, and the surrounding circumstances evince an intent to use same in the offense of such character" ... .

 

Although the element of intent may be satisfied by circumstantial evidence ..., under the particular circumstances of this case the officer's testimony that he observed defendant, in broad daylight, stopping his bicycle between two or three cars and looking through the driver's side front window, is not, in and of itself, sufficient to support the inference that defendant intended to use the tools to steal any items from the cars. The officer admitted, inter alia, that during the 15 seconds that he observed defendant, he never saw him touch either a tool in the pouch or any of the cars and that the screwdriver set had to be assembled to be usable ... . People v Pannizzo, 2015 NY Slip Op 05894, 1st Dept 7-7-15

 

 

 

 

CRIMINAL LAW

 

Exclusion of Alleged Gang Members from Courtroom During Testimony of Fearful Witness Was Proper

 

The Second Department determined Supreme Court properly closed the courtroom to alleged gang members during the testimony of a witness who indicated she was afraid of the gang members. The Second Department explained the relevant criteria:

 

In order to comport with the requirements of the Sixth Amendment, a courtroom closure must satisfy a four-prong standard set forth by the United States Supreme Court in Waller v Georgia: (1) "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced," (2) "the closure must be no broader than necessary to protect that interest," (3) "the trial court must consider reasonable alternatives to closing the proceeding," and (4) "it must make findings adequate to support the closure" (Waller v Georgia, 467 US at 48...).

 

Contrary to the defendant's contentions, the trial court's partial closure of the courtroom during the testimony of the eyewitness to the stabbing by excluding a certain group of men from the courtroom was not error. The witness, who had entered the courthouse from a side entrance and had remained secluded in a room not accessible to the public before entering the courtroom, wore a hat pulled down low over her face and a hoodie into the courtroom and immediately requested a recess upon entering the courtroom and then refused to testify. Upon hearing the witness express her fear of testifying because of certain men in the audience whom she identified as affiliated with the defendant and belonging to a particular gang, the court conducted a closed courtroom hearing to ascertain the nature of the witness's fear and its effect upon her ability to testify in open court. The witness named one of the men and testified that she knew each of the men from her neighborhood, that they were members of a gang with which the defendant was affiliated, that the gang was a rival gang to the one in which her boyfriend was involved, and there had been prior violent altercations between the men in the courtroom and the witness's boyfriend. The witness testified that she believed that the men would attempt to kill her if she testified against the defendant. Further, she testified that one of the men made eye contact with her and shook his head at her in the courtroom, which she interpreted as a threat not to testify. The witness was very frightened by the idea that the men, who already knew her name, would now know her face. The evidence of the witness's extreme fear of testifying in open court before the men, her refusal to do so, the trial court's observations that, based upon the witness's demeanor, the fear was genuine, together with the fact that, although approximately 15 or so people were present during the stabbing of the decedent, the witness was the only person to come forward to the police, constitutes sufficient proof to establish an overriding interest that was likely to be prejudiced unless the courtroom was closed to the individuals of whom the witness was fearful ... . In addition, the scope of the closure was no broader than was necessary. The exclusions were limited to the men identified by the witness as causing her fear, and their exclusion was limited to the duration of her testimony ... . Furthermore, the trial court explored the possibility of limiting the courtroom exclusion to only the individual who had shaken his head at the witness, but the witness indicated that her fear would not be abated if the other men she recognized remained in the courtroom. Accordingly, this record shows that the trial court, in directing the exclusion at issue, determined that no lesser alternative would protect the interest at stake ... . People v Dawson, 2015 NY Slip Op 05959, 2nd Dept 7-8-15

 

 

 

 

CRIMINAL LAW

 

Warrantless Entry Into Defendant's Home Justified by Exigent Circumstances---Juror's Temporary Absence from the Trial (During Which the Trial Was Adjourned) and the Juror's Inaccurate Statement He Had Discussed His Absence with the Judge Did Not Warrant a "Buford" Hearing or Disqualification

 

The First Department, in a full-fledged opinion by Justice Degrasse, affirmed defendant's conviction, finding that the warrantless entry into defendant's home to arrest him was justified by exigent circumstances and did not, therefore, constitute a "Payton" violation. The First Department further found that a juror's temporary absence from the trial (during which the trial was adjourned), and the juror's inaccurate statement he had discussed his absence with the judge, did not reveal juror bias and did not therefore warrant a "Buford" hearing or disqualification of the juror:

 

...[T]he motion court resolved the Payton issue, finding the detectives' entry into defendant's home justified by exigent circumstances.

 

Factors to be considered in determining whether exigent circumstances are present include "(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause ... to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry" ... .

 

This list of factors is illustrative and not exhaustive ... . The court's finding of exigent circumstances is supported by evidence in the record that defendant had been identified by name and from a photograph as the assailant who shot the two men at the bar only hours before. Accordingly, there was probable cause for defendant's arrest. Moreover, the Nissan Armada was traced to defendant's nearby address where there was reason to believe he could be found. There was reason to believe defendant was armed inasmuch as he was said to have left the bar with his weapon. The record also supports the court's conclusion that the circumstances of the Police Department's entry into the apartment were peaceful. * * *

 

Defendant next argues that the court erred in failing to conduct an inquiry pursuant to People v Buford (69 NY2d 290 [1987]) with respect to a juror's absence on a trial day. On February 7, 2012, during the third week of trial, juror number nine failed to appear at court and could not be reached by court personnel. With the consent of counsel, the court adjourned the trial for two days in order to enable a court officer to check on the juror at his home. On the adjourned date, the court officer reported that she met with juror number nine who told her that he wasn't feeling well and that he had told Justice Webber that he would return to court on February 9, 2012. It was undisputed that no such conversation between the court and the juror occurred. The court decided to continue with the trial and address the juror's conduct at its conclusion. Defense counsel stated that he was concerned about the juror's fitness to continue with the trial. The court declined to conduct the requested inquiry and the trial continued to verdict. Defendant argues that the court erred in denying his request for a Buford inquiry. We disagree.

 

To the extent applicable, CPL 270.35(1) provides that a court must discharge a sworn juror where "the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial . . ." Defendant does not argue on appeal that the juror was grossly unqualified or that his apparent misconduct was substantial. Defendant's only claim of error stems from the court's refusal to conduct a Buford inquiry. Viewed in light of the request made before the trial court, defendant's argument is based on a misconstruction of Buford. As stated by the Court of Appeals, the purpose of Buford was the creation of "a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may possess[] a state of mind which would prevent the rendering of an impartial verdict'" ... . A juror with such a state of mind would be "grossly unqualified" ... . * * *

 

... [I]t cannot be seriously argued in this case that juror number nine's temporary absence from the trial and his inaccurate statement to the court officer indicated bias one way or the other. People v Paulino, 2015 NY Slip Op 05898, 1st Dept 7-7-15

 

 

 

 

CRIMINAL LAW/ATTORNEYS

 

Pre-"Padilla" Statement by Counsel that Defendant's Plea to an "Aggravated Felony" Would Not Result in Deportation Justified a Hearing on Defendant's Motion to Vacate Her Conviction

 

The Third Department determined defendant was entitled to a hearing on her motion to vacate her conviction.  Defendant alleged she was erroneously told by her attorney (pre "Padilla") her conviction (for an "aggravated felony") would not cause her to be deported:

 

... [D]efendant's ... claim that counsel affirmatively misinformed her about the plea's deportation consequences is not dependent upon Padilla; rather, it rests upon established law at the time of her plea that defense counsel's affirmative misrepresentation to a noncitizen regarding the deportation consequences of a contemplated guilty plea constitutes deficient performance so as to satisfy the first prong of an ineffective assistance of counsel claim ... .

 

In her affidavit in support of the motion, defendant alleged that her counsel advised her that, although immigration authorities would be notified about her guilty plea, "he did not think anything further would happen." In fact, the crime of rape in the third degree constitutes an "aggravated felony" that results in mandatory deportation (see 8 USC § 1101 [a] [43] [a]; § 1227 [a] [2] [A] [iii]; § 1229b [a] [3]...). Defendant further averred that, had counsel informed her that she was certain to be deported as a result of her guilty plea, she would not have pleaded guilty and would have gone to trial. As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from her guilty plea and that she was prejudiced as a result thereof, she was entitled to a hearing on this aspect of her CPL 440.10 motion ... . People v Ricketts-simpson, 2015 NY Slip Op 05975, 3rd Dept 7-9-15

 

 

 

CRIMINAL LAW/EVIDENCE

 

Multiplicitous Indictment Counts Dismissed/Warrantless Search of Impounded Vehicle Upheld

 

The Third Department determined several counts of an indictment stemming from a fatal car accident (involving reckless driving under the influence) were multiplicitous and further determined the warrantless search of the impounded vehicle was valid:

 

An indictment "is multiplicitous when a single offense is charged in more than one count" (People v Alonzo, 16 NY3d 267, 269 [2011]). Accordingly, "[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct" ... . "Where each count requires proof of an element not essential to the other, [however,] an indictment is not multiplicitous" ... .

 

Counts 2, 5 and 8 of the indictment charged defendant with vehicular manslaughter in the first degree pursuant to Penal Law § 125.13 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree and (2) had been convicted within the preceding 10 years of violating Vehicle and Traffic Law § 1192 (see Penal Law § 125.13 [3]). Counts 1, 4 and 7 of the indictment charged defendant with aggravated vehicular homicide pursuant to Penal Law § 125.14 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree, (2) engaged in reckless driving and (3) had previously been convicted of a Vehicle and Traffic Law § 1192 violation within the preceding 10 years. As relevant here, a person is guilty of vehicular manslaughter in the second degree when he or she operates a motor vehicle in violation of Vehicle and Traffic Law § 1192 (2), (3) or (4-a) thereby causing the death of another person (see Penal Law § 125.12 [1]).

 

In our view, these charges were predicated upon the same statutory provisions (see Penal Law §§ 125.13 [3]; 125.14 [3]), act and victim, differing only in the nature of defendant's impairment. In this regard, defendant was alleged to have been driving while per se intoxicated (counts 1 and 2), in an intoxicated condition (counts 4 and 5) and impaired by a combination of drugs or alcohol and drugs (counts 7 and 8) (see Vehicle and Traffic Law §§ 1192 [2], [3], [4-a]). The essential elements of both crimes do not address the specific manner in which defendant was impaired; rather, they include only a single offense of some form of impaired driving as defined within Penal Law § 125.12 (1). Accordingly, counts 4 and 7 should have been dismissed as multiplicitous of count 1, and counts 5 and 8 must be dismissed as multiplicitous of count 2 ... . * * *

 

Testimony at the suppression hearing established that, at the request of law enforcement, defendant's vehicle was removed from the accident scene and taken to an unsecured lot, where it remained for several hours until it was transported — at the direction of a Rensselaer County deputy sheriff — to a secure impound lot. While defendant does not contest the initial towing from the accident scene, he claims that the seizure of the vehicle from the unsecured lot to the secured lot was unconstitutional. We disagree. "It is well settled that once the police possess a reasonable belief that the vehicle was, in some way, associated with the crime and that a search of the vehicle would produce the fruits, instrumentalities, contraband or evidence of the crime the police can conduct[] a warrantless search and seizure of the vehicle" ... . Here, the vehicle was moved from a lot where it was easily accessible to any member of the public to the secure lot only after it became clear that it was involved in a fatal accident. People v Hoffman, 2015 NY Slip Op 05976, 3rd Dept 7-9-15

 

 

 

CRIMINAL LAW

 

Judge's Flawed Question During Plea Colloquy Required Vacation of the Plea

 

The Third Department determined County Court's equating a lack of consent (re: sexual abuse) with the "forcible compulsion" element of the offense required vacation of the plea:

 

In response to the court's questioning, defendant admitted that he had subjected the victim to sexual contact by "grabb[ing] her breasts." County Court then inquired of defendant, "did you do that by forcible compulsion, in other words, without her consent or without her authority?" Forcible compulsion, however, is defined as compelling another "by either [] use of physical force; or [] a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person" (Penal Law § 130.00 [8]). Defendant answered in the affirmative, and County Court accepted his guilty plea without conducting any further inquiry into the facts or readdressing the element of forcible compulsion.

 

By equating forcible compulsion with lack of consent, County Court misdefined an essential element of the crime to which defendant was pleading. While defendant was not required to recite facts establishing every element of the crime ... , we cannot countenance a conviction that rests upon a misconception of the key element of forcible compulsion ... . Because the record fails to establish that defendant understood the nature of the charge or that his guilty plea was knowingly and intelligently entered, his plea must be vacated and the matter remitted to County Court ... . People v Marrero, 2015 NY Slip Op 05974, 3rd Dept 7-9-15

 

 

 

CRIMINAL LAW/APPEALS

 

Assault-Related Convictions Not Supported by the Weight of the Evidence/Prosecution Held to Erroneous Jury Instruction Which Was Not Challenged

 

The Second Department determined defendant's convictions were not supported by the weight of the evidence and the prosecution should be held to an erroneous jury instruction which was not challenged. The defendant was acquitted of possession of a weapon and was not charged with acting in concert with others. Absent any evidence the defendant caused the injury to the victim his assault-related convictions could not stand. The jury was erroneously instructed that burglary requires proof the defendant unlawfully entered "and" (not "or") remained in the victim's dwelling. Because the erroneous instruction was not challenged, the People are held to it. The burglary conviction could not stand because the defendant was invited into the dwelling:

 

The evidence presented by the People was that the defendant alone caused serious physical injury to the victim by slashing him with an unidentified dangerous instrument. The jury was not charged that the defendant was acting-in-concert with the others. While the defendant was convicted of two counts of assault in the first degree and gang assault in the first degree, he was acquitted of criminal possession of a weapon in the fourth degree. In conducting our weight of the evidence review, we may consider the jury's acquittal of the defendant on that count ... . Given the victim's testimony that, during the struggle, he heard the defendant say "no, don't stab him, don't stab him," and that he did not see who slashed him, and considering that testimony along with the jury's acquittal of the defendant of criminal possession of a weapon in the fourth degree, we find that the evidence, when properly weighed, did not establish that the defendant caused serious physical injury to the victim or that he did so by means of a dangerous instrument.

 

While a person is guilty of burglary in the first degree when he or she either knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein (see Penal Law § 140.30), here, the trial court, without objection, erroneously instructed the jury that, in order to find the defendant guilty of the two counts of this charge, the People were required to prove that the defendant "unlawfully entered and remained" in the victim's dwelling (emphasis added). Since the People did not object to this erroneous charge, they were "bound to satisfy the heavier burden" ... . Given that the evidence demonstrated that the defendant knocked on the victim's door and announced his presence, and that the victim voluntarily invited the defendant into the apartment, the People failed to satisfy their burden as to these two counts. People v Samuels, 2015 NY Slip Op 05968, 2nd Dept 7-8-15

 

 

 

ENVIRONMENTAL LAW/ADMINISTRATIVE LAW/FREEDOM OF INFORMATION LAW (FOIL)

 

Area in the Vicinity of the Indian Point Nuclear Power Facility Properly Classified as a Statutorily Protected Environmental Habitat

 

The Third Department affirmed the Secretary of State's expansion of a statutory "significant coastal fish and wildlife habitat area" along the Hudson River in the vicinity of the Indian Point nuclear power facility.  The petitioner, the owner of Indian Point, sought to have the designation of the area as a statutorily protected environmental habitat annulled. The Third Department (1) explained a court's powers when reviewing an agency's interpretation of its own regulations; (2) determined the agency did not engage in formal rulemaking (which would be subject to the stringent procedural requirements of the State Administrative Procedure Act); and (3) determined certain documents were properly withheld re: petitioner's Freedom of Information Law (FOIL) requests:

 

When an agency interprets a regulation that it promulgated, deference is afforded to that agency's interpretive approach unless it is "irrational or unreasonable" ... . To this end, the promulgating agency's interpretation may not be adjudged irrational simply because other rational constructions of the regulatory provision in question exist ..., nor because the promulgating agency's reading of the relevant regulatory language either broadens its plain-language scope ... or amounts to a "strict[ly] literal interpretation" ... . Furthermore, "the determination of an agency acting pursuant to its authority and within its area of expertise is[, similarly,] entitled to judicial deference" ... . In contrast, an agency's interpretation of one of its own regulations is not entitled to deference if that interpretation contradicts the plain language of the regulation (see Matter of Elcor Health Servs. v Novello, 100 NY2d at 280), and an agency may be deemed to have acted irrationally if an interpretation of a regulation marks an unsubstantiated departure from the agency's previous position on a given subject ... . * * *

 

State Administrative Procedure Act § 102 (2) (a) (i), in pertinent part, defines a "[r]ule" as "the whole or part of each agency statement, regulation or code of general applicability that implements or applies law." In contrast, State Administrative Procedure Act § 102 (2) (b) (iv) excludes from this statutory definition "forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory." While "there is no clear bright line between a 'rule' or 'regulation' and an interpretative policy," an agency does not engage in formal rulemaking when the practical effect of an agency's updated policy is that a discrete group of regulated entities or individuals likely will be subjected to a greater degree of regulatory scrutiny than are the majority of those regulated by the agency ... . When an agency engages in a course of regulatory action that amounts to formal rulemaking but does not comply with the procedural requirements of State Administrative Procedure Act article 2, that regulatory action must be annulled ... .

 

We agree with respondents that the habitat boundaries' modification that gave rise to Hudson Highlands did not amount to formal rulemaking.  * * *

 

In response to petitioners' discovery and Freedom of Information Law requests, respondents withheld a small number of documents pursuant to Public Officers' Law § 87 (2) (g), which allows for "people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure" ... . Supreme Court correctly concluded that "respondents' interest in maintaining the confidentiality of the records and in allowing the candid exchange of 'opinions, advice and criticism'" was valid and outweighed petitioners' interest in having them. Petitioners argue that respondents waived the deliberative process privilege by describing the agencies' decision-making process within the scientists' affidavits. We find petitioners' claims that respondents have waived the deliberative process privilege to be unpersuasive ... . Matter of Entergy Nuclear Indian Point 2, LLC v New York State Dept. of State, 2015 NY Slip Op 05988, 3rd Dept 7-9-15

 

 

 

 

ENVIRONMENTAL LAW/ADMINISTRATIVE LAW/MUNICIPAL LAW

 

Failure to Strictly Comply with the Procedure Mandated by the State Environmental Quality Review Act (SEQRA) Required Annulment of the Town's Negative Declaration Re: the Construction of a Casino and Resort

 

The Fourth Department, with two concurring and one dissenting justice, determined that the town's negative declaration under the State Environmental Quality Review Act (SEQRA) with respect to the construction of a casino and resort should have been annulled because the town did not strictly comply with mandated procedure. Specifically the negative declaration did not include a "reasoned elaboration" as required by the relevant regulation. A document prepared by the town's counsel explaining the reasons for the negative declaration was never approved or adopted by the town board and therefore did not meet the statutory/regulatory "reasoned elaboration" requirement:

 

It is well settled that SEQRA's procedural mechanisms mandate strict compliance, and anything less will result in annulment of the lead agency's determination of significance ... . "[L]iteral rather than substantial compliance with SEQRA is required" ... . Here, 6 NYCRR 617.7 (b) (4) requires that, in making the determination of significance, the lead agency—in this case the Town Board—must "set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation." We conclude that the intent of the regulation is to focus and facilitate judicial review and, of no lesser importance, to provide affected landowners and residents with a clear, written explanation of the lead agency's reasoning at the time the negative declaration is made. We reject respondents' contention that we should search the entire record to discern the Town Board's reasoning as of June 12, 2014 in making the determination to issue the negative declaration. "A record evincing an extensive legislative process . . . is neither a substitute for strict compliance with SEQRA's [written] reasoned elaboration requirement nor sufficient to prevent annulment" ... . We therefore reverse the judgment and grant the petition, thereby annulling the negative declaration and vacating the site plan approval and all related resolutions. Matter of Dawley v Whitetail 414, LLC, 2015 NY Slip Op 06082 4th Dept 7-10-15

 

 

 

 

 

 

 

FAMILY LAW

 

Court Cannot Condition Future Visitation On Parent's Participation in Counseling or Treatment

 

The Second Department noted that a court may not condition future visitation upon a parent's participation in counseling or treatment because such a condition effectively removes control over visitation from the court:

 

A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination (see Family Ct Act § 251[a]...). In addition, a court may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order ... .

 

However, "a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights" ... . The rationale underlying this rule is that "a court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded visitation rights," a determination that is properly made by the court ... . Lajqi v Lajqi, 2015 NY Slip Op 05916, 2nd Dept 7-8-15

 

 

 

FAMILY LAW/CONTRACT LAW

 

Agreement to Assist Spouse in Obtaining a Visa Did Not Render the Marriage a Sham and the Separation Agreement Unenforceable/Agreement to Pay for One-Half of a Jointly Held Business Could Be Severed from Any Arguably Unenforceable Portions of the Separation Agreement/Even Where a Marriage is Annulled as Void or Voidable, Equitable Distribution Rules Apply

 

Reversing Supreme Court, the Second Department determined the provision in a separation agreement in which one spouse agreed to help the other obtain a visa did not render the marriage a sham and the separation agreement unenforceable. Therefore the provision of the separation agreement that one spouse pay the other one-half of the value of a jointly-owned business was enforceable. The Second Department noted that even if a portion of the agreement was not enforceable, the valid provisions could remain enforceable. The Second Department further noted that equitable distribution rules apply even when a marriage is annulled as void or voidable:

 

Although parties are usually free to chart their own contractual course, that is not the case in certain situations where public policy would be offended ... . Further, as a general rule, illegal contracts are unenforceable ... , and this includes marital agreements for visa sponsorship that unlawfully circumvent United States immigration laws ... .

 

Here, the terms and conditions of the separation agreement ostensibly required the plaintiff to assist the defendant in obtaining a visa. Further, in an affidavit submitted in support of her motion, the plaintiff admitted that she stayed in the marriage longer than she wished so that the defendant could obtain an E-2 dependent visa. However, there is no proof that the marriage was a sham, or that any other tribunal or government agency had made such a determination.

 

More importantly, even if the Supreme Court was correct in determining that certain terms of the separation agreement are illegal and unenforceable, the terms directing the defendant to compensate the plaintiff for transferring her interest in the business to him would nevertheless be severable and enforceable ... . Where an agreement consists of an unlawful objective in part and a lawful objective in part, the court may sever the illegal aspect and enforce the legal one, so long as the "illegal aspects are incidental to the legal aspects and are not the main objective of the agreement" ... . Whether a contract is to be enforced in its entirety or is severable is generally a question of intent, "to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted" ... . Moreover, "[c]ourts will be particularly ready to sever the illegal components and enforce the other components of a contract where the injured party is less culpable and the other party would otherwise be unjustly enriched by using his own misconduct as a shield against otherwise legitimate claims" ... . Here, the separation agreement contained an express provision that the doctrine of severability shall apply should any particular term of the agreement be deemed invalid or unenforceable.

 

Contrary to the Supreme Court's determination, we do not find that the main objective of the parties' separation agreement was to compensate the plaintiff for remaining in the marriage and thereby helping the defendant obtain a visa (cf. Donnell v Stogel, 161 AD2d at 97). The separation agreement addressed various aspects of the parties' marriage, including distribution of their marital assets. According to the plain language of the separation agreement, the $30,000 payment to the plaintiff constitutes compensation for the transfer of her 50% interest in the business that the parties co-owned at the time of the marriage. Notably, the parties agreed that, even if the visa sponsorship did not come to fruition, the defendant would still be obligated to pay the distribution of the value of the business.

 

It should be noted that, even if the marriage were proven to be a sham marriage, either party could have sought a divorce, a judgment declaring the nullity of a void marriage (see Domestic Relations Law § 140), or an annulment of a voidable marriage (see id.), all of which mandate the equitable distribution of assets acquired during the marriage (see Domestic Relations Law § 236[B][5][a], [c]...). Absent a judicial finding, after a hearing, that the money to be transferred to the plaintiff was payment for spousal sponsorship of a visa and nothing more, which would be against public policy and thus unenforceable in court, the terms of the separation agreement dealing with the distribution of assets acquired during the marriage are enforceable, separate and apart from any unenforceable terms. Thus, the terms of the separation agreement governing the transfer of the previously co-owned business in exchange for $30,000 are severable from any terms of the separation agreement which may be unenforceable ... . Lanza v Carbone, 2015 NY Slip Op 05917, 2nd Dept 7-8-15

 

 

 

FAMILY LAW

 

Late Submission of QDRO (Re: Spouse's Pension) Did Not Affect Submitting Spouse's Right to Arrears to the Date of Retirement---One Spouse's Taking Out a Loan Against His/Her Pension Will Not Reduce the Other Spouse's Share of the Pension

 

The Second Department, in an extensive, full-fledged opinion by Justice Dillon, resolving at least two issues of first impression, and noting differences among the Appellate Divisions, discussed: (1) the effect of a delay in submitting a Qualified Domestic Relations Order (QDRO) for a share of the other spouse's pension (despite the delay the submitting spouse is entitled to arrears to the date of retirement); (2) the requirement that any QDRO be in accordance with a stipulation of settlement which has not merged (court can not expand or contract what was agreed to); (3) whether a loan taken against a pension should reduce the other spouse's portion of the pension (no, it should not); and (4) whether a spouse's portion of the other spouse's pension should be reduced because of the election of a survivorship benefit in favor of a the other spouse's new spouse (yes, it should).  In a nutshell, the court held that the late submission of a QDRO did not deprive the submitting spouse of the right to arrears, and a spouse's share if the other spouse's pension should not be reduced because of the other spouse's taking out a loan against the pension:

 

A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation ... . If an agreement is clear and unambiguous on its face, "the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence" ... . "When the distribution of pension benefits between former spouses is accomplished through a QDRO obtained pursuant to a stipulation, such QDRO can convey only those rights to which the parties stipulated as a basis for the judgment'" ... . If a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO "to accurately reflect the provisions of the stipulation pertaining to the pension benefits" ... . Thus, a court cannot issue a QDRO "encompassing rights not provided in the underlying stipulation" ..., or one that is more expansive than the stipulation.  * * *

 

Despite the plaintiff's delay in submitting a proposed QDRO to the Supreme Court, we reject the defendant's contention that the plaintiff is not entitled to the arrears in pension benefits that accumulated between March 1, 2008, the date that the defendant retired from the FDNY, to March 26, 2013, the date that the Supreme Court signed the plaintiff's proposed QDRO. An action to enforce a distributive award in a matrimonial action is governed by a six-year statute of limitations ... . However, this Court ... made clear that since a QDRO is derived from the bargain struck by the parties, there is no need to commence a separate, plenary action to formalize the agreement, and that "an application or motion for the issuance of a QDRO is not barred by the statute of limitations" ... . * * *

 

... [W]e conclude that the plaintiff's Majauskas share must be calculated with reference to the reduction in benefits resulting from the defendant's provision of survivorship benefits to his second wife, we agree with the plaintiff that her share should be calculated without reference to the reduction in benefits resulting from the loan made to the defendant. Kraus v Kraus, 2015 NY Slip Op 05915, 2nd Dept 7-8-15

 

 

 

FAMILY LAW/ADMINISTRATIVE LAW/EVIDENCE

 

Substantial Evidence Did Not Support Maltreatment Report

 

The Third Department determined the Commissioner of Children and Family Services should have granted the petition to expunge and amend as unfounded a maltreatment report maintained by the Central Register of Child Abuse and Maltreatment. Although the denial could properly be based upon hearsay and double hearsay, the maltreatment finding was not based upon substantial evidence:

 

To establish maltreatment, the agency was required to show by a fair preponderance of the evidence that the physical, mental or emotional condition of the child had been impaired or was in imminent danger of becoming impaired because of a failure by petitioner to exercise a minimum degree of care in providing the child with appropriate supervision or guardianship ... . Our review is limited to assessing whether the determination is supported by substantial evidence, meaning "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"... .

 

Here, the proof introduced against petitioner consisted solely of the investigation progress notes and a Family Court order from 1998 that adjudicated petitioner to have neglected another son. The progress notes were prepared by a child protective services caseworker and include her accounts of interviews with numerous individuals, including the child and his therapist, that led her to the conclusion that maltreatment had occurred. Neither the caseworker nor her interview subjects testified before the Administrative Law Judge, however, and the progress notes reflect that the child bore no marks or evident injuries as a result of the maltreatment. In contrast to this meager evidentiary showing, petitioner and his wife both testified and denied that any maltreatment had occurred. Petitioner also asserted, without contradiction, that he was physically incapable of engaging in some of the claimed maltreatment, such as lifting the 110-pound child with one hand. His wife further stated that the child admitted to her that he was lying about the alleged maltreatment. The record suggests a reason why the child might be prompted to lie, as a bitter custody dispute between petitioner and the child's mother has led to numerous unfounded reports of mistreatment regarding petitioner.

 

Like any administrative determination, one made after an expungement hearing may be based solely upon hearsay evidence — or even double hearsay evidence — in the appropriate case ... . As such, "our concern is not the hearsay nature of the evidence, but whether it is sufficiently relevant and probative to constitute substantial evidence" ... . Hearsay evidence will not satisfy that standard if the facts it purportedly establishes are "seriously controverted" ... . Serious controversy is precisely what surrounds the hearsay evidence here, given the hearing testimony that the maltreatment had not occurred and that the child had recanted his claims, the proof that motivations may have existed for the child to fabricate the maltreatment, and the total lack of physical evidence suggesting that it occurred. We accordingly agree with petitioner that substantial evidence does not support the challenged determination, which must be annulled as a result ... . Matter of Gerald HH. v Carrion, 2015 NY Slip Op 05982, 3rd Dept 7-9-15

 

 

 

FORECLOSURE/CIVIL PROCEDURE

 

Sua Sponte Dismissal for Lack of Standing Reversed---Defendants Did Not Raise the Defense and Therefore Waived It---Lack of Standing is Not a Jurisdictional Defect

 

The Second Department determined Supreme Court should not have, sua sponte, dismissed the foreclosure action for an alleged lack of standing. The defendants did not raise the standing defense and, therefore, waived it. Standing is not a jurisdictional defense warranting sua sponte action by the court:

 

The Supreme Court improperly, sua sponte, directed the dismissal of the complaint on the ground that the plaintiff lacked standing. "A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" ... . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint ... . Since the defendants ... did not raise the defense of lack of standing in their answers and did not make pre-answer motions to dismiss the complaint on that ground, they waived the issue ... . Moreover, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court ... . Onewest Bank, FSB v Prince, 2015 NY Slip Op 05922, 2nd Dept 7-8-15

 

 

 

FRAUD/CONTRACT LAW

 

A Misrepresentation Which Is the Subject of a Provision in a Contract May Be the Basis for a Distinct Fraud Cause of Action Which Is Not Duplicative of the Breach of Contract Cause of Action

 

The First Department, over a dissent, determined that misrepresentations supported both a claim for breach of contract and a claim for fraud in the inducement. The facts of the case are laid out in the dissent and are not summarized here. The misrepresentations involved the alleged failure to disclose an audit prior to the sale of a company which, plaintiff alleged, induced plaintiff to pay more than the company was worth. The majority offered a clear explanation of the legal requirements for a distinct fraud (tort) cause of action which is not duplicative of the related breach of contract cause of action:

 

It is axiomatic that in order to state a claim for fraudulent inducement, "there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury" ... . In the context of a contract case, the pleadings must allege misrepresentations of present fact, not merely misrepresentations of future intent to perform under the contract, in order to present a viable claim that is not duplicative of a breach of contract claim ... . Moreover, these misrepresentations of present fact must be "collateral to the contract and [must have] induced the allegedly defrauded party to enter into the contract ... . Therefore, "[a]s a general rule, to recover damages for tort in a contract matter, it is necessary that the plaintiff plead and prove a breach of duty distinct from, or in addition to, the breach of contract" ... . * * *

 

... [The] representations were ... warranted to be accurate at the time the contract was entered into and made for the purposes of inducing the plaintiffs to purchase those loans. They were designed to be relied on to arrive at an accurate value of the loans, and the value of the company being purchased here. These misrepresentations did not merely evince "an insincere promise of future performance [but were] instead . . . misrepresentation[s] of then present facts that were collateral to the contract, and thus plaintiff sufficiently alleged a cause of action sounding in fraud" ... .Wyle Inc. v ITT Corp., 2015 NY Slip Op 05877, 1st Dept 7-7-15

 

 

 

LABOR LAW-CONSTRUCTION LAW

 

Two-to-Five-Foot Fall from Edge of Roof to Scaffolding Supported Labor Law 240 (1) Cause of Action

 

The Third Department determined a two-to-five foot fall from the edge of a roof to scaffolding properly survived summary judgment on the Labor Law 240(1) cause of action:

 

Liability under Labor Law § 240 (1) arises when a worker's injuries are "'the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'" ... . Ordinarily, the adequacy of a safety device is a question of fact, unless the device "'collapses, slips or otherwise fails to perform its function of supporting the worker'" ... .

 

The distance that Scribner fell from the roof ledge to the scaffolding is disputed. Claimant alleged, in the bill of particulars, that the scaffolding was two feet below the ledge, while Scribner and the project supervisor asserted in their deposition testimony that the scaffolding was four to five feet below the ledge. Regardless of whether the height differential was two, four or five feet, Scribner's fall is the type of elevation-related risk to which Labor Law § 240 (1) applies ... .

 

The parties' submissions also raise a question of fact as to whether the scaffolding afforded ... adequate protection and, if not, whether the absence of an appropriate safety device was the proximate cause of his injuries ... . Scribner v State of New York, 2015 NY Slip Op 05993, 3rd Dept 7-9-15

 

LABOR LAW-CONSTRUCTION LAW

 

Wall Surrounding the Edge of a Roof Is Not a Safety Device

 

Reversing Supreme Court, the Third Department determined plaintiff's injury was elevation-related and therefore was covered under Labor Law 240(1).  Plaintiff was standing on a building-roof using hand signals to guide a crane when he fell from the roof. Supreme Court reasoned plaintiff could have accomplished his job while staying away from the edge of the roof and, therefore, the accident was not elevation-related within the meaning of the statute. The Third Department rejected that reasoning and noted that the parapet wall around the edge of the roof was part of the structure of the building and could not, therefore, be considered a safety device:

 

Supreme Court determined that his injuries did not flow from an elevation-related hazard, as plaintiff was not "required to work at an elevation" and could have stayed away from the edge of the roof by directing the crane operator via cell phone ... . This determination, however, ran against the undisputed proof that plaintiff had to work somewhere on the roof in order to signal the crane operator and that hand signaling was the usual method of doing so ... . His decision to employ an accepted method of signaling while performing necessary work on the roof, even if a safer method existed, constituted nothing more than "comparative fault that is not a defense under the statute"... .

 

... A parapet wall surrounded the edge of the roof, but "a permanent appurtenance to a building does not normally constitute the functional equivalent of a scaffold or other safety device within the meaning of the statute" ... . Salzer v Benderson Dev. Co., LLC, 2015 NY Slip Op 06001, 3rd Dept 7-9-15

 

 

 

 

MUNICIPAL LAW

 

Party Who Properly Withdrew a Mistaken Bid on a Public Works Project Should Have Been Allowed to Rebid

 

The Fourth Department determined a party (Kandey) who withdrew a mistaken bid on a public works project should have been allowed to rebid:

 

The court properly concluded that a rational basis supported the County's determination that Kandey made the showing required by General Municipal Law § 103 (11) (a) when it sought permission to withdraw its mistaken bid. The court erred, however, in concluding that the County failed to comply with General Municipal Law § 103 (11) (b) when it permitted Kandey to participate in the rebid. That section provides that the "sole remedy for a bid mistake in accordance with this section shall be withdrawal of that bid and the return of the bid bond or other security, if any, to the bidder." That is precisely what the County did here when it permitted Kandey to withdraw the mistaken bid. The statute further provides that, after the mistaken bid is withdrawn, the County "may, in its discretion, award the contract to the next lowest responsible bidder or rebid the contract," and the County acted within the discretion extended to it under the statute when it elected to rebid the contract.

 

The statute is silent on the question whether a contractor that was permitted to withdraw its bid may participate in the rebid. We agree with Kandey and the County that, had the Legislature intended to forbid a contractor in Kandey's position from participating in the rebid, it would have done so explicitly. Further, "[a] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit" ... . Thus, we do not interpret the statute to include an implicit prohibition against Kandey's participation in the rebid following the withdrawal of its mistaken bid. Matter of Concrete Applied Tech. Corp. v County of Erie, 2015 NY Slip Op 06087, 4th Dept 7-10-15

 

 

 

MUNICIPAL LAW/CIVIL PROCEDURE

 

Declaratory Judgment, Not Mandamus, Was Proper Vehicle for Determining Whether a Town Was Obligated to Repair a Bridge

 

The Second Department determined Supreme Court properly converted a mandamus proceeding to a declaratory judgment proceeding and properly found that the town was obligated, under the Highway Law, to repair an unsafe bridge. However, Supreme Court did not have the power to direct the town to make the repairs "as expeditiously as possible."  The Second Department explained the relevant law:

 

"The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated" ..., whereas declaratory relief "is not an extraordinary remedy," as it "only provides a declaration of rights between parties" and "cannot be executed upon so as to compel a party to perform an act" ... . Here, the appellants correctly concede that the Town is obligated to repair and maintain the Dock Street Bridge, since it is part of a highway by use within the meaning of Highway Law § 189 by virtue of the Town's maintenance of Dock Street for the requisite statutory time period ... . However, as the Supreme Court correctly observed, "[t]he many factors involved in a determination as to when and how bridges should be constructed, reconstructed and repaired militate that such judgments must be left to the [Town], with due regard to fiscal appropriations, and should not be the subject of judicial fiat" ... . Thus, the Supreme Court properly converted the proceeding to a declaratory judgment action pursuant to CPLR 103(c) and, thereupon, declared that the Town "is responsible for the maintenance, repair, and/or replacement of the Dock Street Bridge"... .

 

However, the Supreme Court erred by declaring that the Town "shall take all measures necessary to fulfill its legal obligation to repair or replace the Dock Street Bridge, as expeditiously as possible in consideration of . . . fiscal and other concerns." It is beyond cavil that " questions of judgment, discretion, allocation of resources and priorities [are] inappropriate for resolution in the judicial arena'" ... . As the Supreme Court recognized, it is within the discretion of the Town to "investigat[e] . . . the most appropriate method of repairing or replacing the bridge, and the potential availability of grants and funding sources other than the [T]own's tax base" to address its "present financial inability to replace the Dock Street Bridge," and courts cannot interfere with this function ... . Consequently, the Supreme Court's declaration that the Town must "take all measures necessary to . . . repair or replace the Dock Street Bridge[ ] as expeditiously as possible" was purely advisory and does not create any binding obligation on the Town. Thus, this declaration was improper ... . Matter of Hyde Park Landing, Ltd. v Town of Hyde Park, 2015 NY Slip Op 05945, 2nd Dept 7-8-15

 

 

NEGLIGENCE/EVIDENCE

 

Criteria for Negligent Care of a Child by a Nonparent Explained---Effect on Proof Requirements of Amnesia Suffered by the Injured Party Noted

 

In concluding summary judgment dismissing the complaint was proper, the Second Department explained the criteria for negligent care of a child by a nonparent and noted the effect of amnesia suffered by the injured party on the plaintiff's proof requirements: 

 

"A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant over whom he or she has assumed temporary custody or control. Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so" ... . Here, in support of her motion for summary judgment, the defendant Joanne Williams submitted evidence sufficient to establish, prima facie, that under the circumstances, she adequately supervised the infant plaintiff ... .

 

In opposition, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs contend that the infant plaintiff suffered from amnesia as a result of the subject accident and, thus, they are not held to as high of a degree of proof ..., the plaintiffs are not relieved of the obligation to provide some proof from which negligence can reasonably be inferred ... . Alotta v Diaz, 2015 NY Slip Op 05899, 2nd Dept 7-8-15

 

 

 

NEGLIGENCE/EVIDENCE

 

Circumstantial Evidence Raised Question of Fact About Whether Respondents Were Responsible for the Placement of an Object Which Fell and Injured Plaintiff

 

The Second Department determined summary judgment in favor of the respondents should not have been granted.  Plaintiffs had raised a question of fact by producing circumstantial evidence that the respondents, not New York City Transit Authority (NYCTA) employees, were responsible for the placement of a "shoe paddle" in a subway car which fell and injured plaintiff. The court explained the criteria for circumstantial evidence in this context:

 

"To establish a prima facie case of negligence based wholly on circumstantial evidence, [i]t is enough that [the plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'" ... . "The law does not require that plaintiff's proof positively exclude every other possible cause of the accident but defendant's negligence" ... . "Rather, [the plaintiff's] proof must render those other causes sufficiently remote' or technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" ... . "A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency" ... .

 

Here, the respondents established their prima facie entitlement to judgment as a matter of law by proffering the testimony of two of their employees denying that they placed the shoe paddle in the subject door. In opposition, the plaintiffs raised a triable issue of fact by submitting the testimony from NYCTA employees, including the testimony of the cleaner of the subject train, that no NYCTA employee placed the shoe paddle in the door, and that the respondents were the only contractors present at the site during the relevant time period. The plaintiffs also submitted NYCTA records showing that as of 11:40 p.m., about three hours prior to the incident, all shoe paddles were in their holders and all doors were free and moving properly. Thus, the plaintiffs raised a triable issue of fact as to whether this circumstantial evidence gives rise to a rational inference that it was more likely or more reasonable that an employee of the respondents placed the shoe paddle in the subject door than an NYCTA employee ... . Hernandez v Alstom Transp., Inc., 2015 NY Slip Op 05911, 2nd Dept 7-8-15

 

 

 

 

NEGLIGENCE/NUISANCE/TRESPASS/COURT OF CLAIMS/REAL PROPERTY LAW/ENVIRONMENTAL LAW

 

Claims Against the State Based Upon Recurrent Flooding Properly In Supreme Court as Opposed to the Court of Claims/Criteria for Inverse Condemnation of Property Explained (Not Met Here)

 

The Fourth Department, over a two-justice dissent, determined that an action against the state alleging recurrent flooding of plaintiffs' property was properly in Supreme Court, despite the statutory requirement that claims against the state for monetary damages be brought in the Court of Claims. The Fourth Department held that the state did not demonstrate that the essential nature of the claim was to recover money. The Fourth Department further determined that the cause of action for inverse condemnation was properly dismissed, explaining the criteria:

 

Contrary to defendant's contention, the court properly denied that part of its cross motion seeking summary judgment dismissing all claims for money damages. Although defendant is correct that " claims that are primarily against the State for damages must be brought in the Court of Claims, the Supreme Court may consider a claim for injunctive relief as long as the claim is not primarily for damages' " (... see Court of Claims Act § 9 [2]). "Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case" ... . Here, defendant failed to establish in support of its cross motion that the essential nature of the causes of action for negligence, continuing nuisance, and continuing trespass is to recover money damages, and thus the court properly declined to grant summary judgment dismissing those causes of action.

 

We agree, however, with the further contention of defendant that the court erred in denying that part of its cross motion seeking summary judgment dismissing the cause of action for inverse condemnation, and we therefore modify the order accordingly. That cause of action alleged that the flooding intruded onto plaintiffs' properties and interfered with their property rights to such an extent that it constituted "a constitutional taking requiring [defendant] to purchase the properties from plaintiffs." It is well settled that such a "taking can consist of either a permanent ouster of the owner, or a permanent interference with the owner's physical use, possession, and enjoyment of the property, by one having condemnation powers" ... . "In order to constitute a permanent ouster, defendant['s] conduct must constitute a permanent physical occupation of plaintiff's property amounting to exercise of dominion and control thereof' " ... .

 

Here, defendant met its burden on its cross motion with respect to the cause of action for inverse condemnation by establishing as a matter of law that any interference with plaintiffs' property rights was not sufficiently permanent to constitute a de facto taking ... . Greece Ridge, LLC v State of New York, 2015 NY Slip Op 06072, 4th Dept 7-10-15

 

 

 

 

NEGLIGENCE/IMMUNITY/REAL PROPERTY LAW

 

 

Parking Lot Not "Suitable" for Recreational Use Pursuant to General Obligations Law 9-103---Statutory Assumption of Risk Re: Riding a Bicycle in the Parking Lot Not Available

 

The Fourth Department determined Supreme Court properly denied defendant's motion for leave to amend its answer to allege a "recreational use" affirmative defense. Plaintiff's son was injured when his bicycle struck a depressed area in defendant's parking lot. Defendant sought to allege plaintiff's son assumed the risk of injury because the parking lot was covered by the recreational use statute, General Obligations Law 9-103. The Fourth Department, finding that the parking lot was not "suitable" for recreational use, explained the relevant analytical criteria:

 

We conclude that the court properly determined that defendant's proposed amendment patently lacks merit inasmuch as the recreational use statute does not apply to the facts of this case as a matter of law. It is undisputed that plaintiff's son was engaged in one of the recreational activities enumerated in section 9-103, i.e., bicycle riding, when he was injured. To establish applicability of the statute, however, defendant was also required to show that its property "was suitable for the recreational activity in which plaintiff['s son] was participating when the accident occurred" ... . "Whether a parcel of land is suitable and the immunity [of the recreational use statute] available is a question of statutory interpretation, and is, therefore, a question of law for the Court" ... . Suitability is established by showing that the subject property is " (1) physically conducive to the activity at issue, and (2) of a type that is appropriate for public use in pursuing that activity as recreation' " ... . "A substantial indicator that the property is physically conducive to the particular activity is whether recreationists have used the property for that activity in the past; such past use by participants in the [activity] manifests the fact that the property is physically conducive to it" ... . Here, defendant failed to submit any evidence that the property had been used in the past by "recreationists" for bicycle riding. Moreover, under the circumstances of this case, we conclude that the subject property is not appropriate for public use in pursuing bicycle riding as a recreational activity ... . Indeed, the Court of Appeals has made clear that recreational use immunity should apply only to property that "the Legislature would have envisioned as being opened up to the public for recreational activities" ... . Here, defendant failed to establish that its employee parking lot comes within the purview of that standard. Sasso v WCA Hosp., 2015 NY Slip Op 06066, 4th Dept 7-10-15

 

 

 

 

NEGLIGENCE/MEDICAL MALPRACTICE/EVIDENCE/CIVIL PROCEDURE

 

In the Absence of Prejudice to Defendants, It Was Not Error to Allow Evidence of a Theory of Liability Not Explicitly Referenced in the Complaint and Bill of Particulars

 

The Third Department determined evidence of a theory of liability that was not explicitly included in the pleadings and bill of particulars was not error. The theory was implicit in the pleadings and the defendants could not have been surprised by the related evidence. The court noted it would have been better had the plaintiffs moved to conform the pleadings to the evidence:

 

Generally, a party is limited to presenting evidence at trial that supports a cause of action or theory of recovery that was either pleaded in the complaint or asserted in the bill of particulars ... . However, evidence concerning a specific theory or injury not mentioned in the bill of particulars may nonetheless avoid exclusion where such proof necessarily flows from the information conveyed in the pleadings and where the defendants should have been aware of the basis thereof... . 

 

The contested theory of liability in this case is based on the allegedly erroneous interpretation of plaintiff's February CT scan by Beatty (hereinafter referred to as the Beatty theory). It is worth noting that, because the complaint and bills of particulars do not contain an express articulation of the Beatty theory, the better practice certainly would have been for plaintiff to seek leave to amend his pleadings in advance of trial or at least have moved to conform the pleadings to the proof after the trial was underway. However, we nonetheless find that Supreme Court's determinations allowing plaintiff to advance the Beatty theory at trial, including permitting plaintiff's expert to offer testimony on the theory, do not constitute reversible error. In our view, the complaint--- * * * which reference[s] the February CT scan as a basis for a departure from accepted medical practice — [was] sufficient to notify defendants of the Beatty theory and, as such, permit that theory of liability to be advanced at trial without prejudice. Simply put, we are unpersuaded by defendants' position that they were not aware of the Beatty theory as a basis for a potential finding of medical malpractice. Boyer v Kamthan, 2015 NY Slip Op 05983, 3rd Dept 7-9-15

 

 

 

NEGLIGENCE

 

Defendant Should Have Been Awarded Summary Judgment in Rear-End Collision Case---Fact that Defendant's Vehicle Was Double-Parked Was Not the Cause of the Accident

 

Reversing Supreme Court, the First Department determined the fact that defendant's (Pepsi's) vehicle was double-parked did not warrant denial of defendant's summary judgment motion. The fact that the vehicle was double-parked was merely the condition or occasion for the occurrence of the accident, not the cause. Plaintiff's claim that sunlight temporarily blinded him did not constitute a nonnegligent explanation for his striking the rear of the Pepsi vehicle:

 

In this rear-end collision case, even assuming that the Pepsi vehicle, hit from behind, was illegally double-parked, that fact, standing alone "does not automatically establish that such double-parking was the proximate cause of the accident" ... . Here, the record shows that the double-parked vehicle, given the road conditions at the time of the accident, namely, the favorable weather, the time of day, and the relatively minimal amount of traffic on the road at the time, "merely furnished the condition or occasion for the occurrence of the event but was not one of its causes" ... . Plaintiff's proffered excuse for the accident, that sunlight temporary blinded the driver of the rear vehicle, does not constitute a nonnegligent explanation for the rear-end collision ... . Barry v Pepsi-Cola Bottling Co. of N.Y., Inc., 2015 NY Slip Op 06034, 1st Dept 7-9-15

 

 

 

 

NEGLIGENCE/PRODUCTS LIABILITY

 

Absence of a Safety Device Which Would Reduce the Functionality of a Table Saw is Not a Design Defect--Criteria Explained

 

The Second Department determined summary judgment should have been granted as a matter of law to the manufacturer of a table saw. Plaintiff alleged the absence of an interlock device which would not allow the saw to operate without a protective guard in place was a design defect.  However, it is settled that such an interlock device on a table saw renders the saw unusable for some cuts and, therefore, the absence of the device is not a design defect:

 

The definition of a design defect, for purposes of imposing products liability, is that "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" ... . "This standard demands an inquiry into such factors as (1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonablely be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes" ... . Liability attaches when an analysis of these factors leads one to conclude that "the utility of the product did not outweigh the risk inherent in marketing" it ... .

 

An interlock on a table saw, which would prevent the operation of the table saw without the guard in place, could make the table saw unusable for certain cuts, thereby impairing its functionality ... . Therefore, a theory of liability based upon an allegation that a table saw should have been designed with an interlock has been "explicitly rejected as a matter of law" ... . Chavez v Delta Intl. Mach. Corp., 2015 NY Slip Op 05903, 2nd Dept 7-8-15

 

 

 

NEGLIGENCE/CONTRACT LAW

 

Questions of Fact About Defendant's Actual or Constructive Notice of Liquid on Floor---Question of Fact Whether Contract Food Service Launched and Instrument of Harm Such that the Food Service Contract Gave Rise to Tort Liability to Plaintiff

 

The First Department determined summary judgment should not have been granted to the defendants in a slip and fall case. The complaint alleged that there was liquid on the floor of a women's homeless shelter operated by defendant Camba.  The complaint further alleged that plaintiff frequently observed liquid on the floor after defendant food service, Whitson's, delivered prepared food. Plaintiff also alleged she had complained about the condition to Camba's maintenance staff. The First Department found the affidavit of Camba's employee did not demonstrate the absence of actual or constructive notice (no evidence of the cleaning schedule was presented).  The First Department also found there was a question of fact whether Whitson's launched an instrument of harm, which would support tort liability for plaintiff's fall arising from Whitson's food service contract with Camba:

 

Camba failed to make a prima facie showing that it lacked constructive notice of the liquid on the floor. Although Camba's employee testified that she completed her inspection of the building about an hour before the accident, and that it was her usual custom and practice to pass by the area where plaintiff claims she fell, she could not recall whether she inspected the accident location itself that afternoon when she made her rounds ... . Her affidavit stating that she did not observe a slippery substance or liquid on the hallway floor during her daily rounds did not satisfy Camba's burden of showing it had no actual or constructive notice of the dangerous condition alleged and that it did not exist for a sufficient length of time prior to the accident to permit Camba employees to discover and remedy it ... . Camba also failed to present evidence regarding the shelter's cleaning schedule, and Camba's employee lacked personal knowledge regarding the shelter's maintenance ... .

 

Even if Camba had met its initial burden, the record shows that there exists a question of fact as to whether it had notice of a recurring condition. Plaintiff's testimony that she frequently would see liquid leaking from Whitson's Food's delivery crates at the accident location, and that she complained to Camba's maintenance staff about the liquid, is sufficient to raise a triable issue of fact as to a recurring condition ... .

 

Whitson's Food, which had a contract with Camba to provide cooked meals for the shelter, failed to make a prima facie showing that it did not launch a force or instrument of harm by dropping liquid on the floor when it delivered food to the shelter on the day of the accident ... . The deposition testimony from an employee of Whitson's Food was insufficient to show that Whitson's Food did not cause or create the liquid condition, since he lacked personal knowledge as to whether the floor was clean after Whitson's Food delivered the food ... . Jackson v Whitson's Food Corp., 2015 NY Slip Op 05889, 1st Dept 7-7-15

 

 

 

 

NEGLIGENCE/CONTRACT LAW

 

Although the Elevator Maintenance Company May Have Been Negligent, Under "Espinal," the Company Did Not Owe a Duty of Care to the Plaintiff---There Was No Evidence the Maintenance Company "Launched an Instrument of Harm," the Only Available Theory of Liability (Re: Plaintiff) Which Could Have Arisen from the Maintenance Contract

 

The First Department, in a full-fledged opinion by Justice Saxe, determined an elevator maintenance company (The Elevator Man) did not owe a duty of care to the plaintiff who was injured when the elevator free-fell three stories in September 2010. The maintenance contract with the elevator maintenance company had been cancelled for non-payment, but the company had subsequently agreed to do, and had done, emergency repairs when called to do so. Although there was evidence the elevator maintenance company was negligent re: repairs done in early 2010, applying the "Espinal" criteria, the First Department held there was no evidence the maintenance company "launched an instrument of harm," the only available theory of liability:

 

If the issue were limited to whether The Elevator Man was negligent, a question of fact would preclude summary judgment. However, the issue is not that simple.

 

"Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]).

 

Where a contractor has entered into a contract to render services, it may only be held to have assumed a duty of care to nonparties to the contract in three situations:

 

"(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm'; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal, 98 NY2d at 140 [internal citations omitted]).

 

To the extent plaintiff relies on the inspection performed by The Elevator Man on January 14, 2010 in which it gave the elevator a "Satisfactory" rating, despite a "Cease Use" violation that had been issued on November 1, 2009, The Elevator Man was subject to the maintenance contract then in effect. To the extent plaintiff argues that The Elevator Man was negligent in the work it performed on May 26, 2010, any duty The Elevator Man had toward him could not be based on the terminated 2009 maintenance agreement; nevertheless, The Elevator Man continued to be subject to a more limited contract with the manager of the parking facility, in which it agreed to respond to emergency calls, upon payment of an agreed fee.

 

We find the rule set forth in Espinal to apply here. It is conceded that of the three possibilities listed in Espinal, only the first could provide a basis for liability to plaintiff: "where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm'" (id. at 140). However, even accepting for purposes of this analysis that The Elevator Man negligently inspected the elevator on January 14, 2010 and negligently failed to correctly assess the condition of the elevator and necessary repair on May 26, 2010, it cannot be said to have launched a force or instrument of harm. That is, in failing to correctly inspect or repair the elevator, it did not create or exacerbate an unsafe condition. Medinas v MILT Holdings LLC, 2015 NY Slip Op 06044, 1st Dept 7-9-15

 

 

 

 

NEGLIGENCE/CONTRACT LAW/COOPERATIVES

 

Electricity-Supplier (Con Edison) Did Not Owe a Duty of Care to a Shareholder in an Apartment Cooperative Who Fell in a Common Area During a Power Outage/Plaintiff's Lack of Knowledge of the Cause of His Fall Was Fatal to the Lawsuit

 

The Second Department determined the electricity-supplier, Con Edison, did not owe a duty of care to plaintiff, a shareholder in an apartment cooperative, who fell in a common area of the building during a power outage. In addition, the plaintiff's lack of knowledge re: the cause of his fall was fatal to the lawsuit:

 

The Court of Appeals has held that an electricity-supplying utility "is not answerable to the tenant of an apartment building injured in a common area as a result of [the utility's] negligent failure to provide electric service as required by its agreement with the building owner" (Strauss v Belle Realty Co., 65 NY2d 399, 405; see Milliken & Co. v Consolidated Edison Co. of N.Y., 84 NY2d 469). Contrary to the plaintiffs' contention, the injured plaintiff's status as a shareholder in the cooperative corporation that owned the building did not make him a party to the contract with Con Edison, such that Con Edison owed him a duty of care... . * * *

 

"[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" ... . Here, the injured plaintiff testified at his deposition that he did not know why he fell, did not know whether he tripped or slipped, and had no memory of the fall. When he was asked if he knew why he fell, the injured plaintiff testified: "That's speculation. I don't know." In addition, the building defendants submitted the deposition testimony of two witnesses who stated that the injured plaintiff appeared to be intoxicated at the time of the accident. Thus, the building defendants demonstrated that it was just as likely that the accident was caused by some factor other than poor lighting conditions in the stairwell, such as a misstep, a loss of balance, or intoxication, and thus "any determination by the trier of fact as to causation would be based upon sheer conjecture" ... . O'Connor v Metro Mgt. Dev., Inc., 2015 NY Slip Op 05921, 2nd Dept 7-8-15

 

 

 

 

 

 

REAL PROPERTY TAX LAW/APPEALS

 

Trial Judge's Acceptance of Petitioner's Expert's Valuation of the Property Was Against the Weight of the Evidence---the Actual Purchase Price in a Recent Sale and the Actual Rent Should Have Been Part of the Analysis

 

The Fourth Department, over a dissent, determined that the trial judge's findings re: the assessed value of a retail property (for property tax purposes) were against the weight of the evidence. Specifically, the trial judge accepted the petitioner's (Rite Aid's) expert's valuation which failed to take into account the actual price paid in a recent arm's-length sale of the property, comparable sales, the actual rent (negotiated at arm's length) and comparable rentals:

 

... [A]n appellate court is empowered to make new findings of value where the trial court " has failed to give to conflicting evidence the relative weight which it should have' " ..., giving due deference to the trial court's power to resolve credibility issues by choosing among conflicting expert opinions ... .

 

It is well settled that real "[p]roperty is assessed for tax purposes according to its condition [and ownership] on the taxable status date, without regard to future potentialities or possibilities and may not be assessed on the basis of some use contemplated in the future" ... . Although several methods of valuing real property are acceptable, "the market value method of valuation is preferred as the most reliable measure of a property's full value for assessment purposes" ..., because "[t]he best evidence of value, of course, is a recent sale of the subject property between a seller under no compulsion to sell and a buyer under no compulsion to buy" ... . A recent sale has been characterized as evidence of the "highest rank" in determining market value ... . The scope of a "market" need not be limited to the locale of the subject property and, depending on the nature of the use, it may encompass national and/or international buyers and sellers ... . * * *

 

... [W]e conclude that the failure of petitioner's expert to use the recent sale of the subject property as well as readily available comparable sales of national chain drugstore properties in the applicable submarket as evidence of value demonstrates the invalidity of the expert's conclusion with respect to the sales comparison valuation ... . We further conclude that the use of sales not comparable to the subject and outside of the applicable market should have been rejected by the court as unreliable ... . Moreover, the failure of petitioner's expert to use the actual rent, negotiated at arm's length and without duress or collusion, as well as the failure to use similar rental comparables from the applicable market as evidence of value, demonstrates the invalidity of the expert's conclusions using the income capitalization method ... . Matter of Rite Aid Corp. v Haywood, 2015 NY Slip Op 06049, 4th Dept 7-10-15

 

Similar issues and result in Matter of Rite Aid Corp. v Huseby, 2015 NY Slip Op 06051, 4th Dept 7-10-15

 

 

 

TRUSTS AND ESTATES/FORECLOSURE/CIVIL PROCEDURE

 

Estate of Mortgage-Holder Is a Necessary Party In a Foreclosure Proceeding

 

The Third Department determined that the estate of one of the mortgage-holders was a necessary party in a foreclosure proceeding. The court explained the relevant law:

 

"In an action to foreclose a mortgage, all parties having an interest, including persons holding title to the subject premises, must be made a 'party . . . to the action'" ... . Although defendant did not specifically raise the argument that decedent's estate was a necessary party to the instant action, "the absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion" ... . .... [W]here two individuals are the co-holders of a mortgage and one dies, the plaintiffs in a related foreclosure action would be the living mortgagee — or, in this case, his assignee ... — and the personal representative of the deceased mortgagee ... .

 

Here, given the lack of evidence that the corpus and distribution of decedent's estate have previously been determined, such determination for the first time could inequitably affect decedent's estate ... . We find that decedent's estate is therefore a necessary party to this action, as "[t]he rights, interests and equities of all of the parties claiming an interest in the mortgaged premises . . . should be settled and determined before any judgment of foreclosure and sale is entered" ... . Bayview Loan Servicing, LLC v Sulyman, 2015 NY Slip Op 05989, 3rd Dept 7-9-15

 

 

 

 

WORKERS' COMPENSATION LAW

 

Claim for Psychological Injury Should Have Been Upheld---Retail Employee Was Directed to Submit False Reserve Orders for a Product to Deceive Manufacturer

 

The Workers' Compensation Law Judge (WCLJ) found a retail employee suffered compensable psychological injury because he was directed by a supervisor to submit false reserve orders for a product in order to deceive the manufacturer.  The Workers' Compensation Board disagreed and disallowed the claim. The Third Department reinstated the claim, finding the Board's conclusion was not supported by substantial evidence:

 

The WCLJ found claimant's testimony to be credible and determined, among other things, that he had been directed by a supervisor to submit false reserve orders in order to deceive the manufacturer and that credit card numbers were included in the reserve orders. The WCLJ concluded that claimant sustained a mental injury as a result of "the stress of being directed to engage in deceptive business practices" and that this stress was greater than that experienced in the normal work environment because "[p]ressure to engage in unethical and illegal practices . . . cannot be considered a normal work environment." The Board subsequently disallowed the claim, finding that, because all of the employees in claimant's department were pressured to place reserve orders and were given the same instruction, claimant's stress was not greater than that of similarly situated workers.

 

We reject this analysis. The Board neither contradicted nor commented upon the findings of the WCLJ that claimant's supervisors directed him to engage in a deceptive business practice by submitting falsified reserve orders, and it did not exercise its power to reject the underlying credibility determinations ... . Thus, the remaining basis for the Board's conclusion that claimant was not subjected to stress greater than that experienced in a normal workplace is that other employees were similarly directed to engage in wrongful conduct. This analysis is untenable; the imprimatur of "normal" cannot be placed upon a workplace where an employee is directed to carry out a deceptive, unethical or potentially illegal practice because an employer also gave that direction to other employees ... . The mere fact that other employees may have received the same instruction cannot support this conclusion. Here, there was no other evidence from which it may be concluded that directions to place false reserve orders constituted part of a normal work environment for similarly situated employees. The employer's witnesses testified that corrective action — including termination — had been taken when similar practices occurred at the store in the past, and claimant testified that he would have been fired for such conduct in other upscale department stores where he had previously worked. Accordingly, we find that the Board's determination is not supported by substantial evidence ... . Matter of Cox v Saks Fifth Ave., 2015 NY Slip Op 06003, 3rd Dept 7-9-15