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July Part III

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



Termination of Parental Rights Affirmed Because Diligent Efforts to Reunite Parent and Child Were Made (In Spite of Misdiagnosis of Mother’s and Child’s Psychological Conditions)


The Fourth Department, over a dissent, affirmed Family Court’s termination of mother’s parental rights.  The dissent argued that the misdiagnosis of both the mother’s and child’s psychological conditions rendered the efforts to reunite the mother with the child inadequate.  The Fourth Department wrote:


Contrary to the contention of the mother, Family Court properly determined that petitioner made diligent efforts to reunite her with the child (see Social Services Law § 384-b [7] [a], [f]).  Among other things, petitioner arranged for a psychological assessment of the mother, arranged for therapy sessions for the mother and various services for the child, and provided the mother with parenting, budgeting, and nutrition education training.  Petitioner also provided the mother with supervised and unsupervised visits with the child. Most significantly, petitioner arranged for a child psychologist to meet with the mother on several occasions in her home to provide parenting training, and we agree with the court’s assessment that this was “truly a diligent effort” by petitioner to encourage and strengthen the parent-child relationship.


Contrary to the further contention of the mother, the court properly determined that she failed to plan for the future of the child (see Social Services Law § 384-b [7] [a]).  “ ‘[T]o plan for the future of the child’ shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child” (§ 384-b [7] [c]).  “At a minimum, parents must ‘take steps to correct the conditions that led to the removal of the child from their home’ ” (Matter of Nathaniel T., 67 NY2d 838, 840).  Here, while the mother participated in the services offered by petitioner and had visitation with the child, the evidence established that she was unable to provide an adequate, stable home for the child and parental care for the child… .  Matter of Cayden LR, 575, 4th Dept 7-1913



Denial of Father’s Petition for Modification of Custody Reversed


In reversing Family Court and granting father’s petition for a modification of a prior custody order awarding custody to mother, the Fourth Department wrote:


“Generally, a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” … .  Here, we conclude that the court’s determination that it is in the best interests of the child to remain in the custody of the mother lacks a sound and substantial basis in the record.  ,,,


As a preliminary matter, we conclude that the court abused its discretion in failing to “draw the strongest inference that the opposing evidence permits” against the mother based upon her failure to appear for the hearing …, although we note that the court stated that it was doing so.  Although the court properly determined that the father failed to take steps to enforce his right to visit with the child, the court failed to credit the testimony of the mother’s family that the mother interfered with the father’s ability to visit the child; that the mother disparaged the father in the child’s presence; that, despite the court’s order granting telephone access to the child, the access lasted only two weeks; that the mother was verbally abusive to the child; that the child was afraid of her mother; and that the mother exhibited behaviors that support a determination that she failed to provide a proper home environment and parental guidance for the child … .  Further, the court failed to credit the evidence, including testimony and school records, that the mother failed to provide for the child’s emotional development and that the child’s intellectual and emotional development was supported by the mother’s family members and long-term friend, rather than by the mother ….  We note that there is no evidence that the mother has the financial ability to provide for the child and that the evidence establishes that the father has a job, a home, and pays child support … . 


Although the court properly determined that the child “barely knows” the father, we conclude that the court erred in failing to give any weight to the 14-year-old child’s preference to live with the father rather than the mother, where, as here, the record establishes that her age and maturity would make her input “particularly meaningful”… . Matter of Juan C… v Sullivan, 818, 4th Dept 7-19-13



Attorney for Child Could File Abuse Petition After Abuse Petition Withdrawn by Department of Social Services


The Second Department determined that the attorney for the child had the power to file a child abuse petition after the Department of Social Services withdrew its petition:


Although the primary responsibility for initiating a child neglect or abuse proceeding "has been assigned by the Legislature to child protective agencies" … , Family Court Act § 1032 also permits such a proceeding to be initiated by "a person on the court's direction." "The requirement for court approval or authorization for proceedings prompted by those other than child protective agencies indicates the Legislature's concern that judicial proceedings touching the family relationship should not be casually initiated and imposes upon the courts the obligation to exercise sound discretion before permitting such petitions to be filed" … . Contrary to the appellant's contentions, the record demonstrates that the attorney for the child was in fact authorized by the Family Court to file a new abuse petition on behalf of Amber A., and that the Family Court's decision to authorize him to do so was a provident exercise of its discretion… .  Matter of Amber A, 2013 NY Slip Op 05308. 2nd Dept 7-17-13






Children Were Not “Dependent on Court”/ They Therefore Did Not Meet Criteria for Statutory Path to Lawful

Permanent Residency in US


In a full-fledged opinion by Justice Cohen, the Second Department determined that two children born in Hong Kong, and living with their father in New York, did not meet the “dependency-on-the-family-court” requirement such that they could petition for special immigrant juvenile status (SJIS) pursuant to 8 USC1101 (which provides undocumented children with a gateway to lawful permanent residency in the US).  The court explained:


In New York, a child may request that the Family Court, recognized as a juvenile court (see 8 CFR 204.11[a]), issue an order making special findings and a declaration so that he or she may petition the United States Citizenship and Immigration Services for SIJS … . Specifically, the findings of fact must establish that: (1) the child is under 21 years of age; (2) the child is unmarried; (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by a State or juvenile court; (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis; and (5) it is not in the child's best interests to be returned to his or her home country (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c]). With the declaration and special findings, the eligible child may then seek the consent of the Department of Homeland Security for SIJS (see 8 USC § 1101[a][27][J][iii]).  * * *


The requirement that a child be dependent upon the juvenile court or, alternatively, committed to the custody of an individual appointed by a State or juvenile court, ensures that the process is not employed inappropriately by children who have sufficient family support and stability to pursue permanent residency in the United States through other, albeit more protracted, procedures. In this case, there has been no need for intervention by the Family Court to ensure that the appellants were placed in a safe and appropriate custody, guardianship, or foster care situation, and the appellants have not been committed to the custody of any individual by any court…. 


While the appellants met all of the other requirements for SIJS, the Family Court correctly determined that the dependency requirement had not been satisfied. A child becomes dependent upon a juvenile court when the court accepts jurisdiction over the custody of that child, irrespective of whether the child has been placed in foster care or a guardianship situation… . The Family Court has only granted applications for SIJS special findings where dependency upon the court was established by way of guardianship, adoption, or custody.  Matter of Hei Ting C, 2013 NY Slip Op 05310, 2nd Dept 7-17-13






Expert’s Affidavit Too Speculative to Raise Question of Fact About Proximate Cause


In reversing Supreme Court and dismissing a medical malpractice complaint, the Fourth Department determined plaintiff’s expert affidavit was speculative and therefore failed to raise a question of fact about whether the alleged negligence (the failure to order a particular CT scan) was the proximate cause of the injury:


The expert contends that, if that CT scan had been performed on February 16, 2004, “then diagnosis of [decedent]’s aortic dissection . . . would, more probably than not, have been made.”  Significantly, however, the medical records indicate that it was a CT scan of decedent’s head and chest, not a scan of his pelvis and abdomen, that revealed an aortic dissection on March 1, 2004.  Thus, the opinion of plaintiff’s expert that an abdominal and pelvic CT scan performed on February 16, 2004 would more likely than not have revealed an aortic dissection is speculative.  Wilk … v James, et al, 401, 4th Dept 7-19-13



Supreme Court’s Setting Aside Jury Verdict Reversed/Use of Juror-Affidavits to Correct Mistake in Verdict Okay


In a medical malpractice case, the Fourth Department reversed Supreme Court’s setting aside the jury verdict which found the negligence of one defendant (Caputo) was not a substantial factor in causing plaintiff’s injuries. In addition, over a dissent, the Fourth Department found the use of juror affidavits to correct a mistake in the verdict was proper.  The Fourth Department wrote:


“A verdict finding that a defendant was negligent but that such negligence was not a proximate cause of the [plaintiff’s injuries] is against the weight of the evidence only when [those] issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause”….  “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .  Here, plaintiffs alleged four different theories of negligence against Dr. Caputo, and we conclude that there is a reasonable view of the evidence to support a finding that Dr. Caputo was negligent in failing to provide [the] resident staff with adequate information concerning the operative procedure and plaintiff’s postoperative care, but that such failures were not the proximate cause of plaintiff’s injuries… .


…[T]he court properly granted plaintiffs’ “supplemental motion” to correct the verdict with respect to the award of damages for plaintiff’s future pain and suffering.  In support of the “supplemental motion,” plaintiffs submitted affidavits from all six jurors, who averred that they understood and agreed that plaintiff would receive $60,000 per year for a period of 30 years, not a total of $60,000 over the course of that period….  We acknowledge that “public policy concerns disfavor the use of juror affidavits for posttrial impeachment of a verdict” … .  Here, however, “[t]he information afforded by the affidavits of the jurors is not to impeach, but to support the verdict really given by them”… .  Butterfield v Caputo, et a;l, 602, 4th Dept 7-19-13








Fact that Medical Guidelines May Be Available to the Public Does Not Warrant Denial of Discovery of Such Documents from the Defendant


The Fourth Department determined Supreme Court had erred in denying certain of plaintiff’s discovery demands in a medical malpractice case alleging injuries sustained by infant plaintiff during birth.  The materials deemed material and necessary (and not unduly burdensome to produce) included: standards for fetal monitoring and pediatric advancement of life support; a protocol entitled “Circulating Vaginal Delivery;” interpretation and management of fetal heart rate patterns; and specified guidelines and standards published by medical associations.  The Fourth Department noted that the fact that standards and guidelines may be available to the public is not a ground for denying discovery.  The court explained the discovery criteria generally as follows:


…[W]e note that CPLR 3101 requires “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]).  The phrase “ ‘material and necessary should be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason’ ”… .  “Entitlement to discovery of matter satisfying the threshold requirement is, however, tempered by the trial court’s authority to impose, in its discretion, appropriate restrictions on demands which are unduly burdensome . . . and to prevent abuse by issuing a protective order where the discovery request may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts”  (…see CPLR 3103 [a]).  In opposing a motion to compel discovery, a party must “establish that the requests for information are unduly burdensome, or that they may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (…see generally CPLR 3103 [a]).  Rawlins…v St Joseph’s Hospital Health Center…, 659, 4th Dept 7-19-13






Firefighter Rule Prohibiting Negligence Suit by Injured Police Officer Applied/Action Under Municipal Law 205-e Allowed


In a full-fledged opinion by Justice Leventhal, the Second Department determined a police officer who was injured when she fell off the back of a flat bed truck while loading police barricades could not sue in negligence (based on the firefighter rule) but could sue under General Municipal Law 205-e based on an alleged violation of Labor Law 27-a (which imposes a general duty to provide a safe work environment):


Re: the applicability of the firefighter rule:


…[T]he firefighter rule provides that "[p]olice and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment" …. The rule bars a police officer's or a firefighter's recovery " when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury'" … * * *


While loading a flatbed truck may not be a task that is typically associated with police work, the alleged accident occurred while the plaintiff was on a police vehicle, loading police barriers, and while she was assigned to the barrier truck detail, a location and job detail to which she was exposed solely as a result of her duties as a police officer… .  * * *


Re: the viability of the General Municipal Law 205-e cause of action:


As observed by the Court of Appeals, the Legislature has, on several occasions, "sought to ameliorate the harsh effects of the [firefighter] rule" …. To that end, in 1935, the Legislature first enacted General Municipal Law § 205-a, which created a cause of action for firefighters who, while in the line of duty, are injured as a result of violations of statutes or regulations (see General Municipal Law § 205-a; L 1935, ch 800, § 2; L 1936, ch 251, § 1). In 1989, the Legislature enacted General Municipal Law § 205-e in direct response to Santangelo v State of New York (71 NY2d 393), which ,,,had extended the firefighter rule to police officers… .  * * *


…[T]he plaintiff has alleged that the defendants' Labor Law § 27-a(3)(a)(1) violation is a predicate for her General Municipal Law § 205-e cause of action. Section 205-e does not stand alone and must be predicated on a violation of a separate legal requirement. …[T]he Court of Appeals, in addressing the various amendments to General Municipal Law § 205-e, has stated "that we should apply this provision expansively' so as to favor recovery by police officers whenever possible"… .


Since section 27-a provides an objective standard by which the actions or omissions of a public employer, such as the City, can be measured for purposes of liability, Labor Law § 27-a(3)(a)(1) can serve as a predicate for a section 205-e claim… .  Gammons v City of New York, 2013 NY Slip Op 05298, 3rd Dept 7-17-13






Failure to Appeal Dismissal of Underlying Medical Malpractice Action Did Not Preclude Related Legal Malpractice Action


The Fourth Department, over a dissent, allowed a legal malpractice action to go forward, finding that the plaintiff’s failure to appeal the dismissal of the underlying federal medical malpractice action did not preclude the related legal malpractice action. In the federal action, the court determined a physician was an independent contractor, not a government employee, and therefore had to be named individually as a defendant. The action against the physician was dismissed as time-barred. The dissent argued “if plaintiff had been successful in his appeal of the underlying federal action, we would not have a subsequent legal malpractice case.”  In holding that the failure to appeal the federal ruling did not preclude the legal malpractice action, the Fourth Department distinguished a prior case, Rupert v Gates and Adams, PC, 83 AD3d 1383, relied upon by the defendants:


We reject defendants’ invitation to extend the ruling in Rupert to a per se rule that a party who voluntarily discontinues an underlying action and forgoes an appeal thereby abandons his or her right to pursue a claim for legal malpractice. …


Although the precise question presented herein appears to be an issue of first impression in New York, we note that several of our sister states have rejected the per se rule advanced by defendants herein… .  … [S]uch a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system ….  The additional time spent to pursue an unlikely appellate remedy could also result in expiration of the statute of limitations on the legal malpractice claim ….  Further, requiring parties to exhaust the appellate process prior to commencing a legal malpractice action would discourage settlements and potentially conflict with an injured party’s duty to mitigate damages… .  Grace v Law, et al, 625, 4th Dept 7-19-13






Pecuniary Loss Defined


In a wrongful death action, the Fourth Department determined that plaintiff, decedent’s brother, was entitled only to pecuniary loss for funeral expenses.  In explaining pecuniary loss, the court wrote:


Damages in a wrongful death action are limited to “fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought” (EPTL 5-4.3 [a]).  “Pecuniary loss” is defined as “the economic value of the decedent to each distributee at the time decedent died” and includes loss of income and financial support, loss of household services, loss of parental guidance, as well as funeral expenses and medical expenses incidental to death….  Generally, because it is difficult to provide direct evidence of wrongful death damages, the calculation of pecuniary loss “is a matter resting squarely within the province of the jury”… .  On this record, we conclude that there are issues of fact with respect to whether plaintiff, as decedent’s brother, suffered pecuniary loss in the form of funeral expenses and whether decedent’s brother Matthew suffered pecuniary loss given the evidence of their longstanding close and interdependent relationship.  Milczarski … v Walaszek…, 656, 4th Dept 7-19-13



Contract Between Town and Employer of Injured Employee Did Not Allow Indemnification of Town by Employer


In a Labor Law action seeking damages for a fall from the roof of a building under construction, the Fourth Department determined Supreme Court should have dismissed the town’s motion for contractual indemnification against plaintiff’s employer because the contract was not intended to be retroactive to the day of the injury.  The Fourth Department explained the applicable law as follows:


“Workers’ Compensation Law § 11 prohibits a third-party action against an employer unless the plaintiff sustained a grave injury or there is ‘a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution or indemnification of the [thirdparty plaintiff]’ ”… .  The Town concedes that plaintiff did not suffer a “grave injury,” and that it is entitled to indemnification only if it can demonstrate the existence of a written contract.  “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .  Meabon v Town of Poland…, 634, 4th Dept 7-19-13






Guidelines With Pre-Authorized Specific Procedure List for Medical Tests and Services Held Valid/Variance Procedure for Tests and Services Not on List Held Valid


In a full-fledged opinion by Justice Spain, the Third Department determined the Medical Treatment Guidelines created pursuant to Workers’ Compensation Law section 13-a (5) were valid and enforceable.  The Guidelines were adopted as the standard of care for all medical treatment for workplace injuries rendered on or after December 1, 2010, relating to injuries to the back, neck, shoulder and knee. The Guidelines include a preauthorized-specific-procedure-list for many common medical tests and services which do not require prior authorization. The regulations set forth a variance procedure in which treatment providers may request approval for medical care or testing that is not preapproved upon a showing that the treatment is appropriate and medically necessary.  In the case before the court, the denial of claimant’s request for a variance for acupuncture treatment was affirmed.  The dissenting justice argued there was “no support for the majority’s position that the [Guidelines] were intended to create a preordained and exhaustive list of medically necessary treatments, thereby rendering all non-listed treatments presumptively not medically necessary and creating a presumption that the employers/carriers could ‘rely on’ in fulfilling their statutory obligation to provide medical care to injured claimants.”  Matter of Kigin v State of New York Workers’ Compensation Board…, 515721, 3rd Dept 7-18-13






Question of Fact About Whether Private Entity Managing Medicare Funds Can Recoup Payments Which Were Above Minimum Fees Required by Medicare


Plaintiffs, emergency and ambulance service-providers, brought an action in response to defendant’s reduction in Medicare payments made to recoup alleged overpayments in prior years.  In finding plaintiffs had raised a question of fact about whether defendant was entitled to recoup the alleged overpayments, the Fourth Department wrote:


We agree with plaintiffs that the applicable Medicare fee schedule set a minimum payment, but not a maximum payment, for the services that plaintiffs provided (see 42 USC § 1395w-22 [a] [2] [A]).  On the one hand, if defendant had paid plaintiffs the minimum fees required by the applicable Medicare fee schedule, then plaintiffs would not be entitled to object to those payments as being insufficient (see 42 CFR 422.214 [a] [1]).  On the other hand, however, while defendant paid plaintiffs more than the minimum amount required by the fee schedule for a period of time, defendants have failed to establish that defendant is entitled as a matter of law to recoup any or all of those funds from plaintiffs.  Although the common law right of a governmental agency to recoup erroneously distributed public funds is well established … , that right does not necessarily extend to defendant, a private entity managing public funds… . Canandaigua Emergency Squad, Inc. … v Rochester Area Health Maintenance Organization, Inc…, 632, 4th Dept 7-19-13






Five-Year Look-Back Applied/Pension Properly Included in Determining Applicant’s Income In Spite of Unexplained Cessation of Payments


The Fourth Department confirmed the Department of Social Service’s determination that transfers of property within the five-year look-back period were properly taken into account in imposing a penalty period before the applicant, who was in a nursing home, was eligible to for Medicaid. The court agreed that a gift made during the look-back period was at least partially motivated by qualifying for Medicaid and the applicant’s pension payments, which stopped at some point for unknown reasons, were properly considered in determining the applicant’s income (noting that the department was not obligated to determine why the payments, which presumably were for life, stopped).  In explaining the relevant law, the court wrote:


“In determining the medical assistance eligibility of an institutionalized individual, any transfer of an asset by the individual . . . for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services” for a certain penalty period (Social Services Law § 366 [5] [d] [3]).  The look-back period is the “sixty month period[] immediately preceding the date that an [applicant] is both institutionalized and has applied for medical assistance” (§ 366 [5] [d] [1] [vi]).  Where an applicant has transferred assets for less than fair market value, the burden of proof is on the applicant to “rebut the presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of future need to qualify for medical assistance” (…see generally § 366; 18 NYCRR 360-4.4).  Matter of Donvito… v Shah…, 663, 4th Dept 7-19-13






Complaint Sufficiently Alleged Facts to Support

Piercing the Corporate Veil


In a full-fledged opinion by Justice Mazzarelli (which dealt with many corporation law issues not mentioned here), the First Department determined the complaint alleged sufficient facts to meet the criteria for piercing the corporate veil:


To make out a cause of action for liability on the theory of piercing the corporate veil [*5]because the corporation at issue is the defendant's alter ego, the complaining party must, above all, establish that the owners of the entity, through their domination of it, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the party asserting the claim such that a court in equity will intervene … . Piercing of the corporate veil is not a cause of action independent of that against the corporation; it is established when the facts and circumstances compel a court to impose the corporate obligation on its owners, who are otherwise shielded from liability… . "Because a decision whether to pierce the corporate veil in a given instance will necessarily depend on the attendant facts and equities, the New York cases may not be reduced to definitive rules governing the varying circumstances when the power may be exercised" … . Indeed, this Court has observed: 


"In determining the question of control, courts have considered factors such as the disregard of corporate formalities; inadequate capitalization; intermingling of funds; overlap in ownership, officers, directors and personnel; common office space or telephone numbers; the degree of discretion demonstrated by the alleged dominated corporation; whether the corporations are treated as independent profit centers; and the payment or guarantee of the corporation's debts by the dominating entity . . . [n]o one factor is dispositive"… .   Tap Holdings LLC v Orix Fin Corp, 2013 NY Slip Op 05293, 1st Dept 7-16-13






Judges Not Obligated to Adhere to Pay-Voucher

Recommendations Made by Assigned Counsel Program


The Fourth Department dismissed an Article 78 petition brought by the Onondaga County Bar Association Assigned Counsel Program (ACP) which sought to vacate the respondents-judges’ approval of pay vouchers submitted by respondent-attorney.  The Fourth Department wrote:


…[T]his proceeding challenges the authority of respondents to approve vouchers that do not comply with the ACP Plan; it does not challenge the amount of the compensation awarded, a matter reviewable only before an administrative judge ….  We reject petitioners’ contention that respondents have a mandatory duty to follow the ACP Plan and that their failure to refuse to pay vouchers not in compliance with the Plan is arbitrary and capricious.  Although ACP personnel may make recommendations to the trial court with respect to the payment of vouchers, the trial courts are not obligated to adhere to those recommendations.  “The ACP Plan does not take away from the courts the ultimate authority to determine assigned counsel’s compensation; it merely provides for a preliminary review and recommendation, which individual trial judges are free to accept or reject”… .  Matter of County of Onondaga and Onondaga County Bar Association Assigned Counsel Program, Inc., 57, 4th Dept 7-19-13













Repugnant Verdict Required Reversal


The Fourth Department, over a dissent, reversed defendant’s conviction of manslaughter in the first degree as a hate crime as inconsistent with defendant’s acquittal of manslaughter in the first degree (without the hate crime element).  The Fourth Department wrote:


“A verdict is inconsistent or repugnant . . . where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit” … .  “A verdict shall be set aside as repugnant only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” …, “without regard to the accuracy of those instructions” … .  “The underlying purpose of this rule is to ensure that an individual is not convicted of ‘a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all’ ” ….   


By acquitting defendant of manslaughter in the first degree, the jury necessarily found that the People failed to prove beyond a reasonable doubt at least one element of manslaughter in the first degree.  To find defendant guilty of manslaughter in the first degree as a hate crime, however, the jury must have found that the People proved beyond a reasonable doubt all of the elements of manslaughter in the first degree, plus the added element that defendant selected the victim due to his sexual orientation.  It therefore follows that the verdict is inconsistent.  People v DeLee, 419, 4th Dept 7-19-13



Judge’s Refusal to Allow Defendant to Call Inmate

Witness Required Reversal


The Fourth Department reversed defendant’s conviction because the trial court refused defendant’s request to present an inmate witness who might have supported defendant’s version of events:


CPL 630.10 provides for the attendance of an inmate witness in a criminal action or proceeding upon a demonstration of “reasonable cause to believe that such person possesses information material” to such proceeding.  Here, defendant made the requisite showing under that statute, and the court abused its discretion in refusing to order the production of the subject inmate witness whose testimony defendant sought to present at trial… .  There is no dispute that the proposed inmate witness spoke to the driver of the vehicle in which defendant was a passenger just before defendant’s arrest.  The proposed witness was at a distance of between 20 feet and 20 yards from the vehicle at the time of defendant’s arrest.  Moreover, we note that there was no fingerprint evidence in this case, which involved a top count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), and the issue of defendant’s guilt turned largely on the testimony of two police detectives.  We cannot countenance the court’s refusal to allow defendant to present the testimony of a witness who might have supported defendant’s version of events.  People v Baxter, 599, 4th Dept 7-19-13



In SORA Proceeding, Child Pornography Properly Considered Under Factor 7 (“Relationship Between Offender and Victim”)


In affirming a SORA determination, the Fourth Department noted that the 20 point assessment under risk factor 7 (entitled “Relationship Between Offender and Victim”), based upon the defendant’s pleading guilty to receiving child pornography (a federal statute), was appropriate:


With respect to …the 20 points assessed under risk factor 7, we note that the underlying conviction was a federal offense to which defendant pleaded guilty to receiving child pornography (18 USC 2252 [a] [2]).  Although the Court of Appeals has stated that “[i]t does not seem that factor 7 was written with possessors of child pornography in mind” …, the Court of Appeals determined that points were properly assessed under risk factor 7 in a case where the defendant was convicted of possessing child pornography….  Consequently, we conclude that the court here properly assessed points under risk factor 7. People v Noyes, 687, 4th Dept 7-19-13



Improper Admission of Evidence of Similar (Pending) Criminal

Charge under Molineux Required Reversal


The Fourth Department determined a new trial was required where the trial court allowed the prosecution to present evidence (in its direct case) of a pending attempted robbery charge under Molineux to prove identity.  The defendant was on trial for allegedly robbing a hotel clerk in Cayuga County and the Molineux evidence involved the attempted robbery of a hotel clerk in Onondaga County.  The Molineux evidence included the testimony of five witnesses and a video of the attempted robbery.  The Fourth Department wrote:


“Before admitting evidence of other crimes to establish identity, the Trial Judge must find that both modus operandi and defendant’s identity as the perpetrator of the other crimes are established by clear and convincing evidence” (Prince, Richardson on Evidence § 4–514 [Farrell 11th ed]…).  Here, the record establishes that the court ruled that the evidence of defendant’s identity with respect to the attempted robbery would be admissible as a matter of law, but did not determine the relevancy of the identification evidence of the attempted robbery, nor did it properly balance its prejudicial effect as against its probative value… .  Additionally, there is no indication in the record that the court found that the modus operandi and defendant’s identity as the perpetrator of the attempted robbery were established by clear and convincing evidence.  We thus conclude that the case before the jury became a prohibited “trial within a trial”… .  We further conclude that the evidence of the attempted robbery was “sufficiently prejudicial so as to deprive defendant of a fair trial”… .  People v Larkins, 756, 4th Dept 7-19-13



Defendant’s Wearing a Stun Belt During Trial Without Knowledge of Judge Did Not Constitute a “Mode of Proceedings” Error


The Fourth Department determined the defendant’s wearing of a “stun belt” during his trial (unbeknownst to the judge and to which no objection was made) did not constitute a mode of proceedings error.  The dissent argued to the contrary, characterizing the sheriff’s use of the stun belt without the court’s involvement as a usurpation of the power of the court:


County Court could not have granted defendant’s motion under CPL 440.10 (1) (f) unless the unauthorized use of the stun belt at trial constitutes a mode of proceedings error, in which case reversal would have been required on direct appeal if the use of the stun belt had been disclosed on the record … .  


We respectfully disagree with our dissenting colleague that the improper use of the stun belt, i.e., at the direction of the Sheriff rather than the court, constitutes a mode of proceedings error. 


Indeed, we note that a mode of proceedings error occurs “[w]here the procedure adopted by the court . . . is at a basic variance with the mandate of law” …, and that is not the case here.  We further note that in Buchanan the court deferred to the Sheriff, indeed delegated to the Sheriff, the determination whether defendant should wear the stun belt after the court acknowledged that defendant had done nothing to merit it (see Buchanan, 13 NY3d at 3), but the Court of Appeals did not find the error to be a mode of proceedings error.  Instead, the Court of Appeals simply ruled that the court failed to exercise its discretion… .  People v Schrock, 800, 4th Dept 7-19-13




Jail Time Does Not Count Toward Subsequent Offense

Until Previous Sentence Expired


Defendant was released on parole for a 2001 conviction.  While on parole he committed an offense and was jailed.  The Fourth Department determined that the time defendant was in jail must first be credited to the 2001 conviction.  Only after the 2001 sentence was completely served could any jail time be credited to the subsequent (2009) conviction:


Here, “[a]ny jail time served prior to the maximum expiration date of the [2001] sentence was properly credited toward that sentence until it expired on its own terms on [July 4, 2009] … .  “Thus, the [2009] sentence was properly credited only with jail time served after the expiration of the [2001] sentence” ….  In other words, “petitioner is not entitled to jail time credit against the [2009] sentence for the jail time that was credited against the [2001] sentence”… .  Matter of Grahm v Walsh, 811, 4th Dept 7-19-13




Insufficient Evidence of History of Alcohol and Drug Abuse

in SORA Proceeding


The Fourth Department determined there was insufficient evidence in a SORA proceeding to find defendant had a history of alcohol and drug abuse.  The case summary stated that “Probation identified [defendant’s] continued drug and alcohol abuse as problematic, and he refused to attend treatment for th[at] problem.”  The Court wrote:


There is …no evidence that defendant was ever screened for substance abuse issues …, “only very limited information about his alleged prior history of drug and alcohol abuse” …, and no information about what treatment was recommended or why treatment was recommended ….  Under these circumstances, the case summary alone is insufficient “to satisfy the People’s burden of establishing that risk factor by clear and convincing evidence” ….


Further, defendant’s prior convictions for criminal possession and sale of marihuana and criminal possession of a controlled substance in the seventh degree do not constitute clear and convincing evidence that defendant used drugs, let alone that he had a history of abusing them … .  During the presentence investigation, defendant never admitted to using drugs or alcohol, and he denied abusing any substances at the SORA hearing … Defendant’s admission that he was intoxicated during a previous incident, which led to a rape charge that was subsequently dismissed, is insufficient to establish that his sexual misconduct can “be characterized by repetitive and compulsive behavior[] associated with drugs or alcohol” (Correction Law § 168-l [5] [a] [ii]), especially because defendant does not have any other history of intoxication with respect to his sexual offenses, including the instant offenses ….  Consequently, as noted, the People failed to meet their burden of establishing by clear and convincing evidence that defendant had a history of alcohol or drug abuse… .  People v Coger, 815, 4th Dept 7-19-13






40 Month Pre-Trial Delay Did Not Violate Due Process


In determining a 40-month delay did not deprive defendant his right to due process, the Fourth Department wrote:


In determining whether there has been an undue delay, a court must consider several factors, including “ ‘(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay’ ” (People v Decker, 13 NY3d 12, 15, quoting People v Taranovich, 37 NY2d 442, 445…).  


Upon applying the Taranovich factors to the facts before us, we conclude that the delay did not deprive defendant of his right to due process.  We agree with defendant that the rape in the first degree charge “can only be described as serious” … .  Conversely, although the 40-month delay in commencing the prosecution was substantial, it was not per se unreasonable ….  Furthermore, defendant was not incarcerated for an extended period prior to the trial on these charges, and there is no evidence that defendant was prejudiced by the delay in commencing the prosecution.  Finally, the reason for the delay in this case was the police detective’s inability to fully identify and locate defendant.  That excuse was not unreasonable inasmuch as the victim was unable to identify defendant from mug shots or otherwise ascertain which of the 32 men in the Buffalo Police Department’s identification system with defendant’s name was the perpetrator. People v White, 817, 4th Dept 7-19-13






Agent Owed No Special Duty to Insured/No Duty to Advise Insured of Unpaid Premiums for Policy Assigned to Insured



The Fourth Department dismissed a negligence cause of action as time-barred and a contract cause of action because the defendant insurance agent owed no special duty to advise the plaintiff.  The plaintiff asked for and received an assignment of a workers’ compensation policy which had been held by nonparty API. Unbeknownst to the plaintiff at the time of the assignment, API owed unpaid premiums. In reversing Supreme Court’s denial of defendant’s motion for summary judgment, the Fourth Department determined the statute of limitations for the negligence cause of action started when the assignment of the workers’ compensation insurance policy to plaintiff was signed, not when plaintiff learned of the unpaid premiums, and the contract between plaintiff and the defendant insurance agent did not impose a special duty on the agent to advise the plaintiff about the unpaid premiums:


…[U]pon the execution of the assignment, which shifted liability for arrears in policy premiums from API to plaintiff, plaintiff’s damages were “sufficiently calculable to permit plaintiff to obtain prompt judicial redress of that injury” and plaintiff therefore had a “complete cause of action” …. The fact that plaintiff may not have learned of the amount owed … on the date on which NYSIF commenced the action against it [for the unpaid premiums], does not alter the analysis for statute of limitations purposes… .  * * *


“ ‘[A]n insurance agent’s duty to its customer is generally defined by the nature of the customer’s request for coverage’ ” ….  “ ‘Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide[ ] or direct a client to obtain additional coverage’ ” …. “To set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy” ….  “A general request for coverage will not satisfy the requirement of a specific request for a certain type of coverage”… .  


Here, plaintiff requested only that defendant procure the “best policy value” for plaintiff’s workers’ compensation coverage.  This is “the very kind of request that has been repeatedly held to be insufficient” to trigger a special duty requiring defendant to advise plaintiff concerning its insurance coverage… . Defendant procured workers’ compensation coverage for plaintiff through the assignment of API’s policy.  …[T]he assignment itself indicated that plaintiff would be responsible “for the payment of any premiums or additional premiums . . . which may become due on account of this policy up to the effective date of this assignment of interest agreement.”  Plaintiff has thus failed to state a breach of contract cause of action because there was no specific request for coverage that defendant failed to meet… .  5 Awnings Plus, Inc v Insurance Group, Inc, 678, 4th Dept 7-19-13






“Direct Financial Loss” Caused by Employee Defined


The First Department explained what “direct financial loss” means in the context of bonds issued to indemnify a commodities futures broker [MF Global] for loss caused by a wrongful act by an employee:


In the bonds, plaintiffs agreed to indemnify MF Global for losses "sustained at any time for . . . any wrongful act committed by any employee . . . which is committed . . . with the intent to obtain financial gain for [the employee]" (emphasis omitted). "Loss" means "the direct financial loss sustained by [MF Global] as a result of any single act, single omission or single event, or a series of related or continuous acts, omissions or events." The bonds exclude coverage for "[i]ndirect or consequential loss." A "[w]rongful act," with respect to trading in commodities and futures, is defined as "any . . . dishonest . . . act committed with the intent to obtain improper financial gain for . . . an employee" … .. * * *


The motion court properly concluded that MF Global's loss constituted a "direct financial loss." Although that term is not defined in the bonds, "[a] direct loss for insurance purposes has been analogized with proximate cause"… .. 


Here, [a broker’s] conduct in making unauthorized trades beyond his margin was the direct and proximate cause of MF Global's loss… . New Hampshire Ins Co v MF Global, 2013 NY Slip Op 05291, 1st Dept 7-16-13



Question of Fact Raised About Defendant’s Knowledge of Horse’s Vicious Propensities


The Third Department affirmed the denial of summary judgment in a case where plaintiff was injured by defendant’s horse.  Plaintiff was knocked unconscious when defendant’s horse “head swatted” him.  The Third Department determined the deposition testimony of a neighbor raised a question of fact about whether defendant was aware of the horse’s aggressive behavior.  The Third Department explained the relevant legal principles as follows:


As a general rule, an owner of a domestic animal  will only be  held  strictly liable for the  harm  caused  by such animal if he or she "'knows or should have known of that animal's vicious propensities'"  Therefore, on his motion for summary judgment, defendant bore the initial burden of establishing that he had no prior knowledge that [his horse] had any vicious propensity ….  It is now well established that a vicious propensity is "the propensity to do any act that might endanger the safety of the persons and property of others in a given situation" …, and includes behavior that would  not necessarily be  considered  dangerous  or ferocious if those behaviors reflect a "'proclivity to act in a way that puts others at risk of harm'" … However, normal  or typical equine behavior is  insufficient  to  establish  a  vicious  propensity … . Carey… v Schwab, 516021, 3rd Dept 7-18-13






Release Precluded Civil Rights Action/No Showing Release Signed Under Duress/Releases Signed Under Duress Are Voidable Not Void


The Third Department affirmed the dismissal of plaintiff’s civil rights complaint based upon a release signed by the plaintiff.  The court determined that plaintiff’s allegations did not create a question of fact about whether the release was the product of duress.  The relevant legal principles, including the principle that contracts signed under duress are voidable, not void, were explained as follows:


Under  contract law, a signed release that is clear and unambiguous and knowingly and voluntarily entered into is binding on the parties unless cause exists to invalidate it on one of the recognized bases for setting aside written agreements, including illegality, fraud, mutual mistake, duress or coercion… .  A party such as plaintiff seeking to void a written contract on the ground of duress must meet her burden of demonstrating "(1) threats of an unlawful act by one party which (2) compel[] performance by the other party of an act which it had a legal right to abstain from performing"… .


Moreover, contracts executed under duress are, at most, voidable and not void and, by accepting and retaining the benefits of the second agreement for almost two years and not timely repudiating it, plaintiff affirmed or ratified that agreement, which is binding and no longer voidable on the grounds of duress, which objections are waived… .  Nelson v Lattner Enterprises of NY…, 515927, 3rd Dept 7-18-13






Defendant’s Failure to Appear at Pre-Trial Conference Did Not Warrant Striking Answer


The Third Department reversed Supreme Court’s striking of defendant’s answer as a penalty for defendant’s not appearing at a pre-trial conference as ordered:


Generally speaking, and based upon sound underlying policy, there is a strong judicial preference for determination of issues upon the merits ….  Consistent with this policy, defendant's failure to comply with the court's directive for in-person appearance at a pretrial conference is not punishable by an order striking the pleadings. The applicable rule instead specifically authorizes the court only to deem a party's failure to comply  "a default under  CPLR  3404," which  results in removal  of the case from  the trial calendar (22 NYCRR 202.26 [e]…).  CBA Properties LLC v Global Airlines Services Inc, 515868, 3rd Dept 7-18-13






Court in Contract Action Does Not Have

Power to Vary 9% Interest Rate


In a case with counterclaims sounding in contract and Labor Law 191-c (1) (re: payment of earned sales commissions after a contract is terminated), the Fourth Department noted that the court does not have discretion to vary the statutory 9% interest rate in a contract action:


…[W]e conclude that the court lacked discretion to vary the statutorily-prescribed interest rate of 9% per annum (see CPLR 5004). As this Court has previously recognized, interest at the rate of 9% per annum is mandatory for “sum[s] awarded because of a breach of performance of a contract” (CPLR 5001 [a]…).  Polyfusion Electronics, Inc v Promark Eletronics, Inc…, 635.1, 4th Dept 7-19-13






Conspiracy to Commit Tort Not Recognized in New York


In reversing Supreme Court’s grant of a default judgment, the Fourth Department noted that “New York does not recognize civil conspiracy to commit a tort as an independent cause of action.”  Piatt, PA…v Horsley…, 652, 4th Dept 7-19-13 






Labor Law 240(1) Action Not Implicated by

Portion of Ceiling Falling


The Second Department determined a Labor Law 240(1) action should have been dismissed.  As plaintiff was attempting to paint the ceiling while standing on a ladder, a portion of the ceiling fell, causing injury.  In explaining why section 240 does not apply to the facts, the court wrote:


Labor Law § 240(1) requires property owners and contractors to provide workers with "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection" to the workers (Labor Law § 240[1]). The purpose of the statute is to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured"…. "With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'"… . Thus, to recover damages for violation of the statute, a "plaintiff must show more than simply that an object fell causing injury to a worker" … . The plaintiff must show that, at the time the object fell, it was "being hoisted or secured" (id. at 268) or "required securing for the purposes of the undertaking"… . Flossos v Waterside Redevelopment Co LP, 2013 NY Slip Op 05297, 2nd Dept 7-17-13






Review Criteria for Municipal Disability Hearing Explained


The Second Department, in an Article 78 proceeding, explained the review criteria where there has been a disability hearing (re: a firefighter) held by a municipality pursuant to General Municipal Law 207-a:


Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence (see CPLR 7803[4]…). Substantial evidence means more than a "mere scintilla of evidence," and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides … . 


When there is conflicting evidence or different inferences may be drawn, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists"… .. Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 207-a determination, a municipality is "free to credit one physician's testimony over that of another" … . Thus, even if "conflicting medical evidence can be found in the record," the municipality's determination, based on its own expert's conclusions, may still be supported by substantial evidence… . Matter of Solano v City of Mount Vernon, 2013 NY Slip Op 05322, 2nd Dept 7-17-13






Application for Certification as NYC School Bus Driver Should Have Been Denied Because of Past Drug Convictions



The First Department, over a dissent, reversed Supreme Court’s order that petitioner, who had been convicted of two drug offenses (felonies) in the past, be certified as a NYC Department of Education school bus driver.  The First Department explained the relevant criteria as follows:


Where the applicant seeks employment with the New York City Department of Education, the School Chancellor's regulations apply and Regulation C-105 establishes procedures to be followed …for background investigations of pedagogical and administrative applicants. Regulation C-105 incorporates by reference article 23-A of the Correction Law. Correction Law § 752 (et seq.) prohibits unfair discrimination against a person previously convicted of a crime "unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals." Correction Law § 753(a) - (h), which set forth eight factors a public agency must consider in connection with an application for a license, include the person's duties and responsibilities, the bearing, if any, the criminal offense(s) will have on the person's "fitness or ability" to perform his or her duties, the time that has elapsed since the occurrence of the crime(s), the seriousness of the crime, information about the applicant's reputation, etc., and the legitimate interest of the agency in protecting the safety and welfare of specific individuals or the general public. Regulation C-105 provides further that in reviewing the record of an applicant who has a prior criminal conviction, DOE is particularly concerned with offenses, among others, that involve the possession, distribution or selling of controlled substances.


The Chancellor's Regulation, like the Corrections Law, provides that where the applicant has a certificate of relief from disabilities, that certificate "shall" also be considered (Correction Law § 753[3]). The certificate, however, only creates a "presumption of rehabilitation" with respect to the crime the individual was convicted of, it does not create a prima facie entitlement to the license the person is applying for… .  Matter of Dempsey v NYC Dept of Educ, 2013 NY Slip Op 05289, 1st Dept 7-16-13






Criteria for Denial of Trustee Commissions Based On Misconduct, Including Post-Commission-Period Misconduct, Explained


The First Department discussed when a trustee can be denied commissions for misconduct, including misconduct after the commission period (a post-commission-period penalty is rare and none was imposed here):

We conclude that courts have the discretion to take into consideration all of a trustee's misconduct in determining the grant of annual commission, even conduct that occurred after the period applicable to the commission. Although there are no appellate cases on point, no New York case holds otherwise. As a basic principle, the Surrogate has broad discretion to deny commission to a trustee if the trustee has engaged in misconduct… .. In determining if a commission should be denied, misconduct that is not directly related to the commission being sought may be taken into consideration … . The Restatement (Second) of Trusts § 243 supports this conclusion with a multi-factor analysis (Comment c). Among the factors to be considered under the Restatement in determining if a commission should be denied are whether the trustee acted in good faith, whether the misconduct related to management of the whole trust and whether the trustee completed services of value to the trust (id.). We conclude, therefore, it is within the court's discretion to determine whether the trustee's later misconduct bars her from receiving commission.


Trustees can be denied commission "where their acts involve bad faith, a complete indifference to their fiduciary obligations or some other act that constitutes malfeasance or significant misfeasance" ... The denial of a commission, however, should not be "in the nature of an additional penalty" (Restatement (Second) of Trusts § 243, Comment a). Rather, it should be based on the trustee's failure to properly serve the trust (see id.). Matter of Gregory Stewart Trust, 2013 NY Slip Op 05290, 1st Dept 7-16-13

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