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July Page IV

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




Court's Review Powers Re: a Planning Board's Denial of a Subdivision Application Explained


In upholding the Planning Board's denial of petitioner's subdivision application, the Second Department explained the court's review criteria in this context: "The court will substitute its judgment for that of a planning board only when the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational (... see CPLR 7803[3]...). When reviewing a planning board's determination, courts consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination...". [internal quotation marks omitted] The Second Department went on to look at the evidence, which, although conflicting in some aspects, included support for the rationality of the Planning Board's ruling. Matter of Ostojic v Gee, 2015 NY Slip Op 06244, 2nd Dept 7-22-15






The Treatment of Pre-Answer Motions to Dismiss an Action for a Declaratory Judgment Explained


The Second Department explained how pre-answer motions to dismiss are handled in the context of an action for a declaratory judgment:


Generally speaking, " [a] motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'" ... . As such, "where a cause of action is sufficient to invoke the court's power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy' (CPLR 3001; see CPLR 3017[b]), a motion to dismiss that cause of action should be denied" ... . 


Upon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where " no questions of fact are presented [by the controversy]'" ... . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action "should be taken as a motion for a declaration in the defendant's favor and treated accordingly" ... . North Oyster Bay Baymen's Assn. v Town of Oyster Bay, 2015 NY Slip Op 06225, 2nd Dept 7-22-15







Analytical Criteria for a Motion to Dismiss for Failure to State a Cause of Action Where Plaintiff Submits an Affidavit/Analytical Criteria for a Motion to Amend the Complaint


The Second Department determined the motion to dismiss for failure to state a cause of action should not have been granted with respect to one of the defendants, and the motion to amend the complaint should have been granted. The court explained the proper way to handle a motion to dismiss for failure to state a cause of action when the plaintiff submits an affidavit in opposition, as well as the criteria for a motion to amend the complaint:


In considering a motion to dismiss pursuant to CPLR 3211(a)(7), "the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ... . "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" ... . Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), affidavits may be received for a limited purpose only, usually to remedy defects in the complaint, and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading ... . " [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'" ... * * *


CPLR 3025(b) provides that courts may grant leave to parties to amend or supplement their pleadings, and, "[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" ... . Here, the Supreme Court improperly denied that branch of the plaintiff's cross motion which was pursuant to CPLR 3025(b) for leave to amend the complaint insofar as asserted against [one defendant]. No surprise or prejudice resulted from any delay in the plaintiff's motion, and the proposed amendment is neither palpably insufficient nor patently without merit insofar as it pertains to that defendant ... . Tirpack v 125 N. 10, LLC, 2015 NY Slip Op 06236, 2nd Dept 7-22-15







Requirements for Preservation of Collateral (Security for a Promissory Note) Explained


In an action alleging the failure to preserve collateral which secured a promissory note, the Second Department determined summary judgment on the underlying promissory note should not have been granted because plaintiffs raised a question of fact about the commercial reasonableness of the handling of the collateral:


"Under both the common law and the Uniform Commercial Code, a secured party has a duty to exercise reasonable care in the custody and preservation of collateral in its possession. The obligation remains the same regardless of whether the secured party came into possession of the property before or after the debtor's default" ... .


"After default, a secured party may sell, lease, license or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing" (UCC 9-610[a]). "Every aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable" (UCC 9-610[b]). A secured party that disposes of collateral under section 9-610 is required to send to, among others, the debtor and any secondary obligor, notification of disposition (see UCC 9-611[b], [c]). Nugent v Hubbard, 2015 NY Slip Op 06226, 2nd Dept 7-22-15







Where the Parties' Intent Can Be Determined from the Four Corners of the Contract, the Interpretation of the Contract is a Purely Legal Question Which Can Be Raised for the First Time on Appeal and Which Can Be Finally Determined by the Appellate Court (No Need for a Trial)


The First Department, reversing Supreme Court, determined defendants were entitled to summary judgment dismissing the breach of contract complaint. Defendants owned an improved parcel of land next to a parcel owned by plaintiff. Plaintiff purchased a portion of defendants' parcel and the parties entered an agreement which included a promise by the defendants that they would not object to any construction on plaintiff's parcel, which was interpreted by the court to mean defendants agreed to provide their consent if it was necessary to the construction. Upon an examination of the facts, the court concluded plaintiff did not demonstrate he needed the defendants' consent to anything related to the construction, and therefore the contract provision requiring defendants to consent was never triggered. The aspect of the case which is worth noting is the court's determination that a purely legal question of contract interpretation was involved and that the purely legal question could be raised for the first time on appeal. The court explained that "where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the legal effect of the contract...":


Initially, although defendants' arguments on appeal differ from those made in support of their motion, they may be considered by this Court because they present a pure legal issue of contract interpretation, which appears on the face of the record and could not have been avoided if raised below ... .


"On appeal, the standard of review is for this Court to examine the contract's language de novo" ... . "Our function is to apply the meaning intended by the parties, as derived from the language of the contract in question" ... . In interpreting a contract, words should be accorded their "fair and reasonable meaning," and "the aim is a practical interpretation of the expressions of the parties to the end that there be a realization of [their] reasonable expectations" ... . Moreover, "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" ... . Although the parties offer conflicting interpretations of a contract, that does not render it ambiguous ... . Moreover, "where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the legal effect of the contract" ... . Dreisinger v Teglasi, 2015 NY Slip Op 06197, 1st Dept 7-21-15







Preventing a Party from Carrying Out Its Agreement Constitutes a Material Breach


The Third Department determined Supreme Court properly held that defendants breached the contract. Plaintiff owned a business which produced and sold aggregate stone. Plaintiff entered a lease agreement with defendants which allowed plaintiff to remove stone from a quarry on defendants' property and required that defendants pay "rent" based upon the amount of stone removed. No stone was removed for some time. Defendants sent a letter indicating they would consider the lease null and void unless plaintiff started up the business within 90 days. The parties then entered discussions, some stone was removed and rent was paid. Thereafter, the defendants unilaterally declared the lease null and void, ordered plaintiff to remove its equipment, and prevented plaintiff from entering the property. Supreme Court found plaintiff had done enough to comply with defendants' initial demand that plaintiff start up its business and, therefore, defendants' actions, which prevented plaintiff from carrying out its agreement, constituted a material breach. The Third Department agreed:


"In the case of every contract there is an implied undertaking on the part of each party that he [or she] will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his [or her] part" ... . In the April 1996 letter, [defendant] advised [plaintiff]  that the lease was null and void, threatened legal action if plaintiff did not "promptly" remove its equipment from the quarry, and stated that [defendant] did not consider himself bound by the lease because it was void. Two months later, defendants' counsel advised plaintiff's counsel that it was defendants' position that the lease had been rescinded and that plaintiff "ha[d] no right to enter upon the property." ... "[R]efusing to permit the other party to perform is a breach of contract" ... . Here, defendants' unilateral declaration that the lease was null and void, and their threat of legal action if plaintiff did not promptly remove its equipment, followed shortly thereafter by the statement of defendants' counsel that plaintiff had no right to enter the property, constituted a refusal to permit plaintiff to perform. Galusha & Sons, LLC v Champlain Stone, Ltd, 2015 NY Slip Op 06286, 3rd Dept 7-23-15







General Obligations Law Prohibition of Indemnification Agreements Which Exempt a Lessor from Its Own Negligence Does Not Apply to a Commercial Lease Negotiated at Arm's Length Between Sophisticated Parties With an Insurance Procurement Requirement


The Second Department determined the lessor of a shopping center, Montauk Properties, under the terms of its lease with a supermarket, Gambar Food, was entitled to indemnification re: plaintiff's slip and fall on a sidewalk in front of the supermarket.  Although the terms of the lease exempted the lessor from liability for its own negligence, which is a violation of General Obligations Law (GOL) 5-321, GOL 5-231 does not apply to a commercial lease negotiated at arm's length between sophisticated parties with an insurance procurement requirement:


The lease between Montauk Properties and Gambar Food requires Gambar Food to indemnify Montauk Properties "for any matter or thing growing out of the occupation of the demised premises or of the streets, sidewalks or vaults adjacent thereto." The plaintiff's accident falls within the scope of this indemnification provision ..., which, under its broadly drawn language, obligates Gambar Food to indemnify Montauk Properties for its own negligence. Although General Obligations Law § 5-321 provides that an agreement that purports to exempt a lessor from its own negligence is void and unenforceable, the subject indemnification provision is not rendered unenforceable by this statute. "[W]here, as here, the liability is to a third party, General Obligations Law § 5-321 does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm's length between two sophisticated parties when coupled with an insurance procurement requirement" ... . Campisi v Gambar Food Corp., 2015 NY Slip Op 06205, 2nd Dept 7-22-15







"Voluntary Payment Doctrine" Explained and Applied to Preclude Recovery


The Second Department determined the "voluntary payment doctrine" precluded recovery against the defendant. Plaintiff had an agreement with a consignee that plaintiff's liability associated with the export of fine art would be limited to $40,000. Plaintiff hired defendant to transport the fine art to the consignee, but the art was seized by customs because the documentation was incomplete. The plaintiff, despite the $40,000 liability cap, voluntarily compensated the consignee for its loss (around $240,000). Then plaintiff sued defendant for the $240,000. Because the plaintiff made that payment voluntarily, the "voluntary payment doctrine" required dismissal of the complaint:


"[T]he voluntary payment doctrine . . . bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law" ... . Here, the defendant established its prima facie entitlement to judgment as a matter of law through the submission of, among other things, a copy of the contract between the plaintiff and the consignee, which included the limitation of liability provision that capped the plaintiff's liability to the consignee at $40,000. This demonstrated, prima facie, that the plaintiff's payment to the consignee of anything more than $40,000 was voluntary ... . Further, the defendant demonstrated, prima face, that the plaintiff recovered the full $40,000 for which it was liable to the consignee from its insurance company. Hedley's, Inc. v Airwaves Global Logistics, LLC, 2015 NY Slip Op 06215, 2nd Dept 7-22-15







There Is No Legal or Constitutional Authority for a Pre-Execution Challenge to a Search Warrant---Facebook's Attempt to Quash Search Warrants Seeking All the Information in 381 Subscribers' Facebook Accounts Was Rejected


The First Department, in an extensive, full-fledged opinion by Justice Renwick, determined there was no statutory or constitutional authority for Facebook's motion to quash 381 search warrants which sought all the data from the targets' Facebook accounts and prohibited disclosure of the warrants to the targets. There is no authority allowing a pre-execution challenge to a search warrant. Facebook's argument that their motion was analogous to a motion to quash a subpoena, the denial of which can be appealed, was rejected. Facebook's argument that the bulk warrants were akin to subpoenas issued to Internet Service Providers, which can be challenged under the Federal Stored Communications Act (SCA), was rejected (after a full analysis):


We agree with Facebook that the bulk warrants at issue here are analogous to SCA section 2703(a) warrants to the extent they authorized the federal and state government to procure a warrant requiring a provider of electronic communication service to disclose electronic content in the provider's electronic storage. However, contrary to Facebook's allegations, 2703 subsection (d), which gives the ISP the right to object, applies only to court orders or subpoenas issued under subsections (b) or (c). The SCA specifically distinguishes these disclosure devices from warrants, which are governed by its subsection (a). While an order or subpoena obtained pursuant to (b) or (c) requires only that the government show "specific and articulable facts" that there are "reasonable grounds to believe" the information sought will be "relevant and material," a warrant under subsection (a) requires the government to make the traditional and more stringent showing of "probable cause." Here, a finding of probable cause was made by the reviewing judge, and thus the warrants are akin to SCA warrants, not SCA subpoenas or orders. Thus, Facebook's argument that it has the right to contest the warrants based upon the SCA is contradicted by the express terms of the SCA. * * *


Our holding today does not mean that we do not appreciate Facebook's concerns about the scope of the bulk warrants issued here or about the District Attorney's alleged right to indefinitely retain the seized accounts of the uncharged Facebook users. Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one's home. These bulk warrants demanded "all" communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime.


Judges, as guardians of our Constitution, play an indispensable role in protecting the rights and liberties of individuals entrenched in the Constitution. Charged with the indispensable responsibility of reviewing warrant applications, they protect the rights and interests of individuals by remaining mindful of the reasonableness embedded in the Fourth Amendment's delicate balance. The procedural rules attendant to the Fourth Amendment's warrant requirement both reasonably protect the innocent and permit investigation of suspected criminal conduct. A judge reviewing a warrant request must always balance the nature and quality of the intrusion on an individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Further, this balance invokes carefully weighing the extent to which each level of intrusion in the execution of the warrant is needed. Each level of intrusion involves an implicit assertion by the government that the intrusion is "reasonable" to recover the evidence described in the warrant despite the compromise of the individual's interests in privacy. Ultimately, to be fair and effective, the overall assessment of reasonableness requires the judge reviewing the warrant to carefully evaluate the need for each additional level of intrusion in the process of seizing evidence. 381 Search Warrants Directed to Facebook, Inc. v New York County Dist. Attorney's Off., 2015 NY Slip Op 06201, 1st Dept 7-21-15






In Responding to Defendant's Criticisms of Defense Counsel's Actions, Defense Counsel Merely Explained His Actions and Did Not Take a Position Adverse to His Client's---Therefore the Defendant Was Not Entitled to Withdraw His Plea on the Ground that He Was Denied Effective Assistance of Counsel


In affirming defendant's conviction by guilty plea, the First Department determined that defense counsel, in responding to allegations about his performance made by the defendant, did not take a position adverse to his client's. Rather, counsel merely explained the reasons for his actions and did not voice any opinion about the validity of defendant's pro se motions. Therefore the defendant was not entitled to withdraw his plea on that ground:


"It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea" ... . "When certain actions or inaction on the part of defense counsel is challenged on the motion, it may very well be necessary for defense counsel to address the matter when asked to by the court. When doing so, defense counsel should be afforded the opportunity to explain his performance with respect to the plea, but may not take a position on the motion that is adverse to the defendant. At that point, a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion." ... . * * *


Counsel's statement that defendant might not understand that he still retained certain residual rights to appeal despite the waiver, and that his concerns might be mitigated if the court explained that to him, was not adverse to defendant's position. It merely conveyed that if defendant was informed that his waiver did not bar an appeal of all issues, including the voluntariness of the plea, it might affect his view of the waiver. Counsel's factual statement that the waiver was a condition of the People's plea offer, which reduced defendant's sentence and made him eligible for parole at an earlier date, and that he did not believe that there was a basis for a CPL 30.30 motion because all but one of the adjournments since he had taken over the case had been on consent due to plea negotiations, did not go beyond a mere explanation of his performance ... . Counsel did not deny that he advised defendant to agree to the waiver or that he refused to make a CPL 30.30 motion. Nor did he refute any specific factual allegation raised by defendant with respect thereto or affirmatively state his belief that defendant had no legal basis for withdrawing his plea. People v Maxwell, 2015 NY Slip Op 06199, 1st Dept 7-21-15







Prosecutor's Reasons for Challenging an Hispanic Juror Were Pretextual---New Trial Ordered


The Second Department determined the prosecutor's proffered reason for challenging an Hispanic juror was pretextual and ordered a new trial. Two Hispanic jurors were challenged by the prosecutor. The prosecutor's reason for challenging one of them was the juror's alleged inability to understand questions. The Second Department determined there was no support for that reason in the record:


... [A] new trial is necessary because the prosecutor exercised one of her peremptory challenges in a discriminatory manner with respect to a Hispanic male prospective juror ... . Under both state and federal law, the use of peremptory challenges in a racially discriminatory manner is prohibited ... . Trial courts must follow a three-step protocol to determine whether a party has used its peremptory challenges in a racially discriminatory manner. First, the moving party contesting the peremptory challenges must allege sufficient facts to make a prima facie showing that the prospective jurors were challenged because of race ... . Where the moving party makes such a prima facie showing, the burden shifts to the nonmoving party to offer a race-neutral reason for each of the disputed peremptory challenges ... . If such reasons are offered, the burden shifts back to the moving party to demonstrate that the reasons, although facially neutral, are pretextual ... . The third step requires the trial court to make an ultimate determination as to whether the proffered reasons are pretextual ... . * * *


Contrary to the trial court's determination, the facially race-neutral reason proffered by the prosecutor for exercising a peremptory challenge with respect to the Hispanic male prospective juror was pretextual. Although the prosecutor argued that this prospective juror had a difficult time understanding the trial court's questions during voir dire, this claim is not borne out by the record. Rather, the record shows that the prospective juror was repeatedly asked the same question regarding his willingness to follow the law and assured the trial court more than once that he would follow the law as it was provided. While this prospective juror asked for one of the court's questions to be repeated, and expressed that he did not understand compound questions when they were asked of him, never during the questioning by the trial court did he give a conflicting answer or state that he would not or could not follow the law. Indeed, any appearance of a lack of understanding on the part of this prospective juror is attributable to confusion caused by the manner in which the trial court intervened during the prosecutor's questioning of the juror: while a question was pending before the juror, the court asked compound questions of him.


Moreover, the prosecutor's failure to pursue questioning of this prospective juror, whom she purportedly believed could not follow the law, despite repeated assurances by the prospective juror to the contrary, also renders the basis for the challenge pretextual ... . People v Fabregas, 2015 NY Slip Op 06253, 2nd Dept 7-22-15







A Defendant's Status as an Undocumented Alien Cannot Be the Sole Ground for Imposing Incarceration As Opposed to Probation


In a case of first impression, the Second Department, in a full-fledged opinion by Justice Dillon, determined that a defendant's status as an undocumented alien cannot constitute the sole reason for a sentence of incarceration as opposed to probation. County Court reasoned that as soon as a sentence of probation was imposed upon an undocumented alien, the defendant would be in violation of probation by virtue of his/her undocumented status. Therefore, County Court concluded, a sentence of probation was not available to any undocumented alien. The Second Department disagreed, holding that a defendant's status as an undocumented alien can be considered in determining the appropriate sentence, but it cannot be the sole ground for imposing a sentence of incarceration. To pre-determine that an undocumented alien is not eligible for probation violates due process and equal protection, constitutional rights which are afforded undocumented aliens:


... [W]e reach two conclusions. First, courts may appropriately consider a defendant's undocumented immigration status in imposing criminal sentences. The decision to impose or not impose a sentence of probation may legitimately be affected by factors directly related to undocumented status. Those factors include, but are not necessarily limited to, the likelihood of the defendant's deportation during the probationary period, the defendant's history, if any, of repeated departures from and illegal reentries into the United States, the presence or absence of family in the United States, the defendant's employment history, and the defendant's legal employability. Second, it is impermissible for a sentencing court to refuse to consider a sentence of probation for an undocumented defendant solely on the basis of his or her immigration status. Doing so violates the Due Process and Equal Protection clauses of the Federal and New York constitutions by treating certain defendants differently from others based upon their undocumented presence in this state. In other words, a defendant's undocumented immigration status may be a factor a court takes into account in determining whether to include probation as part of a sentence, but such status cannot be the sole factor a court relies upon in denying a probationary sentence and in imposing a term of imprisonment instead. People v Cesar, 2015 NY Slip Op 06252, 2nd Dept 7-22-15







Improper Evidence of Uncharged Offenses, a Police Officer's Vouching for the Reliability and Credibility of the People's Central Witness, and the Court's Failure to Give Limiting Instructions to the Jurors after Sustaining Objections to Improper Testimony Deprived Defendant of a Fair Trial


The Third Department reversed defendant's conviction based upon several errors including the improper presentation of evidence of uncharged crimes attributed to the defendant and a police officer's vouching for the reliability and credibility of the confidential informant (CI), upon whose testimony the People's case depended. The jury heard evidence of defendant's participation in a drug offense identical to that for which he was on trial. Even though objection to the testimony was sustained and the testimony struck, no limiting instructions were given to the jury. Evidence of defendant's sitting at a table on which were large amounts of heroin and crack cocaine was also improperly presented. Objection to that testimony was overruled. With respect to the police officer's vouching for the credibility and reliability of the CI, the defense objection to that testimony was sustained, but no curative instructions were given to the jury:


At trial ... the CI testified that defendant was not only present during [a] controlled purchase of crack cocaine, but that he had also participated in the transaction by providing the actual drugs. County Court denied defendant's prompt motion for a mistrial, but otherwise sustained his objection and struck this portion of the CI's testimony, without further limiting instructions to the jury. In our view, this revelation was highly prejudicial, as it related to a recent uncharged crime that was nearly identical to the sale for which defendant was on trial ... . Shortly thereafter, the CI recounted that, upon entering the apartment on October 9, 2012, he had observed defendant sitting at a table "with large amounts of heroin and crack cocaine in front of him." Although no reference to "heroin" was included in the People's Molineux proffer, or otherwise previously disclosed, the court overruled defendant's objection, permitting further testimony from the CI about the presence of heroin. Because defendant was not charged with possession or sale of heroin, it cannot be said that this evidence was directly related to or in any way necessary to explain his alleged possession and sale of crack cocaine such that it was inextricably interwoven into the CI's narrative ... . Significantly, the court did not attempt to cure the prejudice arising from the CI's improper testimony by issuing an instruction either at the time of defendant's objection or during the jury charge ... . * * *


Further prejudice resulted from the People's redirect examination of [officer] Gillis, who stated that the CI was "very reliable and very trustworthy." After County Court overruled defendant's objection, and characterized the testimony as "opinion," Gillis elaborated that the CI had "never given [him a] reason to not believe anything that [the CI] is telling [him]." Allowing Gillis to vouch for the CI's credibility was clearly improper ... . The effect was compounded by the People's summation, wherein the prosecutor surmised that law enforcement had used the CI for several years because of his reliability ... . While we recognize that County Court sustained defendant's objection, no curative instruction was issued, and we remain concerned that the prosecutor's remark amplified the effect of Gillis' improper vouching ... . People v Nicholas, 2015 NY Slip Op 06269, 3rd Dept 7-23-15







"Outside Influence Upon the Jury" Argument Rejected---"Weight of the Evidence" Review Required New Trial [Editor's Note---There Appears [to Me] to Be No Difference Between What Can Be Reviewed Under the "Weight of the Evidence" Criteria, Which Need Not Be Preserved by a Motion to Dismiss, and What Can Be Reviewed Under the "Legally Sufficient Evidence" Criteria, Which Must Be Preserved by a Specific Motion to Dismiss]


The Second Department, in applying its "weight of the evidence review," determined that the counts of the indictment stemming from an alleged burglary or attempted burglary were not supported by evidence the defendant entered the victim's house illegally. Therefore those counts were dismissed. The court explained how a "weight of the evidence" review is applied. [It seems to this writer that there no longer is a distinction between a "weight of the evidence" review, which need not be preserved by a motion to dismiss, and a "legally sufficient evidence" review, which must be preserved by a specific motion to dismiss.] The court also explained the criteria for determining whether there was undue outside influence on the jury (here alleged discussion of a newspaper article about the trial and defendant's reputation as a troublemaker).  The "undue outside influence" argument was rejected. Concerning the "weight of the evidence" review, the court wrote:


In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]...), we essentially sit as the "thirteenth juror" and "decide[ ] which facts were proven at trial" ... . "[W]eight of the evidence review is not limited to issues of credibility" ... . "Rather, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution's witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt'" ... .


Here, the People failed to prove beyond a reasonable doubt that the defendant committed burglary in the first degree and, concomitantly, failed to prove the defendant's guilt of murder in the second degree (felony murder) under the first count of the indictment, which was predicated upon his commission or attempted commission of burglary. To prove the defendant's guilt of burglary in the first degree, the People were required to prove, among other things, that the defendant "knowingly enter[ed] or remain[ed] unlawfully in a dwelling" (Penal Law § 140.30). "A person enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so" (Penal Law § 140.00[5]). "In general, a person is licensed or privileged' to enter private premises when he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] the authority to issue such consent" ... .


There was no evidence produced at trial as to how the defendant, who was acquainted with Jones, entered Jones' house. An investigating police detective testified that there was no evidence of forced entry into the house, and neither of two statements the defendant gave to the police, admitting that he was in Jones' house when Jones was killed, indicate that he entered the premises unlawfully. Under these circumstances, since the People failed to introduce any evidence as to how the defendant gained entry to Jones' house, they failed to prove that the defendant entered the house unlawfully. People v Marsden, 2015 NY Slip Op 06260, 2nd Dept 7-22-15





Order of Protection Reversed--Family Court Did Not Have Subject Matter Jurisdiction---Party Ordered to Stay Away Was Not Related to, a Member of the Household of, or in an Intimate Relationship With, the Subject of the Order of Protection


The Second Department determined Family Court did not have subject matter jurisdiction pursuant to Family Court Act 812 and could not, therefore, issue an order of protection to a person, Kirton, who was not a party to a family offense proceeding. Family Court's jurisdiction in a family offense proceeding is limited to certain acts which occur "between spouses or former spouses, or between parent and child or between members of the same family or household" (Family Ct Act § 812[1]...). [M]embers of the same family or household include, among others, persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time... " [internal quotation marks omitted] Here the party to whom the order of protection was issued, Kirton, was not related in any way to, was not a member of the household of, and did not have an intimate relationship with the petitioner, Cambre (from whom Kirton was ordered to stay away):


The Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute ... . Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household" (Family Ct Act § 812[1]...). "[M]embers of the same family or household" include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" ... .


Here, Kirton and Cambre have no direct relationship ... . The record ... demonstrates that they met for the first time during the course of the court proceedings, and have no ongoing relationship ... . Accordingly, the undisputed facts establish that there is no "intimate relationship" between the parties within the meaning of Family Court Act § 812(1)(e)... . Consequently, since the parties do not have an "intimate relationship" within the meaning of Family Court Act § 812 (1)(e), the Family Court lacked subject matter jurisdiction, the order of protection must be reversed, the petition denied, and the proceeding dismissed. Matter of Cambre v Kirton, 2015 NY Slip Op 06242, 2nd Dept 7-22-15 






Children's Out-of-Court Statements Sufficiently Corroborated to Support Neglect Finding


In affirming Family Court's neglect finding, the Second Department noted that the children's out-of-court statements, if sufficiently corroborated, will support a finding of neglect. Here the children's statements were cross-corroborated among them, and were corroborated by the testimony of a school nurse and caseworkers:


In a child protective proceeding, unsworn out-of-court statements of the subject child may be received and, if properly corroborated, will support a finding of abuse or neglect ... . The Family Court has considerable discretion in deciding whether a child's out-of-court statement has been reliably corroborated and whether the record as a whole supports a finding of neglect ... . Moreover, where the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded considerable deference on appeal ... .


Here, a preponderance of the evidence supported the Family Court's finding that the father neglected the child Tapharye C. by inflicting excessive corporal punishment on him ... . Contrary to the father's contention, out-of-court statements by the subject children were sufficiently corroborated by the testimony of a school nurse and the caseworkers employed by the Suffolk County Department of Social Services, who had also observed the evidence of physical injury sustained by Tapharye, as well as by the children's own cross-corroborating statements ... . Matter of Hayden C. (Tafari C.), 2015 NY Slip Op 06241, 2nd Dept 7-22-15







With the Exception of Residence Addresses Included in the Requested Documents, Respondent Fire Department Did Not Meet Its Burden of Demonstrating the Applicability of a Statutory Exemption to Disclosure


The Second Department determined the respondent fire department did not demonstrate why any information other than the residence addresses should be redacted from the requested documents. Providing the residence addresses would constitute an unwarranted invasion of privacy. Conclusory assertions by the fire department were not otherwise sufficient to meet the department's burden for demonstrating the applicability of a statutory exemption from disclosure:


Under FOIL, government records are "presumptively open" for public inspection and copying, unless they fall within an enumerated statutory exemption of Public Officers Law § 87(2) ... . The exemptions are to be "narrowly construed" so as to ensure maximum public access ..., and the burden rests on the agency to demonstrate that the requested material in fact qualifies for exemption (see Public Officers Law § 89[4][b]...). To meet that burden, the agency must "articulate particularized and specific justification" for the nondisclosure at issue ... .


Here, the Fire Department failed to articulate a particularized and specific justification for any of the redacted information at issue, except for the residence addresses contained in the subject documents. The Fire Department's conclusory assertions that the redacted information, other than residence addresses, fell within a statutory exemption were insufficient to meet its burden of demonstrating that the requested information was exempt from disclosure ... . Matter of Villalobos v New York City Fire Dept., 2015 NY Slip Op 06249, 2nd Dept 7-22-15





Road Washout Was Due to a Highway Design Issue for Which Adequate Remedial Planning Had Been Made---The Washout Was Not, Therefore, Caused by a Highway Maintenance Deficiency to Which the Negligence Standard Applies---State Entitled to Qualified Immunity Re: a Vehicle Accident Caused by a Sinkhole


The Third Department determined the maintenance and construction of a culvert, around which the road repeatedly washed out, was a highway design issue, for which the state was protected by qualified immunity, not a highway maintenance issue, for which a negligence standard applies. Claimant was injured when his vehicle went into a sinkhole near the culvert. 


Municipalities unquestionably have a duty to maintain roads in a reasonably safe condition ... . With respect to highway safety and design, however, defendant is "accorded a qualified immunity from liability arising out of a highway planning decision" ... . Here, the gravamen of the claim is that the 9-foot-high, 15-foot-wide oval culvert that carried the Spuytenduiveil Creek underneath Route 8 was too small and should have been replaced. Plaintiff maintains that this condition presented a maintenance and repair issue that defendant was required to address in its proprietary capacity for which basic negligence and not sovereign immunity principles apply ... . * * *


In order to successfully invoke the qualified immunity defense, defendant had the burden of demonstrating that its decision with regard to the replacement of the culvert "'was the product of a deliberative decision-making process'" ... . Even with design planning issues, liability may exist where the municipality does not adequately analyze the condition or if there is no reasonable basis for its plan ... . If a remedial plan is developed, "liability may result from a failure to effectuate the plan within a reasonable period of time," but "a reasonable delay justified by design considerations [or] a legitimate claim of funding priorities would not be actionable" ... .


Based upon our review of the probative evidence, we agree with the Court of Claims that the replacement of the culvert presented a design and not a maintenance issue and that defendant was entitled to qualified immunity. Evans v State of New York, 2015 NY Slip Op 06288, 3rd Dept 7-23-15






Question of Fact Whether Softball Coach's Having Infant Plaintiff Practice Sliding on Grass Increased the Inherent Risk of the Activity Precluded Summary Judgment


The Second Department determined the defendant school district did not demonstrate, in its motion for summary judgment, that the softball coach's having infant plaintiff practice sliding on grass did not unreasonably increase the inherent risk of the activity. Therefore the school district's motion was properly denied without any consideration of the opposing papers:


Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ... . This includes risks associated with the construction of the playing surface and any open and obvious condition on it ... . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks ... . " [A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff'"... .


The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ... . Here, the defendants failed to establish, prima facie, that the infant's coach, by having her perform an infield sliding drill on the subject grass field, did not unreasonably increase the inherent risks of the activity ... . Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, the motion and cross motion were properly denied, and the Court need not determine the sufficiency of the plaintiff's opposition papers ... . Brown v Roosevelt Union Free School Dist., 2015 NY Slip Op 06204, 2nd Dept 7-22-15




Broker Entitled to a Commission Despite Purchaser's Wish Not to Work with the Broker Any Further


The Second Department determined a broker who had negotiated extensively on behalf of the purchaser, but was not named as a broker entitled to a commission in the operative contract (because the purchaser did not want to work with that broker any further), was entitled to a commission. The court explained the relevant law:


In order to recover a real estate brokerage commission, a broker must establish: (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the transaction . "To establish that a broker was the procuring cause of a transaction, the broker must establish that there was a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation" ... . Sholom & Zuckerbrot Realty, LLC v Gallant, 2015 NY Slip Op 06231, 2nd Dept 7-22-15






Cotenant's Exclusive Possession and Payment of Taxes and Maintenance Costs, Standing Alone, Are Not Enough to Establish Adverse Possession As Against a Cotenant/Criteria for Ouster of Cotenant Not Met


The Third Department determined that the motion to dismiss for failure to state a cause of action was properly granted. A cotenant who had resided at the property, maintained the property, and paid the taxes for over two decades, brought an action seeking exclusive ownership based upon ouster of defendant cotenant and/or adverse possession. Neither the complaint nor plaintiff's submissions established the statutory criteria for ouster or adverse possession (Real Property Actions and Proceedings Law [RPAPL] 541) . There was no unequivocal expression by the possessory cotenant that the property was being adversely possessed, and the inclusion of the defendant cotenant's name on a property insurance policy belied adverse possession. The court noted that exclusive possession and payment of maintenance expenses by a cotenant, standing alone, do not establish adverse possession:


The law that would have provided ... plaintiff a valid legal claim with regard to the underlying property dispute is RPAPL 541, which provides that, "[w]here the relation of tenants in common has existed, the occupancy of one tenant . . . is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises . . . has claimed to hold adversely to the other. But this presumption shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, . . . or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his [or her] cotenant." It is well settled that, "absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may be said to acquire full title by adverse possession" ... .


We reject plaintiff's contention that she and Lindine ever ousted defendant or defendant's parents from the property. An ouster will not be deemed to have occurred unless the possessory cotenant, either through words or actions, unequivocally expresses to the nonpossessory cotenant that the property is being adversely possessed ... . * * *


Plaintiff alternatively contends that, even if no ouster has been established, she and Lindine adversely possessed the property, given their exclusive use of it for more than two decades (see RPAPL 541). In support of this argument, plaintiff emphasizes that she and Lindine paid all taxes and expenses for the property, and made all necessary repairs to its structural improvements. Defendant never visited the property during the years that plaintiff and Lindine lived there permanently and defendant's parents, it is claimed, only did so twice. Even accepting these allegations as true, "exclusive possession and the payment of maintenance expenses by a [possessory] cotenant are[, standing alone,] insufficient to establish a claim of right for purposes of adverse possession as against a cotenant" ... . Lindine v Iasenza, 2015 NY Slip Op 06275, 3rd Dept 7-23-15







Original Grantor Has the Power to Remove Restrictive Covenants from a Deed/Land Conveyed for Public Use Which Is Subject to a Condition Subsequent (Here a Reversionary Interest in the Deed) Is Not Covered by the Public Trust Doctrine (Legislative Approval for Conveyance for Private Use Not Required)


The Second Department upheld an agreement to remove restrictive covenants from a deed, allowing the village, to which the property had been conveyed, to retain the property free and clear from restrictions. The deed to the village from the Ortenbergs (husband and wife) included a covenant that the property would remain in its natural state for public purposes for the life of the village.  If the village ceased maintaining the property in a natural state, or if the village ceased to exist, the property reverted to the Ortenbergs, their heirs and assigns. After Mrs. Ortenberg died, Mr. Orternberg entered an agreement with the village to remove the restrictive covenants. The petitioners, owners of contiguous land, brought an Article 78 petition arguing that the agreement violated the public trust doctrine which requires the approval of the New York State Legislature before the land held for public use could be converted to private use.  The Second Department noted that the public trust doctrine does not apply to land conveyed for public use subject to a condition subsequent (the reversionary interest). The court also noted that the agreement was not subject to the State Environmental Quality Review Act (SEQRA):


Ortenberg, as the grantor, had the authority to release the Village from its obligation to perform the conditions in the deed and thereupon waive and terminate his reversionary interest (... see a... EPTL 6-5.1). Moreover, the Village was not required to obtain the approval of the New York State Legislature before mutually rescinding the underlying agreement with Ortenberg. Under the public trust doctrine, "a municipality, without specific legislative sanction, may not permit property acquired or held by it for public use to be wholly or partly diverted to a possession or use exclusively private" ..., but this doctrine is inapplicable to property which is subject to a reversionary interest ... . Where "the land acquired by the [municipality] for public . . . purposes was conveyed subject to a condition subsequent it is not under the control of the Legislature" ... . Matter of Rappaport v Village of Saltaire, 2015 NY Slip Op 06246, 2nd Dept 7-22-15






Where Plaintiff Does Not Know Which of Two Defendants Distributed the Product Which Caused the Injury, the Doctrine of Alternative Liability Applies---Doctrine Explained


The Second Department determined the doctrine of alternative liability applied to a strict products liability case where it was not possible for the plaintiff to determine which of two defendants distributed the product. The doctrine places the burden on the defendants to demonstrate which of them distributed the product, and if that is not possible, the two defendants would be jointly and severally liable:


Generally, a plaintiff seeking to recover for injuries sustained due to the use of a product is required to prove that it was the defendant who placed the product that injured him or her into the stream of commerce ... . However, the doctrine of alternative liability is "available in some personal injury cases to permit recovery where the precise identification of a wrongdoer is impossible" ... .


Under that doctrine, where the conduct of two or more defendants is tortious, and " it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one,'" the burden is placed on those defendants to prove that they did not cause the harm ... . If the defendants cannot meet that burden, they are jointly and severally liable ... . "Recovery under an alternative liability theory requires joinder of all the parties who could have been responsible for a plaintiff's injuries" ... . Silver v Sportsstuff, Inc., 2015 NY Slip Op 06232, 2nd Dept 7-22-15







Failure to Timely Submit a Proposed Judgment of Divorce Did Not Constitute Abandonment of the Divorce Action/Decedent's Death Before the Judgment of Divorce Was Entered Did Not Abate the Divorce Action/The Stipulation of Settlement (Re: the Divorce), In Which the Parties Agreed They Were No Longer the Beneficiaries of Each Other's Wills, Was Enforceable


Decedent and her husband had entered a stipulation of settlement and all matters related to their divorce had been settled at the time of decedent's death. Only the submission of the proposed judgment of divorce remained. The stipulation of settlement included the parties' agreement that they were no longer the beneficiaries of each other's wills. Decedent's husband sought letters testamentary and a share in the estate, arguing that, because the proposed judgment of divorce was not submitted by decedent, decedent had abandoned the divorce action. Surrogate's court agreed the divorce action had been abandoned and found there was a question of fact whether the stipulation of settlement was enforceable.  The Second Department reversed, finding that the divorce action was not abandoned and the stipulation of settlement was enforceable. Decedent's husband, therefore, had no right to share in decedent's estate:


Contrary to the Surrogate Court's determination, the decedent did not abandon the divorce action pursuant to 22 NYCRR 202.48 by failing to timely submit a proposed judgment within 60 days of the Supreme Court's verbal direction. Since the 60-day time period to submit a proposed judgment under 22 NYCRR 202.48(a) does not run until "after the signing and filing of the decision directing that the [judgment] be settled or submitted," and the court's direction was not reduced to a written decision, there was no violation of that rule here ... . Furthermore, since all issues in the divorce action had been resolved at the time of the decedent's death, the Supreme Court had adjudged that the decedent was entitled to a divorce, and nothing remained to be done except the ministerial entry of a judgment of divorce, the decedent's death did not abate the divorce action ... . Under these circumstances "the parties' substantive rights should be determined as if the judgment of divorce had been entered immediately as of the time nothing remained to be done except enter a judgment" ..., and the stipulation of settlement is thus enforceable as a matter of law. Moreover, since the stipulation of settlement contained language which "clearly and unequivocally manifests an intent on the part of the spouses that they are no longer beneficiaries under each other's wills" ..., the stipulation of settlement revoked any testamentary disposition in Carmine's favor under EPTL 3-4.3, regardless of whether it was ultimately followed by a formal dissolution of the marriage ... . Matter of Rivera, 2015 NY Slip Op 06247, 2nd Dept 7-22-15







Plaintiff's Recovery for On-the-Job Injury Against "Alter Ego" of Plaintiff's Employer Limited to Workers' Compensation


The Second Department determined that defendant's status as the "alter ego" of plaintiff's employer limited plaintiff's recovery for job-related injury to Workers' Compensation:


"The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) also extends to entities which are alter egos of the entity which employs the plaintiff" ... . "A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law under this theory must show, prima facie, that it was the alter ego of the plaintiff's employer" ... . "A defendant may establish itself as the alter ego of a plaintiff's employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity" ... .


Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it was the alter ego of the plaintiff's employer, since the two companies operated as a single integrated entity ... . Haines v Verazzano of Dutchess, LLC, 2015 NY Slip Op 06214, 2nd Dept 7-22-15






New York City Was Unable to Demonstrate Amendments to the Adult Use Zoning Regulations Were Necessary to Reduce the Negative Effects of Such Businesses on the Surrounding Areas--Therefore the Amendments Constituted an Unjustified Restriction on Speech


In a lengthy, full-fledged opinion by Justice Kapnick, over a two-justice dissenting opinion, the First Department upheld Supreme Court's determination that the 2001 amendments to New York City's adult use zoning regulations, re: adult eating and drinking establishments and adult video and book stores, constituted a violation of the First Amendment precluding enforcement of the amendments. In an attempt to change the character of the adult businesses the city had enacted a "60-40" rule requiring that 60% of each business be devoted to "non-adult" products and/or activities. The City later amended the regulations, removing the "60-40" rule, and re-writing the criteria so that a business could be deemed to focus on sexually explicit entertainment irrespective of the amount of space or inventory devoted to "adult" activities and materials. It was those amendments which were challenged. The controversy boiled down to a factual one: Is the City able to demonstrate that the adult-businesses' response to the "60-40" rule was a "sham response" such that the character of the businesses, and the consequent negative effects on the surrounding community, had not been altered? If the City could so demonstrate, the recent amendments would constitute a justified restriction of speech, if not, the amendments result in an unjustified restriction of speech. The First Department determined the City failed to demonstrate the response to the "60-40" rule was a "sham response" and that the businesses remained unaltered in character by the rule. For The People Theaters of N.Y. Inc. v City of New York, 2015 NY Slip Op 06200, 1st Dept 7-21-15


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