top of page




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



Past Psychological Records Deemed Relevant in Lead-Paint Injury Case Where Psychological Injury Alleged


In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated with exposure to lead paint.  The Court ordered an in camera inspection of the records to weed out irrelevant information.  Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13



Question of Fact Raised in Rear-End Collision Case


Over a dissent by two justices, the Fourth Department ruled a question of fact had been raised which precluded summary judgment to a defendant in a rear-end collision case:


Although defendant met his initial burden of establishing a prima facie case of negligence on the part of plaintiff inasmuch as it is undisputed that plaintiff’s vehicle rear-ended defendant’s stopped vehicle, we conclude that plaintiff submitted evidence of an adequate nonnegligent explanation for the collision… .


While other cases have held that a party’s testimony that he or she did not “see” the other vehicle’s brake lights illuminated before rear-ending that vehicle does not alone establish the requisite nonnegligent explanation for the collision…, those cases are distinguishable from this case. Here, plaintiff testified at his deposition that he was unable to discern whether defendant’s vehicle was stopped because defendant’s brake lights were not activated. Plaintiff, however, also submitted the deposition testimony of McCulloch [the driver of the vehicle in front of defendant] and defendant in which they both described traffic conditions on the date of the accident as “congested” and “stop and go.” Additionally, plaintiff submitted evidence that defendant stopped suddenly. Indeed, plaintiff testified at his deposition that defendant apologized to plaintiff for the accident, explaining that McCulloch had stopped suddenly and that defendant “couldn’t help it.” That evidence, when viewed in the light most favorable to the nonmoving party …, establishes a sufficient nonnegligent explanation for the collision.  Borowski v Ptak …, 1315, 4th Dept, 6-7-13



Question of Fact Re: Duty Owed to Developmentally Disabled Plaintiff for Injury Incurred After Plaintiff Left Facility for a Bus Ride Home


In affirming the denial of summary judgment to the defendant, which provided services to developmentally disabled people, the Third Department determined there was a question of fact about whether defendant owed plaintiff a duty and whether the breach of that duty was the proximate cause of plaintiff’s injuries.  Plaintiff was placed on a bus to take her home from defendant’s premises, after plaintiff’s mother had instructed a respite worker that plaintiff should be driven home.  Plaintiff was struck by a car as she crossed the road after getting off the bus.  The Third Department wrote:


… [W]e agree with Supreme Court that summary judgment in defendant’s favor is precluded by  material issues of fact as to the degree  of care that  defendant  owed  to  plaintiff and  its compliance  with that duty… .  Further, given the record evidence regarding defendant’s knowledge of plaintiff’s abilities and limitations, we  find that it did not establish as a matter of law that its conduct in sending plaintiff to an unsupervised location along a highway was not the proximate cause of her injuries or that plaintiff’s actions  constituted  an  intervening  cause  ….  Warley v Grampp, et al, 515724, 3rd Dept, 6-6-13



Notice of Claim (Pursuant to Court of Claims Act) Not Specific Enough


The Third Department upheld the Court of Claims’ dismissal of a claim because the notice of claim was not specific enough.  In describing the statutory criteria, the Third Department wrote:


Pursuant to Court of Claims Act § 11 (b), a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and  the total sum  claimed. "Because suits against [defendant] are allowed only by [defendant's] waiver of sovereign immunity and  in derogation of the common law, statutory requirements conditioning suit must be strictly construed"….   Although "absolute exactness" is not required…, the claim must "'provide a  sufficiently detailed  description  of  the  particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and  extent of its liability'" … .  Morra v State of New York, 515751, 3rd Dept, 6-6-13



In Court of Claims Case, Inability to Prove State Was Served with Notice of Claim Required Dismissal


In affirming the Court of Claims’ dismissal of a claim because claimant was unable to demonstrate the state was properly served, the Third Department explained the relevant law as follows:


"A claimant seeking to recover damages  for personal injuries caused by  the negligence . . . of an  officer or employee  of [defendant] must  file and  serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof"….  Both filing with the court and service upon the Attorney General must take place within the relevant statutory period … and, as suits against defendant are permitted only by virtue of its waiver of sovereign immunity and  are in derogation of the common law, "the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction"….   Notably, "a defect in subject matter jurisdiction may be raised at any time, even for the first time  on appeal, because it relates to the competence of the court to consider [the] matter"… .and, therefore, such defect "cannot be overlooked or remedied by either waiver or estoppel" … .  Caci v State of New York, 515844, 3rd Dept, 6-6-13



½ Inch Differential Was Trivial and Could Not Be Basis of Liability


The First Department affirmed the dismissal of a slip and fall complaint finding the one-half-inch differential between the level of the sidewalk and the frame of the cellar door was trivial and could not serve as the basis of liability.  Boynton v Haru Sake Bar, 2013 NY Slip Op, 1st Dept, 6-6-13



Release Must Be Unambiguous to Allow Dismissal of Complaint


In affirming the denial of the defendant’s motion to dismiss the complaint based upon a release executed by the plaintiff, the 2nd Dept explained that motion must be denied because the scope the release could not be definitively determined:


“The meaning and scope of a release must be determined within the context of the controversy being settled” …. Where a release contains clear and unambiguous language, the signing of it is “a jural act binding on the parties” … . However, a release may not be read to cover matters which the parties did not intend to cover…. Moreover, while a release may encompass unknown claims, it must be clear that the parties so intended by the use of broad, all-encompassing language…. Where a court cannot definitively determine whether the scope of a release was intended to cover the allegations in a complaint, a motion pursuant to CPLR 3211(a)(5) to dismiss the complaint must be denied….  Desiderio v Geico Gen Ins Co, 2013 NY Slip Op 03964, 2nd Dept, 6-5-13






Nature of Declaratory Judgment and Doctrine of Ripeness Explained


In affirming the result in an Article 78/declaratory judgment proceeding which unsuccessfully challenged the Department of Environmental Conservation’s finding that petitioner had violated statutory and regulatory provisions relating to the application of pesticide, the Fourth Department explained the principles underlying a declaratory judgment action and the doctrine of ripeness:


Petitioners sought a declaration of the rights of the parties with respect to a 2002 consent order, and also sought further declarations that petitioners had the right to obtain waivers of the right to notification of the approximate dates upon which petitioners would apply products to the property of other customers. Pursuant to CPLR 3001, “[t]he supreme court may render a declaratory judgment . .. as to the rights and other legal relations of the parties to a justiciable controversy.” “A declaratory judgment action thus ‘requires an actual controversy between genuine disputants with a stake in the outcome,’ and may not be used as ‘a vehicle for an advisory opinion’ ” … . Here, the court, with the consent of the DEC, dismissed all charges related to alleged violations of the 2002 consent order, and thus no active controversy remained with respect to it.  *  *  *


The test for ripeness is well settled, to wit, a determination must be final before it is subject to judicial review (see CPLR 7801 [1]). “In order to determine whether an agency determination is final, a two-part test is applied. ‘First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and[,] second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party’ ” … .  Matter of Green Thumb Lawn Care, Inc v Iwanowicz…, 372, 4th Dept, 6-7-13



Nature of Motion to Resettle Explained


In dismissing the appeal from the denial of a motion to resettle or clarify, the Third Department explained the nature of a motion to resettle and some aspects of motions to reargue and renew:


Petitioner's motion was one to resettle and/or clarify Supreme Court's prior judgment regarding back pay. Such a motion is designed "not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision" … .  Such  motions  rest on  the inherent power  of courts to  "'cure mistakes,  defects  and  irregularities that  do  not  affect substantial rights of [the] parties'" Here, petitioners' motion  sought, unsuccessfully, to amplify and substantively amend, not merely to clarify, Supreme Court's prior judgment  ... Under established precedent, no appeal lies from the "'denial of a motion to resettle [or clarify] a substantive portion of an order'" … .Moreover, even were we to view petitioners' motion as one to reargue, which Supreme Court indicated would have been untimely (see CPLR 2221 [d] [3]), the motion was not "identified specifically as such" (CPLR  2221  [d] [1]), as required, and, in any event, no appeal lies from the denial of a motion to reargue ….  The motion likewise was not denominated as one seeking renewal (see CPLR 2221 [e] [1]) and was not based upon "new facts" or "a change in the law" (CPLR 2221 [e] [2]).  Accordingly, the appeal must be dismissed.  Matter of Torpey v Town of Colonie, 515902, 3rd Dept, 6-6-13



30-Day Time-Limit for Bringing Article 78 Proceeding Pursuant to Public Health Law Runs from Date of Determination, Not Date of Written Notice of Determination


The Third Department upheld the Appalachian Regional Emergency Medical Services Council’s determination that petitioner’s Article 78 action was untimely. Although the proceeding was brought within 30 days of the written notice of the Council’s determination, and the Council had a policy of issuing written notice, the Third Department determined the 30 day time-limit started when the determination was made, not when written notice was received:


Public Health Law  §  3008  (5) requires that an appeal be taken within 30 days of when a regional council makes its determination, and there is no statutory requirement that the determination be  in writing (see Public Health Law § 3008 [4]… .  Matter of Richmondville Volunteer Emergency Squad, Inc v NYS Department of Health…, 513688, 3rd Dept, 6-6-13



Failure to Allege Specific Facts to Rebut Process Server Affidavit Required Denial of Motion to Vacate Judgment w/o Hearing


The Second Department upheld Supreme Court’s denial of a motion to vacate a judgment on the ground defendant was not served.  No hearing was necessary because defendant did not swear to specific facts to rebut the facts in the process server’s affidavit:


"Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'"…. Since the appellant never denied the specific facts contained in the process server's affidavit, no hearing was required… .  Bank of NY v Samuels, 2013 NY Slip Op 03958, 2nd Dept, 6-5-13



“Crime-Fraud” Exception to Attorney-Client Privilege Re: Studies Funded by Defendant Casting Doubt on Relationship Between Asbestos and Cancer


In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer.  In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):


The motion court providently exercised its broad discretion …when it  …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .


The crime-fraud exception encompasses " a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'"…. "[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.' Rather advice in furtherance of such goals is socially perverse, and the client's communications seeking such advice are not worthy of protection"…. 


A party seeking "to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime" … .However, "[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege"… . 


To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be "a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies" …. "Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court" …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13



Forum Non Conveniens Doctrine Applied


In affirming the dismissal of the action on forum non conveniens grounds, the First Department described the criteria and relevant facts as follows:


The doctrine of forum non conveniens, as codified under CPLR 327, permits a court to stay or dismiss an action "where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" …. The doctrine rests on considerations of justice, fairness and convenience … . * * *


The subject matter of this action - insurance coverage for liability relating to the manufacture of products in Massachusetts - has no substantial connection to New York. When the policies were issued, Warren was a Massachusetts corporation and had its principal place of business in that state. Liberty Mutual, the insurer under the policies at issue, is a Massachusetts corporation that has its principal place of business in that state. Both plaintiffs are foreign corporations that maintain their principal places of business in other states… . Century Indem Co v Liberty Mut Ins Co, 2013 NY Slip Op 03953, 1st Dept, 6-4-13



Note of Issue Which States Discovery Not Complete Is a Nullity


The Second Department determined a note of issue which indicates discovery is not complete is a nullity:


Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR 202.21[a], [b]). While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action …, here, the plaintiffs' certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant's motion which was to vacate the note of issue was properly granted… .  Furrukh v Forest Hills Hosp, 2013 NY Slip Op 03968, 2nd Dept, 6-5-13



Certification Order Requiring Filing of Note of Issue in 70, Rather than 90, Days Could Not Be Basis of Dismissal


The Second Department determined that a certification order which required a note of issue be filed within 70 days, rather than 90 days, could not be the basis for dismissal of the action:


The certification order dated March 2, 2010, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiff to file a note of issue within 70 days, rather than 90 days, of the date of the order. Since the order failed to conform with a statutorily mandated condition precedent to dismissal of the action, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216… . Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court… . Gu v Hatsis, 2013 NY Slip Op 03970, 2nd Dept, 6-5-13



Adjournment Which Would Not Affect Trial Date Should Have Been Granted


The First Department determined Supreme Court should not have denied a request for a one-day adjournment to conduct an independent medical examination (IME):


The court improvidently exercised its discretion by denying defendants a one-day adjournment to conduct the already scheduled IME, as there is no evidence that the failure to conduct it previously was willful, and no evidence that plaintiff would have been prejudiced by the delay …. Moreover, the court could have allowed the IME without vacating the note of issue…, thereby causing no delay in the trial. …  Pickering v Union 15 Rest Corp, 2013 NY Slip Op 04122, 1st Dept, 6-6-13



Forum Non Conveniens Doctrine Applied

In affirming the dismissal of a complaint on forum non conveniens grounds [after noting the first inquiry must be whether the court has jurisdiction over the parties], the First Department wrote:


"The applicability of foreign law is an important consideration in determining a forum non conveniens motion and weighs in favor of dismissal"… .. The question of whether defendants' corporate veils should be pierced will be determined by the laws of each defendant's state of incorporation… . That means that a New York court will have to apply the laws of Samoa, Hong Kong, and Canada.  The witnesses and documents required to show that defendants are alter egos will likely be located in Samoa, Hong Kong, and Canada. This also weighs in favor of dismissal… .  Other than the fact that plaintiff is trying to enforce a judgment of the Southern District of New York (which merely recognized a London judgment against Shipping), this case has no tie to New York… .  Flame SA v Worldlink Intl (Holding) Ltd, 2013 NY Slip Op 04107, 1st Dept, 6-6-13








Attempt to Deny Visitation to Incarcerated Mother Denied



In affirming Family Court’s denial of grandmother’s (the child’s primary physical custodian’s) petition to suspend the child’s visitation with mother, who is incarcerated, the Fourth Department wrote:



Even assuming, arguendo, that the grandmother established “ ‘a change in circumstances sufficient to warrant an inquiry into whether the best interests of the [child] warranted a change in custody’ ”…, we conclude that, contrary to the grandmother’s contention, visitation with the mother at the correctional facility is in the child’s best interests.


There is a presumption that visitation with the noncustodial parent is in thechild’s best interests…, and a “parent’s incarceration, by itself, does not vitiate” that presumption….“Unless there is a compelling reason or substantial evidence that visitation with an incarcerated parent is detrimental to a child’s welfare, such visitation should not be” suspended ….    We conclude that the grandmother failed to establish by a preponderance of the evidence that visitation with the mother would be detrimental to the child, and thus she did not overcome the presumption that visitation with the mother is in the child’s best interests… .  Matter of Cormier v Clarke…, 409, 4th Dept, 6-7-13



Wife Deemed Not Entitled to Maintenance


In reversing Supreme Court and determining the wife was not entitled to maintenance, the Third Department wrote:


While "[t]he amount and duration of [a maintenance] award are addressed to the sound  discretion of the trial court" (…see Domestic  Relations Law  §  236  [B] [6] [a]), "this Court's authority is as broad as Supreme  Court's in resolving questions of maintenance"….  Accordingly, we  find that under  the circumstances of this case – where  the marriage was not of particularly long duration, the parties had no  children, the wife has stable employment  that provides her a significant salary, the  wife  is not  losing  retirement  or  health benefits and  the parties' predivorce standard of living was falsely inflated by  overextended lines of credit – the statutory factors do  not support an  award  of maintenance  (see Domestic Relations Law  §  236  [B] [6] [a] [1]-[20]…).  McCaffrey v McCaffrey, 515718, 3rd Dept, 6-6-13



No Basis in Record for Denying Noncustodial Parent Visitation


After affirming a derivative neglect finding against the mother based upon excessive corporal punishment of a sibling, the Second Department determined Family Court should not have denied her visitation:


Absent extraordinary circumstances, such as where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges… . Here, the Family Court improvidently exercised its discretion in failing to provide the mother with any visitation, either unsupervised or supervised, with Keith W., since there were no extraordinary circumstances justifying the denial of the mother's right to reasonable visitation… .  Matter of Jacob P, 2013 NY Slip Op 04007, 2nd Dept, 6-5-13



Family Court Award of Sole Custody to Mother Reversed, Sole Custody Awarded to Father


The Second Department reversed Family Court, which awarded sole physical custody to the mother, and awarded sole physical custody to the father:


Here, the Family Court's award of sole physical custody to the mother lacked a sound and substantial basis in the record. In awarding the mother custody, the Family Court gave undue weight to its finding that the mother would be more likely than the father to foster a meaningful relationship between the subject children and the noncustodial parent. Furthermore, the Family Court failed to give sufficient weight to the forensic mental health evaluation, which indicated that the mother was not suitable for physical custody of the children and to its own finding that it was in the children's best interests for them to remain away from Sherlock [the mother’s boyfriend] at all times. Under the totality of the circumstances, including the founded concerns with respect to Sherlock and the attendant risk his relationship with the mother posed to the safety and well-being of the subject children, the best interests of the children would be served by awarding the father sole physical custody …. Matter of James AS v Cassandra AS, 2013 NY Slip Op 03995, 2nd Dept, 6-5-13



“Economic Necessity” Justified Relocation


The Second Department determined the mother’s relocation was in the best interests of the child based upon “economic necessity:”


"[E]conomic necessity . . . may present a particularly persuasive ground for permitting the proposed move"… .. Here, the mother demonstrated that she was not able to meet her living expenses while residing in Queens, and the father conceded that he did not regularly pay his share of the childcare expenses. The mother also demonstrated that, if she were permitted to relocate, her mother would assist with the childcare and that she and the child would be able to reside, at a reduced rent, in her mother's home, located only blocks from where the child would attend school. While the father's loss of weekly weekday contact with the child is neither trivial nor insignificant…, the relocation is not a great distance and the visitation schedule devised by the court in this case allows for the continuation of a meaningful relationship between the father and the child… . Matter of Sahagun v Alix, 2013 NY Slip Op 04009, 2nd Dept, 6-5-13



Appreciation of Value of Marital Residence Should Have Been Reduced by Cost of Improvements


The Second Department determined Supreme Court should have reduced the distributive award based upon the appreciation in value of the marital residence during the marriage by the equitable share of the marital debt incurred in making improvements to the residence:


While the marital residence was the plaintiff's separate property, the Supreme Court directed the plaintiff to pay the defendant the sum of $102,500 as a distributive award based on the appreciation in value of the marital residence that was attributable to the efforts of both parties in physically improving the property during the marriage (see Domestic Relations Law § 236[B][1][d][3]…). Although the defendant's counsel noted at trial that the defendant's distributive award based on the appreciation of the marital residence should be reduced by the defendant's equitable share of the marital debt incurred in financing the improvements to the residence, the Supreme Court improperly failed to do so… . Szewczuk v Szewczuk, 2013 NY Slip Op 03987, 2nd Dept, 6-5-13





Failure to Contest Referral of Support-Arrearages to Tax Department Precluded Further Court Action


The Third Department determined plaintiff’s failure to administratively challenge the referral of his support-arrearages case to the Department of Taxation and Finance and the subsequent issuance of a tax warrant (pursuant to provisions of the Social Services Law) barred his action against the Department in Supreme Court.  Plaintiff was seeking a declaratory judgment and injunctive relief after the Department seized his vehicles to satisfy the judgment for support arrearages.  Koziol v State of New York…, 514767, 3rd Dept, 6-6-13





Disparaging Allegations in Complaint Protected by Judicial Privilege


In a defamation action, after finding that the disparaging allegations in a complaint were protected by judicial privilege, the Second Department criticized the use of invective in the pleadings:


The court properly concluded that the statements made in the underlying complaint were pertinent to the action and therefore absolutely protected by the judicial proceedings privilege… . The allegedly defamatory allegations were broadly pertinent to the tortious interference claim, as they bore on the mother's intent, provided the context for the dispute, and supported the claim for punitive damages… . The pertinence of the statements negates any finding of abuse of the judicial proceedings privilege … . Moreover, the statements were expressions of opinion, not fact, or they constituted hyperbole, which are also absolutely protected… . *  *  * Nevertheless, although we affirm, we note our disapproval of defendants' use of a filed pleading as a vehicle for offensive, albeit nondefamatory invective. Such conduct offends the dignity of judicial proceedings and should not be condoned.  Joseph v Joseph, 2013 NY Slip Op 04111, 1st Dept, 6-6-13



Qualified Privilege in Defamation Action Against School District Explained


In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school.  Plaintiff alleged that defendant Arbes, principal of the high school, “stated at a meeting with several staff members that plaintiff should avoid private one-on-one  conversations with students and should take a leave of absence ‘for the safety of the students.’ “.  The Third Department wrote:


Qualified privilege provides a  complete defense to a claim of slander, and attaches to an otherwise defamatory statement "made to persons who have some common interest in the subject matter" … .  A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable'"….The  defense does  not apply, however,  "where the motivation for making such statements was spite or ill will (common-law malice) or where the 'statements [were] made with [a] high degree of awareness of their probable falsity' … .Arbes made the statement at issue at a meeting where she, plaintiff and three other individuals were present. Plaintiff acknowledges that Keeler, the junior varsity field hockey coach and union president, had a common interest in the subject, as did a union employee who was present.  The third individual may have had the same interest because Keeler averred that the individual was a union representative. Additionally, she was a guidance counselor, and Arbes averred that guidance counselors were being made available to students who may have had difficulty dealing with the situation surrounding  Broxmeyer's arrest, the police investigation and plaintiff's suspension and later termination.  As all of the persons present for the meeting had a common interest in the subject matter and the record lacks any evidence of malice, Supreme Court correctly determined that Arbes' statement at the meeting was not actionable based on the qualified privilege.  Wilcox v Newark Valley Central School District, 515906, 3rd Dept, 6-6-13






Lane Abutting Properties Was Not Owned by Property-Owners


The Third Department upheld Supreme Court’s determination that the owners of property which abutted a street or lane did not privately own the lane, because no map was referenced in the relevant deeds, and because of the public use of the lane for more than ten years and maintenance of the street by the village:


Fiebelkorn [a leading case} and its progeny stand for the general proposition that "[w]hen an owner of property sells a lot with reference to a map, and the map shows that the lot abuts upon a street, the conveyance presumptively conveys fee ownership to the center of the street on which the lot abuts, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes"….    This general proposition of law is of no aid to plaintiffs, however, in view of the fact that, among other things, plaintiffs' deeds contain no reference to a map. * * *


Here, plaintiffs argue that the lane cannot be deemed a village street because (a) it does not qualify as a public street by dedication (see Village Law § 6-610), (b) it does not appear on the state Department of Transportation's inventory of local roads lying within the Village's jurisdiction, and (c) the  Village  "has  never  maintained"  it.  Plaintiffs' dedication argument is misplaced because…dedication is not the sole means by which a village street may be created (see Village Law  § 6-626). …  Kingsley v Village of Cooperstown, 515535, 3rd Dept, 6-6-13



Out-Of-Possession Landlord Not Liable for Missing Light in Stairwell


The Second Department determined the out-of-possession landlord could not be liable for a missing light in a stairwell, the alleged cause of plaintiff’s fall:


"An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct"… . Here, the defendant established its entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord, that it was not contractually obligated to maintain the lighting at the premises or repair the alleged hazardous condition, that it did not endeavor to perform such maintenance, and that it did not violate any relevant statute or regulation… . Grimaldi v 221 Arlington Realty, LLC, 2013 NY Slip Op 03969, 2nd Dept, 6-5-13



Only Sellers, Not Buyers, Agent Can Be Liable for Failure to Disclose Lead Paint Dangers


In dismissing a complaint seeking damages pursuant to the Residential Lead-Based Paint Hazard Reduction Act (RLPHRA) for the failure to make disclosures regarding the dangers of lead paint, the Second Department noted that only seller’s agents, not buyer’s agents, can be held liable under the act:


The statutory language of the RLPHRA "is unambiguous with regard to the liability of real estate agents; only seller's agents are liable" for the failure to ensure compliance with its provisions… . Contrary to the plaintiffs' contention, it would be contrary to the unambiguous language of the statute to construe 24 CFR 35.86 so as to impose a duty on an agent or representative of a buyer… . Accordingly, the Supreme Court should have granted the …defendants' motion to dismiss the complaint insofar as asserted against them. Felix v Thomas R Stachecki Gen Contr, LLC, 2013 NY Slip Op 03966, 2nd Dept, 6-5-13



Seller’s Had No Duty to Disclose Recorded Easement---Caveat Emptor


In affirming Supreme Court’s ruling that the defendant’s had no duty to disclose a recorded easement to the buyers pursuant to the doctrine of caveat emptor, the Second Department wrote:


"New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller or the seller's agent which constitutes active concealment" …. "Mere silence on the part of the seller, without some affirmative act of deception, is not actionable as fraud"…. " To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor"…. "Where the facts represented are not matters peculiarly within the party's knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations"…. Schottland v Brown Harris Stevens Brooklyn, LLC, 2013 NY Slip Op 03982, 2nd Dept, 6-5-13





Undue Influence Criteria Explained


The Fourth Department affirmed Surrogate’s Court’s determination that the decedent was not subjected to undue influence in making a will.  The Court explained the legal principles at work as follows:


It is well settled that a will contestant seeking to prove undue influence must show the “exercise [of] a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity [that] could not be resisted, constrained the testator to do that which was against [his or] h[er] free will” …. “Undue influence must be proved by evidence of a substantial nature . . . , e.g., by evidence identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” …. “Mere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact” … .  Matter of Lee, 235, 4th Dept, 6-7-13





Retroactive Tax Credit Restrictions Violated Due Process


The Court of Appeals, in a full-fledged opinion by Chief Judge Lippman, determined that the retroactive changes in the Empire Zones Program (restricting the availability of tax credits) did not, as the appellate divisions held, violate the Takings Clause, but did violate the Due Process Clause:  The Court wrote:


The purported taking here is plaintiffs' obligation to pay tax to the State in the absence of a valid tax credit. However, "[t]he mere imposition of an obligation to pay money . . . does not give rise to a claim under the Takings Clause of the Fifth Amendment" …. Federal courts have held that "[f]or retroactive taxation to be a taking, it must be 'so arbitrary as to constrain to the conclusion that it was not the exertion of taxation'"…. The retroactive tax liability imposed in the present case cannot be characterized as so flagrant as to constitute the confiscation of property under the Takings Clause. Plaintiffs had no guarantee that they would ever recoup their business investments through the receipt of tax credits, and the New York Constitution provides that tax exemptions are freely repealable (NY Const, art XVI, § 1).  *  *  *


We now turn to that other question: whether plaintiffs' due process rights were infringed by the statute utilizing the three factors articulated in Replan. In terms of "the taxpayer's forewarning of a change in the legislation and the reasonableness of his reliance on the old law" (Replan, 70 NY2d at 456), the plaintiffs had no warning and no opportunity at anytime in 2008 to alter their behavior in anticipation of the impact of the 2009 Amendments. * * *The second factor, the length of the period of retroactivity, also benefits plaintiffs. * * * Regardless of whether the period of retroactivity is deemed to span 16 or 32 months, the length of retroactivity should be considered excessive and weighs against the State. * * *   On the third factor, dispositive in this case, the State fails to set forth a valid public purpose for the retroactive application of the 2009 Amendments. The legislature did not have an important public purpose to make the law retroactive.  James Square Associates LP et al v Mullen …, Nos 87, 88, 89, 90, 91, CtApp, 6-6-1



No Investment Tax Credit for Company which Delivered Natural Gas, as Opposed to Processing or Manufacturing a Product


The Third Department upheld the NYS Tax Appeals Tribunal’s determination that the petitioner, Brooklyn Union Gas Company, was not entitled to an investment tax credit (ITC) because it was in the business of delivering natural gas, not producing or processing a product as those terms are construed for an ITC under the Tax Law:


The record amply supports, for purposes of our limited review, the Tribunal's determination that petitioners' integrated system  was  primarily one  of  distribution and  delivery  rather than processing or manufacturing.  The  vast  majority  of petitioners' 11,000-mile system, both  in terms  of size and  cost, is comprised of pipes and  mains  through  which  natural gas  flows.  No material change occurs to the natural gas while in the pipes and mains, as these serve as the primary means for delivering the product. Viewing the system as a whole, the modifications made by petitioners to the gas  –  while important –  do  not  result in a significant change  in the product.  Matter of Brooklyn Union Gas Company v NYS Tax Appeals Tribunal, 514825, 3rd Dept, 6-6-13






Analysis Where Two or More Insurance Companies Insure the Same Risk and Insured



The Second Department explained the legal analysis when two or more insurance companies cover the same risk for the same insured:


"In insurance contracts the term other insurance' describes a situation where two or more insurance policies cover the same risk in the name of, or for the benefit of, the same person"… .. "[W]here there are multiple policies covering the same risk, and each generally purports to be excess to the other, the excess coverage clauses are held to cancel out each other and each insurer contributes in proportion to its limit amount of insurance"… . This rule is inapplicable where it "clearly distort[s] the plain meaning of the terms of the policies of insurance"…. "In contrast, however, if one party's policy is primary with respect to the other policy, then the party issuing the primary policy must pay up to the limits of its policy before the excess coverage becomes effective" … .  Murname Bldg Contrs Inc v Zurich Am Ins Co, 2013 NY Slip Op 03874, 2nd Dept, 6-5-13






Supreme Court’s Annulment of Regulation Permitting Out-Of-Competition Drug Testing of Harness Racehorses Reversed



The Third Department reversed Supreme Court’s annulment of a regulation that permitted out-of-competition drug testing of harness racehorses pursuant to the Racing, Pari-Mutuel Wagering and Breeding Law.  In a lengthy decision, the Third Department went through each of Supreme Court’s findings, reversing all but one which annulled the portion of the regulation prohibiting all “protein and peptide-based drugs” because it conflicted with the permitted-use regulation. Matter of Ford v NYS Racing and Wagering Board, 514622, 3rd Dept, 6-6-13





Review and Evidence Standards in Small Claims Actions Explained


The Third Department explained the appellate review and damages-evidence standards for small claims actions as follows:


Appellate review of small claims is limited to determining whether "substantial justice has not been done between the parties according to the rules and principles of substantive law" (UCCA 1807; …); only a clearly erroneous determination will be overturned ….  Here, a credibility determination was required, and City Court chose to credit plaintiff's testimony regarding the events at defendant's premises over the testimony of two employees of defendant. We agree with County Court that the determination that plaintiff's ring was converted was not clearly erroneous, and that substantial justice was  done.


Further, as to the issue of damages, we note that although small claims matters are not bound by the rules of evidence, a determination may not be based solely on hearsay (see UCCA 1804…).  Here,   plaintiff described the size and condition of the ring in her testimony, and also submitted a "lost ring appraisal" performed by a jeweler, stating a value of $8,600.  Although this appraisal, based solely upon plaintiff's description of the ring, was hearsay …, plaintiff's trial testimony presented some measure of competent evidence of the amount of damages, as she described the quality and condition of the ring… .  Rowe v Silver & Gold Expressions, 515526, 3rd Dept, 6-6-13





8-Hour Break in 49 ½ Hour Interrogation Did Not Render Confession Voluntary


In a full-fledged opinion by Chief Judge Lippman, the Court of Appeals determined an 8-hour break and the presence of counsel, after a 491/2-hour custodial interrogation, did not render his confession to murder voluntary and reversed his conviction:


We are unwilling to draw the inference, which the People would have us make, that the eight-hour "break" between interrogation and arraignment attenuated the taint of the wrongful interrogation. Defendant's pre- and post-arraignment statements were, despite their temporal separation, in all other ways seamlessly linked. At the end of the marathon session, the utterly spent defendant, in exchange for a lawyer to which he was absolutely entitled, agreed in a statement ultimately suppressed as coerced, to "give everybody what they want," and when he returned to the Blue Room on the morning of the same day and faced the same interrogator across the same table, that is exactly what he did. We do not accept the hypothesis that his intervening stay in a holding pen and arraignment on the charge of murder sufficed to transform his coerced capitulation into a voluntary disclosure. By the time of defendant's post-arraignment statements, his options would have seemed so constricted, by what he had already divulged during the earlier portion of the interrogation, as to render the intervening temporal buffer practically irrelevant. …


…[W]e reject the contention that the entry of counsel guaranteed the voluntariness of defendant's subsequent statements …. This contention misconstrues the statement in Miranda v Arizona (384 US 436 [1966]) that "[t]he presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self incrimination]. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion" (id. at 466 [emphasis supplied]). Plainly, this language, expressly limited in its reference, was not intended to stand for the proposition that the presence of counsel will invariably be adequate as an assurance of voluntariness.  People v Guilford, No 103, CtApp, 6-6-13



Failure to Investigate Constituted Ineffective Assistance of Counsel


In affirming the vacation of defendant’s conviction, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant did not receive effective assistance of counsel.  The People’s case rested on the defendant’s statement.  The defense was based on the defendant’s mental weakness, which undermined the voluntariness of the statement.  Yet the defense attorney did not investigate critical documents relevant to the defendant’s mental condition. The Court of Appeals wrote:


The record reveals that trial counsel sought to build a defense based on defendant's mental weakness undermining the voluntariness of his admissions of guilt. Despite the focus on defendant's mental abilities, trial counsel chose to forgo any investigation of the critical documents concerning defendant's mental condition, and instead, sought to present this defense through the testimony of defendant's mother, an obviously biased witness. Regardless of whether the decision to present defendant's condition through his mother's testimony was a valid strategy, it was, as trial counsel admitted at the post-conviction hearing, a "strategy" "born in the blind." One he admittedly pursued without benefit of the contents of defendant's records.

This is not simply a case of a failed trial strategy …. Rather, this is a case of a lawyer's failure to pursue the minimal investigation required under the circumstances. Given that the People's case rested almost entirely on defendant's inculpatory statements, trial counsel's ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant's mental capacity and susceptibility to police interrogation could only be fully developed after counsel's investigation of the facts and law, which required review of records that would reveal and explain defendant's mental illness history, and defendant's diagnosis supporting his receipt of federal SSI benefits.  People v Oliveras, No 105, CtApp, 6-6-13



Potential Versus Actual Conflict of Interest


In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s conviction, rejecting the defendant’s argument he had been denied effective assistance of counsel because of defense counsel’s conflict of interest.  The Court of Appeals described the difference between an actual conflict of interest (which mandates reversal if not waived) and a potential conflict of interest (at issue in this case):


The defendant bears the burden of establishing a denial of meaningful representation …. When such a claim is premised on a perceived conflict of interest, our precedent differentiates between actual and potential conflicts …. An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed …and, in such situations, reversal is required if the defendant does not waive the actual conflict ….


In contrast, a potential conflict that is not waived by the accused requires reversal only if it "operates" on or "affects" the defense … -- i.e., the nature of the attorney-client relationship or underlying circumstances bear a "'substantial relation to the conduct of the defense'" …. The "requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense -- three formulations of the same principle -- is not a requirement that [the] defendant show specific prejudice" …. Nevertheless, it is the defendant's "heavy burden" … to show that a potential conflict actually operated on the defense ….  People v Sanchez, No 107, CtApp, 6-6-13



No Need to Request Missing Witness Charge to Argue Absence of Witness to Jury


The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the trial court erred in ruling defense counsel could not argue to the jury that a witness should have been called by the People because defense counsel did not request a missing witness charge (the error was, however, deemed harmless).  The complainant’s statement did not mention an anal penetration which was the subject of trial evidence. When asked why the incident was not mentioned in the statement, the complainant said the police officer taking the statement told her no judge would believe that happened.  The officer did not testify.  The Court of Appeals wrote:


In his summation, defense counsel argued that this part of the complainant's testimony was incredible. "We've changed as a society," he argued. "No police officer is going to come up there and say, 'Oh, no one is going to believe you, this was your boyfriend.' That's not where we are today." That part of his argument drew no objection. But the prosecutor did object when counsel added: "And if that's, in fact, what that police officer said, then where was he, where was that police officer on the stand to say: You know what, I didn't write it down. I didn't think she was telling me the truth. He didn't testify to that." The trial court sustained the objection and directed the jury to disregard counsel's comment. Counsel tried again to make the missing witness argument, with the same result. 


After summations, defendant moved for a mistrial on the basis of this ruling. The court denied the motion, saying that counsel should have asked for a missing witness instruction if he wanted to make a missing witness argument… .


The courts below clearly erred in holding that defense counsel's missing witness argument was improper. The trial court's theory, that a request for a missing witness instruction is a prerequisite to a missing witness argument is, as the Appellate Division recognized, flatly contrary to what we said in Williams (5 NY3d at 734). The Appellate Division affirmed on the alternative grounds that the officer's testimony may have been cumulative and defendant failed to make an offer of proof. This approach may have been impermissible under People v LaFontaine (92 NY2d 470 [1998]) and People v Concepcion (17 NY3d 192 [2011]).


Just before making the missing witness argument, counsel had attacked as incredible the complainant's uncorroborated testimony as to what the officer said to her; confirmation of that testimony from the officer would not have been cumulative ….. And counsel had no obligation to make an offer of proof as a predicate for a missing witness argument. It is a premise of such an argument, as it is of a missing witness instruction, that the witness is in the control of the party that failed to call him … A party making such an argument, like one requesting such an instruction, "can hardly know what [the] witness knows or what the witness would say if called" ... .  People v Thomas, No 108, CtApp, 6-6-13



Introduction of Statements Made to Police In Absence of Counsel When Defendant Was Represented by Counsel on a Another Matter Deemed Harmless Error


The Court of Appeals determined that defendant’s murder conviction should stand, even though he was questioned in violation of his right to counsel:


While in jail for a violation of probation (VOP), defendant was twice questioned by police about the victim's disappearance, the second time after her body had been discovered. Counsel was not present. Defendant claims that his constitutional right to counsel was violated because he was represented by counsel on the VOP at the time, as evidenced by the notation made on an arraignment memorandum by the Town Justice who arraigned him on the VOP.


Assuming, without deciding, that defendant's indelible right to counsel was violated, any error was harmless beyond a reasonable doubt…. There is no reasonable possibility that the introduction of the two challenged statements affected defendant's conviction in view of the other evidence, including two counseled statements to police and testimony of numerous witnesses, that overwhelmingly established his guilt.  People v Augustine, No 109, CtApp, 6-6-13



Inventory Search Which Included Removal of Seat Panels and Speakers Okay


Over a substantial dissent by Judge Rivera, the Court of Appeals, in a full-fledged opinion by Judge Piggot, determined a vehicle search after a DWI arrest, in which an illegal weapon was found, was a valid inventory search.  The defendant had argued that the removal of seat panels that were askew and a speaker system demonstrated that the search was not a inventory search because the search was focused on finding contraband:


Following a lawful arrest of a driver of a vehicle that is required to be impounded, the police may conduct an inventory search of the vehicle. The search is "designed to properly catalogue the contents of the item searched" …. However, an inventory search must not be "a ruse for a general rummaging in order to discover incriminating evidence" …. To guard against this danger, the search must be conducted pursuant to an established procedure "clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably" …. "While incriminating evidence may be a consequence of an inventory search, it should not be its purpose" …. The People bear the burden of demonstrating the validity of the inventory search ….


Here the People proffered written guidelines, the officer's testimony regarding his search of the vehicle, and the resulting list of items retained. Although defendant takes issue with the officer's removal of the speakers by arguing that such action was a ruse designed to search for drugs, the officer’s testimony that it was police protocol to remove any owner-installed equipment, was accepted by the hearing court and we perceive no grounds upon which to overturn that determination. * * *


It was reasonable for the officer to check in the seat panels that were askew as part of his inventory. The fact that the officer knew that contraband is often hidden by criminals in the panels did not invalidate the entire search… .  People v Padilla, No 114, CtApp, 6-6-13



Failure to Prove Defendant Did Not Have a Good Faith Belief He Had a Claim of Right to Property Precluded Larceny Conviction


The Fourth Department determined there was insufficient evidence to support a grand larceny charge based upon the defendant’s taking a jeep from his girlfriend’s residence.  Prior to defendant’s taking the jeep, his girlfriend had agreed to transfer it to him---an offer she subsequently told defendant was “off:” The Fourth Department held the People had not proven the defendant did not have a good faith belief that he had a claim of right to the jeep:


It is well established that “a good faith claim of right is properly a defense—not an affirmative defense—and thus, ‘the people have the burden of disproving such defense beyond a reasonable doubt’ ” … .A defendant is not required to “establish that he previously owned or possessed the property at issue in order to assert the claim of right defense” …. The test is whether a defendant had a “subjective[,] good faith” belief that he or she had a claim of right to the relevant property, not whether defendant’s belief was reasonable … . Based on the testimony of defendant’s former girlfriend, which is the only evidence that relates to the claim of right issue, we conclude that it was unreasonable for the jury to conclude that the People established beyond a reasonable doubt that defendant did not have a subjective, good faith basis for believing that the Jeep was his, and thus the verdict with respect to the grand larceny in the fourth degree count is against the weight of the evidence ….  People v Rios, 223, 4th Dept, 6-7-13



Conviction Reversed Because Uncharged Theory Considered by Jury


The Fourth Department reversed defendant’s conviction for criminal impersonation because the jury was allowed to consider a theory of prosecution that was not charged:


…[T]he court’s jury instructions with respect to the crime of criminal impersonation in the first degree permitted the jury to convict him upon a theory not charged in the indictment, and thus violated his right to be tried for only those crimes charged in the indictment, as limited by the bill of particulars …. …[W]e address defendant’s contention despite his failure to preserve it for our review … . The fifth count of the indictment alleged that defendant committed the crime of criminal impersonation when he pretended to be a police officer and, “in the course of such pretense, committed or attempted to commit the felony of [r]ape in the first degree.”    The court’s instructions, however, permitted the jury to convict defendant upon finding that he committed any felony in the course of pretending to be a police officer, thus allowing the jury to convict defendant upon a theory not charged in the indictment.  People v Williams, 340, 4th Dept, 6-7-13



People Did Not Meet Burden of Going Forward at Suppression Hearing


The Fourth Department determined the People did not meet their “burden of going forward” at the suppression hearing and suppressed the evidence seized from the defendant.  After an anonymous call describing a person who looked nothing at all like the defendant, the police approached, detained and searched the defendant:


The officer who approached defendant testified at the suppression hearing that he asked defendant to step away from a group of individuals with whom defendant was socializing.  The officer escorted defendant to the curb while physically holding defendant’s waistband, and he instructed defendant to face the street and to place his hands on the roof of a civilian vehicle.  The officer testified that at that time defendant was not free to leave.  Having detained defendant in that manner, the officer then explained to defendant the reason for the police presence.  The officer asked defendant if he had any contraband and if defendant would consent to a search of his person.  Defendant consented to the search, during which the police obtained the physical evidence sought to be suppressed.  In light of the fact that defendant was illegally detained, i.e., without a reasonable suspicion that he was committing or had committed a crime (see CPL 140.50 [1]), his consent to the search immediately thereafter cannot be considered voluntary ….


Although “ ‘a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance’ ” ….  We agree with defendant that the People failed to meet that burden.  People v Noah, 414, 4th Dept, 6-7-13



Parole Violation Did Not Preclude Application for Resentencing Under the Drug Law Reform Act


The Fourth Department determined County Court erred when it denied defendant’s application for resentencing under the Drug Law Reform Act on the ground defendant was a reincarcerated parole violator.  Nor did it matter that defendant was released from parole supervision after he made the application.  People v Saffold, 666, 4th Dept, 6-7-13



Initial Detention at Gun-Point Was Not an Illegal Arrest

The Third Department determined that the initial detention of the defendant by the police, with guns drawn, did not amount to an illegal arrest:


Given the extremely short period of time between the report of the armed robbery and the arrival of the officers on the scene, defendant's presence alongside the residence and the absence of any other individual in the vicinity, the officers were justified in forcibly detaining defendant in order to quickly confirm or dispel their reasonable suspicion of defendant's possible involvement in the armed robbery… . Furthermore, defendant was informed that he was being detained, was not questioned during that period of time and was held at the crime scene in order to effectuate showups by the victims of the robbery… .  People v Stroman, 103148B, 3rd Dept, 6-6-13



Duplicitous Counts Dismissed Because Jury Could Not Connect Evidence with Specific Counts


The Third Department determined several counts of reckless endangerment were duplicitous because there was no way for the jury to match each count with specific conduct by the defendant:


Here, County Court found that the original indictment, which included seven counts of reckless endangerment, did not provide sufficient information to  enable  defendant  to  distinguish each count. Rather than identify each count temporally or by physical evidence, the People sought to remedy the defect by providing the name of an intended victim for each count. However, reckless endangerment is a conduct-specific, rather than a victim-specific, crime….  Thus, despite the amendment, the conduct underlying each count of the indictment remained unclear, as none of the seven shots fired hit any of the individuals named in the indictment.  As a result, there is simply no way to match each count of the indictment with the specific underlying conduct of defendant that would insure that the jury had reached a unanimous verdict with regard to each count and,  therefore, the  reckless endangerment  counts  must  be dismissed as duplicitous… .  People v Estella, 103574, 3rd Dept, 6-6-13



Waiver of Appeal Not Sufficient


The Third Department determined defendant’s waiver of his right to appeal, which included a written waiver, was not sufficient because it was not clear he understood the waiver was separate and distinct from the rights given up by the guilty plea.  The defendant was 21 years old, had no prior criminal history and had some mental health problems.  The Third Department wrote:


…[T]he court did not ensure that "defendant ha[d] 'a full appreciation of the consequences' of such waiver"…, which requires record proof that the defendant "comprehend[s] that an  appeal waiver 'is separate and  distinct from  those rights automatically forfeited upon  a plea of guilty'"….  This was  especially important considering defendant's age, mental health history and lack of prior criminal history; defendant was 19 years old at the time of the crime and 21 at the time of sentencing, had  been diagnosed and  had  ongoing problems with attention deficit hyperactivity disorder, past history of suicidal ideation, bipolar disorder, a possible learning disorder and  a significant history of acting out on  impulse.  The written waiver also failed to explain the separate and distinct nature of the right being waived.  As it is not evident on the face of the record that defendant was  aware  of this separate and  distinct nature, we cannot be sure that his waiver of the right to appeal was knowingly and intelligently made… .  People v Bouton, 103593B, 3rd Dept, 6-6-13



SORA Determination without Board Recommendation Okay When Defendant Released Same Day as He Was Sentenced


The Third Department determined the SORA court could make a SORA level assessment without a recommendation from the Board of Examiners of Sex Offenders.  The facts of the case did not fall into any of the categories listed in the SORA statute which allows an assessment without a Board recommendation when the defendant is not incarcerated and requires a Board assessment before discharge when the defendant is incarcerated.  Here the defendant was released from incarceration on the day he was convicted. In holding the SORA properly made the assessment in the absence of a Board recommendation, the Third Department wrote:


Although SORA charges the Board with responsibility for making a risk level recommendation relative to incarcerated offenders, the ultimate responsibility for the risk level determination  is vested  in the  sentencing  court, which  "'in the exercise of its discretion, may depart from [the Board's] recommendation and determine the sex offender's risk level based upon  the facts and circumstances that appear in the record'"…. In our view, this judicial obligation necessarily includes the authority to determine the appropriate procedure for a  risk level determination where,  as  here, the circumstances are not fully addressed by the SORA statutory scheme. This conclusion is supported by the statutory provisions addressing failures by  the  Board  to complete its statutory obligation; where the Board fails to issue a timely recommendation, SORA  provides that the court must nonetheless make  a risk level determination and, if it cannot do  so before the offender is discharged, must "expeditiously complete the hearing  and  issue its determination"  after his or  her  release (Correction Law § 168-l [8]). In effect, that is the procedure that County Court followed here.  People v Grimm, 104233, 3rd Dept, 6-6-13



Defendant Who Pled to All Charges Without a Plea Bargain Could Not Be Required to Waive Appeal


The Third Department noted that the defendant should not have been required to waive his right to appeal where he pled to all the charges and there was no plea bargain:


Having exercised his statutory  right to  plead  guilty to  all of  the charges levied against him in the indictment and inasmuch as "no promise, plea agreement, reduced charge, or any other bargain or consideration" was given in exchange for that plea, defendant was improperly required to waive his right to appeal … .  People v Crump, 104433, 3rd Dept, 6-6-13



Confidential Informant Provided Reasonable Suspicion for a Vehicle Stop/Information Vehicle Occupants Were Armed Justified Stop with Guns Drawn


The Third Department determined that information from a confidential informant provided reasonable suspicion sufficient to justify an investigatory vehicle stop and noted that a vehicle stop with guns drawn did not ripen into an arrest where the police had reliable information the occupants of the vehicle were armed:


We reject defendant's contention that removing him from the vehicle at gunpoint constituted an arrest without probable cause. An investigatory stop will not ripen into an arrest based upon the use of weapons by the police when they have reason to believe that the suspects are armed and dangerous, and here the police had been advised that defendant and the other individual were armed … .  People v Coffey, 104496, 3rd Dept, 6-6-13



Questioning at Home Did Not Trigger Need for Miranda Warnings


The Third Department determined the questioning of defendant by police at defendant’s home did not constitute custodial interrogation requiring Miranda warnings:


At  the  Huntley  hearing, the  two  officers testified that they  informed  defendant  of  the  reason  for  their  visit, were invited into his home, sat around a dining room table and engaged in small talk about  various topics. Defendant was not restrained, he was cooperative and the conversation was cordial, including when discussing the victim's allegations. The questions regarding the victim were investigatory and not accusatory in tone. After about 30 minutes to an hour and defendant's acknowledgment of the veracity of some of the  victim's claims, he  was  asked  to  accompany  the  officers to  the Sheriff's Department,  he  agreed  to  go  in the  officers' unmarked vehicle and he was not at any time placed in handcuffs.  People v Vieou, 104521, 3rd Dept, 6-6-13



Court’s Failure to Inquire About Potential Conflict of Interest and Failure to Follow Statutory Procedure for Jury Note Did Not Require Reversal


The Third Department determined the trial court’s failure to directly inquire into defendant’s awareness of the risks associated with his attorney’s potential conflict of interest and the trial court’s failure to follow the statutory procedure with respect to a note from the jury during deliberations did not require reversal:


Early in these proceedings, defendant's trial counsel informed County Court of a potential conflict of interest based upon the prior representation of a prosecution witness by another attorney in counsel's law firm. Although counsel informed the court that defendant had no objection, County Court erred by failing to directly inquire into defendant's awareness of the potential risks and  his willingness to waive any  potential conflict … . * * *


While the better practice would  have  been  for County  Court to read the note on the record prior to responding to it and we do not condone the court's curtailment of counsel's argument, the record reflects that counsel was aware  of the specific content of the note and  we  are satisfied that counsel had  a full opportunity to explain his position as to the meaning  of "duly served."  Under  these circumstances, defense counsel can be  said to have meaningfully participated in the response to the note… .  People v Cooper, 104749, 3rd Dept, 6-6-13



Pat-Down Search After Stop for Traffic Infractions Okay


The Third Department determined the police officer [Negron] properly asked defendant to get out of his car, and properly conducted a pat-down search, after a vehicle-stop for traffic infractions:


…[O]fficers may exercise their discretion to require occupants to exit a vehicle once a lawful traffic stop has been effected, out of a concern for safety and without particularized suspicion….  Furthermore, a pat-down search of a suspect's outer clothing is reasonable and constitutionally permissible when  an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety… .


Here, the entire encounter took place after dark in an area to which Negron had frequently responded to reports of gang activity, drug sales, fights and  shootings. Negron testified that he was familiar with defendant from his prior criminal activity and that defendant had been violent toward police in the past and had twice been charged with resisting arrest. After defendant exited the vehicle, Negron noticed bulges in the pockets in defendant's "grabbable" area, which Negron defined as the hot zone that defendant's hands could access quickly from their normal resting position. Defendant subsequently declined to answer the question as to whether he was in possession of any weapons or drugs, prompting Negron to conduct the pat frisk that ultimately revealed a concealed handgun. Thus, considering the circumstances in their totality, we find that the officer possessed a reasonable basis to perform a pat-down search of defendant for the presence of weapons… .  People v Issac, 104854, 3rd Dept, 6-6-13



SORA Court’s Failure to Issue Written Findings Required Remittal


The Third Department remitted a SORA proceeding because the court did not set forth in its written order its findings of fact and conclusions of law with respect to defendant’s application for a downward departure and the oral findings were not sufficiently detailed for adequate review.  People v Filkins, 514025, 3rd Dept, 6-6-13



Post-Offense “Bad Acts” Erroneously Admitted (Harmless Error)


The Second Department determined bad acts committed after the charged crime should not have been admitted, although the error was deemed harmless:


The Supreme Court …improvidently exercised its discretion in permitting the admission of evidence relating to two bad acts allegedly committed by the defendant subsequent to the charged crime, since the probative value of such evidence was minimal, and was outweighed by its prejudicial effect… . People v Addison, 2013 NY Slip Op 04015, 2nd Dept, 6-5-13




Defendant Handcuffed, Post-Arrest Search of Backpack Unlawful


In determining the search of defendant’s backpack was unlawful because there were no exigent circumstances to justify it, the First Department wrote:


The search of defendant's backpack following his arrest was unlawful because he was handcuffed at the time of the search and it was no longer in his control…. The contents of the backpack, which included a pair of pliers and unused garbage bags, should have been suppressed because even where a container is not in the exclusive control of the police, exigency justifying its search incident to arrest is not established in the absence of "some reasonable basis for the belief that the contents of those containers might pose a danger to the arresting officers or when there is legitimate concern for the preservation of evidence which might reasonably be thought to reside within the containers"….  People v Diaz, 2013 NY Slip Op 03937, 1st Dept, 6-4-13




Audiotaped Sworn Statement of Witness Admitted Because Defendant Caused Witness to Be Unavailable


After a Sirois hearing, the trial court found sufficient circumstantial evidence that the defendant had caused a witness’ unavailability and allowed in evidence (in the People’s case-in-chief) an audio recording of the witness.  In affirming, the Second Department wrote:


…[T]he Supreme Court properly admitted a sworn audiotaped statement from Timothy Dixon as evidence during the People's case. A witness's out-of-court statements may be admitted as part of the People's direct case where the People "demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness's unavailability"…. "Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination"….  People v Leggett, 2013 NY Slip OP 04028, 2nd Dept, 6-5-13



Absence of Evidence of Physical Injury Precluded 15 Point Assessment for Violence in SORA Proceeding


The First Department determined the SORA court improperly assessed 15 points for violence because there was insufficient evidence of physical injury:


The court erred in assessing 15 points under the risk factor for use of violence, because the People did not meet their burden of establishing, by clear and convincing evidence, that defendant caused physical injury (see Penal Law 10.00[9]) to the victim. Although minor injuries may cause substantial pain, a showing of "more than slight or trivial pain" is required …. The People do not dispute defendant's assertion that the photographs of the injuries depicted only "faint marks and superficial scratches." Although evidence of medical treatment is unnecessary to establish physical injury …, here the victim's bare statement that her knee "hurt" was insufficient to support the inference that she suffered substantial pain, given the absence of evidence that she even used ice or an over-the-counter pain reliever. Furthermore, the injury was not sustained as a result of a deliberate assault or other act supporting an inference that it caused substantial pain …. Therefore, the court should have assessed 10 points for forcible compulsion, but not 15 points. People v Quito, 2013 NY Slip Op 03938, 1st Dept, 6-4-13






Long-Standing Provision Left Out of Collective Bargaining Agreement Continued In Spite of Omission


The Court of Appeals, in a full-fledged opinion by Judge Read, affirmed the determination of the Public Employment Relations Board (PERM or the Board) with respect to the School District’s discontinuing a Medicare premium reimbursement to its employees.  The reimbursement was a long-standing practice, but the relevant provision was left out of the most recent collective bargaining agreement:


PERB found that the School District had actual or constructive knowledge of the practice, given the level of expenditure of revenue to multiple retirees (about $500,000 between 1988 and 2003), with such payments being documented in the District's records and subject to review during the preparation of annual budgets. The Board added that, even without these circumstances, "the extended period of the practice alone . . . would have constituted circumstantial evidence sufficient to establish a prima facie proof of the employer's knowledge." * * * 


”… The evidence presented at the hearing demonstrates that both the [Union] and [bargaining] unit employees had sufficient knowledge of the District's practice at the time of the announced discontinuation of that practice to demonstrate a reasonable expectation that the practice would continue." Matter of Chenango School District v NYS Public Employment Relations Board…, No 104, CtApp, 6-6-13



National Labor Relations Board Had First Crack at Collective Bargaining Agreement Matter Under Preemption Doctrine


The Fourth Department determined the National Labor Relations Board, under the doctrine of federal preemption of state law, had first crack at determining whether it had jurisdiction over a collective bargaining matter, as opposed to the NYS Public Employment Relations Board (PERB):  


We agree with petitioners, however, that Supreme Court erred in determining that PERB properly exercised jurisdiction over those matters.    Inasmuch as the two collective bargaining matters “arguably” fall within the scope of the National Labor Relations Act (NLRA)…, the National Labor Relations Board (NLRB) has primary jurisdiction “to determine in the first instance” whether its jurisdiction preempts PERB’s jurisdiction …..  Under the circumstances of this case, and in the interest of judicial economy, we hold the case pending a determination of the NLRB whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB’s jurisdiction… . Buffalo United Charter School, et al v NYS Public Employment Relations Board, et al, 515, 4th Dept, 6-7-13






Substitute Judge Can Rule on Motion Argued Before Another Judge


The full-fledged opinion by Judge Read was succinctly summarized by the Court of Appeals as follows:

We hold that Judiciary Law § 21 does not bar a substitute judge from deciding a question of law presented in a motion argued orally before another judge so long as a transcript or recording of the prior argument is available for review, and "the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People" …. Put another way, section 21 does not mandate a mistrial or that the pending motion be re-argued orally in front of the substitute judge. People v Hampton, No 92, CtApp, 6-6-13





Different Monetary Standards in Wicks Law (Re: Bids for Construction Contracts) for Different Regions of State Did Not Violate Home Rule Section of State Constitution


The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the Wicks Law, as amended, did not violate the Home Rule section of the State Constitution.  The Wicks Law “requires public entities seeking bids on construction contracts to obtain ‘separate specification’ for three ‘subdivisions of the work to be performed’---generally, plumbing, electrical and HVAC…”.  Until 2008 the Wicks Law applied to all contracts which exceeded $50,000.  The 2008 amendment raised the contract-amounts and imposed different thresholds for New York City, Nassau, Suffolk and Westchester Counties, and the 54 remaining counties.  The Home Rule section provides: "(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:  . . .  (2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law… .”  There was no attempt to comply with the “special law” requirements.  The Court of Appeals determined that the proper test for determining whether the Home Rule section has been complied with is whether the statute relates primarily to a “matter of State concern:”


"The test is . . . that if the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality… .” * * * This principle controls this case. It can hardly be disputed, and plaintiffs here do not dispute, that the manner of bidding on public construction contracts is a matter of substantial State concern. The existence of the Wicks Law itself for the last century, and of much other legislation governing public contracting (e.g., General Municipal Law § 100-a, [requiring competitive bidding]) attests to this. The very amendments of which plaintiffs complain, though they do not treat all counties alike, unquestionably affect the State as a whole.  Empire State Chapter of Associated Builders and Contractors, Inc…v Smith…, No 101, CtApp, 6-6-13



HAIL Act Regulating Taxi Cabs and Livery Vehicles in New York City Does Not Violate Home Rule Section of State Constitution


The Court of Appeals, in a full-fledged opinion by Judge Piggot, held that the so-called HAIL Act, which regulates taxi cabs and livery vehicles in New York City, was not an unconstitutional special law in violation of the Home Rule Clause of the New York State Constitution because the statute benefits all New Yorkers, not just New York City residents:


At issue on this appeal is the constitutionality of chapter 602 of the Laws of 2011, as amended by chapter 9 of the Laws of 2012 ("HAIL Act"), which regulates medallion taxicabs (or "yellow cabs") and livery vehicles, vital parts of New York City's transportation system. The Act's stated aim is to address certain mobility deficiencies in the City of New York, namely: the lack of accessible vehicles for residents and non-residents with disabilities; the dearth of available yellow cabs in the four boroughs outside Manhattan ("outer boroughs"), where residents and non-residents must instead rely on livery vehicles; and the sparse availability of yellow cab service outside Manhattan's central business district. * * *


We conclude that the HAIL Act addresses a matter of substantial State concern. This is not a purely local issue. Millions of people from within and without the State visit the City annually. Some of these visitors are disabled, and will undoubtably benefit from the increase in accessible vehicles in the Manhattan central business district and in the outer boroughs. The Act is for the benefit of all New Yorkers, and not merely those residing within the City. Efficient transportation services in the State's largest City and international center of commerce is important to the entire State. The Act plainly furthers all of these significant goals. Greater New York Taxi Association v State of New York…, Nos 98, 99, 100, CtApp, 6-6-13





“Substantial Factor in Producing the Injury” Jury Instruction (Re: Causation) Did Not Reduce Plaintiff’s Burden of Proof


In attempting to intubate an 83-yeqr-old woman who was unresponsive, a doctor perforated her esophagus making it necessary that she be fed through a tube for the remaining three years of her life.  In affirming the plaintiffs’ verdict, the Court of Appeals determined that the trial court’s jury charge did not improperly reduce plaintiffs’ burden of proof on the issue of causation in this medical malpractice action. The jury was told defendant’s negligence caused the injury if it was a substantial factor in producing the injury:


It is well settled that a "plaintiff must generally show that the defendant's negligence was a substantial factor in producing the injury" to satisfy "the burden of proving a prima facie case" in a medical malpractice action…. Here, the trial court recited the proximate cause charge directly from the PJI and explicitly instructed the jury as to plaintiffs' burden of proof in the case. The court charged the jury using the language from PJI 2:70, as follows: "An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury." Further, at the outset of the charge, the court instructed the jury that "the burden of the proof in this case rests with the plaintiffs," and made clear that the plaintiffs had to establish by a preponderance of the evidence defendants' negligence. Taking this jury charge as a whole, we do not find support for defendants' contention of an improper alteration of the causation standard or plaintiffs' burden of proof ….  Wild v Catholic Health System…, No 97, CtApp, 6-6-13






Residential Health Care Facility’s Medicaid Reimbursement Disallowed with Respect to Certain Operating Costs


The Third Department upheld the determination of the Department of Health’s Office of Inspector General which disallowed certain operating costs of petitioner (a residential health care facility) used to compute Medicaid reimbursement rates.  Matter of Odd Fellow & Rebekah Rehabilitation and Health Care Center, Inc v Commissioner of Health…, 515687, 3rd Dept, 6-6-13





Criteria for Recovery from Special Fund for Reopened Cases


In remitting the matter for further fact-finding, the Third Department explained the criteria for recovery from the Special Fund for Reopened Cases:


Workers'  Compensation  Law  §  25-a  provides  for the transfer of liability to the Special Fund  "when  an application to reopen a closed case is made  more  than seven years from the date of injury and  more  than three years after the last payment  of compensation…. Advance payments that are made voluntarily during the relevant time frame, in recognition of an employer's liability, are considered compensation and  will prevent the shifting of liability to  the  Special Fund  ….   Notably, "evidence that a claimant received full wages  despite performing limited or light duties may result in a finding that advance payments [of compensation] have been  made"  …). Whether an advance payment of compensation was  made  to  the claimant is a factual issue for the  Board  to resolve and,  "its determination  . . . , if supported  by substantial evidence  in the  record  as  a  whole,  will not  be disturbed" … .  Matter of Schroeder v US Foodservice…, 515937, 3rd Dept, 6-6-13





Elements of Breach of Fiduciary Duty


The Second Department explained the elements of a cause of action for breach of fiduciary duty in the context of the board of directors of a corporation and the business judgment rule:


A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b)"…. "The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct"… . Members of a board of directors of a corporation "owe a fiduciary responsibility to the shareholders in general and to individual shareholders in particular to treat all shareholders fairly and evenly"…. 


The business judgment rule "bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes"… .   Deblinger v Sani-Pine Prods Co, Inc, 2013 NY Slip Op 03963, 2nd Dept, 6-5-13



bottom of page