Chapter Twenty-Three
Rochester, New York
Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)
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COURT OF APPEALS
CONTRACT LAW/CIVIL PROCEDURE
Conclusory Allegations of Bad Faith in Negotiations Pursuant to a Settlement Agreement Did Not State a Cause of Action
The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined the parties failure to come to an agreement did not give rise to a cause of action. The negotiations, pursuant to a prior settlement agreement, had come to an impasse which, the Court of Appeals concluded, was not actionable:
It is true, as the concurring Justices in the Appellate Division pointed out, that courts normally give a generous reading to pleadings that are attacked as insufficient on their face. But it is not too much to ask that a pleading filed after more than a decade of back and forth between the parties contain some specific facts supporting the claim of bad faith not just the bald conclusions, contradicted by the only relevant document referred to, that [defendant] insisted "on terms that conflicted with the Settlement Agreement" and "made a definite and final communication" of its intent to violate its obligations. IDT Corp v Tyco Group SARI, 2014 NY Slip Op 04044, Ct App 6-5-14
CRIMINAL LAW
Prosecution by Misdemeanor Information Waived by Defense Counsel; Facts Alleged In Support of the Obstruction of Governmental Administration Charge Were Sufficient to Meet Requirements of a Misdemeanor Complaint
In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the defendant had waived his right to be prosecuted by a misdemeanor information and the misdemeanor complaint to which he pled guilty sufficiently alleged the obstruction of governmental administration. Defense counsel's statement "so waived" was deemed adequate to waive prosecution by information. The misdemeanor complaint alleged that defendant stood behind a police vehicle after slamming the trunk shut. Those allegations were deemed sufficient to allege defendant intended to prevent the officer from patrolling the area. The dissent argued those factual allegations were insufficient to inform defendant of the nature of the charge:
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ... . Under the CPL, a court must use one of two instruments to take jurisdiction over a defendant accused of a misdemeanor: a misdemeanor complaint or a misdemeanor information. A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action and allow the state to jail the defendant for up to five days, but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information (see CPL 100.10 [4]; 120.20 [1]; [a]; 170.65 [1], [3]; 170.70...). Concomitantly, unless waived, a valid information is a jurisdictional requirement for a misdemeanor prosecution (see CPL 100.10 [4]...).
A misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof" ... . We have called this "the prima facie case requirement" (Kalin, 12 NY3d at 229). An information serves the same role in a misdemeanor prosecution as a grand jury indictment does in a felony case: it ensures that a legally sufficient case can be made against the defendant ... . A misdemeanor complaint, in comparison, need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense ... .
A defendant may knowingly and intelligently waive prosecution by misdemeanor information, as demonstrated by an affirmative act ... . When the defendant waives prosecution by information, he or she declines the protection of the statute, and the accusatory instrument must only satisfy the reasonable cause requirement (see CPL 170.65 [1], [3]...). People v Dumay, 2014 NY Slip Op 04038, Ct App 6-5-14
CRIMINAL LAW.
Plea to a Lesser Offense Need Not Be Supported by Facts Admitted in a Plea Allocution---Court's Unnecessary Attempt to Have Defendant Admit to Facts in Support of All of the Elements of the Lesser Offense Required Vacation of the Plea
The Court of Appeals determined defendant's guilty plea was tainted by the court's and counsel's confusion about the allocution which was required. The defendant was charged with rape by forcible compulsion (first degree) and pled guilty to a lesser rape offense--i.e., sexual intercourse with a person incapable of consent by reason of being mentally incapacitated. The lower court and counsel, according to the court of appeals, were under the misimpression that the plea allocution must included factual allegations supporting every element of the lesser offense:
Where a defendant enters a negotiated plea to a lesser crime than one with which he is charged, no factual basis for the plea is required (People v Clairborne, 29 NY2d 950, 951 [1972]...). Indeed, under such circumstances defendants can even plead guilty to crimes that do not exist (People v Foster, 19 NY2d 150, 153 [1967]; [plea to attempt to commit a crime of which intent is not an element]).
It seems, however, that at the time of defendant's plea counsel and the court were unaware of the rule of Clairborne, and thought it necessary to find a basis in fact for the plea. The court led defendant through an allocution in which he admitted that he encountered the victim when she was "too drunk to really make a decision about whether she did or did not want to have sex"; that he knew that "she was mentally incapacitated apparently from drinking"; and that he "went ahead and had sexual intercourse with her anyway." The allocution provided no support for the idea that the victim was mentally incapacitated as the Penal Law defines that term. * * *
We conclude that we must reverse and vacate the plea. Although the entire allocution was unnecessary, and although even if it were necessary we would not require that it prove every element of the crime charged ..., we simply cannot countenance a conviction that seems to be based on complete confusion by all concerned ... . People v Johnson, 2014 NY Slip Op 04039, Ct App 6-5-14
CRIMINAL LAW.
Error in Grand Jury Presentation Did Not Raise a Question of Prejudice Sufficient to Justify Dismissal of the Indictment
The Court of Appeals determined the grand jury proceedings were not rendered invalid by the presentation of the videotaped testimony of the child-victim who had not been administered an oath. After realizing the oath had been omitted, the prosecutor presented the testimony to the grand jury again, this time preceded by the oath. The Court of Appeals found the defendant had not established the possibility of prejudice:
The People do not dispute that an oath should have been administered to Jane during the first testimonial recording (see e.g. CPL 60.20 [2]; CPL 190.32 [5]...). On these facts, however, the error does not meet the "very precise and very high" statutory standard of impairment for grand jury proceedings ... . The lack of an oath was not the product of a nefarious design to deliberately cause unfairness to defendant. Rather, it was an oversight that the People sought to correct by securing judicial permission to record a second interview in which Jane swore to be honest and verified the truth of her prior statements. The grand jury then watched the second video and was instructed that the recording was made because Jane had not taken an oath during her first examination. Based on these circumstances, defendant has not established a possibility of prejudice justifying the exceptional remedy of dismissal of the indictment... . People v Wisdom, 2014 NY Slip Op 04040, Ct App 6-5-14
CRIMINAL LAW, EVIDENCE.
Where There Is Evidence, Other than or in Addition to a Chemical Test, of a Blood Alcohol Content, the Jury Can Be Instructed that It May Base Its Verdict on Its Own Finding Re: Blood Alcohol Content
The Court of Appeals determined defendant was not entitled to a jury instruction that a "blood alcohol content of less that .08 is prima facie evidence defendant was not intoxicated" on the basis of her expert's testimony that her blood alcohol content was below .08 at the time she was driving (her subsequent blood alcohol test result was .09). However, the Court of Appeals explained the defendant could have requested a jury instruction which would allow the jury to find she was not intoxicated if the jury first made the finding her blood alcohol level was below .08:
Since the evidence of her BAC that defendant presented here was not determined by a chemical test but was contained in the opinion of a defense expert, that evidence did not have the "prima facie" effect specified by the statute and defendant was not entitled to the charge she sought.
...It should not be thought, however, that the BAC thresholds specified in Vehicle and Traffic Law § 1195 (2)(A) must be entirely omitted from a jury charge in a common law DWI case or in a driving while ability impaired (DWAI) case brought under Vehicle and Traffic Law § 1192 (1) ("No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol"). It is obvious from Vehicle and Traffic Law §§ 1192 (2) and 1195 (2) that the Legislature has made judgments about the significance of certain statistical thresholds i.e., that a BAC of .08% or more justifies an inference of intoxication; that a BAC below .08% justifies an inference of non-intoxication; that a BAC above .07% justifies an inference of impairment; and that a BAC equal to or less than .05% justifies an inference that the driver was neither intoxicated nor impaired in her ability to drive. There is no reason why juries should remain unaware of these legislative judgments.
Thus, in this case Town Court should, if it had been requested to do so, have charged the jury in words or substance: If you find that there was less than .08 of one percent by weight of alcohol in defendant's blood while she was operating the motor vehicle, you may, but are not required to, find that she was not in an intoxicated condition. Similarly, in a DWAI case where the defendant proffers evidence other than chemical tests of a BAC at or below .05%, it would be proper to charge: If you find that there was .05 of one percent or less by weight of alcohol in the defendant's blood while she was operating a motor vehicle, you may, but are not required to, find that her ability to operate the motor vehicle was not impaired by the consumption of alcohol. And the People are entitled to a corresponding charge when they rely on evidence other than chemical tests to show that a defendant's BAC was above .08% in a DWI case, or above .07% in a DWAI case. People v Fratangelo, 2014 NY Slip Op 04041, Ct App 6-5-14
CRIMINAL LAW/FAMILY LAW
Given the Surrounding Circumstances, the Allegation that the Juvenile Was in Possession of a Machete Was Sufficient to Allege the Juvenile Was in Possession of a "Dangerous Knife" within the Meaning of the Penal Law
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined a juvenile delinquency petition which alleged the juvenile was in possession of a machete sufficiently alleged the statutory element of possession of a "dangerous knife:"
The statute does not define the term "dangerous knife." In Matter of Jamie D. (59 NY2d 589 [1983]), however, this Court held that the term, as used in the statute, "connotes a knife which may be characterized as a weapon" (id. at 592). We explained that certain knives may fall within the scope of the statute based solely on the knife's particular characteristics. For instance,"a bayonet, a stiletto, or a dagger" would come within the meaning of "dangerous knife" because those instruments are "primarily intended for use as a weapon" (id. at 592-93).
We also explained that other knives, which are designed and primarily intended for use as "utilitarian utensils," may also come within the statutory language in at least two ways (id. at 593). First, a knife may be converted into a weapon, and second, "the circumstances of its possession, although there has been no modification of the implement, may permit a finding that [*4]on the occasion of its possession it was essentially a weapon rather than a utensil" (id. at 593).
A "machete" is generally defined as "a large, heavy knife that is used for cutting plants and as a weapon" (http://www.merriam-webster.com/dictionary/machete). While a machete has utilitarian purposes, under the circumstances of this case, it would be unreasonable to infer from the statement supporting the petition that respondent was using the machete for cutting plants. Rather, the arresting officer's description of the "machete", with its 14-inch blade, being carried by respondent late at night on a street in Brooklyn, adequately states "circumstances of . . . possession" (Jamie D. at 593) that support the charge that defendant was carrying a weapon. Matter of Antwaine T, 2014 NY Slip Op 04042, Ct App 6-5-14
MUNICIPAL LAW/EMPLOYMENT LAW
Town Could Not Unilaterally Revoke Its Policy of Providing Vehicles for Certain Town Employees---Any Such Change Must Be Negotiated
The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined the Public Employees Relation Board (PERB) properly ruled the town could not revoke its policy of providing vehicles for use by certain town employees pursuant to a provision of the Town Code. The town argued that it could unilaterally revoke the vehicle assignments because the provision which purported to allow the vehicle assignments was illegal (the dissent agreed). The Court of Appeals held that the provision was not illegal and, therefore, any change in the vehicle assignment policy must be negotiated with the union:
...[T]he Town asks us to rule in its favor on the ground that a public employer does not violate section 209-a (1) (d) of the Taylor Law [Civil Service Law} when it unilaterally discontinues a past practice with respect to a term and condition of employment that is illegal under local law. Whatever the merits of the Town's position, we do not reach and need not consider them because the relevant past practice was not, in fact, illegal under the local law. Accordingly, PERB reasonably applied its precedent to determine that the Town engaged in an improper practice when it unilaterally discontinued the permanent assignment of "take home" vehicles to employees who enjoyed this benefit before the Town adopted and implemented the 2008 fleet/vehicle policy, and PERB's determination was based on substantial evidence. Matter of Town of Islip v New York State Pub Empl Relations Bd., 2014 NY Slip Op 04030, Ct App 6=5=14
NEGLIGENCE/MUNICIPAL LAW/IMMUNITY
City Employee Blocking Roadway to Facilitate Repairs Was Engaged in a Proprietary, Not a Governmental, Function--Ordinary Rules of Negligence Applied
In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed the trial court and the appellate division, finding that a city employee was acting in a proprietary, not a governmental, capacity when he told the plaintiff she could proceed on a roadway that he was closing for repairs but did not warn her of the depression in the roadway which caused her to fall. The question came down to whether the employee was performing a road repair (proprietary) or a traffic control (governmental) function. Because the employee was deemed to be performing a proprietary function, the ordinary rules of negligence applied to the city:
We recently explained the framework that must be used when a negligence claim is asserted against a municipality in Applewhite v Accuhealth, Inc. (21 NY3d 420 [2013]). First, a court must decide "whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (id. at 425). If the municipality's actions fall on the proprietary side, "it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties"... . A governmental entity undertakes a proprietary role when its "activities essentially substitute for or supplement traditionally private enterprises" ... . "In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers" (id. [internal question marks and citation omitted]). Generally, "the distinction is that the government will be subject to ordinary tort liability if it negligently provided services that traditionally have been supplied by the private sector" ... . In deciding whether a function is proprietary or governmental, a court examines "the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred . . . , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred" ... .
Historically, the maintenance of roads and highways was performed by both private entities and local governments, with each subject to the ordinary rules of negligence... . Wittorf v City of New York, 2014 NY Slip Op 04037, Ct App 6-5-14
APPELLATE DIVISION
ATTORNEYS/ARBITRATION
Client's Claim His Attorney Pressured Him Into Changing the Retainer Agreement, Thereby Costing the Client More, Did Not Sound In Malpractice and Was Not an Arbitrable Fee Dispute
The First Department noted that an action by a client alleging he was pressured by his attorney into changing the retainer agreement from an hourly retainer to a contingency retainer (thereby costing the client more) did not sound in malpractice and was not arbitrable under part 137 of the Rules of the Chief Administrator of the Courts:
Plaintiff does not assert that defendants' conduct caused the result of his dispute with his disability insurer to be worse than it would have been. Rather, he argues that defendants, in bad faith and without full disclosure, pressured him into changing from an hourly retainer to a contingency retainer. The only loss he alleges is the additional fees owed to counsel as a result of changing the retainer. This is fatal to his claim for malpractice ... . ...
The retainer agreement provided for arbitration under part 137 of the Rules of the Chief Administrator of the Courts. However, the gravamen of the contract claim is that it is invalid because of defendants' misconduct in inducing plaintiff to sign it, or because it created a windfall for defendants. By the express terms of the rules the parties chose to govern their arbitration, claims such as this are not arbitrable since 22 NYCRR 137.1(b)(3) provides that part 137 does not apply to "claims involving substantial legal questions, including professional malpractice or misconduct" ... . Cohen v Hack, 2014 NY Slip Op 04068, 1st Dept 6-5-14
CIVIL PROCEDURE
Motion to Compel Discovery in Class Action Suit Erroneously Denied---"Full Disclosure" Criteria Explained
The First Department determined the motion court erred when it denied plaintiffs-intervenors' motion to compel the defendants to disclose documents in a class action suit. The suit was brought on behalf of children with developmental disabilities against the NYC Administration for Children's Services and the Office for People with Developmental Disabilities. Any privacy-related issues could be handled by redaction:
Under CPLR 3101(a), "full disclosure" is required for "all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has held that "material and necessary" is "to be interpreted liberally," and that the test of whether matter should be disclosed is "one of usefulness and reason" ... . City of New York Maul, 2014 NY Slip Op 03941, 1st Dept 6-3-14
CIVIL PROCEDURE
Courts Will Not Intercede to Resolve a Dispute Between Two Wrongdoers---"In Pari Delicto"
The Second Department explained the doctrine of in pari delicto, where a court will not resolve a dispute between two wrongdoers:
"The doctrine of in pari delicto mandates that the courts will not intercede to resolve a dispute between two wrongdoers. The doctrine survives because it serves important public policy purposes. First, denying judicial relief to an admitted wrongdoer deters illegality. Second, in pari delicto avoids entangling courts in disputes between wrongdoers" ... . The evidence established that the plaintiff knew that the defendants were offering to sell what amounted to a franchise as defined by General Business Law § 681(3), to multiple persons at the same time that the plaintiff and the defendants entered into their agreement, and that the plaintiff was both aware of and complicit in the defendants' violation of the Franchise Sales Act. Under the circumstances, the court properly applied the doctrine of in pari delicto, "not to favor [the]; defendant, but as a matter of public policy" ... . Burgers Bar Five Towns LLC v Burger Holdings Corp, 2014 NY Slip Op 03870, 2nd Dept 6-4-14
CIVIL PROCEDURE
Under the Circumstances, Court Properly Considered New Information Presented in a Surreply
The Second Department explained when the court may consider evidence submitted for the first time in a surreply:
While it is true that unauthorized surreplies containing new arguments generally should not be considered by the court ... , the procedural history in this case is analogous to circumstances in which arguments are raised for the first time in reply. Arguments raised for the first time in reply may be considered if the original movant is given the opportunity to respond and submits papers in surreply... . Here, while the motion was fully briefed by its return date, the court granted the defendants' application for an adjournment to February 8, 2013, in order to respond to the plaintiff's reply. The defendants submitted the surreply containing the Nolie affidavit dated January 28, 2013, and the plaintiff responded to it on February 7, 2013. In addition, oral argument was held on February 8, 2013. Consequently, the plaintiff had adequate opportunity to address the new arguments raised in the defendants' surreply, and the Supreme Court properly considered it. Gluck v New York City Tr Auth, 2014 NY Slip Op 03977, 2nd Dept 6-4-14
CIVIL PROCEDURE
Mechanics of a Motion to Change Venue Explained
In finding the moving party, Schwartz, had not complied with the relevant statutes conceerning a discretionary venue change, the Second Department explained some of the mechanics of a motion to change venue:
That branch of Schwartz's motion which was to change venue pursuant to CPLR 510(3) based on discretionary grounds was improperly made in the Supreme Court, Richmond County. A motion to change venue on discretionary grounds, unlike motions made as of right, must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county (see CPLR 2212[a]...). Schwartz was therefore required to make a motion pursuant to CPLR 510(3) in Nassau County, where the action was pending, in another county in the 10th Judicial District, or in a county contiguous to Nassau County ... . Since Nassau County and Richmond County are not contiguous, and Richmond County is not in the 10th Judicial District, the Supreme Court, Richmond County, erred in granting that branch of the motion which was pursuant to CPLR 510(3)
Furthermore, that branch of Schwartz's motion which was pursuant to CPLR 510(1) to change venue based on an allegedly improper county was untimely made, as it was not served within 15 days after service of his demand for a change of venue (see CPLR 511[b]...). In addition, in response to Schwartz's demand for a change of venue, the appellant served a timely affirmation with supporting proof that was, prima facie, sufficient to support its choice of venue as of right in the Supreme Court, Nassau County (see CPLR 503[c]; 511[b]; 2103[b];[2]; 2106...). Accordingly, that branch of Schwartz's motion which was pursuant to CPLR 510(1) also should have been made in the Supreme Court, Nassau County, where the action was pending, and the Supreme Court, Richmond County, erred in granting that branch of the motion as well... . Schwartz v Yellowbook Inc, 2014 NY Slip Op 04000, 2nd Dept 6-4-14
CIVIL PROCEDURE/APPEALS
Record Did Not Support Striking the Answer for the Spoliation of Evidence
The First Department, over a partial and a full dissent, determined the extreme sanction of striking defendant's answer and instructing the jury the lost evidence would have supported plaintiff's position was not appropriate under the facts. Electronically stored information (ESI) had been lost. The court rejected the argument that the failure to issue a written "litigation hold" to preserve the evidence constituted per se gross negligence. Instead the court found that the record supported at most simple negligence. The court explained the operative criteria and its appellate powers in this context:
"A party seeking sanctions based on the spoliation of evidence must demonstrate: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and finally, (3) that the destroyed evidence was relevant to the [moving]; party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" ... .
Further, "[w];hile discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse" ... . * * *
Because the record supports, at most, a finding of simple negligence against the MP defendants, plaintiffs must prove that the lost ESI would have supported their claims ... . This they have failed to do ... . Pegasus Aviation I Inc, v Varig Logistica SA, 2014 NY Slip Op 04047, 1st Dept 6-5-14
CONTRACT LAW
Question of Fact Whether Defendant's Negligence Precluded Her Reliance on the Doctrine of Mutual Mistake to Rescind a Valid Oral Contract
The First Department determined there a question of fact about defendant's negligence and the related applicability of the doctrine of mutual mistake. The parties orally agreed to share funeral expenses and commence a lost will proceeding based upon the understanding that the original will could not be found. However, the original will was subsequently found. The defendant moved to rescind the contract on the basis of mutual mistake and Supreme Court granted the motion. In reversing, the First Department noted the doctrine of mutual mistake would not be available if defendant were negligent in initially failing to find the will, and a question of fact had been raised about defendant's negligence in that regard:
Plaintiff met her obligations under the agreement to pay one half of the decedent's funeral expenses and attorneys fees for the proceeding. Defendant did, as required, commence a lost will proceeding. Both parties thus fulfilled the terms of the oral agreement. It was only less than one month before the hearing on the lost will proceeding was to commence that defendant's husband found the original will in the same box which defendant had searched prior to entering into the agreement. It was at that point that defendant attempted to abrogate the contract. It is noteworthy that defendant, in her motion for summary judgment dismissing the complaint argued that the contract should be rescinded due to a mutual mistake as to the existence of the original will. The question of mutual mistake, therefore, is central to the disposition of this case.
Defendant's alleged negligence in searching for the original 1991 will, the absence of which formed the basis of the oral agreement to commence a lost will proceeding, is an important factor in determining whether the doctrine of mutual mistake may be invoked to rescind this otherwise valid oral agreement. " Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible.'" ... . The doctrine of mutual mistake "may not be invoked by a party to avoid the consequences of its own negligence" ... . Gitelson v Quinn, 2014 NY Slip Op 03942, 1st Dept 5-3-14
CONTRACT LAW/REAL ESTATE/RELIGION/CORPORATION LAW
Writing Which Omitted Certain Crucial Terms Was an "Agreement to Agree," Not an Enforceable Real Estate Sales Contract
The First Department determined that a writing [the September 14 letter] which included some terms of the sale of church property for $15 million constituted an "agreement to agree" and not an enforceable real estate sales contract. The writing identified the parties, the property, the amount of the downpayment and the price of the property. At some point after the writing was signed, the defendant property owner told the plaintiff it was negotiating the sale of the property to another and, if the plaintiff wanted to buy, the price would be $17.5 million. The plaintiff then sued for breach of contract and specific performance. In finding the writing was not an enforceable real estate sales contract, the court noted that several crucial terms were missing, including the failure to mention the required court-approval of the sale of church property pursuant to the not-for-profit corporation law, and the failure to include details of the escrow agreement:
...[W]e agree with defendant that the September 14 letter did not contain all of the material terms which one would reasonably have expected to be included under the circumstances, rendering the September 14 letter unenforceable. For example, while the September 14 letter contemplated that the down payment would be held in escrow, it failed to identify who the escrow agent would be and left to future negotiations "a reasonably acceptable escrow agreement." Since "[n];o contract for the sale of real property can be created when a material element of the contemplated bargain has been left for further negotiations," ..., and the details of an escrow arrangement are certainly material, this alone warranted the motion court's conclusion that the letter was not a contract.
Further, the contemplated transaction was unique, insofar as it was contingent on approval by the court and the Attorney General. While we do not question that defendant was entitled to agree to a sale of the property prior to seeking such approval ..., one would expect that an agreement would have contained such material terms as defendant's duty to seek approval in a diligent manner, and the consequences of a failure to secure such approval. Indeed, it has been held that the contingency created by a condominium association's right of first refusal is material to an agreement to sell an individual condominium apartment ... . Argent Acquisitions LLC v First Church of Religious Science, 2014 NY Slip Op 04048, 1st Dept 6-5-14
CONTRACT LAW
Criteria for Setting Aside a Stipulation of Settlement Explained
In finding plaintiff's motion to vacate a stipulation of settlement was properly denied, the Second Department explained the operative principles:
"Stipulations of settlement are judicially favored, will not lightly be set aside, and are to be enforced with rigor and without a searching examination into their substance' as long as they are clear, final and the product of mutual accord'" ... . A stipulation of settlement may not be set aside except on a showing of fraud, collusion, mistake, or accident ... . Yan Ping Liang v Wei Xuan Gao, 2014 NY Slip Op 04003, 2nd Dept 6-4-14
CORPORATION LAW/CIVIL PROCEDURE
In this Shareholder Derivative Lawsuit, Causes of Action Not Subject to the "Internal Affairs" Doctrine Should Not Have Been Dismissed
The First Department determined many of the causes of action in this shareholder derivative suit were not governed by Bermuda law under the "internal affairs" doctrine and, therefore, should not have been dismissed:
Plaintiffs minority shareholders of Culligan Ltd. bring this derivative action on behalf of that entity, a Bermuda company that does business in New York. Supreme Court granted the motion to dismiss upon finding that Bermuda law applied to the case pursuant to the "internal affairs" doctrine. That doctrine "recognizes that only one State should have the authority to regulate a corporation's internal affairs matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders" Since the internal affairs doctrine does not apply to those defendants who are not current officers, directors, and shareholders of Culligan Ltd. ... Bermuda law does not apply to claims asserted against them.
Nor does the internal affairs doctrine apply to claims based on sections of the Business Corporation Law (BCL) enumerated in BCL §§ 1317 and 1319. BCL § 1319(a)(1) expressly provides that BCL § 626 (shareholders' derivative action) shall apply to a foreign corporation doing business in New York. Thus, the issue of plaintiffs' standing to bring a shareholder derivative action is governed by New York law, not Bermuda law ... . ...
Pursuant to German-American Coffee Co. v Diehl (216 NY 57, 62-64 [1915]) and BCL §§ 1319(a)(1), 719(a)(1), and 510, New York law applies to the second cause of action, which alleges that the directors of Culligan Ltd. declared illegal dividends.
To the extent plaintiffs allege violations of BCL § 720 (e.g. waste and unlawful conveyance), which is made applicable to foreign corporations doing business in New York by BCL § 1317(a)(2), those claims are also governed by New York law ... . However, to the extent plaintiffs allege a violation of a section of the Business Corporation Law not enumerated in BCL § 1317 (e.g. § 717, which is part of plaintiffs' breach of fiduciary duty claim), New York law does not apply ... . Those claims are governed by Bermuda law ..., and were thus correctly dismissed. Culligan Soft Water Co v Clayton Dubilier & Rice LLC, 2014 NY Slip Op 03955, 1st Dept 6-3-14
CRIMINAL LAW
Court Must Make a Youthful Offender Determination Even When Defendant Waives It
The First Department noted that the sentencing court must consider youthful offender treatment for every eligible youth even where the defendant waives the youthful offender determination as part of a negotiated plea:
...[T]he Court of Appeals in People v Rudolph (21 NY3d 497 [2013]) that CPL 720.20(1) requires "that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain" requires a new sentencing proceeding. Although defendant pleaded guilty to an armed felony, he was potentially eligible under CPL 720.10(3), and he was thus entitled to a determination ... . This issue survives defendant's waiver of his right to appeal ... . People v Malcolm, 2014 NY Slip Op 04050, 1st Dept 6-5-14
CRIMINAL LAW/ATTORNEYS
Court Did Not Conduct an Adequate "Searching Inquiry" Before Allowed Defendant to Represent Himself---New Trial Ordered
The First Department, in a full-fledged opinion by Justice Acosta, determined the trial judge did not conduct the requisite "searching inquiry" before allowing the defendant to represent himself. The opinion includes all of the relevant exchanges between the judge and the defendant and compared those exchanges to the inquiry made in People v Wingate, 17 NY3d 469, where the Court of Appeals determined the inquiry by the trial court to be adequate:
Here, we find that the trial court's inquiry failed to satisfy [the] "searching inquiry" standard. The court gave nothing more than generalized warnings, and completely failed to advise defendant of the benefits of being represented by counsel. The court's statements to defendant that it was in his "interest" to continue with counsel; that "[g];enerally, [self-representation]; is a very bad idea"; and that there were "all kinds of dangers in doing this," its sole example being that defendant would have to give the opening statement himself, failed to insure that the dangers and disadvantages of giving up the fundamental right to counsel [had]; been impressed on . . . defendant" ... . The court also failed to advise defendant about the "importance of the lawyer in the adversarial system of adjudication" ... . Because we find that the court did not make the requisite searching inquiry, we reverse the judgment convicting defendant and remand for a new trial. People v Cole, 2014 NY Slip Op 04076, 1st Dept 6-5-14
CRIMINAL LAW
Jury Instructions Which Lumped Counts Together and Did Not Give the Jury the Information Necessary to Distinguish One Count from Another Mandated a New Trial
The Second Department determined a new trial was required because the jury instructions were defective. The court lumped counts charging the same crime together when explaining the elements, but did not give the jury any indication how the counts differed from one another. The jury was given no indication which counts implicated defendant as an accessory and which counts implicated defendant as a principal:
We agree with the defendant that the charge, as given, suggested that if the jury found the defendant guilty of any one of the subject counts, it should find him guilty of all three counts. Furthermore, because the court's charge failed to define the counts in a way that would distinguish them from one another, the jury could not have known which count was based on a finding that the defendant had engaged in sexual intercourse with the complainant and which count was based on accessorial liability and a finding that the codefendant had engaged in sexual intercourse with the complainant. Contrary to the People's contention, parenthetical notations on the verdict sheet cannot supplant a court's duty to charge the jury as required by CPL 300.10(4). Since it is not possible to determine whether the jury here actually found that the defendant had himself engaged in sexual intercourse with the complainant or that he had acted as an accessory to the codefendant's sexual intercourse with the complainant, the defendant is entitled to a new trial on those charges ... . People v Jadharry, 2014 NY Slip Op 04028, 2nd Dept 6-4-14
CRIMINAL LAW
Motion to Withdraw Guilty Plea Should Not Have Been Denied Without a Hearing
The Third Department determined County Court abused its discretion by denying defendant's motion to withdraw her guilty plea without a hearing. The court was aware defendant was under medication which was affecting her ability to think at the time she entered the plea:
...[A]n evidentiary hearing is ... required upon a motion to withdraw a guilty plea "[w];here the record raises legitimate questions as to whether the plea was knowingly, intelligently and voluntarily entered into" ... . County Court was well aware that defendant was being medicated for longstanding mental health issues, and was further on painkillers due to a recent injury. When she appeared before County Court ..., defendant stated that her psychological issues were "out of control" and that she could not think. She further advised County Court that the painkillers she was taking left her unable to attend to her personal needs without assistance. County Court then adjourned the case pending trial, only to have defendant reappear a short time later and plead guilty. People v Bass, 2014 NY Slip Op 04079, 3rd Dept 6-5-14
CRIMINAL LAW, ATTORNEYS
Court Is Not Required to Notify Defendant of His Right to Contest the Constitutionality of His Prior Conviction Before Sentencing Defendant as a Second Felony Offender
The Third Department noted that the sentencing court was not required to notify defendant of his right to contest the constitutionality of his prior conviction before sentencing defendant as a second felony offender:
" 'County Court was not obligated to expressly advise defendant of his right to contest the constitutionality of the prior conviction'" ... . Here, the record reveals that defendant was provided with the prior felony information before sentencing and, while represented by counsel during sentencing, declined to deny or controvert any of the allegations in the information. Accordingly, County Court substantially complied with the requirements of CPL 400.21 (3), and defendant was properly sentenced as a second felony offender ... . People v Wilkins, 2014 NY Slip Op 04083, 3rd Dept 6-5-14
CRIMINAL LAW, ATTORNEYS
Taking a Position Adverse to Client's Pro Se Motion to Withdraw a Guilty Plea Constitutes Ineffective Assistance of Counsel
The Third Department noted that counsel may not take a position adverse to the client's pro se motion to withdraw a guilty plea. To do so constitutes ineffective assistance of counsel:
We agree with defendant's contention that he received ineffective assistance of counsel inasmuch as his new counsel took a position adverse to his with regard to the motion to withdraw his plea. "While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel 'may not take a position . . . that is adverse to the defendant'" ... . Although defendant was properly permitted to obtain a new attorney, he was denied the effective assistance of counsel when such counsel "affirmatively undermined arguments [that defendant]; wished the court to review" ... . Accordingly, the matter must be remitted for reconsideration of defendant's motion, for which he must be represented by new counsel. People v Russ, 2014 NY Slip Op 04084, 3rd Dept 6-5-14
CRIMINAL LAW
Nature of a Repugnant Verdict Explained---Here the Verdict Convicting Defendant of Criminal Possession of a Controlled Substance and Acquitting Defendant of Criminal Sale of a Controlled Substance Was Not Repugnant---The Proof at Trial Plays No Part in the Repugnancy Analysis
The Third Department determined County Court should not have determined a verdict was repugnant and sent the jury back for further deliberations. The Third Department vacated the defendant's conviction on the relevant count. In the course of the decision the Third Department explained the nature of a repugnant verdict, noting that the proof at trial plays no part in the analysis:
Contrary to defendant's assertion, the jury's initial verdict convicting him of criminal possession of a controlled substance in the third degree and acquitting him of criminal sale of a controlled substance in the third degree was not repugnant. "[A]; verdict as to a particular count shall be set aside [as repugnant]; only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury" ... . In assessing a repugnancy claim, "we must review the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial. Thus, [i];f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support. . . . In this context, the apparently illogical nature of the verdict as opposed to its impossibility is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine[s]; a verdict as a matter of law" ... .
Here, upon reviewing the elements of the subject offenses, it is readily apparent that the jury's verdict was not repugnant. Criminal sale of a controlled substance in the third degree requires proof that the defendant knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39 [1]), whereas criminal possession of a controlled substance in the third degree requires only, insofar as is relevant here, that the defendant knowingly and unlawfully possessed a narcotic drug with intent to sell it (see Penal Law § 220.16 [1]). Notably, a "[d];efendant's acquittal on the [sale count]; does not negate the elements of the [possession count], for a person can possess and intend to sell a narcotic drug, but not actually accomplish a sale" ... . Defendant's argument to the contrary is predicated upon the specific proof adduced at trial, which the Court of Appeals has instructed is to play no role in our analysis of a repugnancy claim ... . As the jury's initial verdict was not repugnant, County Court should have denied defendant's motion, accepted the jury's verdict and adjourned the matter for sentencing. Instead, County Court implicitly granted defendant's motion, devised a special verdict sheet and directed the jury to resume deliberations. People v Kramer, 2014 NY Slip Op 04085, 3rd Dept 6-5-14
CRIMINAL LAW
Parole Violators May Apply for Resentencing Under Drug Law Reform Act---County Court Properly Denied the Application Based Upon the Nature of Defendant's Convictions and Serious Prison Infractions
In affirming County Court's denial of defendant's motion for resentencing under the Drug Law Reform Act, the Third Department noted that the fact that defendant violated parole did not prevent him from applying for resentencing:
While parole violators may indeed apply for resentencing, denial of such an application may be warranted if they "have shown by their conduct that they do not deserve relief from their sentences" ... . Defendant has a violent criminal history and, indeed, his most recent criminal conviction and parole violation stem from his possession of a defaced and loaded handgun. The record further reveals that defendant has a lengthy record of serious prison disciplinary infractions, many of them involving violence. We thus find that, notwithstanding defendant's positive programming achievements while incarcerated, "County Court properly exercised its discretion in finding that substantial justice would not be served by resentencing" him ... . People v Allen, 2014 NY Slip Op 04087, 3rd Dept 6-5-14
CRIMINAL LAW
Parole Conditions Did Not Require Parolee to Report Brief, Incidental Contact with Children to His Parole Officer---Parole Violation Determination Annulled
The Third Department annulled the finding that petitioner had violated his parole by not reporting brief contact with a child. Petitioner was doing construction work when a coworker's daughter emerged briefly approached petitioner and the coworker:
"It is well established that a parole revocation decision will be upheld so long as 'the procedural requirements were followed and there is evidence which, if credited, would support such determination'" ... . Notably, in order to warrant revocation, the alleged parole violation must be supported by a preponderance of the evidence (see Executive Law § 259-i [3]; [f]...), which we find lacking in the record before us. * * *
The parole conditions did not clearly require petitioner to report such an insignificant encounter to his parole officer, however, and petitioner testified that he did not know that he needed to do so. Further, while the coworker's children were occasionally present during lunch breaks at the work site, they largely remained outside the eating area and there was no showing that petitioner had any contact with the children during such times. In view of this, petitioner's parole conditions did not plainly require him to report such information to his parole officer. Accordingly, given the absence of probative evidence supporting the charge that petitioner failed to truthfully report his activities to his parole officer, the determination finding that he violated his parole in this regard must be annulled... . Matter of Peck v Evans, 2014 NY Slip Op 04107, 3rd Dept 6-5-14
DISCIPLINARY HEARINGS (INMATES)
Petitioner Not Given Adequate Employee Assistance---Determination Annulled---New Hearing Ordered
The Third Department determined the petitioner was entitled to a new hearing because a report he requested was never provided to him, and no explanation for the failure to provide the report was made:
...[W]e agree with petitioner's contention that he was denied adequate employee assistance. Specifically, the record reflects that petitioner's assistance form requested the "injury report," but the record does not reveal that petitioner was either provided with the report or informed that it did not exist. While the Hearing Officer noted petitioner's request at the hearing and advised petitioner that he would check into this, no further mention of this issue was made. Under these circumstances, we cannot say on this record that such omission did not prejudice petitioner's defense, and the determination must be annulled ... . Matter of Rupnarine v Prack, 2014 NY Slip Op 04093, 3rd Dept 6-5-14
EMPLOYMENT LAW/CIVIL PROCEDURE/MUNICIPAL LAW
Ambiguous Termination Notice Will Not Trigger Four-Month Article 78 Statute of Limitations
The First Department explained that when a notice of termination of an at-will employee is ambiguous with respect to finality, the ambiguity is construed against the employer and the four-month statute of limitations for an Article 78 proceeding is not triggered:
Ordinarily, where the employment of an at-will employee, like petitioner, is terminated, the four-month statute of limitations applicable in article 78 proceedings (CPLR 217) begins to run from the date of the termination, notwithstanding the availability of optional administrative review proceedings ... . However, where an administrative agency "create[s]; []; ambiguity and [the]; impression of nonfinality," that ambiguity regarding finality is to be resolved against the agency ... .
* * * We find that, notwithstanding the fact that the letter otherwise conveyed the concrete impact ordinarily associated with finality for statute of limitations purposes ..., respondent created sufficient ambiguity as to finality such that the language must be construed against it and the petition must be deemed timely. Matter of Burch v New York City Health & Hosp Corp, 2014 NY Slip Op 04060, 1st Dept 6-5-14
EMPLOYMENT LAW/HUMAN RIGHTS LAW/CIVIL PROCEDURE
State and City Human Rights Law Retaliation Claims Were Not Precluded by Dismissal of Federal Retaliation Claims Pursuant to the Family and Medical Leave Act---Different Protected Activities Involved
The First Department, in a full-fledged opinion by Justice Richter, determined plaintiff's state and city human rights law retaliation claims against her employer were not precluded by the dismissal of her federal action under the Family and Medical Leave Act (FMLA):
Under the doctrine of collateral estoppel, a party is precluded from relitigating in a subsequent action an issue clearly raised and decided against that party in a prior action ... . To successfully invoke this doctrine, two requirements must be met. First, the issue in the second action must be identical to an issue which was raised, necessarily decided and material in the first action. Second, the party to be precluded must have had a full and fair opportunity to litigate the issue in the earlier action ... . Where a federal court declines to exercise jurisdiction over a plaintiff's state law claims, collateral estoppel can still bar those claims provided that the federal court decided issues identical to those raised by the plaintiff's state claims ... . The party seeking to invoke collateral estoppel bears the burden of establishing identity of issue ... . Applying these principles, we conclude that defendants have not met their burden of showing that plaintiff's state and city claims of retaliatory termination are barred by collateral estoppel. The retaliation claims asserted here are entirely distinct from those raised and decided in the federal action. There, the court only decided whether plaintiff was retaliated against for exercising her FMLA rights. Here, however, plaintiff does not claim retaliation based on her exercise of FMLA rights, but instead alleges retaliation, under the State and City Human Rights Laws, based on entirely different instances of protected activity. Specifically, plaintiff alleges she was discharged for filing a written complaint about her reprimand for allegedly reading a book during work hours, and for verbally complaining about an alleged inappropriate comment. Because the federal court's decision did not address either of these claimed bases for retaliation, it cannot be said that the federal action "necessarily decided" the same issues raised by the State and City retaliation claims, and thus collateral estoppel does not apply... . Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 2014 NY Slip Op 03961, 1st Dept 5-3-14
FAMILY LAW/ATTORNEYS
In the Absence of a Colloquy Conducted by the Court, the Circumstances Indicated that Mother Knowingly, Intelligently and Voluntarily Waiver Her Right to Counsel In a Custody Proceeding
In the course of a decision affirming Family Court's finding that a change of circumstances warranted modification of the custody arrangement, the Third Department determined the mother had knowingly, intelligently and voluntarily waived her right to counsel. In the absence of a colloquy conducted by the court, the Third Department found that the relevant circumstances indicated the waiver was valid:
"[A]; party is entitled to self-representation once the court determines that the decision to do so is knowingly, intelligently and voluntarily made. Although it is preferable that the court's determination be made following an appropriate colloquy with the party on the record, it may also be made upon an examination of all the potential relevant circumstances" .. . Here, at the initial court appearance on April 8, 2011, the mother was represented by an attorney, whom she states was assigned. By the next court date, July 15, 2011, she had terminated the services of the assigned attorney and appeared with a substituted retained attorney. At the next appearance, the father told the court that he was switching attorneys and, at the ensuing appearance on August 10, 2011, the mother informed the court that she wanted to terminate the services of her retained attorney. Her attorney was present and, after confirming that the mother had discussed such action with the attorney, the court permitted the attorney to withdraw.
Noting the multiple adjournments and delays that had occurred by such time, many caused by the switching of attorneys by both parties, the mother was admonished to obtain substitute counsel before the next court date. Over a month later, on September 14, 2011, the mother appeared and stated that she had not been able to retain a new attorney and was involved in a dispute with her former retained attorney about fees. The court stated that it would grant yet another adjournment, but that a trial date would be set with no more adjournments permitted, and the court also reminded the mother that she could apply for assigned counsel. The mother next appeared on November 30, 2011, stating that she was representing herself and that she was ready to proceed with the hearing. The mother had already appeared and prepared documents in many of the proceedings pertaining to the child without an attorney and, among other things, she had obtained subpoenas for several witnesses prior to the hearing. Under all the circumstances, we are satisfied that the record sufficiently reflects that the mother waived her statutory right to counsel knowingly, intelligently and voluntarily... . Matter of Joshua UU v Martha VV, 2014 NY Slip Op 04089, 3rd Dept 6-5-14
FAMILY LAW
Alternating Custody on a Yearly Basis, Requiring the Child to Attend Two Schools, Was Not In the Child's Best Interests
The Third Department determined that alternating physical custody between the parents on a yearly basis, requiring the child to attend two different schools, was not in the child's best interests:
Here, based on the totality of the circumstances, we disagree with Family Court's determination, and find that alternating physical custody on a yearly basis is not in the child's best interests ... . Although presenting differing arguments, both parents, as well as the attorney for the child, argue against this disposition on this appeal. As a result of the alternating school schedule in place previously, the child has missed activities and field trips at both schools, and this can only be expected to increase. The superintendent of the school district in Canada where the child's school is located opined in a letter that the child's social, emotional and academic development would best be served by attending only one school, and we agree. Despite the hardships and separation necessarily arising from the physical distance between the two parents, it is the child's own stability that takes increasing precedence as he ages ... . Matter of Nelson v Perea, 2014 NY Slip Op 04091, 3rd Dept 6-5-14
FAMILY LAW
Father's Status as an Untreated Sex Offender, Together with Mother's Willingness to Leave the Children with Father Unsupervised, Was Sufficient to Establish Neglect
The Third Department determined father's status as an untreated sex offender, together with mother's willingness to leave the children with father unsupervised, was sufficient to establish neglect:
Petitioner bore the burden of establishing, by a preponderance of the evidence, "first that the children's 'physical, mental or emotional condition [was]; impaired or [was]; in imminent danger of becoming impaired' and, second, that such harm was directly attributable to a failure on the part of [the]; respondent 'to exercise a minimum degree of care . . . in providing the [children]; with proper supervision or guardianship'" ... . While actual harm is not required, the imminent danger of harm "must be near or impending, not merely possible" ... . "[A];dditionally, there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child's impairment or imminent danger of impairment" ... .
...[W]e agree with Family Court that the evidence submitted regarding the facts underlying the father's convictions for abusing young children in his care is sufficient to distinguish this case from Matter of Afton C. (James C.) (17 NY3d at 11...)..
In addition, petitioner also introduced evidence that the father did not complete the sex offender treatment he had been ordered to undergo after his first conviction, that he did not participate in any sex offender treatment while in prison for his second conviction and that the individual counseling he received from a minister while in prison and upon his release did not qualify as appropriate sex offender treatment. Matter of Lillian SS, 2014 NY Slip Op 04101, 3rd Dept 6-5-14
FAMILY LAW
Mother's Consent to Adoption Not Required
The Third Department determined mother's consent to adoption was not required due to her failure to seek treatment for drug and alcohol problems and lack of contact with the child:
"Consent to adoption is not required of a parent who 'evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so'" ... . "Once the petitioner makes such a showing by clear and convincing evidence, the burden shifts to the parent to demonstrate sufficient contact or an inability to engage in such contact"... . * * *
The record not only reflects that the mother failed to demonstrate an acceptable reason for the absence of contact or communication for over six months, but also that the impediments contributing to such absence of contact resulted from the mother's own acts and lack of effort ... . Matter of Lori QQ, 2014 NY Slip Op 04105, 3rd Dept 6-5-14
FAMILY LAW/EVIDENCE
Finding of Neglect of One Child by Consent Is Admissible In a Derivative Neglect Proceeding Re: Another Child---Criteria for Derivative Neglect Explained
The Second Department determined Family Court erred when it held that a finding of neglect of one child (Akasha) by consent could not be used to demonstrate the neglect of another child (William, Jr.). The court went on to explain the criteria for a derivative neglect finding (not all of which is quoted here):
The entry of a finding of neglect of one child may not be made without a factual basis, even upon consent ... . Thus, entry of a finding of neglect as to a child clearly constitutes proof that that child was neglected, even if the order was entered upon consent ... . Accordingly, such a fact-finding order is admissible with respect to the issue of whether the parent derivatively neglected another child (see Family Ct Act § 1046[a];[i]...). Consequently, the Family Court erred in holding that the neglect finding as to Akasha was not admissible evidence in the neglect proceeding as to William, Jr. The neglect finding as to Akasha was proof that the mother neglected Akasha and was, thus, admissible evidence in the proceeding regarding William, Jr., even though the finding as to Akasha was entered on the mother's consent.
Further, while the proof of the neglect as to Akasha was admissible with respect to this proceeding alleging derivative neglect of William, Jr., "there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings"... . Rather, "the focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood. * * * Matter of William N, 2014 NY Slip Op 04012, 2nd Dept 6-4-14
FAMILY LAW/EVIDENCE
Child's Out-of-Court Statements Alleging Sexual Touching Were Not Corroborated---the Child's Repeating the Same Allegations to Several Persons Does Not Constitute Corroboration---Neglect and Derivative Neglect Findings Reversed
The Third Department determined that the child's out-of-court stated alleged sexual touching (by Makenzie) were not sufficiently corroborated. The findings of neglect and derivative neglect based on the statements were reversed:
While the out-of-court statements made by a child relating to any allegations of abuse or neglect are admissible in Family Ct Act article 10 proceedings, they must be corroborated in order to "be sufficient to make a fact-finding of abuse or neglect" (Family Ct Act § 1046 [a]...). The purpose of this requirement is to establish the reliability of the hearsay statements, and Family Court has considerable discretion to determine the sufficiency of corroborative evidence ... . Such a statement "may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient" ... . Nevertheless, we conclude that petitioner failed to satisfy its burden here.
Family Court's conclusion, based upon our decision in Matter of Brandon UU. (193 AD2d 835 [1993]), that sufficient corroboration existed because the child pointed to the area where she claimed respondent had pinched her, is misplaced. The determination in Matter of Brandon UU. (supra) was based on the child's consistent account of sexual abuse coupled with the expert testimony that the child was being truthful (id. at 837). Here, there was no expert testimony and the child's demonstration, without more, is part of the out-of-court statement itself and insufficient as corroboration ... .
Likewise, there is no merit to petitioner's argument that the child's repetition of consistent accounts of the abuse to the grandmother, social worker and detective serve as sufficient corroboration. It is well settled that "repetition of an accusation by a child does not corroborate [that]; child's prior account" ... . The lack of any proof "validating the child's account or relating any of her past or present conduct or characteristics to the alleged sexual abuse" requires reversal of the finding of neglect as to Makenzie on the ground that the out-of-court statements were not sufficiently corroborated ... . Matter of Katrina CC, 2014 NY Slip Op 04094, 3rd Dept 6-5-14
INSURANCE LAW/VEHICLE AND TRAFFIC LAW
Testimony by the Vehicle Owner that His Vehicle Was "Missing" at the Time of the Accident Did Not Overcome the Statutory Presumption the Vehicle Was Being Driven with the Owner's Consent at the Time of the Accident
The Second Department determined the evidence at a framed issue hearing was insufficient to overcome the statutory presumption that Woodley's vehicle was being driven with the owner's consent at the time of the accident. The driver of the Woodley vehicle at the time of the accident was not known. Woodley testified only that the vehicle was "missing" at the time of the accident. Woodley also testified that only he and his wife had keys to the vehicle and the keys were found in the vehicle after the accident:
Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's permission ... . "The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use" ... .
Although evidence that a vehicle was stolen at the time of the accident may overcome the presumption of permissive use ..., under the particular circumstances present here, the vehicle owner's testimony that the vehicle was missing at the time of the accident, without more, was insufficient to overcome the presumption. Matter of State Farm Ins Co v Kathleen Walker-Pinckney, 2014 NY Slip Op 04018, 2nd Dept 6-4-14
JUDGES/ATTORNEYS
District Attorney's Former Status as a Judge Hearing Cases Involving the Department of Social Services Did Not Preclude the District Attorney from Issuing Subpoenas for Department Records
The Third Department determined the district attorney's former status as a judge in matters involving the county social services department did not require the quashing of subpoenas issued by the district attorney seeking records kept by the social services department, either under the Judiciary Law or on appearance-of-impropriety grounds:
The subpoena seeks records pertaining to business relationships between the Columbia County Department of Social Services (hereinafter DSS) and two contractors. The Commissioner first contends that, as the subpoena identifies the documents sought in part by reference to services provided to certain named children, Judiciary Law § 17 precludes the DA who was formerly a Columbia County Judge from issuing it. This statute prohibits a former judge from "act[ing]; as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her]; in his [or her]; official character" (Judiciary Law § 17). The Commissioner asserts that, because the named children were allegedly the subjects of Family Court proceedings pending before the DA in his former role as a judge, the subpoena violates this provision. In this context, however, there is a relevant distinction between the object of the underlying court proceedings and the individuals involved in such proceedings. Notably, although the subpoena does reference named children, it does not appear to directly relate to any court proceedings involving those children; it appears instead, although little detail is provided, to relate to social services provided to the named children by the contractors. Similarly, although DSS was a party to many court proceedings over which the DA presided during his judicial tenure, disqualification is not mandated in the absence of an evidentiary showing that the subpoena addresses any action or court proceeding that was previously before him in his judicial capacity... . Matter of Columbia County Subpoena Duces Tecum..., 2014 NY Slip Op 04104, 3rd Dept 6-5-14
MENTAL HYGIENE LAW/CRIMINAL LAW
Before a Sex Offender Can Be Allowed to Represent Himself in a Mental Hygiene Law Section 10 Proceeding (to Determine Whether the Offender Should Be Civilly Confined), the Court Must Conduct the Same "Searching Inquiry" Required in Criminal and Certain Family Court Proceedings to Determine Whether the Offender Understands the Risks of Going Forward Without Counsel
In a full-fledged opinion by Justice Leventhal the Second Department determined that the state had proven the offender was a dangerous sex offender requiring civil confinement. In so finding, the Second Department went through in detail the proof required to justify civil commitment of a sex offender. That aspect of the opinion is not addressed here. The offender represented himself in the civil commitment proceeding. The Second Department determined that, just as in a criminal trial, before allowing an offender to proceed pro se, the court is required to engage in a "searching inquiry" to make sure the offender understands the consequences of representing himself. Because no searching inquiry was done here, the Second Department determined the offender's waiver of his right to counsel was ineffective:
...[A] respondent in a SOMTA (Sex Offender Management and Training Act [Mental Hygiene Law Section 10]) proceeding arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant. When successfully litigated by the State, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite (see Mental Hygiene Law § 10.09), and can last the remainder of a respondent's life. Therefore, we hold that a respondent in a SOMTA proceeding can effectively waive his or her statutory right to counsel only after the court conducts a searching inquiry to ensure that the waiver is unequivocal, voluntary, and intelligent. Applying these principles here, we find that the Supreme Court failed to secure an effective waiver of the appellant's right to counsel.* * *
...[T]he appellant could not make an intelligent and voluntary choice to waive the assistance of counsel without being apprised, in any manner, of the dangers and disadvantages of self-representation ... . Indeed, the fact that the appellant was alleged to be suffering from a mental abnormality requiring confinement to a mental institution made it all the more imperative that the Supreme Court adequately warn him of the risks inherent in proceeding pro se, and impress upon him the disadvantages of going to trial without the assistance of counsel. Notwithstanding the concerns voiced by the Assistant Attorney General, the Supreme Court erroneously insisted that it had fulfilled its obligations by merely placing on the record that the appellant did not want an attorney, that he understood he would represent himself, and that he could read and write. Matter of State of New York v Raul L, 2014 NY Slip Op 04019, 2nd Dept 6-4-14
MENTAL HYGIENE LAW/CRIMINAL LAW/EVIDENCE
New Trial Required Because State's Experts Testified Based On Hearsay Not Demonstrated to Have Been Reliable
The Second Department determined a new civil commitment trial was required because the experts based their testimony in part upon hearsay which had not been demonstrated to be reliable:
As recently held by the Court of Appeals in Matter of State of New York v Floyd Y. (22 NY3d 95, 109), "[d];ue process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding. In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria. First, the proponent must demonstrate through evidence that the hearsay is reliable. Second, the court must determine that the probative value in helping the jury evaluate the [expert's]; opinion substantially outweighs [its]; prejudicial effect' (cf. Fed Rules Evid rule 703). These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it."... .
Here, both of the State's experts testified to the appellant's convictions, as well as unproven acts, which formed the basis of their opinion that the appellant suffered from a mental abnormality. The experts provided considerable hearsay testimony concerning these unproven acts, relying, inter alia, upon hearsay evidence within probation reports and other documents, and not personal knowledge. The State failed to demonstrate through other evidence that the aforementioned hearsay testimony was reliable ... . As the State failed to establish that the hearsay was reliable, the Court need not determine whether the probative value of such hearsay outweighed its prejudicial effect... . Matter of State of New York v Walter R, 2014 NY Slip Op 04020, 2nd Dept 6=4=14
MUNICIPAL LAW/CIVIL PROCEDURE
Delay In Bringing Action Seeking to Stop a Development Project Which Had Been Proceeding for Years Precluded the Grant of a Preliminary Injunction, Despite the Apparent Legitimate Nature of the Allegations
The Third Department determined a preliminary injunction halting a development project which had been proceeding for years should not have been granted. The development project started with the annexation of land by the village, for which no referendum had been held. The action brought by the plaintiffs alleged the failure to hold the referendum violated local law and further alleged a conflict of interest arising from the mayor's acquisition of project property In spite of the apparently legitimate grounds for the action, the Third Department determined the plaintiffs were unlikely to succeed because the action was brought so late and the project, consequently, had progressed so far:
We are unpersuaded by plaintiffs' assertion that, in essence, the failure to conduct a referendum leaves the annexation subject to being set aside at any time in the future without regard to any time limitation. Cases involving an alleged failure to adhere to a voting requirement during an annexation have generally been found to be subject to a pertinent limitations' period ... . A statute of limitations may apply even when conduct inconsistent with a statute or the state constitution is alleged ... . Simply stated, "a [s];tatute of [l];imitations does not have the effect of curing the underlying wrong, but rather extinguishes the right to judicial relief" ... . We need not decide the particular limitations' period for challenging an annexation made without a referendum whether four months (see CPLR 217), six years (see CPLR 213) or some time in between (see e.g. CPLR 9802). Plaintiffs failed to establish a likelihood that a challenge to the annexation based upon the failure to conduct a referendum would be viable where, as here, over seven years have passed since the annexation. ...
Next, we consider the 2010 development agreement, which plaintiffs contend is void because [the mayor] had a conflict of interest arising from the 2009 acquisition of some project property by himself and his parents (see General Municipal Law § 804). The Second Department, in a case affirmed by the Court of Appeals, has held that the three-year statute of limitations of CPLR 214 (2) applies to such a claim ... . The [Mayor's] deeds had been a matter of public record since 2009, before the 2010 development agreement was executed. Any conflict was known or should have been known as of the execution in 2010 of the development agreement, which was also a public document. This action was not brought until 2014.
Long delays can be relevant to the issue of whether equitable injunctive relief should be granted ... . Although plaintiffs allege some unsavory (or worse) conduct by certain people involved directly or indirectly in the project, it is not clear from this record whether they can successfully show that the project defendants engaged in such conduct so as to prevent them from relying on equitable defenses such as laches ... . Rural Community Coalition Inc v Village of Bloomingbury, 2014 NY Slip Op 04110, 3rd Dept 6-5-14
NEGLIGENCE
Doctrine of Primary Assumption of Risk Applies to Informal Game of Catch on a Paved Handball Court
The First Department determined the doctrine of primary assumption of risk applied where plaintiff tripped on the raised, cracked, uneven edge of a sidewalk adjacent to the paved handball court where he was playing catch with a friend:
The doctrine of primary assumption of risk provides that 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, including risks involving less than optimal conditions .. . "If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be" ... .
The assessment of awareness must take place against a particular plaintiff's skill and experience ... . Here, the 26-year-old plaintiff was familiar with the risks inherent in the sport of football, such as the risk of falling while running to catch a ball. He had been to Jerome Playground South to play football or baseball at least 15 times previously and was generally aware of defects in the park. Although plaintiff alleges that he did not see the particular defect that caused him to trip before he fell, cracks in the concrete were visible to a person walking by and nothing covered or concealed the open and obvious condition. Given these circumstances, the primary assumption of risk doctrine is applicable "because plaintiff was involved in an athletic activity at a designated venue and was aware of the perfectly obvious risk of playing on the cracked court"... . Latimer v City of New York, 2014 NY Slip Op 03954 1st Dept 6-3-14
NEGLIGENCE
Plaintiff Assumed the Risk of Stepping on Running Treadmill
The Second Department determined plaintiff had assumed the risk of injury from stepping on a treadmill the prior user had left running:
The doctrine of primary assumption of risk provides that 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 encompasses risks associated with the construction of the playing field, the activity engaged in, and the surface and any open and obvious conditions on it ... . The doctrine has been applied in cases involving injuries sustained in gyms and fitness centers ... . Awareness of the risk of engaging in a particular activity is "to be assessed against the background of the skill and experience of the particular plaintiff" ... . The doctrine, however, does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased ... . * * *
As the risks of using a treadmill were obvious and apparent to the plaintiff, she consented to them, and the defendant discharged its duty of care by making the conditions as safe as they appeared to be ... . DiBenedetto Town Sports Intl LLC, 2014 NY Slip Op 03974, 2nd Dept 6-4-14
NEGLIGENCE/VEHICLE AND TRAFFIC LAW
Plaintiff Who Had Right of Way Should Have Been Granted Summary Judgment
The Second Department determined summary judgment should have been granted in an intersection collision case. The plaintiff had the right of way and defendants' vehicle failed to yield. No question of fact was raised about plaintiff's comparative fault:
The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield ... . However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection, including keeping a proper lookout and to see what can be seen through the proper use of his or her senses ... . "Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" ... . Bennett v Granata, 2014 NY Slip Op 03968, 2nd Dept 6-4-14
NEGLIGENCE
Knowledge that Water Will Be Tracked In Is Not Constructive Knowledge of a Dangerous Condition---Property Owner Is Not Required to Cover All of the Floor with Mats or Continuously Mop Up Tracked-In Rain
In reversing Supreme Court and granting summary judgment to the defendant, the Second Department noted that knowledge that water might be tracked in when it rains was not sufficient to demonstrate constructive knowledge of a dangerous condition:
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the allegedly dangerous condition of accumulated water on the floor upon which the plaintiff slipped and fell, or have actual or constructive notice of the condition ... . In opposition, the plaintiff failed to raise a triable issue of fact. The defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from tracked-in rain ... . Moreover, "[a]; general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition" ... . Sarandrea v St Charles School, 2014 NY Slip Op 03999, 2nd Dept 6-4-14
NEGLIGENCE/EDUCATION-SCHOOL LAW
School Not Liable for Three-Year-Old's Failure to Get Off the Bus After Arrival at the School---Child Had Not Yet Entered the Orbit of the School's Authority---Although School Voluntarily Undertook the Duty to Determine the Whereabouts of Absent Students, the Parents Were Not Aware of that Policy and Therefore Could Not Have Relied On It
The Second Department reversed Supreme Court and dismissed the complaint against a private school. The infant plaintiff, a three-year-old with special needs, was left on the bus which transported him to school for six hours. The Second Department determined the child had not yet entered the "orbit of" the school's authority. In addition, although the school voluntarily undertook to determine the whereabouts of absent children, there was no showing the child's parents were aware of the policy:
A school's duty to its students is dependent on its physical custody of those students (see Stephenson v City of New York, 19 NY3d 1031, 1033). Custody ceases when the student has passed out of the "orbit of" the school's "authority" ... . Here, it is undisputed that Nicholas never passed into the physical custody of the school, as he never left the bus. * * *
Voluntary conduct may give rise to liability, even if there would otherwise be no duty to act, if "the defendant's affirmative action adversely affected the plaintiff and the defendant failed to act reasonably"... . In order for a party to be negligent in the performance of an assumed duty, however, the plaintiff must have known of and detrimentally relied upon the defendant's performance, or the defendant's actions must have increased the risk of harm to the plaintiff ... . Arroyo v We Transp Inc, 2014 NY Slip Op 03965, 2nd Dept 6-4-14
NEGLIGENCE/MEDICAL MALPRACTICE
Circumstances When Hospital May Be Liable for Actions of Non-Employee Doctor Explained
The Second Department determined the defendant hospital was not liable for the alleged negligence of a doctor (Berlingieri) who was not a hospital employee. In the course of the decision, the court explained when a hospital may be liable for the actions of a non-employee doctor:
"In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee" ... . An exception to this general rule exists where a plaintiff seeks to hold a hospital vicariously liable for the alleged malpractice of an attending physician who is not its employee where "a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing" ... . Thus, in order to establish its entitlement to judgment as a matter of law defeating a claim of vicarious liability, a hospital must demonstrate that the physician alleged to have committed the malpractice "was an independent contractor and not a hospital employee" ..., and that "the exception to the general rule did not apply" ... . In this case, the hospital met that burden by demonstrating that Berlingieri was not a hospital employee, and that [plaintiff] sought treatment from a particular physician, Joanow, went to the hospital at Joanow's direction, and was in fact treated by Joanow and a medical team that he assembled shortly after her admission ... .
A plaintiff may rebut a hospital's prima facie showing by raising a triable issue of fact as to whether the hospital can be held vicariously liable for the malpractice of an attending physician who is not under its employ pursuant to a theory of "apparent or ostensible agency" ... . To support a viable claim based upon ostensible agency, a plaintiff must set forth facts sufficient to support the conclusion that the hospital engaged in some misleading conduct upon which the plaintiff reasonably relied when the plaintiff decided to accept medical services from the hospital ... . There is no evidence that [plaintiff] was misled by the hospital into believing that Berlingieri was a member of its staff, and the record does not reflect any other allegation by [plaintiff] that she believed there to be an employment relationship between Berlingieri and the hospital, and that she thereupon accepted his services in reliance upon such a relationship ... . Muslim v Horizon Med Group PC, 2014 NY Slip Op 03991, 2nd Dept 6-4-14
NEGLIGENCE/MEDICAL MALPRACTICE/EVIDENCE
Doctor Did Not Have a Duty to Disclose an Email from a Non-Physician Representative of the Implant Manufacturer Which Indicated Plaintiff Might Not Be a Good Candidate for the Implants
The First Department, over a dissent, determined summary judgment had been properly granted to the defendants in a medical malpractice action. The court found that the doctor was not required to provide the plaintiff with an email from a non-physician representative of the implant manufacturer stating that plaintiff might not be an ideal candidate for the implant because the implants require "good tissue support:"
Plaintiff ... failed to rebut defendants' showing that she was properly informed of the surgical procedure and the alternatives, as well as the reasonably foreseeable risks and benefits, by tendering expert testimony proving the insufficiency of the information ... disclosed to her ... .
There is no basis in the law for the dissent's conclusion that [the doctor] had a duty to disclose to plaintiff the email from the manufacturer's representative in response to her general query. The dissent mistakenly equates that representative's conclusory email with a product's written manufacturer warning or a consulting doctor's opinion. Ramos v Weber, 2014 NY Slip Op 03943, 1st Dept 5-3-14
NEGLIGENCE/MEDICAL MALPRACTICE/EVIDENCE
Res Ipsa Locquitur Doctrine Not Available Where Multiple Defendants Did Not Have Concurrent Control Over the Alleged Malpractice, i.e., Leaving Surgical Packing in the Wound
The Second Department determined the hospital defendants and the defendant rehabilitation facility (Parker) were entitled to summary judgment in a case where surgical packing was left in the wound. The surgeon was not an employee of the hospital and there were no allegations hospital staff negligently followed the surgeons instructions. The court explained why the doctrine of res ipsa loquitur did not apply to the hospital defendants and the defendant rehabilitation facility:
The plaintiff relies on the doctrine of res ipsa loquitur to relieve him of the burden of proving which defendant had been negligent and when. Although res ipsa loquitur may be utilized where more than one defendant may have been in control ..., the responsible defendants must share exclusive control of the instrumentality causing injury. Here, neither the hospital defendants nor Parker were acting jointly or concurrently with each other. They did not have concurrent control of the surgical packing that allegedly caused the injury. The treatment here was performed by different entities at different times in different locations. This is not a situation where several physicians participated in a single surgical procedure and, as a result, have the burden to "explain their actions and conduct in the operating room wherein plaintiff was injured" ... . Accordingly, under these circumstances, the plaintiff's reliance upon the doctrine of res ipsa loquitur in opposition to the motion is misplaced, inasmuch as he failed to raise a triable issue of fact as to the applicability of the requisite elements of the doctrine ... . Buesko v Gordon, 2014 NY Slip Op 03969, 2nd Dept 6-4-14
TRUSTS AND ESTATES/CIVIL PROCEDURE
As a Contingent Remainder of the Subject Trust, the "Charitable Trust" Had the Right to Intervene in a Proceeding to Remove and Replace the Trustee of the Subject Trust
The Second Department determined that the contingent remainder, Charitable Trust, of the subject trust had standing to intervene in a proceeding which removed the father and appointed the mother trustee of the subject trust:
...[T]he Charitable Trust, as a contingent remainder of the subject trust, has standing to intervene in this proceeding ..., and a real and substantial interest in the outcome of the proceeding .... Thus, the Supreme Court should have granted it leave to intervene as a party respondent (see CPLR 1012[a];[2], [3]...). Upon granting the Charitable Trust leave to intervene as a party respondent, the Supreme Court should have granted that branch of the motion which was to vacate the order ...removing the father as the trustee of the subject trust and appointing the mother as successor trustee of the subject trust, and thereupon directed that the petition be amended by adding the Charitable Trust as a party respondent and that the Charitable Trust be permitted to serve a verified answer and counterclaims if it be so advised. Matter of Ramm v Allen, 2014 NY Slip Op 04015, 2nd Dept 6-4-14
UNEMPLOYMENT INSURANCE
Claimant-Interpreter Properly Found to Be an Employee, Not an Independent Contractor
The Third Department determined claimant interpreter was properly determined to be an employee of LIS (not an independent contractor) and was therefore entitled to unemployment insurance benefits:
Here, the evidence established that claimant responded to an advertisement for interpreters posted online by LIS, was screened and approved by LIS, and executed a contract specifying the hourly rate of compensation and setting forth numerous rules of conduct [FN1]. Clients contact LIS to request interpreter services; LIS then selects one of its interpreters, contacts the interpreter and provides him or her with the details of the assignment. Once committed to an assignment, interpreters may not send a substitute without that substitute having been prescreened by LIS. LIS supplies its interpreters with time sheet forms that must be submitted within 24 hours of an assignment and pays the interpreters directly based upon an hourly rate of pay set forth in the interpreters' contracts with LIS. LIS also reimburses interpreters for transportation costs associated with assignments. Notwithstanding record proof that could support a contrary result, the foregoing proof constitutes substantial evidence supporting the determination that claimant and others similarly situated are employees of LIS and not independent contractors... . Matter of Ruano ..., 2014 NY Slip Op 04108, 3rd Dept 6-5-14
WORKERS' COMPENSATION
Lump Sum Settlement with Third Party Barred Transfer of Employer's Liability for Future Medical Payments to the Special Fund
The Third Department, in a full-fledged opinion by Justice Stein, determined that a lump sum payment from a third party, to which the employer agreed in return for the worker's forebearance re: future indemnity payments by the employer, barred the transfer of the employer's liability for future medical payments to the Special Fund:
Pursuant to Workers' Compensation Law § 25-a, liability for a claim will be transferred to the Special Fund when an application is made to reopen a closed case after a lapse of seven years from the date of the injury and three years from the date of the last payment of compensation ... . The issue here distills to when the last payment of compensation was made in light of the settlement agreement between claimant and the employer. ...
Pursuant to Workers' Compensation Law § 25-a (7), where a case is "disposed of by the payment of a lump sum," the date of the last payment of compensation is established by calculating the date to which the amount paid in the settlement would have extended had the award of indemnity benefits been made at the maximum compensation rate warranted on the date the lump-sum payment was approved ... . Here, the employer entered into an agreement with claimant on December 30, 2008 that permitted claimant to retain the proceeds of the third-party action in exchange for, among other things, his forebearance of future indemnity benefits. In our view, these proceeds constituted a lump-sum payment for purposes of the statute. Contrary to the employer's contention that the statute only applies where the employer itself makes a lump-sum payment to the claimant, we note that the plain language of the statute indicates that it applies "where the case is disposed of by the payment of a lump sum," without reference to the source of such payment (Workers' Compensation Law § 25-a [7]). Thus, because the settlement agreement effectively "disposed" of the employer's obligation to pay future indemnity benefits in exchange for claimant's retention of a lump-sum payment from the third-party action, application of the statute is appropriate to bar transfer of liability for future medical benefits to the Special Fund. Matter of Nicpon v Zelasko Constr Inc, 2014 NY Slip Op 04102, 3rd Dept 6-5-14
WORKERS' COMPENSATION
No Need to Be Affiliated with an Authorized Rescue Entity or Volunteer Agency to Qualify for Benefits from World Trade Center Volunteer Fund
The Third Department, in a full-fledged opinion by Justice Egan, determined that the claimant, who was not affiliated with any authorized rescue entity or volunteer agency, but who participated in rescue efforts at or near the World Trade Center on September 11 and 12, 2001, was entitled to Workers' Compensation benefits:
Workers' Compensation Law article 8-A, which is to be afforded a liberal construction, "was enacted 'to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the World Trade Center September 11, 2001 attack'" ..., quoting Senate Mem in Support, 2006 McKinney's Session Laws of NY, at 1915). A "volunteer" may qualify for coverage under the statute provided he or she tenders to the Board satisfactory evidence that he or she participated in the rescue, recovery, or cleanup operations at the World Trade Center site (see Workers' Compensation Law § 161 [1]; [b]; [i]) a geographical location defined by Workers' Compensation Law § 161 (2) between September 11, 2001 and September 12, 2002 and suffers from a "[q];ualifying condition," including rhinitis and sinusitis (see Workers' Compensation Law § 161 [3]; [a]), gastroesophageal reflux disease (see Workers' Compensation Law § 161 [3]; [c]) and anxiety or depression (see Workers' Compensation Law § 161 [3]; [d]). Here, the Board did not directly address the time, location and activity elements of the statute; rather, the Board denied claimant's application for workers' compensation benefits solely because claimant "did not serve under the direction of an authorized rescue entity or volunteer agency" and, hence, "[did]; not meet the definition of [a]; volunteer" within the meaning of Workers' Compensation Law article 8-A.
* * * Noticeably absent from both Workers' Compensation Law article 8-A and the commonly understood meaning of the word volunteer is any requirement that such individual "serve under the direction of an authorized rescue entity or volunteer agency." Accordingly, the Board's imposition of such a requirement is, to our analysis, contrary to the plain terms of the statute. Matter of Hazan v WTC Volunteer Fund, 2014 NY Slip Op 04103, 3rd Dept 6-5-14