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June Page I

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


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Failure to Suppress Statement Was Not Harmless Error Because the Statement Undermined the Justification Defense---Proof Burdens for "Harmless Error" and the Justification Defense Explained


The Court of Appeals determined the Appellate Division properly found that the "unwarned" statement made by 11-year-old Delroy should have been suppressed. The statement was made in Delroy's apartment when a police officer asked him "what happened?". Under the circumstances, "a reasonable 11 year old would not have felt free to leave" at the time the question was asked.  Therefore the question amounted to "custodial interrogation" in the absence of the Miranda warnings. The Court of Appeals, disagreeing with the Appellate Division, ruled the error was not harmless because the statement undermined Delroy's defense of justification. There was no question Delroy stabbed the 12-year-old complainant.  But questions were raised by the trial testimony whether the stabbing was in self-defense. With respect to proof burdens for "harmless error" and the justification defense, the Court of Appeals explained:


A trial court's error involving a constitutionally protected right is harmless beyond a reasonable doubt only if "there is no reasonable possibility that the error might have contributed to defendant's conviction" ... . "The People must show that any error was harmless beyond a reasonable doubt [and] [i]n deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence" ... .


The record shows that while there was no doubt that Delroy had stabbed the complainant, there was evidence supporting Delroy's justification defense. "The defense of justification . . . permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person" ... . The People bear the burden of disproving the defense of justification beyond a reasonable doubt ... . * * *


...[T]he People have not demonstrated that there is no reasonable possibility that the wrongly admitted evidence might have contributed to the guilty finding. Matter of Delroy S., 2015 NY Slip Op 04676, CtApp 6-4-15






Where Proof of the Fair Market Value of Foreclosed Property (Offered in Support of a Motion for a Deficiency Judgment) Is Insufficient, Rather than Deny the Motion Outright, the Court Should Direct the Bank to Submit Additional Proof


The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined Supreme Court properly failed to award a post-foreclosure-sale deficiency judgment to the bank because the bank's proof of the fair market value of the foreclosed property, although uncontested, was insufficient.  However, Supreme Court should have allowed the bank to present additional proof establishing the fair market value:


RPAPL 1371 (2) directs that, when a lender makes a motion for a deficiency judgment,


"the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment" ... .


This provision is a directive that a court must determine the mortgaged property's "fair and reasonable market value" when a motion for a deficiency judgment is made. As such, when the court deems the lender's proof insufficient in the first instance, it must give the lender an additional opportunity to submit sufficient proof, so as to enable the court to make a proper fair market value determination. * * *



It is, of course, within the court's discretion to elucidate the type of proof it requires so it can render a proper determination as to fair market value. The court may also order a hearing if it deems one necessary. In proceedings that are governed by section 1371, the court is in the best position to determine the type of proof that will allow it to comply with the directives of that section. Lenders seeking deficiency judgments, however, must always strive to provide the court with all the necessary information in their first application.  Flushing Sav. Bank, FSB v Bitar, 2015 NY Slip Op 04678, CtApp 6-4-15






Questions Concerning the Presumption that a Will Not Found After a Thorough Search Had Been Revoked (by Destruction) Should Have Been Resolved Before the Will Was Admitted to Probate---Matter Remitted to Surrogate's Court


The Court of Appeals, in a full-fledged opinion by Judge Lippman, with a cautionary concurrence (describing the majority's factual discussion as dicta, not binding on remittal), determined that there was an open question whether a 1996 will had been revoked. No will was found upon decedent's death in 2010 and letters of administration were issued to decedent's parents. Petitioner sought to revoke the letters and admit to probate a 1996 will which was drawn up when decedent was married to petitioner's son. Petitioner had been named executor in the 1996 will. The 1996 will left all of decedent's property to her then husband (petitioner's son). Decedent and petitioner's son divorced in 2007. Based upon the testimony of decedent's ex-husband (petitioner's son), the majority concluded it was possible there were four "duplicate original" 1996 wills, one of which had been in the possession of the decedent at her Clayton, New York, residence. Because that will was not found after a thorough search, a presumption arose that the 1996 will had been destroyed by the decedent and thereby revoked. The open questions concerning whether decedent was in possession of a "duplicate original" 1996 will (as opposed to merely a copy), and whether that will was revoked by destruction, should have been resolved before admitting the 1996 will to probate.  The matter was remitted to Surrogate's Court to settle the open questions:


A will may, of course, be revoked not only by means of a writing executed in the manner of a will, but by the testator's act of destroying it with revocatory intent (EPTL 3-4.1 [a] [2] [A] [i]), which act achieves the revocatory purpose even if there remain will duplicates outstanding (Crossman v Crossman, 95 NY 145, 152 [1884]). That a testator has in fact revoked a will by destruction is strongly presumed where the will, although once possessed by the testator, cannot be found posthumously despite a thorough search ... . The presumption, once raised, "stands in the place of positive proof" ... and must be rebutted by the will's proponent as a condition of probate 


Here, the facts of record, adduced in critical part through the testimony of petitioner's son, supported inferences that decedent executed her 1996 will in quadruplicate, with each document having been meant to possess the force of an original instrument; that one of the will duplicates was kept at the Clayton, New York home where decedent resided after her divorce; and that, after a thorough search, no will was found there. Plainly, these circumstances sufficed to raise the presumption that decedent revoked her 1996 will by destroying it. It is equally plain that that presumption was not rebutted. None of the other duplicate wills was produced or otherwise accounted for. And, although petitioner now urges that the unproduced duplicates were merely copies, the uncertain status of the will duplicates, although commented upon by the Surrogate, was never resolved. We are left then with a will admitted to probate upon a record sufficient only to disprove it.


It is precisely to avoid such an incongruous outcome that the governing rule of proceeding has long been that "[a]s soon as it is brought to the attention of the surrogate that there are duplicates of a will presented to him for probate, it is proper that he should require [the] duplicates to be presented, not for the purpose of admitting both as separate instruments to probate, but that he may be assured whether the will has been revoked, and whether each completely contains the will of the testator" (Crossman, 95 NY at 152...). Here, it is manifest that the Surrogate's attention was drawn to the existence of will duplicates, but the consequently arising issues as to the will's validity were not resolved as they should have been in accordance with Crossman's instruction. Petitioner was required not merely to exclude the possibility, but to rebut the legal presumption of revocation, sufficiently raised by the ex-husband's testimony as to the existence of will duplicates, one of which had been kept, but was not found after decedent's passing, at her post-divorce residence.  Matter of Lewis, 2015 NY Slip Op 04674, CtApp 6-4-15








Agency's Failure to Follows Its Own Regulations Rendered Determination Arbitrary and Capricious


The Third Department determined that the NYS Education Department did not follow its own regulations in calculating the amounts due petitioner for special education services for preschool children with disabilities.  Failure to follow the regulations rendered the calculation "arbitrary and capricious:" 


Petitioner contends that respondent failed to follow its own regulations and otherwise acted arbitrarily primarily by relying upon unaudited information from the municipalities, disregarding petitioner's audited CFR [Consolidated Fiscal Report] and financial data, and refusing to consider petitioner's explanation for the discrepancies between its audited information and the municipalities' data. Our review of an administrative agency's determination is limited to "ascertain[ing] whether there is a rational basis for the action in question or whether it is arbitrary and capricious" ..., and we have previously recognized that respondent has "broad discretion in setting the reconciliation rate" ... . However, an agency determination arrived at in a manner inconsistent with its own regulations is not supported by a rational basis ... . Although "an agency's interpretation of its own regulation is entitled to deference" ... , "courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language" ... . * * *


The intent of the regulations, consistent with common sense and good government, is to gather and use correct data; hence, the repeated directives that service providers submit information — CFRs and financial statements — that has been independently audited and certified by an appropriate professional (see 8 NYCRR 200.9 [e] [1] [i] [a] [1]; [ii] [a]). The regulations provide no authority for relying solely on unaudited information from municipalities. This does not lead to the conclusion that such information from a municipality has no role. It can be considered to require clarification or explanation from a service provider and, if adequately verified, even incorporated in the calculus. However, at a minimum, a service provider that has adhered to the regulations and provided a CFR and financial statement, both audited, should be afforded a reasonable opportunity to explain and/or reconcile its information with the unaudited information of a municipality. Consistent with its own regulations, respondent cannot simply reject audited information by reason of the existence of less reliable information without some articulable rational basis. Matter of Mid Is. Therapy Assoc., LLC v New York State Educ. Dept., 2015 NY Slip Op 04707, 3rd Dept 6-4-15






Statutory Prohibition of Court Review of Civil Service Commission's Determination (Where the Employee Elects to Appeal to the Commission Before Seeking Judicial Review) Does Not Apply When Constitutional Rights Are Implicated or Where the Agency Has Acted Illegally or In Excess of Its Jurisdiction


The Third Department determined, despite a statutory provision prohibiting judicial review when the employee elects to appeal to the Civil Service Commission before seeking judicial review, the courts have the power to review the agency's determination when the agency has acted in excess of its jurisdiction. Here the petitioner asserted her employment was terminated based on charges brought after the statute of limitations on those charges had passed. The Third Department agreed.  Although there is an exception to the application of the one-year statute of limitations when the charges constitute crimes, here the allegations of misconduct did not include the requisite mens rea for the crime of official misconduct (intent to gain a benefit and knowledge the conduct was unauthorized).  Therefore the one-year statute of limitations applied. With respect to the power to review the agency's determination, the Third Department wrote:


Civil Service Law § 76 (3) provides that where, as here, an employee has elected to appeal to respondent before seeking judicial review, "[t]he decision of [respondent] shall be final and conclusive, and not subject to further review in any court" (see also Civil Service Law § 76 [1]). Such explicit statutory language ordinarily bars further appellate review ... . However, statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance ... . Thus, even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or "when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction"... . Matter of De Guzman v State of New York Civ. Serv. Commn., 2015 NY Slip Op 04712, 3rd Dept 6-4-15






New York City Taxi and Limousine Commission (TLC) Did Not Have the Authority to Promulgate "Health Care Rules" and Mandate Deductions from Taxi Fares to Pay for Healthcare Services and Disability Coverage for "Medallion" Taxi Cab Drivers


The First Department determined the New York City Taxi and Limousine Commission (TLC) exceeded its authority and acted arbitrarily and capriciously when it promulgated "Health Care Rules" and determined six cents per taxi-fare could be deducted for the purpose of providing healthcare services and disability coverage for "medallion" taxi cab drivers.


TLC's "expansive mandate to develop and improve taxi and limousine service" notwithstanding ..., we find that TLC exceeded its authority in promulgating the Health Care Rules ... .


First, the record demonstrates that, in its attempt to establish a cost-effective structure for promoting driver health, TLC, motivated by broad "economic and social concerns," was making policy, and therefore was "operating outside of its proper sphere of authority" ... . Second, TLC manufactured a "comprehensive set of rules without benefit of legislative guidance" ... . TLC has certain delineated powers to ensure that drivers are capable of driving safely (see New York City Charter § 2300; Administrative Code of City of NY §§ 19-505[b][3], [d], [h], [l]; 19-512.1[a]). However, nothing in the Charter or the enabling Code provisions contemplates the establishment and outsourcing of a miniature health insurance navigation and disability insurance department. Third, no expertise in the field of health care services or disability insurance was involved in the development of the rule (indeed, this is not TLC's area of expertise), a fact highlighted by the lack of technical discussion at the hearings on the proposed rule amendments ... . Matter of Ahmed v City of New York, 2015 NY Slip Op 04733, 1st Dept, 6-4-15







Length of Probationary Term for New County Employees Is Arbitrable Under the Two-Prong Test


Reversing Supreme Court, the Third Department determined the grievance concerning the length of the probationary period for new employees was arbitrable. The union contended the county had imposed a longer period of probation on a new employee than the 26 weeks allowed by the collective bargaining agreement (CBA). The county civil service commission, prior to the execution of the CBA, had adopted a resolution describing the period of probation for new employees as ranging from 8 to 52 to weeks. The Third Department determined there was no statutory, constitutional or public policy prohibition to arbitration of the grievance. And the broad arbitration clause in the CBA covered the grievance at issue:


The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act" ... .


To be sure, "[w]hen a county civil service commission, possessing the requisite authority, promulgates a rule establishing the length of a probationary term of service, that rule has the effect of law"... , and the public employer and the union cannot negotiate a contrary provision in a CBA. Here, however, the CBA executed by the County and the Union long after the Commission modified the probationary term is not inconsistent with the new Commission rule, as the probationary term negotiated by the parties falls squarely within the range promulgated by the Commission. Therefore, we discern no statutory or public policy bar to arbitration of the grievance in the first instance ... . Hence, we are satisfied that the parties may in fact arbitrate the underlying dispute. As to the second inquiry, i.e., whether the parties actually agreed to arbitrate this particular dispute, we note that the parties' CBA contains a broad arbitration clause, which encompasses "any claimed violation, misrepresentation or improper application" of the CBA. In light of such language, we similarly are persuaded that the Union's grievance falls within the scope of disputes that the parties agreed to submit to arbitration ... . Matter of County of Greene (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Greene County Unit 7000, Greene County Local 820), 2015 NY Slip Op 04709, 3rd Dept 6-4-15






New York State Can Issue a License to Practice Law to an Undocumented Immigrant Authorized to Be In the United States by the Deferred Action for Childhood Arrivals Policy of the Federal Government


The Second Department, in an extensive, full-fledged opinion (per curiam), dealing with a question of first impression, determined the State of New York could issue a license to practice law to an undocumented immigrant who was qualified for admission to the bar.  The court explained the issues before it as follows:


We are called upon to determine whether an undocumented immigrant, who is authorized to be present in the United States under the auspices of the Deferred Action for Childhood Arrivals policy of the federal government, and who meets the statutory eligibility requirements and the rules of court governing admission to the practice of law in the State of New York, may satisfy the standard of good character and general fitness necessary for admission. We are further called upon to determine whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.


We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state's allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York. Accordingly, we answer the first question in the affirmative and the second question in the negative. Matter of Application of Cesar Adrian Vargas for Admission to the Bar of the State of New York., 2015 NY Slip Op 04657, 2nd Dept 6-3-15







Plaintiffs Should Have Been Allowed to Amend the Pleadings to Conform to the Proof at Trial---No Prejudice to Defendant


The Second Department determined plaintiffs should have been allowed to amend the pleadings to conform to the proof at trial. The complaint alleged breach of contract and negligence re: the installation of foam insulation. The contract called for the installation to conform to the manufacturer's specifications.  The negligence cause of action alleged the work was not done in a good and workmanlike manner. Because defendant would not have been prejudiced, Supreme Court should have allowed plaintiffs to amend the breach of contract cause of action to allege the work was not done in a good and workmanlike manner.  Plaintiffs' motion pursuant to CPLR 4404(b) for judgment in their favor on the breach of contract cause of action should have been granted. The negligence cause of action, which essentially duplicated the breach of contract cause of action, should have been dismissed. With respect the post-trial motion to amend the pleadings, the Second Department wrote:


... [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. "Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division" ... . Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial ... . Leave shall be freely given upon such terms as may be just (see CPLR 3025[b]). "This favorable treatment applies even if the amendment substantially alters the theory of recovery" ... .


Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice ..., failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner ... . Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 2015 NY Slip Op 04615, 2nd Dept 6-3-15




In the absence of prejudice, amendment of the pleadings to conform to the proof at trial should be freely allowed. 




Defendant's Submissions Did Not Rebut the Presumption of Receipt of the Summons and Complaint Properly Sent by Ordinary Mail


The Second Department determined defendant's claims he was out of the country when the summons and complaint were mailed and never received them were insufficient to overcome the presumption of receipt based upon proper mailing by ordinary mail:


In support of that branch of his cross motion which was pursuant to CPLR 5015(a)(1), the defendant was required to demonstrate a reasonable excuse for his default in answering the complaint ... . In support of his contention that he had a reasonable excuse, the defendant claimed that he was out of the country ..., and when he returned to the United States there were no summons and complaint or notice of this action in the mail. The defendant's submissions, however, failed to rebut the presumption of receipt based on proof of the proper mailing of the summons and complaint by ordinary mail ... . Therefore, the defendant failed to establish a reasonable excuse for his default in answering the complaint ... . 


In support of that branch of his motion which was pursuant to CPLR 317, the defendant was required to demonstrate that he did not personally receive notice of the summons in time to defend and a potentially meritorious defense (see CPLR 317...). The evidence demonstrating that copies of the summons and complaint were mailed to the defendant at the correct residential address created a presumption of proper mailing and of receipt, and the defendant's mere denial of receipt was insufficient to rebut that presumption ... .  Williamson v Marlou Cab Corp., 2015 NY Slip Op 04636, 2nd Dept 6-3-15






Dismissal of a Summary Judgment Motion as "Premature" Requires an Evidentiary Showing that Material Information Is In the Exclusive Possession and Control of the Moving Party


In the course of a decision concerning an easement and land ownership, the Third Department explained the proof requirements for a claim that a summary judgment motion should be dismissed as "premature." The essence of the "premature" argument is that material facts are within the exclusive knowledge and possession of the moving party. The argument, to succeed, must be supported by an evidentiary showing. Here defendant argued that plaintiff failed to respond to certain discovery demands, but did not take the next step and demonstrate how the failure to respond deprived him of material information in plaintiff's exclusive possession:


... [T]here was no basis to deny plaintiff's summary judgment motion as premature. "Although a motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party, the party opposing the motion must make an evidentiary showing to support that conclusion" ... . Defendant pointed out that plaintiff failed to respond to certain discovery demands, but did not take the essential next step and show that her failure to do so deprived him of material information in her exclusive possession ... . Bailey v Dimick, 2015 NY Slip Op 04704, 3rd Dept 6-4-15






Trial Court Has the Discretion to Determine the Best Venue for Consolidated Actions---Here a County Other than the County Where the First Action Was Brought Was Properly Determined to Be the Most Appropriate Venue


In a medical malpractice case, the Second Department determined Supreme Court properly exercised its discretion re: the venue of these consolidated actions.  Although the venue of the initial action (Queens County) should usually serve as the venue of the consolidated actions, here the medical treatment was rendered at a hospital in Nassau County, many individual defendants resided in Nassau County, and the plaintiffs themselves resided in Nassau County at the time each action was commenced---making Nassau County the best venue for the proceedings:


"When a trial court orders consolidation or joint trials under CPLR 602(a), venue should generally be placed in the county where jurisdiction was invoked in the first action" ... . However, where special circumstances are present, the court, in its discretion, may place venue elsewhere ... .


Here, the claims relate to treatment rendered at St. Francis Hospital, located in Nassau County. Many of the individual defendants resided in Nassau County. All of the individual defendants worked in Nassau County at the time of the alleged malpractice and lack of informed consent. The plaintiffs themselves resided in Nassau County at the time each action was commenced. Under these circumstances, the Supreme Court providently exercised its discretion in granting those branches of the cross motions which were to place the venue of the consolidated action in Nassau County and denying that branch of the plaintiffs' motion which was to place venue in Queens County... . Castro v Durban, 2015 NY Slip Op 04600, 2nd Dept 6-3-15







Complaint Sufficiently Alleged a Cause of Action for Unjust Enrichment---an Action Which Only Applies in the Absence of an Express Agreement


The Second Department determined Supreme Court properly granted the motion to dismiss the breach of contract cause of action because, pursuant to the "doctrine of definiteness,"  the terms of the purported contract were too indefinite and uncertain to be enforceable.  However, Supreme Court should not have dismissed the unjust enrichment cause of action. The court noted that unjust enrichment, or quasi contract, only applies in the absence of an express agreement and is really not a contract, but rather an equitable obligation. Here plaintiff alleged that defendant took possession of millions of dollars worth of watches and refused to pay for them. Therefore, the complaint alleged the elements of unjust enrichment---(1) defendant was enriched at (2) plaintiff's expense and (3) it is against equity to allow the defendant to keep what is sought to be recovered:


The doctrine of definiteness, well established in contract law, "means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to" ... . 


"[T]o recover for unjust enrichment, a plaintiff must show that (1) the [defendant] was enriched, (2) at [the plaintiff's] expense, and (3) that it is against equity and good conscience to permit [the defendant] to retain what is sought to be recovered'" ... . Such quasi contract only applies in the absence of an express agreement, and is not really a contract at all, but rather an equitable obligation imposed in order to prevent a party's unjust enrichment ... . Here, the complaint alleges that [defendant] received a benefit when he received luxury watches worth millions of dollars from [plaintiff's] predecessor in interest, "with the understanding and reasonable expectation that [defendant] would pay for those goods," and that [defendant] was "personally enriched by taking the millions of dollars worth of luxury watches, while failing and refusing to pay for said merchandise." Such allegations are sufficient to state a cause of action alleging unjust enrichment ... . UETA Latinamerica, Inc. v Zafir, 2015 NY Slip Op 04633, 2nd Dept 6-3-15





Defendant Would Not Admit to the Commission of Certain Elements of the Offense to Which He Pled Guilty---Vacation of Plea as Involuntary Was Required, Despite Lack of Preservation and a Waiver of Appeal


The Third Department determined defendant's guilty plea must be vacated, despite a failure to preserve the error and a waiver of appeal. During the plea allocution, defendant denied elements of the offense to which he was pleading guilty (strangulation in the second degree). Defendant denied that the victim experienced a loss of consciousness or any injury, and denied he had the intent to impede the breathing of the victim.  The guilty plea, therefore, was not knowing, intelligent and voluntary (constituting an exception to the "preservation of error" requirement):


Although defendant's challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal ..., it is unpreserved for our review in the absence of an appropriate postallocution motion ... . Upon reviewing the record, however, we are persuaded that the narrow exception to the preservation requirement has been triggered here, as defendant made numerous statements during the course of the plea colloquy that negated essential elements of the crime, thereby calling into question the voluntariness of his plea ... . * * *


Simply put, defendant's responses to the questions posed during the plea colloquy negated more than one element of the charged crime, thereby casting doubt upon his guilt. Inasmuch as further inquiry by County Court neither resolved that doubt nor otherwise established that the resulting plea was knowing, intelligent and voluntary ... , it should not have been accepted by the court and must now be vacated ... . People v Mcmillan, 2015 NY Slip Op 04680, 3rd Dept 6-4-15






Cumulative Effect of Several "Suggestive" Factors Rendered the Show-Up Identification Inadmissible


The First Department, in a full-fledged opinion by Justice Gische, over a dissent, determined the show-up identification of the defendants was unduly suggestive and should have been suppressed. While none of the "suggestive" factors alone would have been sufficient to invalidate the identification, the cumulative effect of all the factors rendered the identification inadmissible. The defendants were handcuffed and standing together in a well-lit garage, surrounded by police officers.  The driver of the police car carrying the complainant, who had been assaulted an hour before by "three or four black teens," shown the car's headlights and "takedown" lights on the defendants. The defendants, none of whom were "teens," and one of whom was light-skinned, were covered in soot. The complainant looked at the defendants through the police car's mesh divider and windshield.  In addition to noting there were no "exigent circumstances" mandating the show-up procedure, the court described the factors which cumulatively rendered the show-up inadmissble at trial as follows:


Here, the three suspects were standing side by side after the complainant had described her attack by multiple attackers. Defendants were flanked by as many as eight officers and, apart from the complainant, they were the only civilians present. Defendants were visibly restrained. This was obvious, not only from the fact that their hands were behind their backs, but also from the fact that defendant Santiago, who had visible physical injuries to his face indicative of a recent scuffle, was being physically restrained by one of the officers as the complainant made her identification. Defendants were covered in soot, such that it affected their appearance, particularly as to skin color. Previously, the complainant had described her assailants' "black" skin color as a prominent identifying feature, along with their ages. As the complainant was driven from the precinct to the location of the showup identification, she was told that she would be looking at people, and that she should tell the officers if she had seen them before. When defendants were shown to the complainant, they were illuminated by the patrol car's headlights and takedown flood lights, even though the garage lighting itself was good.


We recognize that some of these factors, either alone or even in combination do not necessarily make a showup identification unduly suggestive. A showup identification may be acceptable, even where a defendant is handcuffed and guarded by police officers when shown to the complainant ... . Nor is the fact that remarks are made to a complainant before being taken to a lineup itself a basis for a prohibited showup identification ... . This is because a person of ordinary intelligence would realize that the police are showing them someone suspected of having committed a crime ... . Even shining lights on a suspect is not by itself unduly suggestive ... . It is the cumulative effect of what otherwise might be individually permissible that makes this particular showup identification unduly suggestive. The showup was clearly beyond the high water mark set forth by the Court of Appeals... . People v Cruz, 2015 NY Slip Op 04597, 1st Dept 6-2-15







Inadequate Waiver of the Right to Appeal Required Vacation of Guilty Plea, Despite Lack of Preservation of the Error


The Third Department determined defendant's waiver of his right to appeal was invalid and his guilty plea must therefore be vacated (in the interest of justice), despite the failure to preserve the error:


Defendant argues that his plea was invalid because County Court failed to advise him of the rights that he would be waiving by pleading guilty, including "the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses" ... . This argument is unpreserved given defendant's failure to advance it in his motion to withdraw his plea ... . While it is somewhat unclear as to the precise characterization of this type of error ... , it is undoubtedly one serious enough to warrant reversal in the interest of justice ... . ... 


... [A] trial court is neither required "to specifically enumerate all the rights to which the defendant was entitled [or] to elicit . . . detailed waivers before accepting [a] guilty plea" ..., nor engage in "a uniform mandatory catechism of pleading defendants" ... . There must, however, "be 'an affirmative showing on the record' that the defendant waived his [or her] constitutional rights" ... . County Court made no effort to explain the rights that defendant was giving up by pleading guilty, making nothing more than a passing reference to them when asking if defendant had "any questions." County Court further failed to establish that "defendant consulted with his attorney about the constitutional consequences of a guilty plea," instead making a vague inquiry into whether defendant had spoken to defense counsel regarding "the plea bargain" and "the case"... . People v Klinger, 2015 NY Slip Op 04682, 3rd Dept 6-4-15






Individuals with Disabilities Education Act (IDEA) Does Not Confer a Private Right of Action Upon Local School Districts to Challenge IDEA-Related Rulings by the State Education Department (SED)


The Third Department, in a full-fledged opinion by Justice Peters, determined the Individuals with Disabilities Education Act (IDEA) did not give local educational agencies (LEA's) (here a local school district) a private right of action to challenge a ruling by the State Education Department (SED) .  Here the SED found that the LEA's dispute resolution practices violated state laws and regulations promulgated in accordance with the IDEA and ordered corrective measures. The LEA then challenged the SED's rulings in an Article 78 action. The Third Department noted that the IDEA does not expressly confer a right of private action on LEA's in this context and therefore whether such a right exists depends upon congressional intent. Because the IDEA confers a private right of action upon a specialized class, i.e., "any party aggrieved" by IDEA-related administrative proceedings which involve due process afforded a particular child, it follows that Congress did not intend to confer such a right upon LEA's:


... Congress created procedural safeguards to ensure that students with disabilities receive a free appropriate public education and, in doing so, expressly granted a private right of action to "any party aggrieved" by an SEA's administrative findings or decision resolving a due process complaint challenging "any matter relating to the identification, evaluation or educational placement of [a particular] child, or the provision of a free appropriate public education to such child" (20 USC § 1415 [b] [6] [A]; [f], [g], [i] [2] [A]; see also Education Law § 4404; 8 NYCRR 200.5 [i], [j], [k], [l])[FN2]. Since the IDEA includes an express right of action in favor of a specific class of persons, it is logical to assume that, had Congress intended to bestow upon LEAs a right of action to challenge an SEA's regulatory and enforcement actions, it would have expressly done so ... .


Further evidence of a lack of Congressional intent can be found in the hierarchal regulatory and enforcement structure created by the IDEA, which requires the federal Secretary of Education to monitor the states' implementation of IDEA mandates and imposes upon the states corresponding regulatory and enforcement responsibilities over LEAs (see 20 USC § 1412 [a] [11]; § 1416 [a] [3]; 34 CFR 300.600, 300.603). The delegation of regulatory and enforcement power to the Secretary of Education and the states, but not to LEAs, suggests that Congress specifically intended to deny LEAs a right of action to challenge an SEA's compliance with the IDEA ... . Moreover, it would be inconsistent for Congress to implicitly create this right of action, as doing so would divest the Secretary of Education and the states of their regulatory and enforcement authority and would transfer that power to the Judiciary ... . Matter of East Ramapo Cent. Sch. Dist. v King, 2015 NY Slip Op 04703, 3rd Dept 6-4-15





Elements of Actions for (1) Discrimination in Employment and (2) Retaliation for Opposition to Discriminatory Practices Succinctly Described


In determining the employer's (State of New York's) motion for summary judgment was properly granted, the Second Department succinctly explained the elements of an action for discrimination in employment and an  action for retaliation for an employee's opposition to discriminatory practices:


A plaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination ... . To meet this burden, the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination ... . The burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" ... . To succeed on the claim, "the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason" ... .


To prevail on a motion for summary judgment in a discriminatory employment action, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual ... . * * *


It is unlawful to retaliate against an employee for opposing discriminatory practices ... . In order to make out a claim for retaliation, a plaintiff must show that (1) he or she has engaged in protected activity; (2) his or her employer was aware of such activity; (3) he or she suffered an adverse employment action based upon the protected activity; and (4) there is a causal connection between the protected activity and the adverse action ... . Cotterell v State of New York, 2015 NY Slip Op 04601, 2nd Dept 6-3-15






Untimely Initial Appearance Does Not Mandate Dismissal as Long as the Right to a Speedy Fact-Finding Hearing Is Not Violated


The Third Department determined the failure to conduct an initial appearance within ten days of the filing of the juvenile delinquency petition (charging the equivalent of assault and criminal possession of a weapon) did not require dismissal of the petition. The court attempted to conduct the initial appearance within ten days but respondent failed to appear and no timeliness objection was raised when the initial appearance was conducted five days later.  The Third Department explained that the ten-day requirement is flexible, but the requirement that a fact-finding hearing be conducted within 60 days of the initial appearance is mandatory:


Respondent first contends that dismissal of the June 2013 petition is required because Family Court failed to conduct a timely initial appearance. Because he was not detained, Family Ct Act § 320.2 (1) required that the initial appearance occur "as soon as practicable and, absent good cause shown, within [10] days after" the filing of the petition. The initial appearance, "like the arraignment of an adult charged with a crime, is the process by which the court obtains jurisdiction over the minor, determines if detention is warranted, and sets the dates for further proceedings" (... see Family Ct Act § 320.4). Dismissal is appropriate where a respondent is deprived of his or her right to a speedy fact-finding hearing, a hearing that must occur "not more than [60] days after the conclusion of the initial appearance" if he or she is not confined (Family Ct Act § 340.1 [2]; see Family Ct Act §§ 310.2, 332.1 [8]). A "similar protected status" is not afforded to the initial appearance itself, although "dismissal without prejudice may be an appropriate remedy" if it is not held in a timely manner ... . To put it succinctly, dismissal is not mandated in the wake of an untimely initial appearance so long as respondent's right to a speedy fact-finding hearing is not violated ... . Matter of Daniel B., 2015 NY Slip Op 04698, 3rd Dept 6-4-15






Request for Mugshots and Identifying Information Re: Arrestees for Posting on Petitioner's Website Denied---Posting of Such Information Would Constitute an Unwarranted Invasion of Privacy


Petitioner sought mugshots and other identifying information re: arrestees from the NYC Department of Corrections (DOC) for posting on his website.  Petitioner charged a fee for removing a photo from the site.  DOC denied the request. Supreme Court denied the Article 78 petition seeking reversal of the DOC's denial.  The Second Department determined DOC did not meet its burden of demonstrating the applicability of any of the statutory exemptions from disclosure in the Public Officers Law (DOC's assertions were "conclusory"), but went on to determine release of the photos and information would constitute an unwarranted invasion of privacy and may endanger the life or safety of the arrestees:


The agency's burden of demonstrating that the material requested falls within a statutory exemption "requires the [agency] to articulate a "particularized and specific justification for denying access"'" ... . " Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed'" ... .


Pursuant to Public Officers Law § 87(2)(b), an agency "may deny access to records" where disclosure "would constitute an unwarranted invasion of personal privacy under the provisions of [Public Officers Law § 89(2)(b)]." "[W]here none of the [exemptions under Public Officers Law § 89(2)(b) are] applicable, a court must decide whether any invasion of privacy . . . is "unwarranted" by balancing the privacy interests at stake against the public interest in disclosure of the information'" ... . 


Here, the DOC proffered only conclusory assertions that denial of the requested records "would result in economic or personal hardship to the subject party," which was insufficient to demonstrate the applicability of Public Officers Law § 89(2)(b)(iv) ... . The DOC also failed to establish that any individuals received an express or implied promise of confidentiality from it, as required to demonstrate the applicability of Public Officers Law § 89(2)(b)(v) ... .


In view of the DOC's failure to demonstrate the applicability of any exemptions under Public Officers Law § 89(2)(b), this Court must determine whether disclosure would constitute an "unwarranted invasion of personal privacy" by " balancing the privacy interests at stake against the public interest in disclosure of the information'" ... . Here, the petitioner has not set forth any direct public interest in disclosure of the records at issue, which were sought for the sole purpose of posting personal information and photographs of individuals currently or formerly in the custody of the DOC on a website that collects payment in exchange for removing the photographs. On the other hand, the record reflects that the privacy interests of numerous individuals are implicated, including those individuals who were ultimately acquitted of any criminal charges and adolescents between the ages of 16 and 18 who are presently or were in the custody of the DOC. Consequently, under the particular circumstances of this case, a balancing of the privacy interests at stake against any public interest in disclosure necessitates a determination that disclosure of the records at issue would constitute an "unwarranted invasion of personal privacy" (Public Officers Law § 87[2][b]...). Matter of Prall v New York City Dept. of Corrections, 2015 NY Slip Op 04653, 2nd Dept 6-3-15




The standard of court review of an agency's denial a FOIL request is whether the agency has demonstrated the request fell within one or more of the statutory exemptions from disclosure.  The agency has the burden of demonstrating the applicability of any relevant statutory exemption and that burden is not met by "conclusory" claims. Ultimately, if no exemption applies, the court has the power to determine whether the FOIL request should be denied as an unwarranted invasion of privacy by balancing the privacy interest against public interest in disclosure. [Whether the agency's denial was "arbitrary and/or capricious" plays no role in a court's FOIL analysis.]




Failure to Allege a "Special Relationship" Between Insurance Broker and Client Required Dismissal of the "Breach of Fiduciary Duty" Cause of Action


In determining defendants' motion to dismiss the "breach of fiduciary duty" cause of action was properly granted, the Second Department explained that an insurance broker can be liable to a client for breach of a fiduciary duty only when a "special relationship" over and above the ordinary broker-client relationship exists.  Here the plaintiffs failed to allege the existence of a "special relationship." The court explained the relevant law:


The common-law rule is that "an insurance broker acting as an agent of its customer has a duty of reasonable care to the customer to obtain [specifically] requested coverage within a reasonable time after the request, or to inform the customer of the agent's inability to do so, [but] the agent owes no continuing duty to advise, guide or direct the customer insured to obtain additional coverage" ... . However "[w]here a special relationship develops between the broker and client, [the] broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage" ... . The Court of Appeals has identified three "exceptional situations" which may give rise to such a special relationship: " (1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on'" ... . Waters Edge @ Jude Thaddeus Landing, Inc. v B & G Group, Inc., 2015 NY Slip Op 04634, 2nd Dept 6-3-15






Public Policy Bars a Cause of Action Against Government Officials (in their Official Capacities) for Intentional Infliction of Emotional Distress


The Second Department noted that an intentional infliction of emotional distress cause of action cannot be brought against a governmental entity.  Since the respondents were sued only in their official capacities, the cause of action was properly dismissed:


"[P]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity" ... . Here, the individual respondents were only sued in their official capacities. Therefore, the petitioner could not and did not state a cause of action against them for intentional infliction of emotional distress. Matter of Gottlieb v City of New York, 2015 NY Slip Op 04645, 2nd Dept 6-3-15






A Three-and-a-Half-Foot Fall from a Railing to a Raised Platform Was Covered by Labor Law 240(1)--Elements of Labor Law 240(1), 200 and 246(1) Causes of Action Explained---Failure to State (in the Pleadings) the Particular Industrial Code Provision Alleged to Have Been Violated Was Not Fatal to the Labor Law 246(1) Cause of Action---Belated Identification of the Code Provision Did Not Prejudice Defendant


The Second Department determined plaintiff's Labor Law 240(1) cause of action should not have been dismissed.  Plaintiff climbed up scaffolding to access a platform and, as he attempted to climb over the three-and-a-half-foot platform railing, plaintiff fell to the platform and was injured.  Plaintiff was not instructed to access the platform any other way, so plaintiff's failure to use a ladder located 25 to 30 feet away could not be considered the sole proximate cause of the accident.  In addition, the Second Department noted that the Labor Law 241(6) cause of action should not have been dismissed.  Plaintiff's failure to state the particular provision of the Industrial Code alleged to have been violated in the complaint or bill of particulars was not fatal to the cause of action.  The belated identification of the relevant code provision involved no new factual allegations and no new theories of liability.  The Second Department also held the Labor Law 200 cause of action should not have been dismissed, explaining the elements.  With respect to the Labor Law 240(1) cause of action, the court wrote:


Labor Law § 240(1) imposes absolute liability on owners, contractors, and their agents when their "failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker" ... . However, liability may "be imposed under the statute only where the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'" ... .


Contrary to the contention of the defendants and Newtron, Labor Law § 240(1) applies to the facts of this case, even though the plaintiff fell only from the railing to the platform ... . The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1) by submitting evidence demonstrating that the defendants failed to provide him with an adequate safety device, and that such failure was a proximate cause of his injuries ... .


In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff's actions in using the scaffolding and climbing over the railing, rather than using a permanent ladder that was approximately 25 to 30 feet from the scaffolding ladder, to access the permanent platform was the sole proximate cause of his injuries. A plaintiff's negligence is the sole proximate cause of his or her injuries "when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he [or she] was expected to use them but for no good reason chose not to do so, causing an accident" ... . Here, there is no evidence that anyone instructed the plaintiff that he was "expected to" use the permanent ladder rather than the scaffolding ... . Doto v Astoria Energy II, LLC, 2015 NY Slip Op 04605, 2nd Dept 6-3-15




Injury Caused by an Unsecured Scaffolding Component Which Fell Approximately Two-Feet, Striking Plaintiff, Was Not the Type of Elevation-Related Risk Which Is Covered by Labor Law 240 (1)


Plaintiff was injured when a component of scaffolding fell about two-feet and struck him.  The Third Department determined the incident was not the result of a circumstance covered by Labor Law 240 (1) (the absence of statutorily-required safety equipment), even though the incident was "gravity-related."  However, the Labor Law 246 (1) cause of action, alleging a violation of a provision of the Industrial Code, and the Labor Law 200 cause of action against the general contractor which supervised and controlled the work, should not have been dismissed. With respect ot the Labor Law 240 (1) cause of action, the court explained:


Labor Law § 240 (1) "imposes absolute liability on building owners and contractors whose failure to 'provide proper protection to workers employed on a construction site' proximately causes injury to a worker" ... . The statute is intended to provide "extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks" ... . Accordingly, "section 240 (1) does not automatically apply simply because an object fell and injured a worker; '[a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute'" ... . Where, as here, an injury is caused by a falling object, liability "depends on whether the injured worker's task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against" ... . An elevation-related risk arises only where there is a "physically significant elevation differential" ... . In order to determine whether a height differential is physically significant, we must consider "the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent" ... . Without a significant elevation differential, Labor Law § 240 (1) does not apply, even if the injury is caused by the application of gravity on an object ... .


Here, "tak[ing] into account the practical differences between the usual and ordinary dangers of a construction site, and . . . the extraordinary elevation risks envisioned by [the statute]," as we must ..., we find that plaintiff's injury, caused by the tipping frame or scaffold component (see 12 NYCRR 23-1.4), did not fall within the scope of Labor Law § 240 (1). Our conclusion remains even if we accept it to be true that the frame was part of a scaffold that was in the process of being assembled or dismantled ... . The record indicates that, at most, the crossbar of the frame, which was upright but not connected to any other component or supporting any planking, was two feet above plaintiff's head. In our view, the facts do not present a physically significant height differential and, while plaintiff was exposed to a general workplace hazard, he was not exposed to an elevation-related risk within the ambit of Labor Law § 240 (1) ... . As such, this cause of action should be dismissed. Christiansen v Bonacio Constr., Inc., 2015 NY Slip Op 04700, 3rd Dept 6-4-15







Note Which Was Extended and Consolidated with Other Debts Was Not Extinguished by the Consolidation, Extension and Modification Agreement (CEMA)---the Agreement, Therefore, Did Not Commence the Running of the Statute of Limitations for an Action on the Note


The Third Department, reversing Supreme Court, determined a Consolidation, Extension and Modification Agreement (CEMA) did not extinguish a note which was extended and consolidated under the agreement. Therefore the statute of limitations for action on the note did not commence running when the agreement was entered:


We agree with plaintiff that the plain language of the CEMA does not support Supreme Court's conclusion that the CEMA extinguished the 1992 note and thereby recommenced the running of the statute of limitations. "It is well established that a subsequent note does not discharge the original indebtedness secured unless there is an express agreement between the parties" ... . Defendant points to no express agreement and cites no authority supporting its claim that the CEMA operated to extinguish the 1992 note. Rather, the record makes clear that defendant still owed approximately $169,000 on the 1992 note at the time that the CEMA was executed. That debt was consolidated with two other debts into a new note and the mortgage liens were "coordinated, consolidated, combined and extended" to form a single lien. "Where, as here, balances of first mortgage loans are increased with second mortgage loans and CEMAs are executed to consolidate the mortgages into single liens, the first notes and mortgages still exist" ... . Bechard v Monty's Bay Recreation, Inc., 2015 NY Slip Op 04711, 3rd Dept 6-4-15






Bank Did Not Demonstrate It Had Possession of the Note Prior to Commencing Foreclosure Action---Bank Did Not Have Standing to Bring the Action


The Second Department determined plaintiff-bank did not demonstrate it had possession of the note at the time the action was commenced, and therefore the bank did not have standing to bring the foreclosure action: 


In a mortgage foreclosure action, where, as here, the plaintiff's standing to commence the action is placed in issue by a defendant, "the plaintiff must prove its standing in order to be entitled to relief" ... . "[A] plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" ... . "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ... .


Here, the plaintiff failed to establish, prima facie, that it had standing to commence this action. The relevant affidavits the plaintiff submitted contained conclusory statements regarding the plaintiff's possession of the note, without any factual details of a physical delivery and, thus, failed to establish that the plaintiff had physical possession of the note prior to commencing the action ... . The copy of the note the plaintiff submitted in support of its motion included an indorsement to the plaintiff but, because the indorsement was undated, it is not clear whether the indorsement was effectuated prior to the commencement of this action ... . Although the written assignment of the mortgage that the plaintiff submitted was dated and recorded prior to the date this action was commenced, that assignment only transferred the mortgage. The plaintiff failed to show that the note also was assigned at that time ... . Flagstar Bank, FSB v Anderson, 2015 NY Slip Op 04606, 2nd Dept 6-3-15


Similar issue and result in Bank of Am., N.A. v Kyle, 2015 NY Slip Op 04705, 3rd Dept 6-4-15






Question of Fact Whether It Was Foreseeable that Overbooking a Theater Could Cause Crowd-Related Injury (Plaintiff Alleged Injury in a "Stampede")


The First Department determined there was a question of fact whether it was foreseeable that overbooking a movie theater would result in crowd-related problems. Here plaintiff alleged she was injured in a "stampede" which occurred when she and the group she was with were told to turn around and go back downstairs:


... [T]he motion court properly concluded that defendants did not establish entitlement to judgment as a matter of law. It is well settled that landowners and permittees owe those "on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition," and "to minimize foreseeable dangers on their property" ... . Under the circumstances presented, involving the deliberate overbooking of a theater for a free film screening, defendants were required to show that they took adequate crowd control measures to address the foreseeable risks to those attending in order to meet their prima facie burden of demonstrating entitlement to summary judgment ... . Here, defendants knew that the screening was deliberately overbooked, and it was, therefore, foreseeable that overcrowding could be a problem ... . Deposition testimony from both plaintiff and Regal's manager demonstrated that the staircase on which plaintiff fell was crowded, and that the crowd had formed a "stampede" after being redirected downstairs to find available seats in the crowded theater. Since defendants failed to present evidence that adequate crowd control measures were in place, the motions for summary judgment were properly denied. Sachar v Columbia Pictures Indus., Inc., 2015 NY Slip Op 04717, 1st Dept 6-4-15






To Succeed In a Legal Malpractice Action Stemming from Representation in a Criminal Matter, the Plaintiff Must Have a Colorable Claim of Actual Innocence---Elements of Legal Malpractice in this Context Explained


The Second Department determined defendant-attorney's motion for summary judgment dismissing the legal malpractice complaint should have been granted.  Plaintiff, when represented by defendant-attorney, was convicted of sex offenses. The conviction was overturned on "ineffective assistance of counsel" grounds.  Plaintiff was acquitted upon retrial. In the legal malpractice action, the plaintiff was unable to prove the element of causation.  Defendant-attorney demonstrated plaintiff's conviction was not due solely to defendant-attorney's conduct, but was based in part on plaintiff's "guilt," in that her children provided graphic testimony alleging sexual abuse. To succeed in a legal malpractice action stemming from a criminal matter, the plaintiff must at least have a colorable claim of actual innocence.  In addition, the nonpecuniary damages sought by the plaintiff (psychological injury due to her incarceration) are not recoverable in a legal malpractice action.  The Second Department explained the elements of legal malpractice in this context (stemming from representation in a criminal case):


To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages ... . Even where a plaintiff establishes that his or her attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession, the plaintiff must still demonstrate causation ... . "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" ... . In the civil context, this Court has held that a plaintiff in a legal malpractice action "need prove only that the defendant-attorney's negligence was a proximate cause of damages" ... . However, in a legal malpractice action such as this one, arising from representation in a criminal matter, the "plaintiff must have at least a colorable claim of actual innocence" ..., and the plaintiff ultimately bears the unique burden to plead and prove that his or her "conviction was due to the attorney's actions alone and not due to some consequence of his [or her] guilt" ... . " To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements'" ... . Dawson v Schoenberg, 2015 NY Slip Op 04603, 2nd Dept 6-3-15






Absence of Privity Between Beneficiary of an Estate and the Attorneys Who Represented the Estate in Medical Malpractice and Wrongful Death Actions Precluded Legal Malpractice Action by Beneficiary


The Third Department determined the plaintiff-beneficiary of an estate represented by defendants-attorneys in medical malpractice and wrongful death actions could not bring a legal malpractice action against the attorneys (based upon the medical malpractice and wrongful death actions) because no attorney-client relationship existed. Absent fraud or collusion, the absence of privity between the beneficiary and the attorneys precluded the legal malpractice action:


There is no question that a legal malpractice claim requires — in the first instance — "the existence of an attorney-client relationship" ... . Plaintiff does not contend, and the record does not otherwise reflect, that he had a contractual relationship with defendants. Rather, plaintiff argues that because defendants represented [plaintiff's mother] in her capacity as the administrator of decedent's estate in both the medical malpractice and wrongful death actions and plaintiff, in turn, is a beneficiary of decedent's estate, it necessarily follows that defendants were duty bound to represent plaintiff's best interests in the context of those two actions. The flaw in plaintiff's argument on this point is that "[i]n New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances" ... . Although a limited exception has been carved out with respect to an action brought by the personal representative of an estate, "strict privity remains a bar against beneficiaries' and other third-party individuals' estate planning malpractice claims absent fraud or other circumstances" ... . Sutch v Sutch-Lenz, 2015 NY Slip Op 04692, 3rd Dept 6-4-15






Allegations Supported the Existence of an "Implied Physician-Patient Relationship" Giving Rise to a Duty Owed to Plaintiff by the On-Call Surgeon---The On-Call Surgeon Was Notified of Plaintiff's Facial Lacerations But Told Hospital Personnel (by Phone) His Services Were Not Required to Treat the Plaintiff---Plaintiff Alleged Suturing by a Physician's Assistant Resulted in Excess Pain and Scarring


Plaintiff alleged that the defendant on-call plastic surgeon should have treated infant plaintiff whose facial lacerations were sutured by a physician's assistant (resulting in excess pain and scarring). The defendant on-call plastic surgeon, after being notified of plaintiff's condition by phone, informed hospital personnel his services were not needed to treat the plaintiff. The surgeon brought a motion to dismiss for failure to state a cause of action, and a motion for summary judgment, on the ground that he did not treat the plaintiff and, therefore, there existed no physician-patient relationship giving rise to a duty on his part.  The Second Department, after explaining the criteria for both types of motions, determined the motions were properly denied. Although the surgeon did not treat the plaintiff, a question was raised whether an "implied physician-patient relationship" existed by virtue of the surgeon's communication with hospital personnel indicating his services were not needed for the plaintiff's wounds:


"In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ... . " A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)'" ... . "If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'" ... . In a case where a defendant has submitted evidentiary material in support of a motion to dismiss pursuant to CPLR 3211(a)(7), the motion must be denied " unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it'" ... .


Summary judgment, in contrast to a motion to dismiss, is designed to expedite civil cases by eliminating claims which can properly be resolved as a matter of law ... . It is a drastic remedy which "should only be employed when there is no doubt as to the absence of triable issues" ... . On a motion for summary judgment, the party seeking judgment as a matter of law has the burden of tendering evidentiary proof in a form admissible at trial to show the absence of triable issues of fact ... . The failure to eliminate all material issues of fact results in the denial of the motion, regardless of the sufficiency of the opposing papers ... .


In support of his motion, the defendant argued that no physician-patient relationship existed that gave rise to any duty, as he did not examine or treat the infant plaintiff and did not dispense any medical advice on which anyone relied. Certainly, for there to be a cause of action sounding in medical malpractice, a physician-patient relationship must exist that gives rise to a duty of care ..., and the absence of such a relationship precludes the cause of action ... .


The physician-patient relationship is typically created when "professional services of a physician are rendered to and accepted by another person for the purposes of medical or surgical treatment" ... . However, the law also recognizes circumstances where the existence of a physician-patient relationship is implied by circumstances. "An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional" ... .


The Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against him. The defendant, in his role as the on-call plastic surgeon for Southside Hospital, allegedly made a medical determination over the phone that the infant plaintiff's facial laceration was not an emergency requiring his expertise as a board-certified plastic surgeon. The defendant's determination allegedly resulted in the suturing of the wound, without sedation, by a physician's assistant, beyond the time frame that was medically advisable and which resulted in scarring. Pizzo-Juliano v Southside Hosp., 2015 NY Slip Op 04626, 2nd Dept 6-5-3-15






Slippery Dock Was an Open and Obvious Condition---Landowner Had No Duty to Protect Against the Condition


Plaintiff was injured when he stepped on a dock from a boat.  Plaintiff alleged the dock was slippery. The Second Department determined Supreme Court should have granted defendant's motion for summary judgment because a landowner has no duty to protect against an open and obvious condition:


A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" ... . Here, the defendant met its prima facie burden of establishing its entitlement to judgment as a matter of law ... . "[A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incident to the nature of the property, and that could be reasonably anticipated by those using it" ... . A slippery condition on a dock is necessarily incidental to its nature and location near a body of water ... . Mossberg v Crow's Nest Mar. of Oceanside, 2015 NY Slip Op 04618, 2nd Dept 6-3-15







Elements of a Defective Design Cause of Action Described


The Third Department determined questions of fact had been raised about whether a machine was defectively designed. Plaintiff was injured when he attempted to make adjustments while the machine was running.  There was evidence the adjustments could have been made safely using another access point. The court provided a good explanation of the elements of a defective-design cause of action:


Liability for a defectively designed product "attaches when the product, as designed, presents an unreasonable risk of harm to the user" ... . A successful cause of action for defective design exists where a plaintiff is able to establish "that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury" ... . To demonstrate a product was not "reasonably safe," the injured party must demonstrate both that there was a substantial likelihood of harm and that "it was feasible to design the product in a safer manner" .. . A claim may be defeated where a defendant demonstrates that the product's "utility outweighs its risks [because] the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product's inherent usefulness at an acceptable cost" ... . This "risk-utility analysis" requires consideration of "'(1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes'" ... . Generally, the risk/utility analysis presents a factual question for a jury ... . Barclay v Techno-Design, Inc., 2015 NY Slip Op 04708, 3rd Dept 6-4-15






Abutting Property Owners Not Liable for Falls in Sidewalk Tree Wells (NYC)


The Second Department noted that, pursuant to the New York City Administrative Code, abutting property owners are not responsible for falls within city-owned tree wells (within sidewalks). Defendant's motion for summary judgment should have been granted:


The [defendant] argued that it could not be held liable under § 7-210 of the Administrative Code of the City of New York (hereinafter the Administrative Code), which imposes tort liability on abutting property owners for the failure to maintain city-owned sidewalks in a reasonably safe condition, because the plaintiff fell in a tree well, which is not considered to be part of a sidewalk for purposes of Administrative Code § 7-210. The Supreme Court denied the motion.


A tree well does not fall within the definition of "sidewalk" as that term is defined by section 7-210 of the Administrative Code and thus, "section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells" ... .


Here, the [defendant] established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff fell in a tree well, not any part of the surrounding sidewalk, and that it had no duty to maintain the tree well, as that tree well was owned by the City of New York ... . In opposition, the plaintiff failed to raise a triable issue of fact. Newkirk v City of New York, 2015 NY Slip Op 04620, 2nd Dept 6-3-15







No Allegation Plaintiffs' "Physical Safety" Was Endangered Re: Cause of Action for Negligent Infliction of Emotional Distress/No Allegation of Sufficiently Extreme and Outrageous Conduct Re: Cause of Action for Intentional Infliction of Emotional Distress---Those Causes of Action Were Therefore Properly Dismissed


The plaintiffs alleged defendants defrauded them in connection with a deed which purported to transfer plaintiffs' property to a third party and the related mortgages.  In addition to the action to quiet title pursuant to Real Property Actions and Proceedings Law, the plaintiffs alleged causes of action for negligent and intentional infliction of emotional distress (among several others). The Second Department determined those causes of action were properly dismissed and explained the pleading defects, notably (1) the absence of a duty which could give rise to tort liability, (2) the failure to allege plaintiffs' "physical safety" was endangered (negligent infliction of emotional distress), and (3) the failure to allege sufficiently extreme and outrageous conduct (intentional infliction of emotional distress):


Here, as the [defendants who initially serviced the loan payments made by plaintiffs] correctly assert, the complaint fails to state a cause of action to recover damages for negligent or intentional infliction of emotional distress as against them. The relationship between the plaintiffs and those defendants "does not give rise to a duty which could furnish a basis for tort liability" in negligence ... . Further, the plaintiffs did not allege that their "physical safety" was endangered or that they were caused to fear for their physical safety, which is generally an element of a cause of action based on negligent infliction of emotional distress ... . Moreover, the conduct complained of is not sufficiently extreme and outrageous to support the cause of action to recover for damages for intentional infliction of emotional distress ... . Pirrelli v OCWEN Loan Servicing, LLC, 2015 NY Slip Op 04625, 2nd Dept 6-3-15





Good, Fact-Based Analysis of the Requirements for Adverse Possession


Reversing Supreme Court's grant of summary judgment to the plaintiffs on their adverse-possession claim, the Third Department determined a question of fact had been raised about whether plaintiffs' use of the disputed land was with the defendants' permission, which would defeat the "hostility" element of adverse possession.  The Third Department offered a detailed fact-based analysis which provides an excellent lesson on the law of adverse possession. The court noted, on the issue of exclusivity, the claim that defendants occasionally maintained the disputed property during the plaintiffs' absence was not enough to raise a question of fact about the plaintiffs' exclusive use of the property: 


To establish their claim for adverse possession, plaintiffs are required to prove by clear and convincing evidence that their possession of the disputed property "[was] hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of 10 years" ... . Additionally, where, as here, the adverse possession claim is not based upon a written instrument, the party asserting the claim "must establish that the land was 'usually cultivated or improved' or 'protected by a substantial inclosure'" ... . 


As for [defendant's] alleged maintenance of the disputed property during plaintiffs' absences, "exclusivity is not defeated even if the true owner makes occasional forays onto the property . . .. [A]ll that is required is possession consistent with the nature of the property so as to indicate exclusive ownership" (1-5 Warren's Weed, New York Real Property § 5.33 [2015]). In our view, plaintiffs' exclusive, regular use and maintenance of the disputed property during their periods of occupation were consistent with the seasonal nature of their property. The occasional maintenance that defendants allegedly performed or directed during plaintiffs' absences — which was performed without plaintiffs' knowledge and did not interfere in any way with plaintiffs' possession or use of the disputed property — was insufficient to meet defendants' prima facie burden to establish that plaintiffs' use of the property was not exclusive ... . Bergmann v Spallane, 2015 NY Slip Op 04713, 3rd Dept 6-4-15






Courts Do Not Defer to an Agency's Construction of a Statute---Workers' Compensation Board's Determination, Based Upon the Construction of Workers' Compensation Law 25, Reversed


In the context of a "conciliation process" pursuant to Workers' Compensation Law 25, the Third Department explained the court's role in reviewing the determination of an agency when statutory construction is the sole issue. Unlike the factual determinations of an agency, to which courts must defer, no such deference is afforded an agency's construction of a statute. Reversing the Workers' Compensation Board, the Third Department held that the statute unambiguously entitled claimant to a penalty imposed upon the employer for failure to timely make compensation payments:


Where, as here, the issue is one of pure statutory construction, no deference need be accorded to the Board's interpretation of the statutory framework ... . As to our construction of Workers' Compensation Law § 25, "the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" ... . Further, the provisions within that statute must be "construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible" ... .


Turning to the relevant statutory provisions, Workers' Compensation Law § 25 has two mechanisms for penalizing employers or workers' compensation carriers who fail to make timely payment of compensation following a decision. The first provides that, "[i]f the employer or its insurance carrier shall fail to make payments of compensation according to the terms of the award within [10] days . . ., there shall be imposed a penalty equal to [20%] of the unpaid compensation which shall be paid to the injured worker or his or her dependents" (Workers' Compensation Law § 25 [3] [f]). The second provides that, if payment is not made within 10 days of a proposed conciliation decision becoming final, "the chair [of the Board] shall impose . . . a fine of [$500] for failure to live up to the terms of the decision upon verification that payment has not been timely made" (Workers' Compensation Law § 25 [2-b] [h]; see 12 NYCRR 312.5 [i]).


The statutory scheme unambiguously entitles claimant to the penalty described in Workers' Compensation Law § 25 (3) (f). Matter of Liberius v New York City Health & Hosps. Corp., 2015 NY Slip Op 04706, 3rd Dept 6-4-15





In the usual circimstance, courts need not defer to an agency's interpretation of a statute.  If it is arguable the agency misinterpreted a statute, a court will decide that issue "on the merits."

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