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June Page II

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


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"No Action" Clause In a Trust Indenture Interpreted Narrowly Under Established Principles of Contract Interpretation---The Clause Did Not Preclude Suit By Securityholders Based Upon Their Common Law and Statutory Rights In an Action  Stemming from the "Credit Default Swap" Crisis


In an action arising out of the credit default swap crisis, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that a "no action" clause, which imposed restrictions on actions brought by securityholders, must be construed narrowly according to its terms.  The "no action" clause stated in pertinent part:  "Limitations on Suits by Securityholder. No holder of any Security shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture... ."  The "Indentures" were agreements entered into with trustees who served as third party administrators of the issuance of securities.  The Court of Appeals held that the clause related solely to actions "with respect to this Indenture" and did not affect the common law and statutory actions brought by securityholders to enforce their rights:


A trust indenture is a contract, and under New York law "[i]nterpretation of indenture provisions is a matter of basic contract law" ... .


In construing a contract we look to its language, for "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" ... . As the case law further establishes, we read a no-action clause to give effect to the precise words and language used, for the clause must be "strictly construed" ... .



Applying these well established principles of contract interpretation, and with the understanding that no-action clauses are to be construed strictly and thus read narrowly, we turn to the language of the no-action clause presented by the certified question. The no-action clause here states that no securityholder "shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture . . .". The clear and unambiguous text of this no-action clause, with its specific reference to the indenture, on its face limits the clause to the contract rights recognized by the indenture agreement itself. Further supporting this construction of the clause is the sole textual reference to securities, which is contained in the clause's provision for a Trustee-initiated suit for a continuing "default in respect of the series of Securities."[FN11] This part of the no-action clause permits the trustee to sue in its name, after notice by a securityholder of a continuing default and upon approval of the suit by a majority of securityholders. Thus, the clear import of the no-action clause is to leave a securityholder free to [*10]pursue independent claims involving rights not arising from the indenture agreement. Quadrant Structured Prods Co Ltd v Vertin, 2014 NY Slip Op 04114, Ct App 6-10-14





In the Absence of an Express Agreement that the Plaintiff Was Entitled to a Commission Upon the Sale of Assets by the Principal, the Agreement Created an Exclusive Agency, which Merely Precluded the Principal from Hiring Another Agent,  but Did Not Create, in the Agent, an Exclusive Right to Sell


The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, in another case arising from the "toxic debts" crisis, determined that the plaintiff was an exclusive agent for the sale of assets, and was not granted an exclusive right to sell the assets. If plaintiff had been granted an exclusive right to sell, it may have been entitled to a commission when the assets were sold by the principal.  But, since the contract was silent about the plaintiff's right to a commission when the principal sells the assets, plaintiff was granted only an exclusive agency for the sale of the assets and the principal could sell the assets without any obligation to pay a commission to the plaintiff.  The exclusive agency agreement only precluded the principal from hiring another agent:


The distinction between an exclusive agency and an exclusive right to sell is well established in a body of Appellate Division case law ... . As stated nearly a century ago, "The general rule is that where an exclusive right of sale is given a broker, the principal cannot make a sale [herself] without becoming liable for the commissions. But where the contract is merely to make the broker the sole agent, the principal may make a sale [herself] without the broker's aid, if such sale is made in good faith and to some purchaser not procured by the broker"... .


Put differently, "[a] broker is entitled to a commission upon the sale of the property by the owner only where the broker has been given the exclusive right to sell; an exclusive agency merely precludes the owner from retaining another broker in the making of the sale" ... . We have endorsed this dichotomy implicitly in the past ..., and now do so explicitly.


Furthermore, we agree with the case law of the lower courts holding that a contract giving rise to an exclusive right of sale must "clearly and expressly provide[] that a commission is due upon sale by the owner or exclude[] the owner from independently negotiating a sale" ... . Requiring an affirmative and unequivocal statement to establish a broker's exclusive right to sell is consistent with the general principle that an owner's freedom to dispose of her own property should not be infringed upon by mere implication. Morpheus Capital Advisors LLC v UBS AG, 2014 NY Slip Op 04112, Ct App 6-10-14





Robbery First and Second Degree Convictions (Forcible Stealing) Supported Where Defendant Was Not Found to Be In Possession of Stolen Property and Used Force Only When Confronted By Security Personnel After the Alleged Taking


The Court of Appeals, in a full-fledged opinion by Judge Rivera, held that it is not necessary to recover stolen property in order to find that the defendant used physical force to prevent or overcome resistance to the ... retention of stolen property (an element of robbery in the first and second degrees).  There was evidence, including video evidence, that the defendant removed the backing from earrings while inside a store. When confronted by security personnel, the defendant acted violently.  No stolen items were found.  The use of force at issue here was not involved in the taking of the property, but rather occurred  after the alleged taking when defendant was stopped by security.  The question was whether the defendant's use of force at that stage could be deemed to meet the "forcible stealing" element of robbery first and second degree.  Some appellate division decisions have held that defendant's use of force at that stage will meet the statutory requirement (force used to retain control of the property) if the defendant is found to be in possession of the stolen property. Here the Court of Appeals determined finding the defendant in possession of stolen property is not required:


Force used solely to effectuate a defendant's escape will not support a robbery conviction ... . However, when a defendant is later found in possession of stolen property, the jury may infer that his or her use of force was to retain control of that property ... .


Some Appellate Division Departments have adopted what amounts to an inverse proposition, that failure to recover stolen property from a defendant precludes a jury's finding of guilt for first or second degree robbery, notwithstanding the possible inferences which might reasonably follow from the trial evidence. Those Courts have held that, absent subsequent recovery of stolen property from the defendant, "it is impossible to conclude beyond a reasonable doubt that [the] defendant's conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property" ... . We reject this premise because it deprives the jury of its traditional role as factfinder and would have the unintended consequence of removing certain criminal conduct from the statutory ambit. * * *


Certainly, recovery from the defendant of the stolen property provides a strong basis for a jury's finding of criminal intent ... . Yet, just as possession of the property is but one fact which supports the jury's reasonable inference of the defendant's "conscious objective," failure to recover the property from the defendant is also a fact for the jury to consider in determining whether the People have established the requisite intent. Where sufficient facts and reasonable inferences support a finding of intent to forcibly steal, even where the stolen property is not recovered from the defendant, a jury should be permitted to make such a finding.  People v Gordon, 2014 NY Slip Op 04227, Ct App 6-12-14




Unclear Record Re: Whether Defense Counsel Was Apprised of the Complete Contents of a Jury-Request for Instructions Combined with the Judge's Failure to Address One Aspect of the Request Constituted a "Mode of Proceedings" Error


The Court of Appeals determined the trial judge's response to a note from the jury was a mode of proceedings error requiring the vacation of the convictions related to the note.  The note asked for the judge's directions on "Manslaughter/Murder in the Second Degree-(Intent)."  The judge did not re-read the expanded "intent" charge and the record does not indicate defense counsel was notified of the "intent" aspect of the jury note:


Here, the trial court failed to meet its core responsibilities with regard to the note. Although there is record evidence that defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel. Rather, the record reflects that the court paraphrased the note for counsel and the jury, but in each instance it omitted any reference to the note's "intent" language, hardly "a fair substitute for defense counsel's own perusal of the communication" (O'Rama, 78 NY2d at 277). Although the note is ambiguous concerning whether the jury was requesting an expanded definition of the intent element or was merely asking for a read back of the homicide charges which included a definition of intent, this only substantiates defendant's argument that the court failed to meet its core responsibilities of providing defense counsel with meaningful notice and an opportunity to provide input so that the court could give the jury a meaningful response. Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note — as it is in this case — preservation is not required ... . Where a trial transcript does not show compliance with O'Rama's procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to (id.). People v Walston, 2014 NY Slip Op 04229, Ct App 6-12-14




Building Which Included Residential (Hotel) and Non-Residential Sections Constituted a "Dwelling" Supporting Defendant's Conviction for Burglary in the Second Degree


The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that the entry of a building with included residential and non-residential sections, constituted burglary of a "dwelling" supporting burglary in the second degree.


We last confronted this question long ago, in Quinn v People (71 NY 561 [1878]). That case established a rule that we reaffirm today: Generally, if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist. Applying that rule to this case, we hold that the evidence supports defendant's conviction on two counts of second-degree burglary. People v McCray, 2014 NY Slip Op 04232, Ct App 6-12-14




A SORA Assessment in a Child Pornography Case Can Take Into Account Whether the Depicted Children Were Strangers to the Defendant (Factor 3) and the Number of Children Depicted (Factor 7)----The Standard of Proof for a Defendant's Application for a Downward Departure from the SORA Guidelines is "A Preponderance of the Evidence"


In a full-fledged, detailed and extensive opinion by Judge Abdus-Salaam, over dissents, the Court of Appeals determined that factors 3 and 7 of an assessment under the Sex Offender Registration Act (SORA) applied to child pornography cases.  Factor 7 allows the assessment of points where the victim of a sex offense is a stranger to the defendant, and factor 3 allows the assessments of points based on the number of victims.  In the context of child pornography, therefore, the images of children the defendant does not know and the number of children depicted in the images, i.e., the number of victims, can be taken into account in determining a defendant's SORA score.  The Court of Appeals also settled a difference among the appellate divisions by setting "a preponderance of the evidence" as the standard for the defendant's evidence submitted in support of a downward departure from the guidelines:


Given that child pornography offenders substantially harm the mental health of abused children and, via the consumption of child pornography, encourage others to commit the hands-on sexual abuse needed to produce that material, it is difficult to credit defendants' claims that, due to their failure to personally physically abuse children, the risk of harm caused by their offenses should not be accounted for in the manner authorized by the plain language of factors 3 and 7. Although those aggravating factors may not represent the exact same risks in child pornography cases as in those involving physical contact, the presence of those factors in child pornography cases increases the offender's potential to psychologically harm a greater number of children to a greater degree. The guidelines may account for the variable risk that certain child pornography offenders who have an unusually strong compulsion to consume and distribute child pornography will provide exceptional support to an illicit trade that physically and psychologically harms children. People v Gillotti, 2014 NY Slip Op 04117, Ct App 6-10-14




Judge's Speaking to a Juror During Deliberations, With Defense Counsel's Permission, Outside the Presence of the Defendant and Counsel, Was a Mode of Proceedings Error Requiring Reversal


In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the judge's conducting a transcribed colloquy with a juror during deliberations, outside the presence of counsel and the defendant, was a mode of proceedings error requiring reversal.  Counsel were informed that a juror wished to talk to the judge and agreed that the judge could do so their absence. Counsel and the defendant were subsequently apprised of the substance of the colloquy and given the opportunity to read the transcript. Defense counsel did not raise an objection:


A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury ... . This "absolute and unequivocal" right is further embodied in CPL 310.30 (Mehmedi, 69 NY2d at 760; see Collins, 99 NY2d at 17).


Under CPL 310.30, when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case, "the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant," the court must give such information or instruction as it deems proper (CPL 310.30...). We have consistently held that a defendant's absence during non-ministerial instructions, in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for our review — even absent an objection or where defense counsel has consented to the procedures used.  People v Rivera, 2014 NY Slip Op 04115, Ct App 6-10-14





Writs of Coram Nobis Alleging Ineffective Assistance Not Available In the Three Specific Cases Before the Court Involving the Failure to File Notices of Appeal and the Failure to Make a "Leave to Appeal" Application to the Court of Appeals


The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined that a writ of coram nobis was not available to two defendants who alleged their attorneys failed to file timely notices of appeal, and to a third defendant who alleged his attorney's failure to make a criminal "leave to appeal" application to the Court of Appeals.  The opinion explains the history of the use of "writs of coram nobis" in this context. People v Andrews, 2014 NY Slip Op 04233, Ct App 6-12-14





Records of Criminal Proceedings Sealed Pursuant to Criminal Procedure Law 160.50 Can Be Accessed by the Commission on Judicial Misconduct Investigating the Alleged Misconduct of a Judge---The Law Surrounding the Sealing of Criminal 

Records Explained---Mootness Doctrine Explained


In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the Commission on Judicial Conduct is authorized under the Judiciary Law to request records of a criminal matters sealed under Criminal Procedure law 160.50 for use in its investigations.  In the course of the opinion, the court explained why the case before it could not be considered moot (the Court of Appeals can hear only "live"cases). The appellant is an attorney who had been charged, along with a judge, with crimes related to the judge's election campaign.  The Commission sought the sealed records of those criminal proceedings, which had ended in dismissal and acquittal.  The appellant opposed release of the records:


...[A]bsent "extraordinary circumstances" ..., a specific grant of power ..., or the existence of a legal mandate the nature of which would be impossible to fulfill without unsealing criminal records ..., sealed criminal records may only be accessed by individuals and agencies specifically enumerated, and "narrowly defined" in CPL 160.50 (1) (d) ... .


Given the Commission's broad powers under the Judiciary Law, specifically its authority under Judiciary Law § 42 (3) to request and receive a wide range of records and data, and its constitutional duties and obligations to ensure the integrity of the judicial system by investigating and sanctioning judicial misconduct, we conclude that the Commission may obtain documents sealed pursuant to CPL 160.50. Continued public confidence in the judiciary is of [*9]singular importance, and can be furthered only by permitting the Commission access to information that allows it to quickly identify and respond to judicial misconduct, including criminal behavior, abuse of power, corruption, and other actions in violation of laws applicable to judges. Matter of New York State Commission on Jud Conduct v Rubenstein, 2014 NY Slip Op 04118, Ct App 6-10-14





Village's Unauthorized Use of Dedicated Park Land Prohibited by the "Public Trust Doctrine"---Village's Use of the Land Was a "Continuing Wrong" Which Tolled the Statute of Limitations and Precluded the Application of the Laches Doctrine


The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined Supreme Court properly granted a permanent injunction, pursuant to the common law "public trust doctrine," prohibiting the village from building public works structures on dedicated park land.  The action was brought by residents who live near the park, who were later joined by the state.  Because the park land had been used without legislative authority by the village for many decades, the village argued the action was prohibited by the statute of limitations and the doctrine of laches.  The Court of Appeals determined the "continuing wrong doctrine" tolled the statute of limitations and the laches doctrine did not apply to a continuing wrong, or to actions by the state:


The harm sustained by the public when structures having "no connection with park purposes . . . encroach upon [parkland] without legislative authority plainly conferred" ... cannot be traced exclusively to the day when the illegal encroachment began. "In New York, we have consistently characterized an unlawful encroachment as a continuous trespass giving rise to successive causes of action" ... . Even though here, because the Village owns the parkland, the encroachment is not trespass, it clearly bears the hallmark of continuity common to the trespass cases: defendants are, continuously, in violation of the public trust doctrine and able to abate that wrong. Just as the failure of a landlord to repair a building's common elements, in violation of by-laws, "constituted a continuing wrong that is not referable exclusively to the day the original wrong was committed" ... and "[t]he alleged violation of defendants' contractual obligations to comply with the law and refrain from interfering with the rights of other lessees amounts to a continuous or recurring wrong" ..., so does a municipality's ongoing failure to comply with the law and seek legislative authorization for non-park use of parkland. The harm does not consist of the lingering effects of a single, discrete incursion, but rather is a continuous series of wrongs. In short, the claim here is "predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" ...  Capruso v Village of Kings Point, 2014 NY Slip Op 04228, Ct App 5-12-14





In Cases Not Involving Death or Bodily Injury Arising from an Accident, Whether a Notice of Disclaimer is Timely Is Governed by Common Law Waiver and Estoppel Principles, Not by the Provisions of Insurance law 3420


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the requirement that a disclaimer of coverage be made "as soon as reasonably possible after first learning of the ... grounds for disclaimer" did not apply in a case involving coverage for the clean up of environmental contamination.  The Court explained that the "as soon as reasonably possible" language comes from Insurance Law 3420 and applies only to coverage for death or bodily injury arising from accidents:


By its plain terms, section 3420 (d) (2) applies only in a particular context: insurance cases involving death and bodily injury claims arising out of a New York accident and brought under a New York liability policy ... . "Where, as here, the underlying claim does not arise out of an accident involving bodily injury or death, the notice of disclaimer provisions set forth in Insurance Law § 3420 (d) are inapplicable" ... . In such cases, the insurer will not be barred from disclaiming coverage "simply as a result of the passage of time," and its delay in giving notice of disclaimer should be considered under common-law waiver and/or estoppel principles... . KeySpan Gas E Corp v Munich Reins Am Inc, 2014 NY Slip Op 04113, Ct App 6-10-14












Plaintiffs in Lead-Paint Exposure Cases Are Not Required to Hire an Expert to Link Injuries to Lead-Paint Exposure at the CPLR 3121 (a) Discovery Stage---However, Plaintiffs Must Provide Medical Reports Which Include a "Recital of the Injuries and Conditions as to which Testimony Will Be Offered at the Trial"


The Court of Appeals, in a full-fledged opinion by Judge Lippman, reversed the appellate division and determined the trial judge abused his discretion in the discovery phase of a lead-paint exposure case.  The trial judge ordered the plaintiffs "to produce, prior to the defense medical examinations, medical reports detailing a diagnosis of each injury alleged to have been sustained by plaintiffs and causally relating those injuries to plaintiffs' exposure to lead-based paint."


CPLR 3121 (a) provides that when a party's mental or physical condition is in issue, any other party may serve on the party whose condition is in controversy notice "to submit to a physical, mental or blood examination by a designated physician." A noticed party then is obligated under 22 NYCRR 202.17 (b)(1) to deliver:


"copies of the medical reports of those medical providers who have previously treated or examined the party seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis."


In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.


This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).


Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who have "previously treated or examined" them. They argue that they are not required to document or create medical evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree. Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits. Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor. Plaintiffs therefore need only produce reports from medical providers who have "previously treated or examined" them.


To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and examining medical providers — the reports "shall include a recital of the injuries and conditions as to which testimony will be offered at the trial" (22 NYCRR 202.17 [b] [1]) [emphasis added]). Plaintiffs therefore cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17 (b) (1) ... . If plaintiffs' medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)... . If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule (see 22 NYCRR 202.17 [j]). Hamilton v Miller, 2014 NY Slip Op 04230, Ct App 6-12-14





Prohibition Proceeding Was the Proper Vehicle to Contest the Appointment of a Special Prosecutor---the District Attorney Had Disqualified Himself from an Election-Related Investigation and Successfully Applied for the Appointment of a Special Prosecutor


The Court of Appeals determined an Article 78 proceeding sounding in "prohibition" was the appropriate vehicle to contest the appointment of  a special prosecutor. The district attorney sought to disqualify himself from an election-related investigation and successfully applied to the Deputy Chief Administrative Judge for the NYC Courts for an appointment of a special prosecutor.  The petitioner then brought the prohibition proceeding to contest the appointment.  The appellate division dismissed the petition finding the "prohibition" action inappropriate.   The Court of Appeals determined prohibition was the correct action and the special prosecutor was validly appointed:


The Appellate Division denied the petition and dismissed the proceeding. It held that relief by prohibition was unavailable because the conduct that petitioner was seeking to prevent was not "the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice" but rather a "purely investigative function" that was "executive in nature" (Working Families Party v Fisher, 109 AD3d 478, 480 [2d Dept 2013]). * * *


The Appellate Division erred in holding that an article 78 proceeding in the nature of prohibition is an inappropriate remedy in this case. We recently restated the rule that "prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court" ... . While the power to grant prohibition should be exercised sparingly, its availability in cases like this serves an important purpose. When the validity of the appointment of a prosecutor is in question, the question should where possible be given a prompt and definitive answer. It is not in the public interest to allow a prosecutor to carry out a lengthy investigation when there is doubt that his or her appointment is valid, and to run the risk that the process will have to start all over again with a different prosecutor. Matter of Working Families Party v Fisher, 2014 NY Slip Op 04116, Ct App 6-10-14









NYC Taxi & Limousine Commission Had the Authority to Mandate the Use of a Particular Vehicle as a NYC Taxi


The First Department, in a full-fledged opinion by Justice Saxe, over a dissent, determined that the New York City Taxi and Limousine Commission (TLC) did not exceed its grant of authority under the NYC Charter and did not violate the separation of powers doctrine when it mandated the use of a particular vehicle for taxis in NYC. The TLC essentially designed a vehicle, to be used as New York City medallion taxicabs, which met all of its criteria and then chose a manufacturer, Nissan, to build it. Under the "Taxi of Tomorrow Rules...", after October 31, 2013, holders of unrestricted medallions who  were scheduled to replace their taxi vehicles were required to buy the Nissan (called the Nissan NV200).  An association of taxi fleet owners brought an action for a declaratory judgment asking the court to find the "Taxi of Tomorrow Rules..." invalid. Supreme Court did so, holding that the TLC had exceeded its powers under the NYC Charter and had essentially crossed the line between administration and legislation. The First Department disagreed and reversed:


Ultimately, the key to determining whether an agency has exceeded the scope of its authority is examining the enabling legislation. The scope of the mandate established by City Charter § 2300 is sufficiently expansive to permit the TLC to act as it did. * * *


...[H]ere ...the Legislature had clearly articulated its policy regarding the TLC's assigned task, namely, the goal of ensuring and optimizing the comfort of riders, while protecting the public, the environment, the drivers, and the rights of medallion owners. The TLC was not left to take action based on its own ideas of sound public policy. Even if, arguendo, the TLC's adoption of the revised Taxi of Tomorrow rules may be characterized as involving policy-making, here, the parameters of that policy-making were set by the City Council in the City Charter.  Greater NY Taxi Assn v New York City Taxi & Limousine Commn, 2014 NY Slip Op 04156, 1st Dept 6-10-14





Defendant-Attorney Can Seek Contribution from Succeeding Attorney Who Contributed to Plaintiff's Damages


The Second Department noted that a claim for contribution can be made by an attorney-defendant against a succeeding attorney who may have contributed to plaintiff's damages.  The court also explained the nature of common law indemnification in this context:


"In determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff's damages" ... . "[T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors" ... . A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney's negligence may have contributed to or aggravated the plaintiff's injuries ... . * * *


"[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor'" ... . " Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'" ... . Rehberger v Garguilo & Orzechowski LLP, 2014 NY Slip Op 04181, 2nd Dept 6-11-14





A Counteroffer Extinguishes the Initial Offer Which Cannot Be Unilaterally Revived by Subsequent Acceptance


The First Department determined that no binding contract for the sale of real property had been reached after a series of offers and counteroffers.  In the course of the decision, the court noted some of the relevant black letter law:


The record demonstrates that the parties never came to terms and instead proposed a series of offers and counteroffers to which they never mutually agreed. ...To enter into a contract, a party must clearly and unequivocally accept the offeror's terms ... . If instead the offeree responds by conditioning acceptance on new or modified terms, that response constitutes both a rejection and a counteroffer which extinguishes the initial offer ... . The counteroffer extinguishes the original offer, and thereafter the offeree cannot ... unilaterally revive the offer by accepting it ... .


...[O]ral acceptance of a written offer can form a binding contract for the sale of real property * * *. Thor Props LLC v Willspring Holdings LLC, 2014 NY Slip Op 04237, 1st Dept 6-12-14




No Exigent Circumstances to Justify Search of a Closed Container in Defendant's Possession Upon His Arrest for Minor Non Violent Offenses to Which the Contents of the Bag Could Have Had No Connection


The First Department determined there were no exigent circumstances which justified the search of a plastic bag (closed container0 that was in defendant's possession at the time of his arrest:


The police detained defendant in a subway station for violating Transit Authority regulations. Because a warrant check revealed that defendant had an active warrant, the police decided to arrest him rather than issue a summons. Defendant was holding a plastic bag in his hand, and put it on the ground next to him before being handcuffed. An officer picked up the bag, which felt heavy, and looked inside to check for weapons or contraband. Inside the bag was another plastic bag, which contained a canvas bag. The officer then noticed a strong odor of marijuana, opened the canvas bag, and found nearly a pound of marijuana.


The People failed to meet their burden of showing exigency. The officers did not testify that they feared for their safety, or that they were concerned that the bag contained evidence that defendant could destroy, and the circumstances did not suggest that any exigency required an immediate search. Defendant was being arrested for minor nonviolent offenses and was not suspected of any crimes, he was handcuffed and guarded by several officers, he was fully cooperative and voluntarily placed the bag on the ground, his demeanor and actions were not threatening, and there was no indication that he might try to grab or kick the bag, which was no longer in his possession. Furthermore, there was no indication that the bag might contain a weapon and, given the nature of the transit violations, there was no possibility that the bag could contain evidence to support those charges. People v Febres, 2014 NY Slip OP 04150, 1st Dept 6-10-14




Exclusive Access Not Required for Constructive Possession


The Third Department determined the proof of constructive possession of a weapon was sufficient.  The gun was found in a boot outside the door to the apartment where defendant lived.  He had been seen entering the building with a gun. The court noted that exclusive access to the area where contraband is found is not required to sustain a finding of constructive possession:


Constructive possession can be established by evidence that the defendant had dominion and control over the weapon or the area in which it was found ... . Exclusive access, however, is not required to sustain a finding of constructive possession ... . Here, the People established that defendant resided in the first-floor apartment with his girlfriend and their young son, and the loaded handgun was found in a man's boot located in a hallway leading to that apartment among shoes belonging to defendant's girlfriend and his son. The only other tenant in the building was an elderly woman who lived on the second floor. Although defendant denied ownership of the boots, he admitted that he kept some of his belongings in the hallway, and the People established the presence of his DNA on the weapon. The rational inferences to be drawn from this evidence are sufficient to support the conclusion that defendant exercised dominion and control over the weapon and the area in which it was found ... . People v Bellamy, 2014 NY Slip Op 04262, 3rd Dept 6-12-14




Defendant Did Not Demonstrate Standing to Challenge Search of Vehicle


The Third Department determined the defendant did not demonstrate he had standing to contest the inventory search of a vehicle, parked and empty at the time the police seized it, which turned up a weapon.  A police officer had seen the defendant driving the vehicle just before it was seized and a confidential informant had told the police where the defendant kept a handgun in the vehicle. Because the People did not rely solely on the statutory presumption of possession of a weapon (Penal Law 265.15 (3)) the defendant needed to allege and demonstrate standing.  Because the defendant did not own the vehicle and denied driving it on the day it was seized, he was unable to challenge the search:


A defendant seeking to suppress evidence has the burden to allege and, if disputed, establish standing to challenge a search ... . "Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy" ... . While a defendant is entitled to "automatic standing" if the People "rely solely on the statutory presumption [of possession of a weapon] contained in Penal Law § 265.15 (3) to establish his [or her] guilt" ..., defendant here cannot rely on that exception to his burden regarding standing. The People did not depend entirely upon the statutory presumption of standing, but had other evidence, including one officer who witnessed defendant driving the vehicle and the CI who provided information that defendant had a handgun in the vehicle and where within the vehicle the gun would be located ... . Inasmuch as defendant did not own the BMW and denied that he was driving it on the day in question, he failed to allege any legitimate expectation of privacy in that vehicle. People v Anderson, 2014 NY Slip Op 04269, 3rd Dept 6-12-14




Defendant Did Not Make a Sufficient Showing to Justify Severance of Counts (Counts Related to Different Victims of Sexual Abuse)----Nor Did the Defendant Make a Sufficient Showing to Justify a "Taint" Hearing (to Explore whether Allegations by a Child Were the Result of Suggestive Questioning)


The Third Department determined the defendant's motion to sever the counts of the indictment, which involved different child victims of sexual abuse, was properly denied.  The court further determined the defendant's motion for a taint hearing (to explore whether a child-victim's allegations were the result of suggestive questioning) was properly denied:


Although charges arising out of different criminal transactions are properly joinable where, as here, "such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law" (CPL 200.20 [2] [c]...), a court nonetheless may — "in the interest of justice and for good cause shown" — exercise its discretion and order that such offenses be tried separately (CPL 200.20 [3]...). Good cause, in turn, may be established by demonstrating, among other things, that there is "[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense" (CPL 200.20 [3] [a]...). Simply put, defendant failed to make such a showing here. * * *


Notwithstanding the absence of "express statutory authority for a hearing to determine whether the testimony of [a] child witness[] has been tainted by suggestive interviewing techniques," a court nonetheless may — "[u]pon a proper showing" by the defendant — direct that a pretrial taint hearing be held ... . Noticeably absent from defendant's motion papers was any indication that victim B's mother engaged in leading or otherwise suggestive questioning of victim B regarding any inappropriate contact that she may have had with defendant. Moreover, "any suggestibility, the manner of questioning and its effects on [victim B's] testimony could be, and was, addressed on cross-examination of [victim B and her mother]" at trial... . People v Milford, 2014 NY Slip Op 04278, 3rd Dept 6=12=14




Photograph of Accident Scene Properly Admitted Notwithstanding Flowers Remembering Victim


The Fourth Department, in affirming defendant's conviction stemming from the death of a passenger after defendant's vehicle struck a tree, determined that the photograph of the accident scene was properly admitted notwithstanding the flowers placed at the scene in remembrance of the victim.  The court also rejected arguments that (1) defendant's post-arrest silence was revealed to the jury (not preserved) (2) turning off the overhead projector effectively closed the courtroom (not preserved) and (3) defense counsel was erroneously prohibited from questioning the medical examiner about alternative causes for the victim's injuries (speculative,  insufficient foundation).  With respect to the photograph, the court wrote:


"The general rule is stated in People v Pobliner (32 NY2d 356, 369...) photographs are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.' They should be excluded only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant' " ... . Here, we agree with the People that the sole purpose of the evidence was not to arouse the emotions of the jury. To the contrary, the photographs established the relative positions of the tree and the roadway, the visibility of the tree, and the straight nature of the roadway, all of which were relevant to the jury's factual determinations, including whether defendant was driving while in an intoxicated condition. People v Boop, 2014 NY Slip Op 04296, 4th Dept 6-13-14




"Rare Case" Where Facts Supported Both Depraved Indifference and Intentional Murder


The Fourth Department determined the facts of the case---defendant fired a pistol at three people he did not know, killing one---supported both intentional and depraved indifference murder.  Defendant had been "jumped" by a student from a particular housing project.  Three days later defendant went to the project and committed the shooting:


The relevant legal principles for evaluating the above trial evidence are well settled. Depraved indifference is a mental state

" best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not' " ... . "Circumstantial evidence can be used to establish the necessary mens rea" ... . Although shooting into a crowd of people is a " [q]uintessential example[ ]' " of depraved indifference ... , the mere presence of others does not transform an otherwise intentional shooting into a depraved indifference murder or assault ... . Rather, the point of distinction between a criminal act committed with intent and a criminal act committed with depraved indifference is that the former is motivated by the "conscious objective" to cause death or serious physical injury, while the latter is "recklessly indifferent, depravedly so, to whether death [or serious physical injury] occurs" ... .


We conclude that this case is one of those "rare" cases where the defendant properly could have been charged with both intentional and depraved indifference murder .... Stated otherwise, and contrary to defendant's contention, he is not "guilty of an intentional shooting or no other" ... . The evidence summarized above, when viewed in the light most favorable to the People, establishes a "valid line of reasoning and permissible inferences which could lead a rational person" to conclude that defendant, by shooting indiscriminately at a group of people that he did not know, acted with depraved indifference to human life rather than with intent to kill ... . People v Archie, 2014 NY Slip Op 04307, 4th Dept 6-13-14





Past Domestic Violence Admissible to Show Intent in Rape Case---Victim's Statements in Hospital Report Admissible under Business Records Exception/Confrontation Clause Not Implicated Because Statements Were Not Testimonial---Victim's Statements Shortly After the Rape Admissible as Excited Utterances


In a case where the defendant was charged with raping his ex-girlfriend, the Third Department determined past incidents of domestic violence were properly allowed in evidence to demonstrate intent, statements made by the victim (who died before trial from an unrelated cause) included in a hospital report were admissible under the business records exception to the hearsay rule, and statements made by the victim shortly after the rape were admissible as excited utterances.  With respect to the hospital records, the court wrote:


County Court properly allowed admission of statements that the victim made during her medical examination. "Hospital records fall within the business records exception to the hearsay rule as long as the information relates to diagnosis, prognosis or treatment" ... . Details of the abuse, even including the perpetrator's identity, may be relevant to diagnosis and treatment when the assault occurs within a domestic violence relationship because the medical provider must consider the victim's safety when creating a discharge plan and gauging the patient's psychological needs ... . The physician who examined the victim testified that all of the information in the medical records was relevant to and gathered for purposes of diagnosis or treatment, and the primary purpose of the examination was to care for the patient's health and safety, although a secondary purpose of the forensic examination was to gather evidence that could be used in the future for purposes of prosecution. Considering this information, although the victim was unavailable to testify because she died before trial (from causes unrelated to defendant's crimes), defendant's Confrontation Clause rights were not violated because the statements were not testimonial... . People v Pham, 2014 NY Slip Op 04276, 3rd Dept 6-12-14





Petition for the Opportunity to Ballot Not Demonstrated to Have Been Permeated by Fraud


The Second Department determined that a petition for the opportunity to ballot was not so permeated with fraud to justify granting a petition to invalidate it:


As a general rule, a petition for an opportunity to ballot will be invalidated on the ground of fraud only if there is a showing that the entire petition is permeated with fraud ... or, if not permeated with fraud, where a potential candidate who stands to benefit from the validation of the petition for an opportunity to ballot has participated in or is chargeable with knowledge of the fraud ... .


Here, the petitioners did not sustain their burden of establishing by clear and convincing evidence that the totality of the instances of forged signatures on the subject petition for an opportunity to ballot rose to the level at which it could be said that the petition was permeated with fraud ... . Matter of Steinert v Daly, 2014 NY Slip Op 04206, 2nd Dept 6-11-14





Priority in Custody Disputes Given to Party Initially Awarded Custody


The Second Department, in affirming Family Court's denial of a motion to modify a stipulated custody arrangement, noted that priority is given to the parent who was initially awarded custody:


"A modification of an existing custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child's best interests" ... . The best interests of the child are determined by a review of the totality of the circumstances ... . In this regard, the court should consider whether the alleged changed circumstances indicate that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement ... .


" Priority in custody disputes should usually be given to the parent who was first awarded custody . . . because this policy assures stability in the child's life'" ... . "Thus, [w]hen . . . there is no indication that a change of custody will result in significantly enhancing the child's welfare, it is generally considered in the child's best interests not to disrupt his [or her] life'" ... . McCance v De Witt, 2014 NY Slip Op 04175, 2nd Dept 6-11-14




Mother's Failure to Seek Immediate Medical Assistance for Child Fatally Injured by Her Boyfriend Supported a Severe Abuse Finding and a Derivative Severe Abuse Finding---Amendment to Family Court Act 1051 (e), Removing the "Diligent Efforts" Requirement, Imposed Retroactively to Support Severe Abuse Finding


The Second Department determined an amendment to Family Court Act 1051 (e) could be applied retroactively to support a finding of severe abuse against mother in an article 10 proceeding.  Although the injuries to the child (Anniyah) were inflicted by the mother's boyfriend, the mother failed to seek immediate medical care and the child died.  The instant proceedings were derivative abuse proceedings involving a sibling (Amira L):

A parent who stands by while others inflict harm may be found responsible for that harm (see Family Ct Act § 1012[e][ii]). And, derivative findings of abuse may be "predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well" ... . Accordingly, "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent" (Family Ct Act § 1046[a][i]... ). Thus, in this proceeding regarding the subject child, Amirah L., proof of the mother's acts and omissions that ultimately resulted in Anniyah's death were admissible. * * *


When the fact-finding hearing was held in this case, the Family Court Act did not permit a finding of severe abuse solely on the element of the mother's conduct (see Social Services Law § 384-b[8][a][i]), but also required a finding as to ACS's "diligent efforts" or excuse from exercising "diligent efforts" (see Social Services Law § 384-b[8][a][iv]). During the pendency of this appeal, however, the Legislature amended Family Court Act § 1051(e), so that a "diligent efforts" finding is no longer a required element of a finding of severe abuse in the context of a Family Court Act article 10 proceeding (see L 2013, ch 430, § 1; cf. Social Services Law § 384-b[8]). The statutory amendment may be applied retroactively in this case in light of the nature and purpose of the amendment, the Legislature's expression of urgency in its application, and the absence of any due process violation to the mother in retroactive application ... 


Accordingly, upon our finding that clear and convincing evidence at the fact-finding hearing established that the mother acted recklessly, under circumstances evincing a depraved indifference to Anniyah's life, and thereby caused Anniyah's death, we find that the mother severely abused Anniyah and derivatively severely abused the subject child, Amirah L. Matter of Amirah L, 2014 NY Slip Op 04198, 2nd Dept 6-11-14




Mother's Request to Relocate Properly Granted


The Second Department determined mother had made a sufficient showing to justify relocating with her child to Michigan, where she could afford an apartment based upon her disability payments alone.  The court explained the operative analytic principles:


"When reviewing a custodial parent's request to relocate, the court's primary focus must be on the best interests of the child" ... . "Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child's best interests" ... . "Although each custodial parent's request for relocation must be decided on its own merits, the factors to be considered include, but are not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the [child] and each parent, the impact of the move on the quantity and quality of the [child's] future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the [child] may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the [child] through suitable visitation arrangements" ... . In relocation determinations, this Court's authority is as broad as that of the hearing court ... . Thus, a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record ... . Ortiz v Ortiz, 2014 NY Slip Op 04202, 2nd Dept 6-11-14




Suspended Judgment Should Not Have Been Granted in Termination-of-Parental-Rights Proceeding


The Second Department, over a partial dissent, determined Family Court should not have granted a suspended judgment in a proceeding for the termination of parental rights:


After a dispositional hearing on a petition to terminate parental rights, a court may dismiss the petition, terminate parental rights and commit guardianship to the agency, or suspend judgment for a period of up to one year (see Family Ct Act §§ 631, 633[b]). "A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords a brief grace period designed to prepare the parent to be reunited with the child'" ... . Although this disposition provides a parent with a "second chance," it is appropriate only where it is also in the best interests of the children ... . A suspended judgment is not appropriate where a parent has failed to gain insight into the problems which led to the children's removal in the first instance ... . Moreover, to warrant a suspended judgment, "a parent must demonstrate that progress has been made to overcome the specific problems that led to the removal of the children. Mere attempts are not sufficient" ... . Matter of Chanel C, 2014 NY Slip Op 04226, 2nd Dept 6-11-14




Failure to Advise Respondent of His Right to Counsel at a Temporary Removal Hearing Not Condoned---Reversal Not Required Because No Evidence from the Temporary Removal Hearing Was Elicited in the Subsequent Neglect Proceedings


The Third Department determined that Family Court's failure to advise respondent on his right to counsel in a temporary removal hearing did not require the reversal of a subsequent neglect adjudication.  None of the evidence elicited at the temporary removal hearing was used during the neglect proceedings:


It is well established that failure to fully advise a respondent of his or her right to counsel is a deprivation of a fundamental right that requires reversal of any "resulting adjudication" in a proceeding pursuant to Family Ct Act article 10, whether or not prejudice is shown ... . "[A] Family Ct Act § 1022 removal hearing is no exception" to this requirement ... . Here, Family Court undisputedly failed to advise respondent of his right to counsel "[w]hen [he] first appear[ed] in court . . . before proceeding" with the temporary removal hearing (Family Ct Act § 262 [a]). We do not condone this failure ... .


Nonetheless, we agree with the attorney for the children that the circumstances present here are distinguished from the precedent cited above --not due to the lack of any resulting prejudice, which would not suffice — but rather and specifically relative to whether the determination ultimately rendered after the fact-finding hearing constituted a "resulting adjudication." Here, the neglect adjudication was based solely upon evidence elicited during the course of the fact-finding hearing; no testimony from the temporary removal hearing — in which respondent did not participate — was introduced. The adjudication following fact-finding did not therefore rely, in any part, on the evidence adduced at the temporary removal hearing ... . Matter of Elijah ZZ, 2014 NY Slip Op 04280, 3rd Dept 6-12-14





Lease Provision Allowing Landlord to Comingle Security Deposit with Landlord's Funds Was Void---Question of Fact Whether Both Parties' Actions Resulted in Termination of the Lease by Operation of Law


The Second Department determined defendants-tenants were entitled to the return of their security deposit because the lease purported to allow the landlord to comingle the security deposit with the landlord's funds.  The court further determined the landlord was not entitled to summary judgment for breach of the lease because the landlord accepted the keys to the property when the tenants left before the end of the lease, put the house on the market, and did not demand additional rent for over two months:


General Obligations Law § 7-103(1) provides that a security deposit with respect to the use or rental of real property "shall continue to be the money of the person making such deposit . . . and shall be held in trust by the person with whom such deposit or advance shall be made and shall not be mingled with the personal moneys or become an asset of the person receiving the same." General Obligations Law § 7-103(3) provides that any provision of a lease "whereby a person who so deposits or advances money waives any provision of this section is absolutely void." When a landlord commingles the security deposit with his or her personal funds in violation of General Obligations Law § 7-103(1), the tenant has "an immediate right to the return of the funds, even if the [tenant] had breached the lease" ... . Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law on their counterclaim by submitting the subject lease, which contained a provision stating that the security deposit may be commingled with the plaintiffs' general funds. This provision is void by operation of General Obligation Law § 7-103(3), and, in addition, raises an inference that the plaintiffs violated General Obligations Law § 7-103(1) by commingling the security deposit with their own funds .... In opposition, the plaintiffs, who did not submit any evidence that they did not commingle the security deposit with their own funds, failed to raise a triable issue of fact.


The Supreme Court also properly denied the plaintiffs' cross motion for summary judgment on the first cause of action, which was to recover damages for breach of the lease. The plaintiffs made a prima facie showing that the defendants breached the lease by failing to make monthly rent payments beginning on October 1, 2011. In opposition to that showing, the defendants submitted evidence that, after they vacated the house on or about September 4, 2011, the plaintiffs accepted a return of the keys to the house, immediately put the house on the market for sale, and did not demand payment of rent until late November, 2011. Accordingly, the defendants raised a triable issue of fact as to whether the parties both acted so inconsistently with the landlord-tenant relationship that a surrender of the premises was effected by operation of law, thereby terminating the lease prior to the rent becoming due on October 1, 2011... . Soloman v Ness, 2014 NY Slip Op 04185, 2nd Dept 6-11-14





Where It Is Possible Jurors Relied On an Illegal Ground a General Verdict Must Be Set Aside, Even If Alternative Legal Grounds Were Provided to the Jury


The Second Department determined that the inclusion on the verdict sheet of an offense that was not a designated felony under Mental Hygiene Law 10.03 (f) warranted an new trial, even though no objection was raised:


Generally, where no objection to an alleged error is advanced at trial, the objection is unpreserved for appellate review ... . However, the inclusion on the verdict sheet of a crime that was not a designated felony within the meaning of Mental Hygiene Law § 10.03(f) presents such a fundamental error that the appellant's failure to object does not bar our review of the issue in the exercise of discretion ... . At trial, the State was required to establish by clear and convincing evidence that the appellant was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07[d]). "It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose" ... . "Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based it on an alternative constitutional ground" ... . Matter of State of New York v Todd L, 2014 NY Slip Op 04205, 2nd Dept 6-11-14






Court Properly Permitted Administration of Medication to Involuntarily Committed Patient


The Second Department determined Supreme Court, after a hearing, properly permitted the Rockland Psychiatric Center to administer psychotropic medication to an involuntarily committed patient suffering from schizophrenia who had refused the medication:


The State may administer a course of medical treatment against a patient's will if it establishes, by clear and convincing evidence, that the patient lacks "the capacity to make a reasoned decision with respect to proposed treatment," and that "the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest, taking into consideration all relevant circumstances, including the patient's best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments"... .  Matter of Jay S, 2014 NY Slip Op 04204, 2nd Dept 6-11-14





Internally Inconsistent Verdict Properly Set Aside


The Fourth Department determined Supreme Court properly set aside the verdict and ordered a new trial.  The jury had found that plaintiff's negligence was not a substantial factor in causing her injuries but attributed 30% of the fault to the plaintiff:


...[W]e conclude that the verdict was internally inconsistent inasmuch as the jury found that plaintiff's negligence was not a substantial factor in causing her injuries, but also attributed 30% of the fault to plaintiff ... . Such an internal inconsistency in a verdict can be remedied "only . . . upon further consideration by the jury . . . or by a new trial" ... . Here, of course, the jury had been discharged by the time of plaintiff's motion, and thus it was too late to require the jury to reconsider its answers to the interrogatories on the verdict sheet.


Although plaintiff failed to object to the inconsistency in the verdict before the jury was discharged ..., we conclude that, under the circumstances of this case, the court did not abuse its discretion in setting aside the verdict and ordering a new trial ... . Allen v Lowczus, 2014 NY Slip Op 04288, 4th Dept 6-13-14




Absentee Landlord Granted Summary Judgment in Lead-Paint Exposure Case---No Constructive Notice


The Fourth Department, over a dissent, determined summary judgment was properly granted to an absentee landlord in a lead-paint exposure case.  The landlord had never seen the property:


Defendant and his wife acquired the property by deed in January 1993, and they took title to the property as tenants by the entirety. Defendant's wife died in 2004. Defendant testified at his deposition that his participation in the acquisition of the property was as an accommodation to the financial situation of his wife's son and her nephew. Defendant denied that he had anything to do with the property and asserted that he was only an owner "on paper." Defendant never saw the property, never went there, never received any rent, did not know that a child resided there and never received any correspondence related thereto. Defendant did not execute any lease agreements with respect to the property. "To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition" ... . Hamilton v Picardo, 2014 NY Slip Op 04290, 4th Dept 6-13-14




State's Placement of a Stop Sign and the Resulting Difficulty in Seeing Oncoming Traffic was a Concurrent Cause of the Accident which Was Not Superseded by the Negligence of the Drivers


The Fourth Department determined the state was properly held partially liable for an accident at an intersection.  Plaintiff was a passenger in a car (driven by Kiczewski) which, after stopping, entered an intersection where it was struck by a truck (driven by Martin) with the right of way.  Plaintiff alleged the placement of the stop sign (by the state) made it difficult to see oncoming traffic:


We reject the State's contention that claimants failed to meet their burden of establishing that its negligence was a proximate cause of claimant's injuries. "In order to prevail at trial in a negligence case, a [claimant] . . . is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred" .... . Here, based on our review of the record, we conclude that a fair interpretation of the evidence supports the court's determination that the State's failure to remedy a known dangerous condition at the intersection was a substantial factor in bringing about the accident ... .


Although it is true, as the State contends, that the accident was caused primarily by the negligence of Kiczewski, who failed to yield the right-of-way to the truck, it is well settled that there may be more than one proximate cause of the accident ..., and it cannot be said on this record that Kiczewski's negligence, or that of Martin, was a superseding cause of the accident that severed any causal connection between claimant's injuries and the State's negligence ... . Because claimants proved that the State's negligence "increased the likelihood of an accident," we conclude that the court properly determined that the State's negligence was a "concurring cause" of the accident ... . Przesiek v State of New York, 2014 NY Slip Op 04327, 4th Dept 6-13-14




Defendant Failed to Meet Its Burden on Its Summary Judgment Motion---Not Enough to Point to Deficiencies in Plaintiff's Proof


The Fourth Department determined Supreme Court erred in dismissing a lawsuit against a residential care facility based upon plaintiff's decedent's being fatally injured by another resident. The court noted that the motion for summary judgment was brought by the defendant and it was therefore not enough for the defendant to allege only deficiencies in  plaintiff's proof:


We conclude that the court erred in granting defendant's motion because defendant "failed to come forward with any proof to rebut plaintiff['s] allegations and merely focused on the claimed deficiency in plaintiff['s] proof" ... . In support of its motion, defendant repeatedly argued that plaintiff "failed to satisfy [her] burden" of establishing a prima facie case of negligence because of the "absence of proof[]" with respect to duty, breach of duty, foreseeability, and proximate cause. Those arguments are misplaced, however, because "defendant, not plaintiff, moved for summary judgment and defendant cannot meet its burden by relying on claimed deficienc[ies] in plaintiff['s] proof' " ... . Although plaintiff will bear the burden of establishing defendant's negligence at trial, "on this motion for summary judgment, defendant has the burden of establishing its entitlement to judgment as a matter of law" ... , and we conclude that defendant failed to meet that burden ... .


Defendant concedes that there was an altercation between decedent and another resident, and that such altercation resulted in decedent's injuries. With respect to the foreseeability of the resident's alleged conduct, "defendant[], as the part[y] seeking summary judgment, bore the burden of establishing that the assault on [decedent] was not foreseeable" ... . Defendant, however, "failed to submit any evidence to show that [it] lacked knowledge of any danger presented by the [resident]," and thus failed to establish its entitlement to judgment as a matter of law ... . Schnorr v Emeritus Corp, 2014 NY Slip Op 04314, 4th Dept 6-13-14





Decedent's Statements Admissible Evidence of Pain and Suffering/Damages for Loss of Household Services Explained


The Second Department, in a case where medical malpractice was conceded, determined certain statements made by the decedent were admissible as excited utterances or present sense impressions.  In addition, the damages related to economic loss where decedent was not employed outside the home and devoted 20 hours per week to the care of his disabled daughter were analyzed:


Contrary to the hospital's contentions, admissible evidence established the decedent's conscious pain and suffering during the days prior to his death and on the day of his death. The decedent's statements to his wife ... complaining of pain, discomfort, hunger, difficulty breathing, and feeling that he was dying, were excited utterances or present sense impressions, or both, and therefore admissible as exceptions to the hearsay rule "for the truth of the matters they assert[ed]" ... . The present sense impressions were sufficiently corroborated ... by the testimony of the decedent's wife regarding the decedent's appearance when she visited him, as well as the testimony of the plaintiffs' medical experts based on the hospital records. * * *

We agree with the hospital that the plaintiffs failed to establish the decedent's lost earnings, past or future. However, "[i]n the case of a decedent who was not a wage earner, pecuniary injuries' may be calculated, in part, from the increased expenditures required to continue the services [he or she] provided, as well as the compensable losses of a personal nature, such as loss of guidance" ... .


"[T]he standard by which to measure the value of past and future loss of household services is the cost of replacing the decedent's services" ... . Hyung Kee Lee v New York Hosp Queens, 2014 NY Slip Op 04171, 2nd Dept 6-11-14





Suit Against Municipality Based Upon Exercise of a Governmental Function Properly Dismissed---No Special Duty to Plaintiff


The Second Department, in affirming the dismissal of a lawsuit against a municipality based upon the exercise of a governmental function, explained the relevant law:


A municipal entity "is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public'" ... . The plaintiff must first establish the existence of a special duty owed to it by the entity before it becomes necessary to address whether the entity can rely upon the defense of governmental immunity ... . A special duty arises when there is a duty to exercise reasonable care toward the plaintiff as a result of a special relationship between the plaintiff and the governmental entity ... . When a municipality assumes an affirmative duty to act on behalf of a specific party, and that party justifiably relies to its detriment on the direct assurances of the municipality's agents, a special duty arises ... .


The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not owe a special duty to the plaintiff. In opposition, the plaintiff failed to raise a triable issue of fact ... . Richline Group Inc v City of Mount Vernon, 2014 NY Slip Op 04184, 2nd Dept 6-11-14




Suit Against City for Attempting to Resuscitate Plaintiff with an Inoperable Defibrillator Properly Dismissed---No Special Duty Owed to Plaintiff


The Fourth Department determined causes of action against the city stemming from an inoperable defibrillator which delayed the resuscitation of plaintiff (Angona) were properly dismissed.  Angona had suffered a heart attack and fire department personnel responded. The rendering of resuscitative care and treatment involved a governmental function and the city owed no special duty to the plaintiff:


All of [the] claims of negligence arise from the City's exercise of governmental functions ... . Thus, "[t]o sustain liability against [the City], the duty breached must be more than that owed the public generally" ... . The City met its burden of establishing the absence of a special duty owed to Angona in these circumstances ..., and plaintiff failed to raise a triable issue of fact. We reject plaintiff's contention that the City owed a special duty to Angona by virtue of his status as an off-duty firefighter. Angona v City of Syracuse, 2014 NY Slip Op 04322, 4th Dept 6-13-14





Application to File Late Notice of Claim Against School District Properly Granted in Absence of Reasonable Excuse---School District Had Timely Actual Notice and Could Not Demonstrate Prejudice


The Second Department determined Supreme Court properly granted the application to file a late notice of claim against a school district, in the absence of a reasonable excuse for the lateness:


In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served, the court must consider whether (1) the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition, and (3) the delay would substantially prejudice the public corporation in its defense on the merits ... .


Here, the City School District of the City of Long Beach (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. ... Since the District acquired timely knowledge of the essential facts constituting the petitioner's claim, the petitioner met his initial burden of showing a lack of prejudice ... . The District's conclusory assertions of prejudice, based solely on the petitioner's six-week delay in serving the notice of claim, were insufficient to rebut the petitioner's showing ... .


While the petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the further delay in commencing this proceeding ... , the absence of a reasonable excuse is not fatal to a petition where, as here, there was actual notice and an absence of prejudice ... . Matter of Fennell v City School Dist of city of Long Beach, 2014 NY Slip Op 04192, 2nd Dept 6-11-14




Application to File Late Notice of Claim Against School District Properly Denied---School District Did Not Have Timely Actual Notice and Plaintiff Had No Reasonable Excuse


The Second Department determined the application to file a late notice of claim on behalf of an infant plaintiff was properly denied where the school district did not have timely actual notice of the claim and there was no reasonable excuse for the delay.  Iglesias v Brentwood Union Free School Dist, 2014 NY Slip Op 04194, 2nd Dept 6-11-14




Land Owned by Power Company Which Does Not Now Produce Sewage and Garbage Properly Subject to Ad Valorem Taxes for Sewage and Garbage


The Fourth Department determined land owned by a power company was properly subject to ad valorem taxes for sewer and garbage because it was possible the land, at some point, could be used in a way that would generate sewage and garbage:


The test for determining whether real properties are benefitted, thus warranting special district assessment, is whether the properties are capable of receiving the service funded by the special ad valorem levy' " ... . "An ad valorem tax will not be deemed invalid unless the taxpayer's benefit received from the imposition of the tax is reduced to the point where it is, in effect, nonexistent" ... .


Here, " there is a sufficient theoretical potential of the properties to be developed in a manner that will result in the generation of garbage [and sewage]' " ... . Unlike the plaintiff in Long Is. Water Corp. v Supervisor of Town of Hempstead (77 AD3d 795, lv denied 16 NY3d 711), plaintiff herein owns the land on which its "mass" properties sit, and we conclude that it is theoretically possible that such land, if put to a different use, could generate garbage and sewage. Matter of Niagara Mohawk Power Corp v Town of Marcy Assessor, 2014 NY Slip Op 04312, 4th Dept 6-13-14





Tax Assessment Reductions Can Be Sought Solely through a Tax Certiorari Proceeding Under the Real Property Tax Law, Not Through an Article 78 Proceeding

The Second Department determined the procedure under the Real Property Tax Law (RPTL) was the only avenue available to petitioner to seek a reduction of tax assessments.  Petitioner had successfully challenged the tax assessments for the 2006/2007 tax year and then sought a reduction for the following year in an Article 78 proceeding.  The Second Department determined petitioner should have sought reductions for all the relevant tax years within the time limits of RPTL 702(2) and could not use an Article 78 proceeding to collaterally attack the assessment:


"Ordinarily, the proper method for challenging excessive or unlawful real property tax assessments is by the commencement of a tax certiorari proceeding pursuant to article 7 of the Real Property Tax Law" ... . Such a proceeding is properly commenced after exhaustion of the administrative grievance remedies, and within 30 days after the filing of the final assessment roll (see RPTL 702[2]...). An "excessive assessment" subject to review pursuant to RPTL article 7 includes an assessment of a special assessing unit that fails to comply with the limitations on increases in assessed value set forth in RPTL 1805 (see RPTL 701[4][d]; 706[1]...).


Collateral attacks on assessments are proper where the jurisdiction of the taxing authority is challenged, the tax itself is claimed to be unconstitutional ..., or the challenge is to "the method employed in the assessment of several properties rather than the overvaluation or undervaluation of specific properties" ... . None of these exceptions to the exclusive applicability of RPTL article 7 are present here, since the petitioner challenged, as excessive, the assessments of specific parcels of property by virtue of the appellants' failure to comply with RPTL 1805 (see RPTL 701[4][d]).


The petitioner contends that, nonetheless, the commencement of a CPLR article 78 proceeding within the time provided for by CPLR 217 is the proper vehicle by which to compel the requested transition assessments because recalculation of the 2007/2008 assessments only became necessary after the assessments for the previous tax year were reduced by the Supreme Court and that reduction was affirmed pursuant to our decision and order in Matter of Rainbow Diner v Board of Assessors (71 AD3d 901). We reject this contention, since the petitioner was required to timely exhaust administrative remedies applicable to tax certiorari proceedings, and its challenge was subject to the limitations period of RPTL 702(2). Matter of Jonsher Realty Corp/Melba Inc v Board of Assessors, 2014 NY Slip Op 04195, 2nd Dept 6-11-14





No Assets Left to Distribute---Disposition of a Painting Which Was Part of the Estate and Had Been Donated to a Museum Could Be Protected by the Attorney General (Charged with Protecting the Donor's Wishes)--No Need to Issue Letters of Administration to Petitioner to Ensure Proper Use of the Painting


The Fourth Department determined letters of administration should not have been granted because all the assets of the estate had been distributed.  The letters were sought by a relative of the decedent who was concerned about the disposition of a valuable painting which was a charitable gift to a museum and could not be otherwise disposed of without a court order.  The court concluded that the disposition of the painting could be protected by the Attorney General:


...[W]e ... conclude that [the Surrogate] erred in granting letters of administration c.t.a. to petitioner. It is undisputed that there are no assets of the estate that have not been administered ... . As the Court of Appeals has written, "[t]here may be cases where letters of administration are necessary to be granted for other purposes than the recovery and distribution of assets[,]" including a "claim in respect to them which can be enforced" ... . Nevertheless, we conclude that any claim with respect to the painting is to be "enforced by the [Attorney General], pursuant to his duty to effectuate the donor's wishes" ..., and we conclude that letters of administration c.t.a. are not "necessary" ... .


We further conclude that limited letters of administration also are not "appropriate or necessary in respect of the affairs of the estate" (SCPA 702 [10]...). ... [T]he Surrogate has previously prohibited the disposition of the painting without court approval, and there is no basis to conclude that the Attorney General is not properly fulfilling his duty to protect the decedent's wishes with respect to the bequest to the Emerson Foundation ... . Matter of Seward, 2014 NY Slip Op 04317, 4th Dept 6-13-14

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