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June Page III

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


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Termination Shocks One's Sense of Fairness


The Fourth Department determined the termination of a city employee shocked one's sense of fairness.  The court explained the relevant criteria:



"[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally" ... . "Where, as here, there is no grave moral turpitude' and no grave injury to the agency involved or to the public weal,' courts may ameliorate harsh impositions of sanctions by administrative agencies . . . in order to accomplish what a sense of justice would dictate' " ... . Matter of Harwood v Addison, 2014 NY Slip Op 04660, 4th Dept 6-20=14





Appeal Rendered Academic by Failure to Move for a Preliminary Injunction Pending Appeal


The Second Department determined the appeal had been rendered academic because the appellant did not move for a preliminary injunction pending appeal and the related development project had been completed:



In order to preserve the status quo pending the determination of this appeal, the petitioner/plaintiff was required to move in this Court pursuant to CPLR 5518 for a preliminary injunction pending appeal, prohibiting the development of the subject real property. Since the petitioner/plaintiff failed to do so, it failed to preserve its rights pending appellate review. In the absence of a preliminary injunction issued pursuant to CPLR 5518, nonparty 405 Hotel, LLC, purchased and redeveloped the subject property, and a hotel is now operated thereon. By virtue of this change in the underlying circumstances, this Court has been prevented "from rendering a decision that would effectively determine an actual controversy" ... .  Matter of Yeshiva Gedolah Academy of Beth Aaron Synogogue v City of Long Beach, 2014 NY Slip Op 04502, 2nd Dept 6-18-14





Allegation of "But For" Element of Attorney Malpractice Too Speculative


The First Department determined plaintiff had not sufficiently alleged the "but for" element of an attorney malpractice action.  Plaintiff alleged she would have won the arbitration in which the attorney represented her if the attorney had submitted certain evidence. The First Department found the allegation too speculative to support the action:



Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that "but-for" defendants' alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset ... . Plaintiff stated that if defendants had introduced her parents' personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents' personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel's determination regarding the parents' ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice ... . Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker, 2014 NY Slip Op 04428, 1st Dept 6-17-14




Statute of Limitations Starts When the Alleged Malpractice Occurred, Not When Plaintiff Becomes Aware of It/Continuous Representation Doctrine Can Not Be Invoked to Toll Statute of Limitations When Plaintiff Was Notified Representation Was Formally Closed


In affirming the dismissal of an attorney malpractice cause of action, the First Department noted that the cause of action accrued when an appeal was dismissed for lack of prosecution, irrespective of whether the plaintiff was aware of the dismissal.  In addition, the court noted that a letter to the plaintiff which indicated the defendants' represented of plaintiff was formally closed precluded the plaintiff from relying on the continuous representation doctrine to toll the statute of limitations:



The first cause of action, alleging legal malpractice, accrued at the time that plaintiff's appeal of the order that granted summary judgment dismissing his underlying Labor Law claims was dismissed for want of prosecution, in July 2006, notwithstanding his lack of knowledge of the dismissal ... . Plaintiff then had three years to commence a malpractice action against defendants (see CPLR 214[6]), absent an applicable ground for tolling the limitations period. He did not commence this action until March 2012.



Plaintiff relies on the continuous representation doctrine. However, in June 2008, defendants sent him a letter enclosing the Second Department's affirmance of the underlying judgment and formally closing their representation of him. The letter, which plaintiff did not object to, demonstrates that the parties lacked "a mutual understanding of the need for further representation on the specific subject underlying the malpractice claim" ... . Even accepting that defendants concealed from plaintiff the fact that his appeal was dismissed as abandoned, their letter placed him on notice that his attorney-client relationship with them had ended... . McDonald v Edelman & Edelman, PC, 2014 NY Slip Op 04560, 1st Dept 6-19-14





Accelerated Relief Pursuant to CPLR 3213 (Judgment In Lieu of Complaint) Should Not Have Been Granted---the Document at Issue Did Not Include a Promise to Pay On Demand or at a Definite Time


The Second Department determined Supreme Court should not have granted accelerated relief pursuant to CPLR 3213 because the document describing the loan did not include a provision requiring payment on demand or at a definite time:


Pursuant to CPLR 3213, a party may obtain accelerated relief by moving for summary judgment in lieu of complaint, provided that the action is "based upon an instrument for the payment of money only or upon any judgment" (CPLR 3213...). "A promissory note is an instrument for the payment of money only, provided that it contains an unconditional promise by the borrower to pay the lender over a stated period of time" ... . An instrument does not qualify for accelerated relief under CPLR 3213 "if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" ... .


Therefore, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law pursuant to CPLR 3213 by showing that the defendant executed the subject instrument, the instrument contains an unconditional promise to repay the plaintiff upon demand or at a definite time, and the defendant failed to pay in accordance with the instrument's terms ... .


Here, the record does not support the Supreme Court's determination that the Document reflects the defendant's unconditional promise to repay the borrowed sum upon demand or at definite time ... . Von Fricken v Schaefer, 2014 NY Slip Op 04479, 2nd Dept 6-18-14




New York Courts Do Not Have Jurisdiction Over Intra-Tribal Matters


The First Department determined New York courts do not have subject matter jurisdiction over an election dispute concerning competing tribal councils.  The court also addressed the waiver of sovereignty by a Native American tribe and noted that the jurisdiction of a New York court conveyed by 25 USC 233 does not extend beyond the borders of the state (tribe was located in California):


New York courts do not have subject matter jurisdiction over the internal affairs of Indian tribes" ... . "[A]n election dispute concerning competing tribal councils" is a "non-justiciable intra-tribal matter" ... . Appellants seek a declaration that defendant Chukchansi Economic Development Authority (CEDA) is lawfully governed by a board composed of seven named individuals; however, appellants themselves allege in their counterclaim and cross claims that the members of the CEDA Board are the same as the members of defendant Tribal Council of the Tribe of Picayune Rancheria of the Chukchansi Indians. Wells Fargo Bank NA v Chukchansi Economic Dev Auth, 2014 NY Slip Op 04437, 1st Dept 6-17-14





Constructive Trust Cause of Action Sufficiently Pled/Dismissal "With Prejudice" Not Allowed---Doctrine of Res Judicata Does Not Apply---a Dismissal for Failure to State a Cause of Action Is Not On the Merits


The Second Department determined Supreme Court should not have dismissed the constructive trust cause of action.  The court further determined that the conversion, constructive fraud and breach of contract causes of action were properly dismissed for failure to state a cause of action, but should not have been dismissed "with prejudice."  With respect to the constructive trust and the dismissal with prejudice, the court wrote:


The equitable remedy of a constructive trust may be imposed " [w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'" ... . "The elements of a cause of action to impose a constructive trust are (1) the existence of a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment" ... . "To achieve equity and avoid unjust enrichment, the courts apply these factors flexibly rather than rigidly" ... .


Here, the plaintiff sufficiently alleged the existence of a confidential or fiduciary relationship with the defendants. The parties were related through marriage, and the plaintiff and Atanasio, along with their respective spouses, pooled their resources in order to purchase the residential property and the boat ... . Further, the plaintiff sufficiently pleaded the elements of a promise and a transfer in reliance on the promise. He alleged that, before he sold the defendants his interest in the property in November 2005, the defendants promised to reimburse him for the expenditures he made for the property and boat as long as he continued making those payments for one year after the sale of his interest. In reliance on this alleged promise and his confidential relationship with the defendants, he transferred his interest in the property to the defendants, and thereafter continued to make expenditures in connection with the property and boat. Finally, his allegations that he made all expenditures for the property and boat during a period of 7½ years, and that the defendants refused to reimburse him, despite being co-owners of the property and boat and notwithstanding their promise, were sufficient to plead the unjust enrichment element necessary to the imposition of a constructive ... .


...Supreme Court, upon dismissing the second, third, and fourth causes of action, improperly did so "with prejudice." A dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action... . Canzona v Atanasio, 2014 NY Slip Op 04458, 2nd Dept 6-18-14


In a related case, the Second Department noted that, because a dismissal for failure to state a cause of action is not on the merits, the doctrine of res judicata does not apply.  Canzona v Atanasio, 2014 NY Slip Op 04459, 2nd Dept 6-18-14





General Language---"Disposition"---Limited in Scope by More Specific Words---"Sale or Transfer"


The First Department, over a dissent, determined that the rules of contract interpretation did not allow the collection of a "transaction fee" by plaintiff financial advisor with respect to the defendant's purchase of notes in anticipation of the purchase of a mine.  When the financing for the mine fell through, the defendant sold back the notes in accordance with the purchase agreement with the seller of the notes.  The plaintiff sought a "transaction fee" for that transaction:


...[T]he motion court unreasonably construed the parties' agreement in arriving at the conclusion that plaintiff was entitled to a "transaction fee" in connection with defendant's aborted acquisition of a participation interest in the notes. The letter agreement provides that plaintiff is entitled to a "transaction fee" following the consummation or closing of a "transaction," which it defines as the "sale, transfer or other disposition . . . [of] a portion of the assets, businesses or securities of [defendant]." The acquisition in question was admittedly not a "sale" or "transfer." Nor can it be considered a "disposition," as plaintiff contends. The term "disposition" does not appear in isolation in the agreement, but as a catch-all at the end of the phrase "sale, transfer or other disposition." Thus, under the principle of ejusdem generis, the general language "or other disposition" must be construed as limited in scope by the more specific words "sale" and "transfer" that preceded it ... . Miller Tabak + Co LLC v Senetek PLC, 2014 NY Slip Op 04418, 1st Dept 6-17-14




All Ambiguities Re: Letters of Credit Resolved Against the Issuer---"Independence Principle" Applied---Beneficiaries of Letters of Credit Entitled to Payment


In a full-fledged opinion by Justice Andrias, the First Department reversed Supreme Court and determined plaintiffs were entitled to payment as beneficiaires of irrevocable standby letters of credit.  The opinion is detailed and meticulously resolved all ambiguities in the relevant documents against the issuer of the letters of credit.  The opinion includes an extended discussion of the "independence principle" in this context.  With respect to the basic analytical principles to be applied, the court wrote:


Under New York law, in order to recover on its claim that the issuer wrongfully refused to honor its request to draw down on a letter of credit, the beneficiary must prove that it strictly complied with the terms of the letter of credit ... . "The corollary to the rule of strict compliance is that the requirements in letters of credit must be explicit, and that all ambiguities are construed against the [issuer]" ... . The reasoning is that "[s]ince the beneficiary must comply strictly with the requirements of the letter, it must know precisely and unequivocally what those requirements are" ... . "Where a letter of credit is fairly susceptible of two constructions, one of which makes it fair, customary and one which prudent men would naturally enter into, while the other makes it inequitable, the former interpretation must be preferred to the latter, and a construction rendering the contract possible of performance will be preferred to one which renders its performance impossible or meaningless" ... . * * *


In November 2000, the independence principle was codified in a general revision of article 5 of the UCC. UCC 5—103(d) now provides that:


"[r]ights and obligations of an issuer to a beneficiary or a nominated person under a letter of credit are independent of the existence, performance, or nonperformance of a contract or arrangement out of which the letter of credit arises or which underlies it, including contracts or arrangements between the issuer and the applicant and between the applicant and the beneficiary."


The doctrine of independent contracts, as codified in UCC article 5, allows the letter of credit to provide " a quick, economic and trustworthy means of financing transactions for parties not willing to deal on open accounts'"... . "Only staunch recognition of this principle by the issuers and the courts will give letters of credit the continuing vitality that arises from the certainty and speed of payment under letters of credit" ... .BasicNet SpA v CFP Servs Ltd, 2014 NY Slip Op 04585, 1st Dept 6-19-14





Providing a False Name During Booking Did  Not Trigger the Need for a Miranda Warning


The Second Department determined the police were not required to give the defendant Miranda warnings when the defendant gave a false name during the booking procedure:


When the defendant gave what a police officer suspected to be a false name, the officer warned him that giving a false name would result in an additional charge, as required by the false personation statute (see Penal Law § 190.23). The defendant then repeated the false name after being given a second warning. The officer's warnings to the defendant did not require Miranda warnings (see Miranda v Arizona, 384 US 436). There is no basis for suppressing the defendant's repeated use of a false name. Ascertaining an arrestee's true name is a necessary part of the normal booking process, even if the response may have inculpatory connotations ... . The false personation warnings were required by statute and were not reasonably likely to elicit an incriminating response .. . People v Allen, 2014 NY Slip Op 04503, 2nd Dept 6-18-14




Defendant's Consent to the Substitution of a Juror Was Not Knowingly and Intelligently Given, Reversal Required


The Second Department, in a full-fledged opinion by Justice Chambers, determined the defendant's consent to the substitution of a juror was not knowingly and intelligently given and reversal was required (despite the absence of an objection).  The defendant was not present when defense counsel consented to the substitution and deliberations resumed.  When the defendant arrived, he consented to the substitution.  In the mean time, however, the jury had reached a verdict.  But the trial judge had not informed the defendant a verdict had been reached at the time the defendant was asked for his consent to the substitution:


"[T]he safeguards afforded by CPL 270.35 are identical to and coextensive with the constitutional requirements for valid waiver of a jury trial" ... . The decision to allow an alternate juror to be substituted for a deliberating juror must be knowing, intelligent, and voluntary ... . The defendant must be "fully aware of the consequences of the choice he [or she] is making" ... . In determining whether a defendant's decision to consent to the substitution of an alternate juror for a deliberating juror is "made knowingly and understandingly, based on an intelligent, informed judgment" ..., a court is required to be " scrupulous,'" for at stake is the defendant's "fundamental, constitutional right to a jury of 12" ... . Here, the defendant's election to substitute the alternate juror for the deliberating juror was not based on an intelligent, informed judgment. No matter how well-intentioned the trial court was in not disclosing the fact that the jury had already reached a verdict, due process required the trial court to disclose to the defendant all of the pertinent, material facts. People v Canales, 2014 NY Slip Op 04508, 2nd Dept 6-18-14




Warrantless Search of a Backpack Dropped During a Struggle with Police Was Not a Valid Search Incident to Arrest


The Second Department determined that the search of defendant's backpack, which turned up a loaded weapon, was not a valid search incident to arrest.  The backpack had been dropped during a struggle with the arresting officer and the arrest took place some distance away from where the backpack was:


"Under the State Constitution, an individual's right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances" ... . "When an individual subjected to arrest has a privacy interest in property within his or her immediate control or grabbable area', [the Court of Appeals] has identified two interests that may justify the warrantless search of that property incident to a lawful arrest: the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment" ...


Contrary to the Supreme Court's determination, the search of the backpack was not justified as a search incident to a lawful arrest. The backpack was not within the defendant's immediate control or "grabbable area" at the time he was arrested ... . Moreover, the People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The detective did not assert that he searched the backpack out of concern for the safety of himself or the public, and the circumstances did not support a reasonable belief that the backpack contained a weapon ... . Likewise, the detective did not assert that he searched the backpack to protect against the destruction of evidence, and the facts do not support such an assertion. People v Thompson, 2014 NY Slip Op 04524, 2nd Dept 6-18-14




Count Rendered Duplicitous by Trial Evidence Dismissed


The Fourth Department determined one count of an indictment had been rendered duplicitous by the trial evidence.  The indictment charged the theft of a bicycle.  However the trial evidence alleged the theft of two bicycles.  Therefore it is possible the jury was not unanimous in determining a specific bicycle had been stolen:


Because defendant's right to be tried and convicted of only those crimes charged in the indictment is fundamental and nonwaivable" ..., we review defendant's contention despite his failure to preserve it. CPL 200.30 (1) provides that "[e]ach count of an indictment may charge one offense only." Count five of the indictment charged defendant with stealing a bicycle and thus was not facially defective. At trial, however, the evidence established that two bicycles were stolen. Consequently, " [r]eversal is required because the jury may have convicted defendant of an unindicted [petit larceny], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges' . . . , as well as the danger that . . . different jurors convicted defendant based on different acts' "... . People v Wade, 2014 NY Slip Op 04587, 4th Dept 6-20-14




Error for Trial Judge to Defer to Prosecutor's Wish to Dismiss a Count of an Indictment---The Judge Must Exercise His or Her Own Discretion on the Issue


The First Department determined the trial judge had erroneously deferred to the prosecutor's wish to dismiss a count of the indictment before submitting the case to the jury.  The judge, not the prosecutor, has the discretion to dismiss counts.  The error was deemed harmless however:


Defendant argues on appeal that the court improperly deferred to the People's desire to withdraw the fourth-degree possession charge, relying on People v Extale (18 NY3d 690 [2012]). In Extale, the defendant was indicted for, inter alia, first-degree assault and first-degree vehicular assault, in connection with his having intentionally driven a pickup truck into a police officer. Before the trial of those charges, the prosecutor announced the People's intention to withdraw the vehicular assault count, and the court agreed with the prosecutor that the People had "the authority" to do so. The Court of Appeals disagreed, holding that "the issue was one for the trial court's discretion, not the prosecutor's" (18 NY3d at 695). * * *


On the merits, we agree with defendant that the court's position with respect to the count was no different from that of the trial court in Extale, which was found by the Court of Appeals to be erroneous. No fair reading of the trial record supports the People's argument that the trial court exercised its discretion in dismissing the charge. Indeed, its comment that "the People can dismiss [the count]" was equivalent to the Extale trial court's comment that the prosecutor "ha[d] the authority" to dismiss the vehicular assault count (18 NY3d at 693). People v Silvestre, 2014 NY Slip Op 04562, 1st Dept 6-19-14




Defense Counsel's Failure to Object to Considerable Testimony About Prior Consistent Statements Made by the Victim Concerning Alleged Sexual Abuse Did Not Constitute Ineffective Assistance of Counsel


The Fourth Department, over a strong two-justice dissent, determined defendant's motion to set aside the verdict based upon ineffective assistance of counsel was properly denied.   The complainant was allowed to describe prior consistent statements she made about the alleged incidents of sexual abuse. In addition, the People's expert was allowed to testify about those prior consistent statements.  Defendant's trial counsel did not object to that testimony and she indicated she had no strategic purpose in failing to object.  The majority determined the prior consistent statements were admissible because they completed a narrative.  The dissent noted that no cases supporting the introduction of prior consistent statements to complete a narrative were found.  In the opinion of the dissenters, the prior consistent statements constituted inadmissible bolstering and defense counsel's failure to object to them constituted ineffective assistance:


... [O]ur dissenting colleagues conclude that defense counsel was ineffective by failing to object to the testimony of the victim that she reported to her mother at age six that defendant had touched her in a sexual manner; that she reported to her sister at age 14 that defendant had raped her; and that she told a police witness and the grand jury what she told the jury during her testimony. We respectfully disagree with that conclusion. Although the dissent correctly notes that the repetition of prior consistent statements may "give to a jury an exaggerated idea of the probative force of a party's case" ... , here, the victim's testimony constituted a narrative of events. Indeed, she did not repeat the specific allegations of her testimony, i.e., that defendant had engaged in anal penetration ... . In light of defense counsel's opening statement that the relationship between defendant, the victim and the victim's mother was such that it could "cause someone to make fake allegations," the narrative of events was relevant. We also disagree with our dissenting colleagues that defense counsel's failure to object to the prosecutor's remarks during summation referencing that testimony constitutes ineffective assistance of counsel. Because the remarks were a fair response to defense counsel's summation challenging the credibility of the victim and her motivation for making the accusations ..., we conclude that the failure of defense counsel to object to those comments does not constitute ineffective assistance of counsel ... . People v Gross, 2014 NY Slip Op 04592, 4th Dept 6-20-14




Rebuttal Witness Properly Called by the People to Show Possible Bias of Defense Witness


The Fourth Department, over a strong two-justice dissent, determined that a rebuttal witness called by the People was properly allowed to testify to demonstrate the bias of a defense witness.  The explanation about the relevance of the rebuttal testimony is fact-specific.  The dissenters did not see the rebuttal testimony as relevant to the defense witness' bias and did not agree that the "bias" rationale for the rebuttal was actually raised in the trial court:


...[T]he rebuttal witness was properly called to give testimony that was relevant to the defense witness's bias or motive to fabricate, which is not collateral ... . The defense witness was defendant's former girlfriend, and the rebuttal witness was defendant's ex-wife, who married defendant after he and the defense witness ended their romantic relationship. In her cross-examination of the defense witness, the prosecutor attempted to show that defendant and the defense witness were romantically involved at the time of the trial, but the defense witness would admit only that she and defendant were friends, and claimed that she and defendant had been friends "all along," i.e., they were friends even when defendant and the rebuttal witness were married. The prosecutor informed the court that she wanted to call the rebuttal witness to rebut the defense witness's testimony that she and defendant were "friends this entire time." We disagree with our dissenting colleagues that the rebuttal witness should not have been allowed to testify. Reading the prosecutor's colloquy with the court on this issue, together with her cross-examination of the defense witness, we conclude that the purpose of calling the rebuttal witness was to show that defendant and the defense witness were romantically involved at the time of the trial, which the prosecutor believed could be inferred if the defense witness and defendant had not been friends when he was married to the rebuttal witness.


We also disagree with our dissenting colleagues that our affirmance of the trial court's ruling violates People v Concepcion (17 NY3d 192). The Court of Appeals has " construed CPL 470.15 (1) as a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court' " (id. at 195). Contrary to the position of the dissent, we are not affirming on a ground that is different from that determined by the court. The court allowed the rebuttal witness to testify for the "limited purpose" of whether the defense witness and defendant were friends, and we conclude that the court's determination was proper. We simply differ from the dissent in our interpretation of the meaning of the rebuttal witness's testimony tending to show that the defense witness and defendant were not friends after defendant married the rebuttal witness.  People v Nicholson, 2014 NY Slip Op 04611, 4th Dept 6-20-14




Reversible Error to Instruct the Jury On an Affirmative Defense Over Defense Counsel's Objection


The Fourth Department reversed defendant's intentional murder conviction because the trial judge, in response to a question from the jury, instructed the jury on the affirmative defense of renunciation over defense counsel's objection.  The court explained the relevant law:


It is well settled that a court cannot instruct a jury on an affirmative defense where the defendant objects to the instruction ... . When a court does so, it impairs a defendant's "unquestionabl[e] . . . right to chart his [or her] own defense" ...; it may "undermine[] the defense chosen by [the] defendant[,] . . . [and] place[] [the] defendant in the midst of contradictory defenses" ...; and it indisputably "impose[s] on [the] defendant an affirmative burden of proof he [or she] had not undertaken by his [or her] defense theory" ... . The imposition of a burden of proof on a defendant who has not elected to pursue an affirmative defense "constitute[s] an abuse of the affirmative defense in deorgation of [a] defendant's right to have the State bear the entire burden of proof" ... . The Third Department has even stated that a court "is without the jurisdiction to, sua sponte, instruct the jury on an affirmative defense or force a defendant to raise such a defense" ... .


Where, as here, the defendant has repeatedly advanced only a defense, which carries no burden of proof, "the suggestion that he [or she] had assumed a burden of proof . . . ha[s] the potential to mislead the jury" ... . The affirmative defense of renunciation requires a defendant to meet an initial burden of establishing, by a preponderance of the evidence ..., that he or she "withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof" (Penal Law § 40.10 [1] [emphasis added]). There was no evidence presented at trial that defendant made any effort, let alone a substantial one, to prevent the commission of the murder. The only conclusion the jury could have drawn was that defendant had failed to meet his burden of establishing the affirmative defense. Here..., "[t]he imposition of an affirmative burden of proof over defense objection and the involuntary undermining of the defendant's chosen defense strategy resulted in serious prejudice that requires reversal"... . People v Brewer, 2014 NY Slip Op 04606, 4th Dept 6-20-14



Defendant's Temporary Possession of a Weapon Was "Innocent"


The Fourth Department determined defendant's conviction for possession of a weapon was against the weight of the evidence. Defendant's half-brother handed her the weapon just before he became involved in an altercation.  The court determined defendant's possession of the weapon was "innocent:"


"Under our law, in certain circumstances, the possession of a weapon may be innocent and not criminal. Innocent possession of a weapon is possession that is temporary and not for an unlawful purpose" ... . "This defense of temporary and lawful' possession applies because as a matter of policy the conduct is not deemed criminal" ... . Furthermore, a "defendant is not required to prove that h[er] possession of the weapon was innocent. Rather, the People are required to prove beyond a reasonable doubt both that the defendant knowingly possessed the weapon and that such possession was not innocent" ... . For this defense to be considered by the trier of fact, "there must be proof in the record showing a legal excuse for having the weapon in [one's] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was] not used in a dangerous manner" ... . People v Holes, 2014 NY Slip Op 04643, 4th Dept 6-20-14












Court's Erroneous Jury Instruction Re: State's Territorial Jurisdiction Over the Alleged Crime Was Not a Mode of Proceedings Error---Objection Is Required to Preserve the Issue for Appeal


The First Department determined that the court's erroneous jury instruction concerning the state's terretorial jurisdiction over the case, as opposed to whether the state actually had territorial jurisdiction, required preservation by objection:


The trial court instructed the jury that the prosecution was required to establish the State's territorial jurisdiction by a preponderance of evidence. As the People concede, the charge was erroneous in this regard . On the contrary, the People were required to establish the State's territorial jurisdiction by proof beyond a reasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover, territorial jurisdiction is not waivable (id. at 471). Our analysis, however, does not end with a citation to McLaughlin. The issue before us involves the trial court's charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to a court's territorial jurisdiction cannot be waived, a claim of error in a court's instructions on the subject requires preservation by way of an appropriate objection at the court of first instance. Nonetheless, the requirement of preservation is subject to an exception that exists for "mode of proceedings" errors that consist of the most fundamental flaws implicating jurisdictional matters or constitutional rights that go to the very heart of the criminal justice process ... . Defendant asserts that the mode of proceedings exception applies here. People v Carvajal (6 NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. In Carvajal, the Court noted that the defendant had "relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt" (id. at 311-312). Citing People v Greenberg (89 NY2d 553 [1997]), the Carvajal Court aptly observed that "a defendant's failure to request a jury charge on territorial jurisdiction amounts to a waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether - as a matter of law - this State has the power to hear the case" (id. at 312). In this case, it is undisputed that defendant did not object to the trial court's erroneous charge on the burden of proof with respect to territorial jurisdiction. Guided by Carvajal, we find that defendant was required, but failed, to preserve his present challenge to the trial court's charge on jurisdiction.  People v Polk, 2014 NY Slip Op 04561, 1st Dept 6-19-14




Statement Identifying Shooter Made by a Witness Who Did Not See the Shooting Should Not Have Been Admitted Under the Present Sense Impression Exception to the Hearsay Rule


In a decision which affirmed the conviction and addressed several other important evidentiary issues, the Fourth Department noted that a statement identifying the defendant as the shooter made by a witness who did not see the shooting should not have been admitted under the present sense impression exception to the hearsay rule:


It is well settled that, in order "[t]o qualify as a present sense impression, the out-of-court statement must be (1) made by a person perceiving the event as it is unfolding or immediately afterward . . . , and (2) corroborated by independent evidence establishing the reliability of the contents of the statement" (id. at 382). Here, the witness did not see the shooting, and he confirmed defendant's identity as the shooter only after questioning the victim (see People v Vasquez, 88 NY2d 561, 580; see also People v Brown, 104 AD3d 1203, 1204, lv denied 21 NY3d 1014). Therefore, the witness's statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim's identification of defendant as the shooter ... . People v Mulligan, 2014 NY Slip Op 04588, 4th Dept 6-20-14





Neighborhood Association Had Standing to Contest Planning Board's Negative Finding (Re: a Construction Project) After a SEQRA Review


The Second Department affirmed Supreme Court's determination that a neighborhood association had standing to contest the planning board's finding that a proposed construction project would not adversely affect the environment after a review pursuant to the State Environmental Quality Review Act (SEQRA) (the board issued a "negative finding"):


The Supreme Court properly determined that the Association has standing to contest the Planning Board's issuance of the negative declaration. An association or organization has standing when "one or more of its members would have standing to sue," "the interests it asserts are germane to its purposes," and "neither the asserted claim nor the appropriate relief requires the participation of the individual members" ... . Here, as the Planning Board concedes in its reply brief, several Association members have standing to sue, as their properties are adjacent to the proposed project site and they have alleged potential structural harm from construction-related blasting, as well as visual harm ... . Moreover, the interests that the Association asserts are germane to its purpose, and the participation of Association members is not necessary in order for the Association to obtain the relief it seeks. Accordingly, the Association satisfied all relevant criteria to establish standing ... . Matter of Schlemme v Planning Bd of City of Poughkeepsie, 2014 NY Slip Op 04498, 2nd Dept 6-18-14




NYS Department of Environmental Protection (DEC) Has Authority to Address the Pollution of New York Waters by Oil and Gas Producer Operating Across the Border in Pennsylvania/DEC's Authority Not Demonstrated to Be Preempted by Federal Clean Water Act


The Fourth Department affirmed Supreme Court's dismissal of a petition brought by an oil and gas producer seeking to prohibit the New York State Department of Environmental Protection (DEC) from enforcing consent orders which concern the pollution of Yeager Brook in the Allegany State Park.  The oil and gas producer is operating across the border in Pennsylvania on land owned by the US Forest Service.  The court held that the DEC has the authority to address the pollution of New York waters and rejected the argument that the DEC's authority to act was preempted by the Federal Clean Water Act (CWA):


Beginning in 2010, personnel of the New York State Office of Parks, Recreation, and Historic Preservation reported pollution, including turbidity, color change, and suspended sediment, in New York's Yeager Brook, downstream from and caused by petitioner's operations in Pennsylvania, in contravention of New York's water quality standards. Subsequently, the New York State Department of Environmental Conservation (DEC) entered into two consent orders with petitioner concerning the aforementioned pollution. Because of alleged continued and ongoing violations, the DEC commenced an administrative proceeding in New York seeking to enforce the consent orders and the penalties for the violations thereof. Petitioner commenced the instant proceeding contending, inter alia, that the DEC is acting in excess of its jurisdiction because the federal Clean Water Act ([CWA] 33 USC § 1251 et seq.) preempts the application of an affected state's laws and regulations to an out-of-state point source ... .


As the party seeking a writ of prohibition, petitioner bears a "heavy burden" of establishing a "clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review" ... . We conclude that respondents in support of their motion to dismiss established as a matter of law that petitioner could not meet that burden, and Supreme Court therefore properly granted the motion. The DEC had the statutory authority and jurisdiction to enter into the consent orders at issue and to commence the administrative proceeding to enforce those orders (see ECL 17-0303 [2], [4] [a], [b]; [5] [a]; see also ECL 17-0105 [1]; ECL 17-0501). Petitioner has failed to establish in this proceeding that the DEC's exercise of such authority and jurisdiction is clearly preempted by the CWA, inasmuch as it has not shown that enforcement of the consent orders would "stand[] as an obstacle to the full implementation of the CWA" ... . Moreover, the preemptive effect of the CWA "should be determined, in the first instance, through the administrative process"... . "[E]ven as to a clearly ultra vires act, prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant if [it] is relegated to such other course" ... . No such irreparable injury has been demonstrated here.  Matter of US Energy Dev Corp v NYS Department of Environmental Protection, 2014 NY Slip Op 04591, 4th Dept 6-20-14





Abuse Finding, Based Upon an Unsatisfactory Explanation for the Child's Injury, Reversed Based Upon the Testimony of  Petitioner's Medical Witness Who Stated the Injury Could Have Been Caused by a Fall and Described the Child as Basically Asymptomatic and Happy at the Hospital


The Second Department reversed Family Court's finding of abuse and derivative neglect based upon the injury to one child (Janelle P).  The petitioner had alleged the appellants were unable to provide a satisfactory explanation for the child's injury.  The court noted the testimony of petitioner's expert, a physician at the hospital where the child was treated, which indicated the injury could have been caused by a fall and the child did not appear to be in any pain and was happy:


A prima facie case of child abuse or neglect may be established by evidence of an injury which ordinarily would not occur absent an act or omission of the responsible caretaker (see Family Ct Act § 1046 [a][ii]...). "If the petitioner establishes a prima facie case of abuse, the burden of going forward shifts to respondents to rebut the evidence of parental culpability,' although the burden of proof always remains with the petitioner" ... .


Here, the evidence presented by the petitioner did not establish a prima facie case of abuse against the appellants. The petitioner's expert medical witness, a physician at the hospital where Janelle P. was admitted, testified that Janelle P. was diagnosed with a millimeter-sized subdural hematoma and "encephalo hematoma" caused by blunt force trauma. However, he opined that the child's injury could have been caused by a fall of a couple feet onto a hard surface. Moreover, he testified that there was no discoloration with the swelling, that the child was not in any pain, and that aside from the swelling, the child was asymptomatic. He also testified that when he examined the child, she looked "great," and was smiling and happy. Matter of Jaylin C, 2014 NY Slip Op 04482m 2nd Dept 6-18-14



Denial of Mother's Request to Relocate Reversed, Factors Described


The Second Department reversed Family Court and determined the relocation of the child with the mother was in the best interests of the child.  The mother had remarried, her husband and the child got along well, her husband had a good job and a three bedroom house in Georgia, adequate visitation with the child's father could be arranged, and the child wished to move to Georgia. The court described the analytical factors:


The Family Court erred in denying the mother's modification petition so as to allow her to relocate to Georgia with the subject child. A parent's relocation request must be considered on its own merits with due consideration of all the relevant circumstances, and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child ... . Courts are free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors 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 both parents, 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 custodial parent's and child's life may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. It is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests ... . In relocation proceedings, this Court's authority is as broad as that of the hearing court. A relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record ... . The Family Court's determination here was not supported by a sound and substantial basis in the record. Matter of Hall v Hall, 2014 NY Slip Op 04487, 2nd Dept 6-18-14



Petitioner Was Not Estopped from Denying Paternity---Family Court's Ruling to the Contrary Reversed


The Second Department reversed Family Court and determined the petitioner was not estopped from denying his paternity of the child. No parental relationship had developed, the child did not know the petitioner and the mother had told the petitioner he was not the child's father:


"The purpose of equitable estoppel is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position'" ... . Thus, "a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity," in light of the child's justifiable reliance upon such representations, and the resulting harm that the man's denial of paternity would engender ... . "The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship'" ... . The doctrine of equitable estoppel will be applied only where its use furthers the best interests of the subject child (see Family Ct Act § 418[a]...).


Here, the Family Court improvidently exercised its discretion in concluding that the petitioner was estopped from denying his paternity of the child (see Family Ct Act § 418[a]). The hearing evidence demonstrated that the petitioner did not have a parent-child relationship since the child was approximately three years old at the time when the petitioner learned from the mother that he was not the child's father and the parties separated. The mother testified that the child did not know the petitioner as his father and that the two had not seen each other in years. There was no evidence that the child would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being if this proceeding were permitted to go forward ... . Matter of Felix M v Leonardo RC, 2014 NY Slip Op 04491, 2nd Dept 6-18-14




Juvenile Entitled to Petition for Special Immigrant Juvenile Status---Family Court's Ruling to the Contrary Reversed


The Second Department reversed Family Court and determined the subject child was eligible to petition for special immigrant juvenile status:


Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a "special immigrant" is an undocumented resident who is, inter alia, under 21 years of age, unmarried, and "declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States" (8 USC § 1101[a][27][J][i]). For the juvenile to qualify for SIJS status, it must be also determined that reunification with "1 or both" of the juvenile's parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (id.), and that it would not be in the juvenile's best interest to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]).


Based upon our independent factual review, we find that the record, which includes affidavits from Cristal and her mother, fully supports the conclusion that Cristal was abandoned by her father. Cristal never lived with her father; he visited her only once. He never provided any financial support, and failed to communicate with her. Thus, Cristal established that reunification with her father was not viable due to abandonment ... . Accordingly, the Family Court should have granted Cristal's motion. Matter of Cristal MRM, 2014 NY Slip Op 04496, 2nd Dept 6-18-14




Father's Parental Rights Should Not Have Been Terminated Pursuant to Social Services Law 384-b Which Is Relevant Solely to Destitute or Dependent Children


The Fourth Department determined father's parental rights should not have been terminated pursuant to Social Services Law 384-b, which was not applicable:


Social Services Law § 384-b is entitled "Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights" (emphasis added). A destitute child is defined as a child "who is in a state of want or suffering due to lack of sufficient food, clothing, shelter, or medical or surgical care," does not fit within the definition of an abused or neglected child and is without any parent or caretaker; "a child who is . . . absent from his or her legal residence without the consent of his or her parent, legal guardian or custodian"; "a child . . . who is without a place of shelter where supervision and care are available;" or "a person who is a former foster care youth under the age of twenty-one who was previously placed in the care and custody of [DSS] . . . and who was discharged from foster care . . . , [and] who has returned to foster care" (§ 371 [3] [a] - [d]). A dependent child is defined as "a child who is in the custody of, or wholly or partly maintained by an authorized agency or an institution, society or other organization of charitable, eleemosynary, correctional, or reformatory character" (§ 371 [7]). It is indisputable that the subject child is neither a destitute nor a dependent child. Social Services Law § 384-b is thus inapplicable to the child and may not be invoked by either the mother or DSS as a means to terminate the father's parental rights. We therefore reverse the order and grant the father's motion to dismiss the petition. We note, however, that our determination does not leave the mother without a remedy. She may seek to dispense with the father's consent to adoption pursuant to Domestic Relations Law § 111 (2) (a) ... . Matter of Anastasia I, 2014 NY Slip Op 04657, 4th Dept 6-20-14




Party Represented by Counsel at a Scheduled Court Appearance Has Not Failed to Appear


In affirming the termination of mother's parental rights, the Fourth Department noted that a party who is represented by an attorney at a scheduled court appearance has not failed to appear:


A party who is represented at a scheduled court appearance by an attorney has not failed to appear' " ... . The mother initially appeared at the fact-finding hearing, and her attorney participated in the hearing by presenting an opening statement and cross-examining the first witness. The mother's attorney chose not to participate in the remainder of the hearing when the mother left the courtroom after the first witness testified. Inasmuch as the mother's attorney "appeared at and participated in the hearing" until the mother left the courtroom, "there was no default"... . Matter of Savanna G, 2014 NY Slip Op 04658, 4th Dept 6-20-14




Mother Not Adequately Apprised of Her Right to Counsel---New Hearing Ordered


The Fourth Department determined a new hearing was required because mother was not adequately apprised of her right to counsel:


We agree with the mother that she was denied her right to counsel. The mother was entitled to representation based upon her status as a respondent in a Family Court Act article 6 proceeding and a person alleged to be in willful violation of a court order, and Family Court's inquiry concerning her decision to proceed pro se was insufficient to enable the court to determine whether she knowingly, intelligently and voluntarily waived her right to counsel... . Matter of Seifert v Pastwick, 2014 NY Slip Op 04677, 4th Dept 6-20-14






Petition for Modification of Custody Should Not Have Been Dismissed Without a Hearing


The Fourth Department determined Family Court should not have dismissed mother's petition for a modification of custody without holding a hearing:


It is well settled that a party seeking a change in an established custody arrangement must show "a change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child[ren]" ... . Although a "hearing is not automatically required whenever a parent seeks modification of a custody order"... , we conclude that the mother made a sufficient evidentiary showing of a change in circumstances to warrant a hearing ... . "[T]he mother's allegations that [the father] imposed excessive and inappropriate discipline on the subject children, including corporal punishment, [were] sufficient to warrant a hearing" ... , as were the mother's allegations that the father had refused to permit her to exercise visitation with the subject children for four weeks ... . Consequently, we agree with the mother that the court erred in dismissing the petition without conducting a hearing.  Matter of Isler v Johnson, 2014 NY Slip Op 04678, 4th Dept 6-20-14




Children's Out-of-Court Statements Sufficiently Corroborated


In upholding a finding of neglect, the Second Department determined the out-of-court statements of the children were sufficiently corroborated to be admissible:


In a child protective proceeding, "[u]nsworn out-of-court statements of the [subject child] may be received and, if properly corroborated, will support a finding of abuse or neglect ...  * * *


Here, the out-of-court statements of siblings Alysa and Joseph to the caseworker were corroborated by the caseworker's personal observations, the two children's own cross-corroborating statements, confirmation of certain events by their older sister Selena and brother Mateo, and certain statements by the mother, and were properly considered by the Family Court (see Family Ct Act § 1046[a][vi]; ...).  Matter of Mateo S. 2014 MY Slip Op 04497, 2nd Dept 6-18-14





Insurer of Contractor for Its (Primarily) Interior Work Was Not Entitled to Summary Judgment (Disclaiming Coverage) in Action Stemming from Building Collapse of Unknown Cause


The First Department, over a dissent, determined the insurer was not entitled to disclaim coverage as a matter of law and therefore was not entitled to summary judgment.  The insured (BCS) did (primarily) interior work (painting, carpentry, etc.) in the renovation of a building which included adding two floors.  There was a partial collapse of the building.  The insurer argued that the collapse could not be attributed to any of the specific (mainly interior-work) activities covered in the policy.  The court determined the lack of certainty about the cause(s) of the collapse precluded summary judgment:


Plaintiff issued a commercial lines insurance policy to BCS. The policy's declarations page stated BCS's "Business Description" as "Carpentry-Painting-Drywall-Plastering-Tile-Contractor." Elsewhere, the work to be covered was separated into five separate "classifications," namely, "Carpentry-Interior," Painting-Interior-Structures," "Dry wall or wallboard install," "Plastering or stucco work," and "Tile, Stone-Interior construction." Plaintiff issued an endorsement to the policy clarifying that "[n]o coverage is provided for any classification code or operation performed by the Named Insured not specifically listed in the Declaration of this policy." Another endorsement provided that the "policy shall not apply to [claims] arising out of operations performed for any insured by independent contractors or acts or omissions of any insured in connection with his general supervision of such operations." * * *


Plaintiff would be entitled to summary judgment if it could establish that "there is no possible factual or legal basis upon which [it] may eventually be held obligated to indemnify [BCS] under any policy provision" ... . In other words, the record before us would have to establish, as a matter of law, that the underlying claim did not arise out of any work BCS did in the areas of interior carpentry, interior painting, dry wall installation, plastering or stucco work (interior or exterior), or interior tile and stone construction. Plaintiff would have to demonstrate conclusively that all of the work out of which the claim arose was performed by an independent contractor.


This record permits no such conclusions,... . Tower Ins Co of NY v BCS Constr Servs Corp, 2014 NY Slip Op 04420, 1st Dept 6-17-14




Breach of Covenant of Good Faith (Settlement) Can Give Rise to Consequential Damages (Loss of Earnings) Even Where Policy Excludes Loss of Earnings with Respect to the Events Covered by the Policy


The Second Department noted that consequential damages resulting from a breach of the covenant of good faith and fair dealing (loss of earnings) may be asserted in the context of the breach of an insurance contract, even where the policy excludes loss of earnings as damages related to the events covered by the policy:


"[C]onsequential damages resulting from a breach of the covenant of good faith and fair dealing may be asserted in an insurance contract context, so long as the damages were within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting" ... .


Here [the insurer] failed to establish, prima facie, that it acted in good faith in recommending that the plaintiff accept a settlement offer, and then discontinuing the payment of defense costs once the plaintiff rejected the offer ... . Moreover, although the subject insurance policy contains a provision excluding coverage for "loss of earnings," this provision plainly only applies to loss of earnings caused by a covered event under the policy, and does not preclude the recovery of consequential damages caused by [the insurer's] alleged breach of contract ... . Mutual Assn Adm'rs Inc v National Union Fire Ins Co of Pittsburgh PA, 2014 NY Slip Op 04470, 2nd Dept 6-18-14




In Absence of a "Special Relationship" Insurer Not Liable for Agent's Negligent Misrepresentation


The Fourth Department determined the insurance carrier was entitled to summary judgment because it did not have a "special relationship" with the insured.  Plaintiff's insurance had been cancelled for lack of payment.  After a loss, the plaintiff sued the insurer alleged that he had relied on the agent's representation that his insurance premium had been paid.  Absent a "special relationship" suit can not be premised on such reliance:


We agree with defendant that the court erred in denying its motion for summary judgment dismissing the complaint, the gravamen of which is a claim for negligent misrepresentation. An essential element of such a claim is the "duty to use reasonable care to impart correct information due to a special relationship between the parties" ... . A special relationship may arise from "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" ... . According to plaintiff, he had a special relationship with defendant based on a course of dealing. We conclude that defendant met its burden on the motion, and plaintiff failed to raise an issue of fact concerning the existence of a special relationship ... . The interactions between plaintiff and defendant on which plaintiff relies " would [not] have put [an] objectively reasonable insurance agent[] on notice that [his or her advice] was being sought and specially relied on' " ... , such that a special relationship was formed based on a course of conduct. Defendant therefore cannot be held liable for negligent misrepresentation based on its agent's response to an inquiry from plaintiff concerning whether his policy premium had been paid. In view of our determination, we do not consider defendant's remaining contentions. Majtan v Urbanke Assoc Inc, 2014 NY Slip Op 04631, 4th Dept 6-20-14





Ladder Which "Kicked Out" from Under Plaintiff Entitled Plaintiff to Partial Summary Judgment/Replacement of Cracked Glass Constituted Covered "Repair" Not Routine Maintenance

The First Department, over a dissent, determined that the replacement of cracked glass in skylight constituted repair rather than routine maintenance, and therefore was a covered activity under Labor Law 240 (1).  A ladder used by the plaintiff to access the skylight "kicked out" from under him:


"The plaintiff need not demonstrate that the [safety device] was defective or failed to comply with applicable safety regulations," but only that it "proved inadequate to shield [plaintiff] from harm directly flowing from the application of the force of gravity to an object or person" ... . The inexplicable shifting of an unsecured ladder may alone support a § 240(1) claim if a worker is caused to fall due to such shifting ... . A worker's prima facie entitlement to partial summary judgment on his or her § 240(1) claim may be established by proof that the ladder provided collapsed under the worker while he or she was engaged in an enumerated task ... .


The crux of this case involves the question of whether plaintiff was involved in repair or maintenance work. "Essentially, routine maintenance for purposes of the statute is work that does not rise to the level of an enumerated term such as repairing or altering" ... . In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as "whether the work in question was occasioned by an isolated event as opposed to a recurring condition" ...; whether the object being replaced was "a worn-out component" in something that was otherwise "operable" ...; and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement ...


Here, plaintiff described the panes as being constructed of "heavy plate glass" with wire running through them and stated that they simply "do not crack or wear out over time." Plaintiff showed, without contradiction, that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced. Soriano v St Mary's Orthodox Church of Rockland, Inc, 2014 NY Slip Op 04419, 1st Dept 6-17-14




Question of Fact Re: Whether the Homeowner's Exemption Applied Where It Was Alleged Building Was to Be Used for Both Private-Residence and Commercial Purposes


The Second Department reversed Supreme Court finding there was a question of fact whether defendant property owner (Palmiero) could take advantage of the homeowner's exemption under the Labor Law.  Although Palmiero alleged he was going to use the then vacant building as a private residence in which he would have a small commercial office, the plaintiff raised a question of fact about whether the building was to be used for commercial purposes. The court explained the relevant principles:


The homeowner's exemption under Labor Law §§ 240(1) and 241(6) to liability imposed upon property owners for work site accidents is available to "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law §§ 240[1], 241[6]...). The "[u]se of a portion of a homeowners's premises for commercial purposes . . . does not automatically cause the homeowner to lose the protection of the exemption under this statute" ... . "Rather, the exemption depends upon the site and purpose of the work" ... .


Here, Palmiero established his prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) on the ground that he was protected by the homeowner's exemption under the Labor Law. However, in opposition, the plaintiff raised a triable issue of fact as to whether the structure was to be used primarily as a residence or for commercial purposes when the renovations were completed ... . Sanchez v Palmiero, 2014 NY Slip Op 04473, 2nd Dept 6-18-14





Petitioner Did Not Demonstrate Need for Involuntary Assisted Outpatient Treatment/Case Presented an Exception to the Mootness Doctrine


The Second Department determined the petitioner did not demonstrate that Luis G met the criteria for involuntary assisted outpatient treatment (AOP).  By the time of the appeal, the order for involuntary AOP had expired.  The Second Department explained the exception to the mootness doctrine which allowed the court to rule in the matter:


Generally, "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" ... . "However, an exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable" ... .


* * * There is an issue as to whether the Supreme Court properly determined that the petitioner demonstrated that Luis G. met all the criteria for involuntary assisted outpatient treatment (hereinafter AOT), as set forth in Mental Hygiene Law § 9.60. This issue has a likelihood of recurrence, either between the petitioner and Luis G. due to his chronic mental illness, or between the petitioner and other patients who may be the subject of involuntary AOT proceedings. In addition, this issue would typically evade appellate review, as involuntary AOT orders have a maximum duration of six months unless extended by a subsequent court order (see Mental Hygiene Law § 9.60[j][2]; [k]). Further, the issue raised on appeal has not been the subject of prior appellate review and is substantial and novel ... . 


The petitioner failed to demonstrate by clear and convincing evidence that Luis G. met the criteria of Mental Hygiene Law § 9.60(c)(4), as no evidence indicated that he was hospitalized twice during the 36 months prior to the filing of the petition for involuntary AOT, as required by statute (see Mental Hygiene Law §§ 9.60[c][4][i], [j][2]). Moreover, the petitioner failed to establish by clear and convincing evidence that, during the 48 months prior to the filing of the petition for involuntary AOT, Luis G. engaged in any act of serious violent behavior toward himself or others, or threatened or attempted to cause serious physical harm to himself or others ... . Matter of Walsh-Tozer v Luis G, 2014 NY Slip Op 04500, 2nd Dept 6-18-14




Under Mental Hygiene Law, Claim Made for Payment from Nursing Home Resident's Guardianship Account During Resident's Life Had Priority over Claim by Department of Social Services After Resident's Death


The First Department, in a full-fledged opinion by Justice Acosta, over a dissent, determined that a nursing home (Eastchester) which had submitted a claim for the resident's (Shannon's) care to the resident's guardianship account during the resident's life had priority over the Department of Social Services, which submitted a claim for the resident's care (Medicaid) to the resident's estate after death:


Eastchester, a skilled nursing facility, admitted Edna Shannon into its care in 2005. In 2008, due to Shannon's need for assistance, and concerns about the proper handling of her finances by third parties, Eastchester commenced a proceeding pursuant to Mental Hygiene Law article 81 to have a guardian appointed for her person and property. It also filed an application for medical assistance for Shannon's nursing home costs. In 2009, DSS determined that Shannon was eligible for Medicaid, effective September 1, 2008. By order and judgment entered April 24, 2009, Supreme Court appointed Family Service Society of Yonkers as her guardian. Among other things, the court conferred on Family Service Society the authority to pay Shannon's nursing home expenses and to pay bills after her death. Shannon died in December 2011 at age 87. * * *


As Eastchester was to be paid out of the guardianship account before any funds passed to the estate, its claim had priority over DSS's claim.  MHL § 81.44(d) provides that, within 150 days of the death of an incapacitated person, the guardian must serve on the personal representative of the decedent's estate, or if none, the public administrator or chief fiscal officer, a statement of assets and notice of claim, and "except for property retained to secure any known claim, lien or administrative costs of the guardianship," deliver all guardianship property to the personal representative, public administrator, or chief fiscal officer (emphasis added). Matter of Shannon, 2014 NY Slip Op 04452, 1st Dept 6-17-14





Fact that a Sidewalk Is Smooth (Inherently Slippery) or Slippery When Wet Is Not an Actionable Defect


The First Department noted that the facts that a sidewalk is inherently slippery because of its smoothness or that it is slippery when wet are not actionable defects:


The mere fact that a sidewalk is "inherently slippery" by reason of its smoothness or becomes more slippery when wet does not constitute an actionable defect ... . Plaintiff's expert's finding lacked probative force and failed to raise a triable issue of fact as to the existence of a defective or dangerous condition in the absence of any assertion of a violation of a specific, applicable industry standard which contributed to the accident ... .


* * *[Plaintiff's] claim that granite constituted an "unapproved non-concrete material" is unsupported. Bock v Loumarita Realty Corp, 2014 NY Slip Op 04426, 1st Dept 6-17-14




A Slip and Fall Defendant Who Moves for Summary Judgment Must Demonstrate When the Area Where the Fall Occurred Was Last Inspected or Cleaned


The Second Department determined summary judgment should not have been granted to the defendant in a slip and fall case.  The defendant, who moved for summary judgment, failed to demonstrate when the wet area where plaintiff fell was last cleaned or inspected and thereby failed to make a prima facie showing of a lack of constructive notice of the condition:


In a slip-and-fall case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence ... . While the defendant met her initial burden of making a prima facie showing that she did not create the condition and lacked actual notice of the wet spot, "[t]o meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" ... . Here, the defendant introduced no evidence as to when she had last cleaned or inspected the staircase relative to the time the plaintiff fell. She did not know when she last inspected the property before the subject accident ...  Thus, the defendant did not establish, prima facie, that she lacked constructive notice of the alleged wet condition in the stairway ... . Lamour v Decimus, 2014 NY Slip Op 04466, 2nd Dept 6-18-14




Defendant Demonstrated It Did Not Have Constructive Notice of Condition Which Caused the Fall---Law of Constructive Notice Explained Re: Recurring Conditions/Latent Defects


The Second Department determined defendant was entitled to summary judgment in a slip and fall case because it demonstrated it did not have constructive notice of the condition which caused the fall.  Plaintiff was walking on a pallet in the stock room while unloading things.  After walking on the pallet three times, one of the boards apparently broke causing injury.  There was testimony that there was no sign the board was going to break prior to the accident.  The court explained the relevant law, including the law concerning recurring conditions and latent defects:


A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected ... .


When a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he or she can be charged with constructive notice of each specific reoccurrence of that condition ... . A general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the particular condition causing the fall ... . When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed ... .


The Supreme Court properly concluded that the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating, through the submission of, inter alia, a transcript of the injured plaintiff's deposition testimony, that it did not create the condition or have actual or constructive notice thereof. Schubert-Fanning v Stop & Shop Supermarket Co LLP, 2014 NY Slip Op 04474, 2nd Dept 6-18-14






Application to File Late Notice of Claim (30 Days Late) Should Have Been Granted---Respondents Had Notice of the Incident and Short Delay Did Not Affect Ability to Investigate


In concluding the application to file a late notice of claim should have been granted, the First Department explained the relevant analysis.  The court noted the city had timely notice of the incident and the 30 delay in filing the notice did not prejudice the city's ability to investigate:


General Municipal Law § 50—e(5) confers upon the court "the discretion to determine whether to grant or deny leave to serve a late notice of claim within certain parameters" (Matter of Porcaro v City of New York, 20 AD3d 357, 358 [1st Dept 2005]). The statute provides, in pertinent part, that in determining whether to grant an extension of time to serve a notice of claim, a court shall consider, in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the 90—day period specified in § 50—e(1) "or within a reasonable time thereafter" (§ 50—e[5]). Further, under the statute, the court must take into account all other relevant facts and circumstances, including, among other things, whether the petitioner offered a reasonable excuse for the late notice and whether the delay substantially prejudiced the respondent's defense on the merits ... . The presence or absence of any one factor, however, is not determinative ... . Moreover, while the court has discretion in determining motions to file late notices of claim, the statute is remedial in nature, and therefore should be liberally construed ... .


...[R]espondents had actual knowledge of the pertinent facts constituting the claim — ... .


In addition, petitioner attempted to serve the notice of claim only 30 days after expiration of the statutory 90-day period for filing a notice of claim against a municipality. This short delay does not prejudice respondents' ability to investigate and defend the claim, as such a short passage of time is unlikely to have affected witnesses' memories of the relevant events. Matter of Thomas v City of New York, 2014 NY Slip Op 04423, 1st Dept 6-17-14



Under NYC Administrative Code, Abutting Owners Have Duty to Maintain Sidewalk in a Reasonably Safe Condition


In reversing Supreme Court, the First Department noted that, pursuant to the NYC Administrative Code, owners of abutting properties are responsible for the safe condition of the sidewalk.  Here it was alleged that defendant's workers placed garbage bags on the sidewalk which leaked and plaintiff slipped on the slippery sidewalk:


Plaintiff alleges that she slipped on a greasy liquid leaking from garbage bags placed on the public sidewalk by defendant's workers. Pursuant to Administrative Code of the City of New York § 7-210(b), the owner of property abutting a public sidewalk has a duty to maintain the sidewalk in a reasonably safe condition and is liable for failure to do so ... .


Plaintiff's testimony that she saw defendant's workers placing garbage bags on the sidewalk in the morning raises issues of fact as to whether defendant is responsible for creating the alleged slippery condition ... . Torres v New York City Hous Auth, 2014 NY Slip Op 04425, 1st Dept 6-17-14




No Special Duty Owed by School to School Employee Injured by Students Who Collided with Her 


The Second Department determined that a school's duty to supervise students does not extend to an adult school employee injured when two students collided with her:


A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured ... . Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a "special duty" to the students themselves ... . Accordingly, a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established ... . The special duty owed to the students themselves does not, however, extend, as a general matter, to teachers, administrators, and other adults on or off of school premises ... .


Here, the defendants established, prima facie, that they did not owe the plaintiff a special duty... . Ferguson v City of New York, 2014 NY Slip Op 04464, 2nd Dept 6-18-14




Plaintiffs Granted Summary Judgment In Action Against Golf Course Re: Incursion of Golf Balls on Plaintiffs' Property


The Second  Department reversed Supreme Court and found that plaintiffs were entitled to summary judgment on liability. Plaintiffs sued defendant golf course (Quaker Ridge) complaining of the incursion of golf balls on their property.  The plaintiffs sued in nuisance, trespass and negligence:


"The elements of a private nuisance cause of action are an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act" ... . Here, the plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging private nuisance by demonstrating that Quaker Ridge has operated its golf course in a manner that has failed to sufficiently reduce the number of golf balls landing on the plaintiffs' property, producing a tangible and appreciable injury to the property that renders its enjoyment especially uncomfortable and inconvenient ... .


Likewise, the plaintiffs' submissions were sufficient to establish their prima facie entitlement to judgment as a matter of law with respect to the cause of action alleging trespass. "The essence of trespass is the invasion of a person's interest in the exclusive possession of land" ... . The invasion of, or intrusion upon, the property interest "must at least be the immediate or inevitable consequence of what [the defendant] willfully does, or which he does so negligently" ... . Here, the plaintiffs' submissions demonstrate that golf balls have invaded their property with such frequency and over such a long period of time, without Quaker Ridge taking steps to sufficiently abate the situation, so as to amount to willfulness ... .


Furthermore, the plaintiffs established, prima facie, that Quaker Ridge breached its duty to exercise reasonable care in the maintenance and use of its property to prevent foreseeable injury that might occur on adjoining property by failing to take precautions in design and location, in the form of play, or in the erection of protective devices as a safeguard against injury to the plaintiffs' property ... .  Behar v Quaker Ridge Golf Club Inc, 2014 NY Slip Op 04456, 2nd Dept 6-18-14





Power Company Must Pay Town's Ad Valorem Sewer Taxes Whether Or Not It Owns the Land On Which Its Transmission Facilities Are Located and Whether or Not It Produces Sewage


The Fourth Department determined that as long as the power company owns the land on which its mass properties (transmission facilities) are located, it must pay the "ad valorem" sewer taxes, even if no sewage is generated. The court further determined that even if the power company did not own the land, it would still be liable for the tax because the town's storm water sewer system protects the facilities from flooding:


If petitioner owns the land, it must pay the sewer taxes regardless of whether the properties currently produce sewage inasmuch as it is theoretically possible that the properties could be " developed in a manner that will result in the generation of [sewage]' " ..., and it is immaterial that the Town taxes the land separately from the improvements thereon and that petitioner challenges only the tax on the improvements.


We further conclude that the court properly granted respondents' application for summary judgment based on the fact that petitioner may still benefit from the sewer district even if it does not own the land on which its mass properties are located. Respondents established that a significant amount of storm water infiltrates the Town's sewer system and that "the sewer district encompasses storm sewers that actually or might potentially safeguard [petitioner]'s transmission and distribution facilities from flooding" ... . Matter of Niagara Mohawk Power Corp v Assessor, Town of Cheektowaga, 2014 NY Slip Op 04627, 4th Dept 6-20-14




Property Should Not Have Been Restored to Petitioner---Time for Redemption Had Passed---Default Judgment in Tax Foreclosure Action Extinguished Petitioner's Rights in the Property


The Fourth Department determined Supreme Court should not have restored title to property to the petitioner after the a default judgment had been entered in a tax foreclosure action.  The time for redemption had passed and had not been extended:


The Treasurer's posting of the tax enforcement notification at petitioner's residence on April 25, 2012 extended the right of redemption until May 25, 2012 (see RPTL 1125 [1] [b] [iii]). Only a local law could extend the cut-off date for redemption (see RPTL 1111 [2]) and, thus, contrary to petitioner's contention, the published notice of the tax auction could not extend that date of redemption. Where a valid tax lien exists, and the taxing authority followed all proper procedures in foreclosing the lien, the taxpayer's property interests are "lawfully extinguished as of the expiration of the[ ] right to redemption and the entry of the judgment of foreclosure" ... . Thus, all of petitioner's right, title and interest in the parcels, in her individual and representative capacities, was extinguished when the default judgment was entered in the tax foreclosure action on June 18, 2012 (see RPTL 1123 [8]).  Matter of Johnstone v Treasurer of Wayne County, 2014 NY Slip Op 04590, 4th Dept 6-20-14




In a Partition Action, Tenant in Common Not Liable to Other Tenants in Common for Use and Occupancy of the Property/Tenant in Common Entitled to Reimbursement from Other Tenants in Common for Taxes and Repairs


In the context of a partition action, the Fourth Department explained that a tenant in common is not liable to other tenants in common for the use and occupancy of the property and is entitled to reimbursement of any payments made for taxes and repairs:


Contrary to plaintiffs' contention, the court properly determined that defendant was not liable to them for the value of defendant's use and occupancy. "[P]artition is an equitable remedy in nature and [the court] has the authority to adjust the rights of the parties so [that] each receives his or her proper share of the property and its benefits" (Hunt v Hunt, 13 AD3d 1041, 1042). A tenant in common "has the right to take and occupy the whole of the premises and preserve them from waste or injury, so long as he or she does not interfere with the right of [the other tenants] to also occupy the premises" ... . "Mere occupancy alone by one of the tenants does not make that tenant liable to the other tenant[s] for use and occupancy absent an agreement to that effect or an ouster" ... , both of which are absent here.


Contrary to plaintiffs' further contention, the court properly determined that defendant was entitled to be reimbursed for payments that he made for property taxes and repairs. It is well settled that a tenant in common is entitled to be reimbursed for the share of the taxes paid by him for the benefit of other tenants in common ... . Additionally, a tenant in common is entitled to be reimbursed for money expended in maintaining, repairing and improving the property, if such maintenance, repairs, and improvements were undertaken in good faith and were necessary to protect or preserve the property ... . Cooney v Shepard, 2014 NY Slip Op 04589, 4th Dept 6-20-14




Claimant Deemed an Employee Despite Independent Contractor Agreement


The Third Department upheld the determination that claimant was an employee, entitled to unemployment benefits, despite the existence of an independent contractor agreement.  Claimant was hired by AML, a consulting firm, for a four-week research project for one of AML's clients.  Claimant worked at the client's location:


Initially, we note that the existence of an employment relationship is a factual issue for the Board to decide and its determination will not be disturbed if supported by substantial evidence ... . In making this determination, particularly where the work of professionals is involved, the relevant inquiry is whether the employer exercised "control over important aspects of the services performed" ... . Here, undisputed evidence was presented that AML set claimant's rate of pay, established her work hours, provided training, conferred with her on a regular basis, reviewed her work product and submitted her final report to the client. Significantly, although claimant physically worked at the client's location, an AML representative was present on a daily basis to discuss the project with claimant. Under the circumstances presented, notwithstanding the existence of the independent contractor agreement, substantial evidence supports the Board's finding that claimant and those similarly situated research analysts were AML's employees ... . Matter of Stewart..., 2014 NY Slip Op 04539, 3rd Dept 6-19-14





Employer Must Show Workers' Compensation Board Approved a Settlement with the Plaintiff In Order to Be Entitled to Summary Judgment Dismissing Plaintiff 's Subsequent Damages Suit (Plaintiff-Employee Is Not Entitled to Both Workers' Compensation Benefits and Damages But an Unapproved Settlement Is Not Binding)


The Second Department determined defendant employer's motion for summary judgment dismissing the plaintiff-employee's personal injury complaint was properly denied.  Although the defendant and the employer had reached a settlement, the Workers' Compensation Board never approved the settlement.  Without demonstrating the board approved the settlement, the employer was not entitled to summary judgment. An unapproved settlement is not binding on the parties:


Workers' Compensation Law §§ 11 and 29(6) provide that an employee who elects to receive compensation benefits may not sue his or her employer in an action at law for the injuries sustained" ... . A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law must demonstrate, prima facie, the applicability of the exclusivity provisions of the Workers' Compensation Law ... . Workers' Compensation Law § 32 provides, in relevant part, that once a claim has been filed, the claimant, the employer and its carrier may enter into "an agreement settling upon and determining the compensation and other benefits due to the claimant" (Workers' Compensation Law § 32[a]). However, that statute also provides that the "agreement shall not bind the parties to it, unless it is approved by the board" (Workers' Compensation Law § 32[a]). While a plaintiff cannot receive both the benefits of Workers' Compensation and damages in an action at law ..., here, the defendant failed to establish that a settlement agreement reached by the parties was approved by the Workers' Compensation Board. Smith-Lerner v Art Students League of NY, 2014 NY Slip Op 04476, 2nd Dept 6-18-14




Workers' Compensation Carrier Not Liable After Liability Has Shifted to Special Fund---Board Overruled Precedent Holding Otherwise When the Carrier is Responsible for Delay Until the Special Fund Is Available to Assume Liability


The Third Department upheld the Workers' Compensation Board's determination that the workers' compensation carrier is not liable for medical expenses after liability has been shifted to the Special Fund. The Board had the power to overrule prior precedent which allowed the carrier to remain liable if it was attempting to delay providing benefits in order to have liability shifted to the Special Fund:


Workers' Compensation Law § 25-a (1) provides that, where seven years have passed from the date of claimant's injury and three years have passed from the date of the last payment of compensation, "if an award is made it shall be against the [S]pecial [F]und" (emphasis added). Both of those time periods have undoubtedly been met in this case. The Board has previously observed, however, that a carrier with a pending application to shift liability may be tempted to delay in approving necessary medical expenses in order to avoid the complications of paying for them and later seeking reimbursement from the Special Fund. In an effort to address that concern, the Board had held that, in certain instances, a carrier would be held liable for medical expenses that would otherwise be the responsibility of the Special Fund if it "had attempted to delay payment for the surgery until after a determination was made regarding the applicability of [Workers' Compensation Law] § 25-a, and not based . . . on a good faith objection to the surgery" ... .


In the decision at issue here, the Board discussed that precedent at length and overruled it, which it was free to do given that it "set forth its reasons for doing so" and considered appropriate statutory and judicial authorities ... . * * *


"The purpose of [Workers' Compensation Law § ] 25-a is to save employers and insurance carriers from liability . . . for stale claims of injured employees" ... . Workers' Compensation Law § 25-a (1) furthers that purpose by requiring that any award "shall be [made] against the [S]pecial [F]und" if the requisite time periods have elapsed (emphasis added). As both the language and purpose of the statute demonstrate, the carrier "has no further interest in [the] payment of the claim" once liability has shifted to the Special Fund ... , and "the Board ha[s] no power to direct that the award be paid by the [carrier] instead of out of the [S]pecial [F]und" under those circumstances ... . Thus, the Board properly concluded that the statute does not permit a carrier to be held liable for medical expenses incurred after liability has been shifted to the Special Fund. Matter of Ercole v New York State Police, 2014 NY Slip Op 04550, 3rd Dept 6-19-14


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