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June Page IV

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


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NYC Board of Health Exceeded Its Authority When It Promulgated the "Sugary Drinks Portion Cap Rule"


The Court of Appeals, in a full-fledged, extensive and detailed opinion by Judge Piggott, with a concurring opinion and an extensive dissenting opinion, determined the New York City Board of Health exceeded the scope of its regulatory authority when it adopted the "Surgary Drinks Portion Cap Rule" restricting the size of the containers in which sugary drinks are sold.  The court applied three of the four factors described in Boreali v Axelrod, 71 NY2d 1 (1987):


Any Boreali analysis should center on the theme that "it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends" (71 NY2d at 13). The focus must be on whether the challenged regulation attempts to resolve difficult social problems in this manner. That task, policy-making, is reserved to the legislative branch.  *  *  *


Here, instead of an outright ban on sugary beverages, the Board decided to reduce their consumption by the expedient of limiting maximum container size, thus making it less convenient for consumers to exceed recommended limits. The more cautious approach, however, does not save the Portion Cap Rule. By restricting portions, the Board necessarily chose between ends, including public health, the economic consequences associated with restricting profits by beverage companies and vendors, tax implications for small business owners, and personal autonomy with respect to the choices of New York City residents concerning what they consume. Most obviously, the Portion Cap Rule embodied a compromise that attempted to promote a healthy diet without significantly affecting the beverage industry. This necessarily implied a relative valuing of health considerations and economic ends, just as a complete prohibition of sugary beverages would have. Moreover, it involved more than simply balancing costs and benefits according to pre-existing guidelines; the value judgments entailed difficult and complex choices between broad policy goals — choices reserved to the legislative branch.  Matter of New York Coalition of Hispanic Chambers of Commerce v New York City Department of Health & Mental Hygiene, 2014 NY Slip Op 04804, Ct App 6-26-14





New York's "Borrowing Statute" and "Savings Statute" Interpreted to Find a State Action Timely Filed Within Six Months of a Non-Merits Dismissal in Federal Court, Even Though the Suit Would Be Untimely in the Out-of-State Court Where the Claims Accrued


The Court of Appeals, in a full-fledged, extensive opinion by Judge Read, interpreted CPLR sections 202 and 205 to deem a New York state action timely.


This dramatic and long-running contest over control of a lucrative oil field in Western Siberia reduces at present to an open question of New York civil procedure involving the interplay of CPLR 202, New York's "borrowing" statute, and CPLR 205 (a), New York's "savings" statute. When a cause of action accrues outside New York and the plaintiff is a nonresident, section 202 "borrows" the statute of limitations of the jurisdiction where the claim arose, if shorter than New York's, to measure the lawsuit's timeliness. New York's "savings" statute, section 205 (a), allows a plaintiff to refile claims within six months of a timely prior action's termination for reasons other than the merits or a plaintiff's unwillingness to prosecute the claims in a diligent manner.


This appeal calls upon us to decide whether a nonresident plaintiff who filed a timely action in a New York federal court may refile claims arising from the same transaction in state court within six months of the federal action's non-merits termination, even though the suit would be untimely in the out-of-state jurisdiction where the claims accrued. We hold that such a lawsuit is not time-barred, and therefore reverse the Appellate Division.  Norex Petroleum Ltd v Blavatnik, 2014 NY Slip Op 04802, Ct App 6-26-14





Permissive Inference Firearm Was Possessed With Intent to Use it Unlawfully Against Another Was Sufficient to Support Conviction In Spite of the Evidence the Firearm Discharged Accidentally


The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, determined that the evidence was legally sufficient to support the defendant's conviction of possession of firearm with intent to use it unlawfully against another.  The only evidence with regard to intent was the defendant's explanation that he was showing his cousin the firearm and it discharged accidentally. The court held that the statutory permissive presumption of unlawful intent to use a firearm against another, if accepted by the jury, was enough. The court noted that there was no need to prove intent to use the firearm against defendant's cousin because it was enough for the jury to infer the intent to use the firearm against "another." The court explained how a permissive inference works as follows:


"A statutory presumption is a deduction or an inference which the trier of fact may draw from facts found or otherwise established during the course of the trial" ... . This evidentiary device "[is] a staple of our adversary system of factfinding," which often requires "the trier of fact to determine the existence of an element of the crime — that is, an 'ultimate' or 'elemental' fact — from the existence of one or more 'evidentiary' or 'basic' facts" ... . The presumption of unlawful intent under Penal Law § 265.15 (4), like all statutory presumptions in New York, is a permissive presumption ..., meaning that "[it] allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof" ... .


The purpose of a statutory presumption is to allow a particular fact to be established by "inferential" proof ... . Before the presumption may apply, the People must establish beyond a reasonable doubt the predicate fact or facts "the statute requires be proved" ... . If the People succeed in this endeavor, they are entitled to rely on the presumption, which "forms part of the support for their prima facie case" against the defendant ... . The presumption may be rebutted by any evidence in the case; that is, evidence presented by the defendant or the People ... . Evidence rebutting the presumption will not "negate the existence of a prima facie case; rather it presents an alternate set of facts, or inferences from facts, to the jury. The jury then has the right to choose between the two versions" ... . In other words, the presumption "receives the same treatment that any other 'fact' so thoroughly controverted would receive" ... .  People v Galindo, 2014 NY Slip Op 04803, Ct App 5-26-14




US Supreme Court Ruling that Defense Counsel Must Inform Noncitizen Defendants of the Risk of Deportation Associated with a Guilty Plea Does Not Apply Retroactively in State Collateral Review


The Court of Appeals, in a full-fledged, detailed and extensive opinion by Judge Read, over two extensive dissenting opinions, determined that the Supreme Court's ruling in Padilla v Kentucky, 559 US 356, requiring that defense counsel inform noncitizen defendants of the risk of deportation associated with a guilty plea, does not apply retroactively to collateral review under state law:


The United States Supreme Court held in Padilla v Kentucky (559 US 356 [2010]) that the Sixth Amendment requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea. The Court subsequently held in Chaidez v United States (568 US __, 133 S Ct 1103 [2013]) that Padilla did not apply retroactively in federal collateral review. The issue in this appeal is whether, pursuant to federal or state retroactivity principles, Padilla nonetheless applies retroactively in state court postconviction proceedings. ...[W]e hold that it does not... .  People v Baret, 2014 NY Slip Op 04872, Ct App 6-30-14






In a Case Based Upon Defendant's Confession, Knowledge of a Civil Lawsuit Against One of the Interrogating Officers, Alleging the Extraction of a Forced Confession in an Unrelated Case, Can Not Be Imputed to the Prosecutor---Therefore the People Were Under No Obligation Under "Brady" to Provide the Defense with Information About the Civil Lawsuit


In a full-fledged opinion by Judge Abdus-Salaam, with two concurring opinions, the Court of Appeals determined the prosecutor was not obligated to learn about and reveal that an interrogating officer ((O'Leary) was the subject of a federal civil lawsuit alleging he extracted a forced confession in an unrelated case. The defendant in the instant case had confessed.  Evidence of the federal lawsuit may have been admissible to impeach the interrogating officer's testimony in defendant's trial. The opinion includes a detailed analysis of the prosecutor's "Brady" obligation to provide the defendant with evidence favorable to the defense.  The court held that evidence about the federal lawsuit could constitute impeachment evidence, meeting the first prong of the Brady test, but further determined knowledge of the civil suit could not be imputed to the prosecutor and, under the facts, introduction of the evidence would not have affected the outcome of the trial:


Brady proscribes "the suppression by the prosecution of evidence favorable to [the] accused . . . where the evidence is material either to guilt or to punishment" ... . "The Brady rule is based on the requirement of due process," and "[i]ts purpose is not to displace the adversary system as the primary means by which truth is uncovered," but to ensure that the accused receives a fair trial ... . The People, in their role as truth-seekers in criminal trials, have a "broad obligation to disclose exculpatory evidence," but a mere breach of this duty does not offend the defendant's due process rights unless all the "components of a true Brady violation" are established ... . To make out a successful Brady claim, "a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material ... .  * * *


... We are satisfied that, under the circumstances of this case, the People had no constructive knowledge of the civil allegations against O'Leary. The allegations did not arise out of O'Leary's investigation of defendant's case or his actions as part of the prosecution's team, nor were they directly related to defendant's murder prosecution. The federal lawsuit concerned O'Leary's alleged misconduct in an unrelated criminal case, and the allegations were, at most, collateral to defendant's prosecution to the extent they may have provided impeachment material. Accordingly, O'Leary's knowledge of his own alleged misconduct and the civil action against him could not be imputed to the People for Brady purposes ... . People v Garrett, 2014 NY Slip Op 04876, Ct App 6-30-14




Violation of Best Evidence Rule Deemed Harmless


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that any violation of the best evidence rule constituted harmless error.  The defendant was charged with grand larceny after receiving funds related to Mayor Bloomberg's campaign for services defendant did not provide.  The funds were held by a trust. To prove ownership of the funds, the People called the person who drafted the trust (Friday).  The defendant argued that the best evidence rule required that the trust document itself be placed in evidence.  Essentially, the Court of Appeals determined that by the time the objection to the failure of proof had been raised, ownership of the funds had already been proven with other evidence:


Defendant argues that Friday's testimony violated the best evidence rule and that without her testimony there was "a deficiency in [the People's] proof." The best evidence rule "requires the production of an original writing where its contents are in dispute and sought to be proven" ... . The rule protects against fraud, perjury, and inaccurate recollection by allowing the jury to judge a document by its own literal terms. * * *


Defendant's best evidence rule challenge is of no moment because by the time defendant finally raised his objection, Bloomberg and several other prosecution witnesses had already provided the testimony that tended to prove ownership. Defendant allowed the People to admit this evidence without objection. Nevertheless, defendant asks us to review the introduction of Friday's testimony for its prejudicial effect, but, in light of the other testimony concerning ownership, we cannot say that Friday's testimony was so prejudicial as to deny defendant a fair trial. Moreover, based on the trial record, there is no significant probability that the jury would have failed to convict, even without Friday's testimony or admission of the trust document ... .  People v Haggerty, 2014 NY Slip Op 04874, Ct App 6-30-14





Local Zoning Ordinance Prohibiting Hydrofracking Is Not Preempted BY the State Oil, Gas and Solution Mining Law/Environmental Conservation Law



The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined that state law (Oil, Gas and Solution Mining Law [OGSML]; specifically the "supersession clause" in Environmental Conservation Law [ECL] 23-0303) did not preempt local zoning ordinances prohibiting hydrofracking to extract gas and oil:


We are asked in these two appeals whether towns may ban oil and gas production activities, including hydrofracking, within municipal boundaries through the adoption of local zoning laws. We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law (OGSML) does not preempt the home rule authority vested in municipalities to regulate land use. * * *


... Article IX, the "home rule" provision of the New York Constitution, states that "every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law . . . except to the extent that the legislature shall restrict the adoption of such a local law" (NY Const, art IX, § 2 [c] [ii]). To implement this constitutional mandate, the State Legislature enacted the Municipal Home Rule Law, which empowers local governments to pass laws both for the "protection and enhancement of [their] physical and visual environment" (Municipal Home Rule Law § 10 [1] [ii] [a] [11]) and for the "government, protection, order, conduct, safety, health and well-being of persons or property therein" (Municipal Home Rule Law § 10 [1] [ii] [a] [12]). The Legislature likewise authorized towns to enact zoning laws for the purpose of fostering "the health, safety, morals, or the general welfare of the community" (Town Law § 261; see also Statute of Local Governments § 10 [6] [granting towns "the power to adopt, amend and repeal zoning regulations"]). As a fundamental precept, the Legislature has recognized that the local regulation of land use is "[a]mong the most significant powers and duties granted . . . to a town government" (Town Law § 272-a [1] [b]). * * *


...[A] town may not enact ordinances that conflict with the State Constitution or any general law (see Municipal Home Rule Law § 10 [1] [i], [ii]). Under the preemption doctrine, a local law promulgated under a municipality's home rule authority must yield to an inconsistent state law as a consequence of "the untrammeled primacy of the Legislature to act with respect to matters of State concern" ... . But we do not lightly presume preemption where the preeminent power of a locality to regulate land use is at stake. Rather, we will invalidate a zoning law only where there is a "clear expression of legislative intent to preempt local control over land use" ... . * * *


... [T]he plain language of ECL 23-0303 (2) does not support preemption with respect to the Towns' zoning laws. * * *


...[O]ur interpretation of the OGSML's supersession clause is consistent with the overarching statutory structure... . * * *


Nothing in the legislative history undermines our view that the supersession clause does not interfere with local zoning laws regulating the permissible and prohibited uses of municipal land. Matter of Wallach v Town of Dryden, 2014 NY Slip Op 04875, Ct App 6-30-14






NYC Not Required to Pay Any Portion of Tier 3 Employees' Statutory Pension Contribution


The Court of Appeals, in a full-fledged, detailed and extensive opinion by Judge Read, determined that New York City is not required to pay any portion of the employees' statutory pension contribution for tier 3 eployees of the New York City Police and Fire Departments:


...[W]e conclude that section 480 (b) [of the Retirement and Social Security Law] only encompasses temporary programs in place as of 1974 for tier 1 and 2 members of a public employee retirement system. Stated another way, section 480 (b) does not obligate a public employer to pay any portion of a tier 3 public employee's statutorily required pension contribution. Accordingly, the City has properly deducted 3% from the gross annual wages of its tier 3 police officers and firefighters as mandatory employee pension contributions. Lynch v City of New York, 2014 NY Slip Op 04873, Ct App 6-30-14






Second Motion for an Extension of Time to Serve Summons and Complaint Should Have Been Granted


In reversing Supreme Court, the Second Department determined there is authority for a second extension of time within which to serve copies of a summons and complaint:


Contrary to the conclusion of the Supreme Court, there is authority permitting a second extension of time within which to serve copies of a summons and complaint upon a defendant ... . Further, while the motion for a second extension of time was pending, El Mustapha, who was represented by counsel, served an answer. Therefore, it is clear that [defendant] had notice of the commencement of this action against him. There is no indication of prejudice. In view of the foregoing, the plaintiff's motion for a second extension time pursuant to CPLR 306-b should have been granted ... . Dhuler v ERLAC Inc, 2014 NY Slip Op 04729, 2nd Dept 6-25-14



No Prejudice Where Defendant's Attorney Requested an Extension of Time to File Answer Within 20 Days After the Answer Was Due


The Second Department determined Supreme Court properly denied plaintiff's motion for leave to enter a default judgment after defendant's attorney had requested an extension to file an answer:


Within 20 days after the time to serve an answer had expired, the defendant ...(hereinafter the respondent), requested from the plaintiff's attorney an extension of time to serve an answer, thereafter served an answer, and promptly moved to vacate its default after the answer was rejected ... . Since the plaintiff was not prejudiced by the short delay in the service of an answer, and in light of the lack of willfulness on the part of the respondent, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against the respondent on the issue of liability and granting the respondent's cross motion to deem its late answer timely served nunc pro tunc (see CPLR 2004, 3012[d]...). Hutchinson v New York City Health & Hosps Corp, 2014 NY Slip Op 04734, 2nd Dept 6-25-14





Collateral Estoppel Effect Can Not Be Given to an Administrative Determination of Which Defendant Had Not Been Given Notice and In Which Defendant Did Not Participate


The Second Department noted collateral estoppel effect can not be given to a Workers' Compensation Board (WCB) determination of which the defendant had not been given notice:


Under the doctrine of collateral estoppel, a party is precluded from relitigating an issue which has been previously decided against him in a prior proceeding where he had a full and fair opportunity to litigate such issue ... . The doctrine has been applied to quasi-judicial determinations of administrative agencies such as the WCB ... .


The Supreme Court, however, should not have, in effect, given collateral estoppel effect to the WCB's determination under the circumstances of this case, because Montalvo should have been, but was not, given notice of the WCB's hearing. Where a party, such as Montalvo in this case, is not afforded an opportunity to participate in a hearing before the WCB, it is not bound by the WCB's determination made after the hearing ... . Rosario v Montalvo & Son Auto Repair Ctr ltd, 2014 NY Slip Op 04748, 2nd Dept 6-25-14





Proper Remedy for Discovery of Fraud Against the Court is a Motion to Vacate the Judgment in the Proceeding Affected by the Fraud, Not Intervention In the Proceeding Where the Fraud Was Revealed


The First Department determined that plaintiff's ex-wife could not intervene in a breach of contract action alleging that plaintiff had lied about his assets (revealed by plaintiff's complaint in the breach of contract action) during the prior divorce proceedings. The court explained that the remedy for such fraud upon the court is a motion to vacate the divorce judgment, not intervention in the breach of contract proceedings:


Although respondent's allegations shed light on a possible fraud on the matrimonial court, "[t]he remedy for fraud allegedly

committed during the course of a legal proceeding must be exercised in that lawsuit by moving to vacate the civil judgment (CPLR 5015[a][3]), and not by another plenary action collaterally attacking that judgment" ... . Respondent's motion to intervene essentially seeks to collaterally attack the divorce decree and, accordingly, the matrimonial court is the proper forum in which to address respondent's motion to vacate or modify that judgment on the basis of fraud or newly discovered evidence (...CPLR 5015[a][2], [3]). Likewise, the related causes of action raised in her proposed complaint arise from the alleged fraud in the divorce action and do not merit intervention.  Peter C v LIsa F, 2014 NY Slip Op 04849, 1st Dept 6-26-14





Conclusory Allegations in Support of Punitive Damages Should Not Have Survived a Motion to Dismiss Based on the Pleadings


The First Department determined the conclusory allegations in support of punitive damages should not have survived a motion to dismiss based on the pleadings.  However, discovery supports it the allegations could be revived:


We must consider whether the complaint contains the requisite allegations that "the wrongdoing is intentional or deliberate, presents circumstances of aggravation or outrage, evinces a fraudulent or evil motive, or is in such conscious disregard of the rights of another that it is deemed willful and wanton" ... .


"Although on a motion to dismiss plaintiffs' allegations are presumed to be true and accorded every favorable inference, conclusory allegations - claims consisting of bare legal conclusions with no factual specificity - are insufficient to survive a motion to dismiss" ... . Here, the complaint alleges in conclusory and conjectural fashion that "defendants were grossly, willfully and wantonly negligent and acted with reckless indifference to the health and safety of plaintiff." These legal conclusions are insufficient as the complaint does not allege any facts to demonstrate that UPS engaged in conduct which rose to the high level of moral culpability to support a claim for punitive damages ... . Plaintiff cannot maintain the punitive damages demand on the hope that discovery might someday provide a basis for it ... . "However, should discovery reveal facts supporting a claim for punitive damages, plaintiff could of course move for leave to replead the demand" ... . Barnes v Hodge, 2014 NY Slip Op 04851, 1st Dept 6-26-14





Defamation Suit Dismissed---Determined to Be a Strategic Lawsuit Against Public Participation (SLAPP) Prohibited by the Civil Rights Law


The Second Department determined plaintiffs had initiated a so-called SLAPP (strategic lawsuit against public participation).  The suit was dismissed and attorney's fees were granted to the defendants.  The defendants had distributed flyers against the development of children's day camp which suggested plaintiffs did not care and had lied about the environmental impact of the proposed development.  The plaintiffs sued in defamation:


Civil Rights Law § 76-a was passed to protect citizens facing litigation arising from their public petitioning and participation ... by deterring strategic lawsuits against public participation, termed SLAPP suits. Related provisions passed in the same bill include Civil Rights Law § 70-a, which permits a defendant in such actions to recover costs and an attorney's fee, and CPLR 3211(g) and CPLR 3212(h), which require the plaintiff, on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action or for summary judgment pursuant to CPLR 3212, to demonstrate that the action "has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law" ... .


Here, the defendants established, prima facie, that the plaintiffs were public applicants and that the suit concerned a communication that was "materially related" to the defendants' efforts to report on, comment on, or oppose the plaintiffs' application (see Civil Rights Law § 76-a[1][a]). Contrary to the plaintiffs' assertions, the statements at issue were made in an effort to garner support for the defendants' opposition to the plaintiffs' proposed plan to develop the property into a children's day camp .. .


In opposition, the plaintiffs failed to demonstrate a substantial basis in fact and law (see CPLR 3212[h]) in support of their allegations that the challenged statements amounted to defamation per se ... . Southhampton Day Camp Realty LLC v Gormon, 2014 NY Slip Op 04750, 2nd Dept 6-25-14





Failure to Prepare Defense Expert Constituted Ineffective Assistance of Counsel


The Second Department determined defendant did not receive effective assistance of counsel based upon defense counsel's failure to properly prepare the defense expert, which allowed the People to easily disparage the expert's conclusions:


...[W]e conclude that the judgment of conviction must be reversed on the ground that the defendant was deprived of the effective assistance of counsel. "In determining whether a defendant has been deprived of effective assistance, a court must examine whether the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation'" .... Although the defendant bears the burden of demonstrating the absence of strategic or other legitimate explanations for counsel's performance, defense counsel's strategic decisions must be consistent with that of a " reasonably competent attorney'" ... . "A defendant's right to effective assistance of counsel includes defense counsel's reasonable investigation and preparation of defense witnesses" ... . In this case, defense counsel failed to meet that standard.


At the trial, the defense raised, inter alia, the defense of diminished capacity. In support of that defense, the defense called as a witness a licensed physician who was an expert in child and adolescent psychiatry and forensic psychiatry. The expert noted that, in 2008, the Family Court, Kings County, placed the defendant in Tryon Residential Center, a residential center for psychiatric treatment of adolescents and children. However, he was not placed on psychotropic medication until he was arrested for the instant offense. The expert diagnosed the defendant as suffering from schizophreniform disorder, which was exacerbated by his use of marijuana. The expert further stated that the defendant's conduct during the course of the crime was "bizarre" and consistent with actions taken by someone suffering from schizophreniform disorder. As evidence of the defendant's lack of intent, the expert cited the random nature of the complainant's stab wounds.


However, on cross-examination, the expert acknowledged that he never reviewed the photographs of the complainant, or the complainant's medical records. The expert acknowledged that he relied upon the defense counsel's statement that the stab wounds "were all over the place." The expert further acknowledged that he was never informed that a motivation for the defendant's conduct may have been the complainant's "snitching." He further acknowledged that this information could have changed his opinion, and was something he would have wanted to explore further. In summation, defense counsel drew the jury's attention to the expert's lack of preparation, when she argued that she never showed the expert the photographs of the complainant's injuries because the expert was not hired "as a medical doctor—--even though he was a surgeon," and the expert was not there to diagnose the complainant's injuries. People v Henderson, 2014 Slip Op 04790, 2nd Dept 6-25-14




Trial Court Can Not Reduce a Valid Sentence Pursuant to a CPL 440 Motion


The Second Department noted that a trial level court can set aside an illegal sentence pursuant to a CPL 440.20 motion, but it can not reduce a valid sentence in the interest of justice:


CPL 440.20(1) provides that "[a]t any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law." A trial-level court has no authority under CPL 440.20 to reduce a valid sentence in the interest of justice ... . Accordingly, the County Court's order granting the defendant's motion pursuant to CPL 440.20 to the extent of setting aside the sentence imposed upon his conviction of robbery in the first degree, as subsequently modified, and directing a reduction of that sentence must be reversed ... . People v Jogie, 2014 NY Slip Op 04793, 2nd Dept 6=25=14





County Officials' Statement About Defendant Whose Animal Cruelty Charges Were Dropped Protected by Qualified Privilege


The Second Department determined statements made by the County Executive and others about defendant, whose animal cruelty charges were dropped, were protected by qualified privilege:


A qualified privilege extends to a " communication made by one person to another upon a subject in which both have an interest'" ... . However, where a plaintiff can demonstrate that the communication made by the defendant was not made in good faith but was motivated solely by malice, the protection provided by the qualified privilege will be inapplicable ... . " Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege'" ... .


Here, the County defendants demonstrated their prima facie entitlement to judgment as a matter of law by presenting evidence that the challenged statements were protected by a qualified privilege. In opposition to this showing, the plaintiffs, as the Supreme Court properly found, failed to raise a triable issue of fact with respect to whether the statements were motivated solely by malice ... . Bernacchi v County of Suffolk, 2014 NY Slip Op 04725, 2nd Dept 6-25-14





Grandparents' Standing Allegations Warranted a Hearing


The Second Department, in finding Family Court should not have dismissed the grandparents' petition for custody, explained the relevant standing criteria:


"When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry" ... . "First, it must find that the grandparent has standing, based on, inter alia, equitable considerations" ... . "If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child" ... .


"In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene' (Domestic Relations Law § 72[1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,' among other factors" ... . Additionally, the court must consider " the nature and basis of the parents' objection to visitation'" ... . "In cases where such a [grandparent-grandchild] relationship has been frustrated by a parent, the grandparent must show, inter alia, that he or she has made a sufficient effort to establish [a relationship with the child], so that the court perceives [the matter] as one deserving the court's intervention'" ... . "In assessing the sufficiency of the grandparent's efforts, what is required of grandparents must always be measured against what they could reasonably have done under the circumstances'" ... . Matter of Brancato v Federico, 2014 NY Slip Op 04756, 2nd Dept 6-25-14




Appellant Deprived of His Statutory Right to Counsel


The Second Department determined Family Court acted to deprive appellant of his statutory right to counsel:


A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]...), but may waive that right provided that he or she does so knowingly, intelligently, and voluntarily ... . In order to determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a "searching inquiry" to ensure that the waiver is unequivocal, voluntary, and intelligent ... . A waiver is valid where the record reveals that the party was aware of the dangers and disadvantages of proceeding without counsel ... . The deprivation of a party's right to counsel guaranteed by Family Court Act § 262 requires reversal, without regard to the merits of the unrepresented party's position ... .


Here, the appellant was advised of his right to counsel, in accordance with Family Court Act § 262(a), at his first court appearance on August 27, 2012. However, on August 30, 2012, after the Family Court determined that the appellant was ineligible for the assignment of counsel, he was advised that he would have to represent himself. When the hearing commenced on March 12, 2013, the appellant requested the assistance of counsel to defend himself against the petitioner's "strong accusations." The Family Court ascertained the petitioner's weekly salary, and advised him that he was ineligible for the assignment of counsel. The Family Court then proceeded with the hearing without conducting an inquiry to determine whether the appellant wished to represent himself, advising the appellant of the risks of proceeding pro se, or informing him that he could request an adjournment in order to attempt to secure counsel. Further, the record indicates that the appellant clearly did not wish to proceed without counsel, did not initially realize that he was being required to represent himself, and did not have a basic understanding of court proceedings ... . Under these circumstances, the appellant was deprived of his statutory right to counsel... .  Matter of Cerquin v Visintin, 2014 NY Slip Op 04757, 2nd Dept 6-25-14




Family Court Should Have Found Juvenile Eligible to Apply for Special Immigrant Juvenile Status


The Second Department determined Family Court should have made the requisite special findings to enable a juvenile to apply for special immigrant juvenile status (SIJS):


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 juvenile "special immigrant" is a resident alien who is, inter alia, under 21 years [*2]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 a juvenile to qualify for SIJS, it must be determined that reunification of the juvenile 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 (8 USC § 1101[a][27][J][i]...), and that it would not be in the juvenile's best interests to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c][6]...).


The statutory definition of SIJS "allow[s] a juvenile court to consider the nonviability of family reunification with just one parent, rather than both" ... . Since the Family Court correctly found that the child was abandoned by her father, the record supports a finding that reunification with one of the child's parents was not viable. Furthermore, contrary to the court's determination, the record established that it would not be in the child's best interests to return to Honduras. Matter of Diaz v Munoz, 20-14 NY Slip Op 04758, 2nd Dept 6-25-14





Pleading Requirements for a Fraud Cause of Action Explained


In affirming the dismissal of a fraud cause of action for failure to state a cause of action, the Second Department explained the pleading requirements:


To properly plead a cause of action to recover damages for fraud, a plaintiff must allege that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance .. . In addition, CPLR 3016(b) requires that where a cause of action is based upon misrepresentation, fraud, mistake, willful deceit, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail. Here, neither the complaint nor the factual submissions made in opposition to the subject motion alleged any false representation of fact by any of the defendants ... . Mariano v Fiorvante, 2014 NY Slip Op 04742, 2nd Dept 6-25-14




Exclusions in "Bankers Professional Liability Insurance Agreements" Precluded Suit By Investors Stemming from Madoff Ponzi Scheme


In an action brought by investors following the revelation of Bernard Madoff Ponzi scheme, the First Department determined certain exclusions in the "Bankers Professional Liability Insurance Agreements" were applicable and the complaint was therefore properly dismissed:


The Loss of Money Exclusion bars coverage for claims for "the actual loss of money, securities, property or other items of value in the custody or control of [the bank]." Contrary to plaintiffs' contention, the investors' allegation that the money in their accounts with Bernard L. Madoff Investment Securities (BLMIS) was stolen, unlawfully retained, or misappropriated is a claim for an actual loss of money ... . Moreover, "[a]n insurance policy is not illusory if it provides coverage for some acts; it is not illusory simply because of a potentially wide exclusion'" ... . The subject policies provide a broad range of coverage for liability that may arise in connection with plaintiffs' provision of ordinary banking services.


The Personal Profit and Advantage Exclusion bars coverage for loss "based upon, arising out of, or attributable to [the] Insured gaining in fact any personal profit, remuneration or financial advantage to which such Insured was not legally entitled." The investors' allegation that plaintiff Westport National Bank used incoming funds to pay its own fees and to sustain its custodial business and continue to generate its fees implicates a "profit" and a "financial advantage to which [Westport] was not entitled"... . Nor is the exclusion inapplicable because the insured is a corporate "person" ... .


The Sale of Securities Exclusion bars coverage for any claim "based upon, arising out of, or attributable to: (a) the [bank's] underwriting, syndication, or promotion of equity or debt securities; (b) the [bank's] investment banking activities, including the sale and distribution of a new offering of securities; [or] . . . (e) any disclosure requirements in connection [therewith]." The underlying regulatory action against plaintiffs alleges that, by depositing the investors' funds in omnibus accounts and allocating shares in those accounts to the investors, plaintiffs engaged in the sale or promotion of unregistered securities and failed to provide the required disclosures. Thus, the exclusion bars coverage of the claims asserted in the regulatory action.


The Insolvency Exclusion bars coverage for loss "based upon, arising out of, or attributable to the insolvency . . . of . . . any . . . investment company, investment bank, or any broker or dealer in securities or commodities." Insolvency exclusions have been held to apply despite the fact that the underlying claims are made against parties that are "independent of the insolvent entity" ... . Further, the courts of Connecticut (whose law applies to this action) have interpreted broadly the term "arising out of" in insurance policies ... . The investors' claims certainly are "connected with," "had [their] origins in," "grew out of," "flowed from" or "[were] incident to" Madoff's Ponzi scheme and the insolvency of BLMIS (see id. [internal quotation marks omitted]). Thus, the Insolvency Exclusion bars coverage for those claims. Associated Community Bancorp Inc v St Paul Mercury Ins Co, 2014 NY Slip Op 04697, 1st Dept 6-24-14





Being Catapulted from a Bobcat While Standing on the Back as Counterweight is a Gravity-Related Event


The First Department determined that plaintiff, who was catapulted from the back of a Bobcat when the back wheels lifted up unexpectedly, was injured by a gravity-related event within the meaning of Labor Law 240 (1). Penaranda v 4933 Realty LLC, 2014 NY Slip Op 04685, 1st Dept 6-24-14




Dismantling Shelves Constitutes Demolition and Alteration


The Second Department, in explaining plaintiff was involved a a protected activity when he was dismantling shelves (constituting demolition and alteration), provided a good overview of the relevant legal principles:


Labor Law § 240(1) imposes on owners a nondelegable duty to protect workers from elevation-related risks at covered work sites ... . "Negligence, if any, of the injured worker is of no consequence" ... . In order for Labor Law § 240(1) to apply, the worker must be working on a building or structure and must be performing a covered task, such as altering or demolishing.


The Court of Appeals has defined a structure as "any production or piece of work artificially built up or composed of parts joined together in some definite manner" ... .


Contrary to the defendants' contentions, the shelves at issue constituted a "structure" under Labor Law § 240(1), as they were composed of component pieces (metal grates and cross bars) attached in a definite manner ... . Furthermore, at the time of the accident, the plaintiff was engaged in both alteration and demolition within the meaning of the statute. Demolition, for purposes of the statute, is defined under 12 NYCRR 23-1.4 (b)..., and specifically includes "dismantling" ... . Alteration is defined as "a significant physical change to the configuration or composition of the building or structure" .... By dismantling the shelves at issue, the plaintiff was both altering and demolishing the shelves. Kharie v South Shore Record Mgt Inc, 2014 NY Slip Op 04738, 2nd Dept 1-25-14





Residents' Petition Alleging Unscrupulous Conduct by the Village Mayor, Seeking His Removal, Properly Survived Motion to Dismiss


The Third Department determined the motion to dismiss a petition pursuant to the Public Officers Law alleging unscrupulous conduct on the part of the village mayor was properly denied"


Public Officers Law § 36 "was enacted to enable a town or village to rid itself of an unfaithful or dishonest public official" , i.e., one who has engaged in "malicious and corrupt acts" ..., "unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern of misconduct and abuse of authority" ... . To that end, "in order to state a cause of action under Public Officers Law § 36, [the] petition must allege that [the] public officer engaged in self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust" ... .


Here, petitioners allege that respondent, among other things, has refused to provide necessary funding for the Village's police department until the various criminal charges against him are resolved, resulting in understaffing and forcing the department to seek donations from local businesses in order to obtain a functioning heating system for its building. Petitioners further allege that respondent has attempted to use his position as Mayor and Village Manager to obtain "special treatment" from the Village's police department with respect to his various criminal charges and has repeatedly threatened various local law enforcement officials with termination or disciplinary action for pursuing such charges against him. Indeed, upon reviewing the November 2013 surveillance video annexed to the petition, respondent — in addition to uttering numerous racist remarks — may be heard reminding officers, "You still work for me, don't you?", advising officers that he would make sure that they "pa[id] for it" (an apparent reference to his detention), threatening that he would "do something tomorrow" about the manner in which he was being treated and, finally, warning the officers, "[Y]ou . . . guys [screwed] my life up — it's on. It's on. It's on. It's on." Petitioners also allege that respondent — without approval of the Village's board of trustees — awarded a "suspiciously low," no-bid contract to a local firm to demolish the Village's former justice court building and dispose of the resulting debris. According to petitioners, "[t]he debris from the demolition was laden with asbestos, and was illegally dumped near drinking wells in violation of numerous environmental laws," thereby exposing the Village to fines and legal fees estimated to exceed $200,000. Matter of Greco v Jenkins, 2014 NY Slip Op 04847, 3rd Dept 6-26-14





Photographs of Step Three and a Half Months After the Slip and Fall Are Not Probative of the Condition of the Step at the Time of the Fall


In a slip and fall case based on the allegation a piece was missing a "very little piece," the Second Department determined the jury verdict in favor of the defendant was supported by sufficient evidence.  The Court noted that photographs of the step taken 3 1/2 months after the fall did not demonstrate the condition of the step at the time of the fall:


Photographs taken of the steps 3½ months after the accident are not probative of the condition of the steps on the date of the accident ... . Moreover, there was no testimony that the pictures fairly and accurately depicted the condition of the steps at the time of [plaintiff's] accident. Babes v New York City Tr Auth, 2014 NY Slip Op 04722, 2nd Dept, 6-25-14





No Special Relationship With Plaintiff


The Second Department determined the city was not liable to the plaintiff because the city did not have a special relationship with the plaintiff.  Plaintiff was injured when a wall which had been certified safe by a city inspector, collapsed.  The court explained the relevant principles:


" [G]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general'" ... . A plaintiff must first establish the existence of a special duty owed to it by the municipality before it becomes necessary to address whether the municipality can rely upon the defense of governmental immunity ... . If it is determined that the municipality owes no special duty of care to the plaintiff, then the municipality has not breached a duty of care, and it is unnecessary to determine whether the defense of sovereign immunity applies, or whether the specific act of the public official is classified as discretionary or ministerial ... . "A special duty' is a duty to exercise reasonable care toward the plaintiff,' and is born of a special relationship between the plaintiff and the governmental entity'" ... . " A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'" ... McCarthy v City of New York, 2014 NY Slip Op 04743, 2nd Dept 6-25=14






Evidence Did Not Support the Finding that the Broker Was Due a Commission from the Buyers In Spite of the Phrase "Buyer Agrees to Pay the Broker a Commission of SBC"


In finding the broker was not entitled to a commission from the buyers (reversing Supreme Court)  the Second Department noted that testimony indicated "SBC" stood for  "seller broker compensation," the broker represented the seller, and the seller would pay the commission:


"In order to recover a real estate brokerage commission, the broker must establish: (1) that he or she is duly licensed, (2) that he or she had a contract, express or implied, with the party to be charged with paying the commission, and (3) that he or she was the procuring cause of the sale" ... . Here, the evidence at trial failed to establish that the appellants expressly or impliedly agreed that the appellants were to be the parties responsible for the payment of the commission to the plaintiff... . Cusumano Assoc Inc v Politoski, 2014 Slip Op 04728, 2nd Dept 6-25-14





County Guarantee Mandated Refund of Void Ad Valorem Taxes---Refund Not Shown to Result in "Fiscal Chaos"


The Second Department determined plaintiffs were entitled to a refund of ad valorem taxes, pursuant to the "county guarantee" and the county failed to demonstrate that enforcing the refund would result in "fiscal chaos."  With respect to the "county guarantee" the court wrote:


Contrary to the County defendants' argument, Matter of Hellerstein [37 NY2d 1] and Foss [65 NY2d 247] do not stand for the proposition that whenever the award of damages or refunds against a municipality will result in financial hardship, a court may decline to award the relief to which the plaintiff is otherwise entitled. Instead, these cases stand for the more limited proposition that, where a municipality has reasonably relied upon a widespread and longstanding practice (as in Matter of Hellerstein) or a statute is later invalidated (as in Foss), and where applying the invalidation retroactively would call into question "a settled assessment roll or property rights based thereon," a court may exercise its discretion by giving its holding only prospective application ... . Here, the County defendants' submissions have not demonstrated that awarding the plaintiffs the refunds they seek would call into question settled assessment rolls or property rights based thereon. Keyspan Generation LLC v Nassau County, 2014 NY Slip Op 04737, 2nd Dept 6-25-14





Prenuptial Agreement Waiving Intestate Share of Estate Not Invalidated by Fraud or Overreaching


The Second Department determined petitioner did not demonstrate the prenuptial agreement, in which she agreed to waiver her intestate share of her husband's estate, was not procured by fraud or otherwise invalid.  The court explained the operative principles:


In general, New York has a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, including prenuptial agreements" ... . "However, this right is not and has never been without limitation" ,,, . "Thus, while there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties' ..., an agreement between spouses or prospective spouses may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct" ... . * * *


The petitioner failed to establish any fact-based particularized inequality with the decedent so as to shift the burden to the objectant to disprove fraud or overreaching ... . Thus, it remained the petitioner's burden on her case-in-chief to establish that her execution of the prenuptial agreement was procured through fraud, duress, or other inequitable conduct ... . Contrary to the petitioner's contentions, the record is devoid of any evidence of coercion or undue influence exercised on the part of the decedent, the objectant, or their accountant, who were all present at the execution. Moreover, the petitioner did not show that the agreement itself was unconscionable or was the product of overreaching. Matter of Fizzinoglia, 2014 NY Slip Op 04761, 2nd Dept 6-25-14

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