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Updated June 29, 2015

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


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NYC Taxi and Limousine Commission (TLC) Had the Authority to Enter a 10-Year Exclusive Agreement with Nissan for the Production of the "Taxi of Tomorrow (T o T)," NYC's Official Taxicab


The Court of Appeals determined the NYC Taxi and Limousine Commission (TLC) did not exceed the authority granted the commission by the City Council when it entered a 10-year exclusive agreement with Nissan to provide the "Taxi of Tomorrow (T o T)," New York City's official taxicab:


A legislature may enact a general statutory provision and delegate power to an agency to fill in the details, as long as reasonable safeguards and guidelines are provided to the agency (see Boreali v Axelrod, 71 NY2d 1, 10 [1987]). As a creation of a legislative body, the TLC possesses the powers expressly conferred by the City Council, as well as those "required by necessary implication" ... . "[A]n agency can adopt regulations that go beyond the text of [its enabling] legislation, provided they are not inconsistent with the statutory language or its underlying purposes" ... . The question before us is whether the authority granted to the TLC by the City Council included the power to enact the ToT rules, or whether the agency has exceeded its authority and acted in a manner not contemplated by the legislative body ... .  * * *


The City Council granted the TLC extremely broad authority to enact rules, including the ToT rules. The TLC was created with the stated purposes of "continuance, further development and improvement of taxi and limousine service in the city of New York" (NY City Charter § 2300). The City Charter provides that the TLC is authorized, "consonant with the promotion and protection of the public comfort and convenience[,] to adopt and establish an overall public transportation policy governing taxi . . . services as it relates to the overall public transportation network of the city; to establish . . . standards for equipment safety and design; . . . and to set standards and criteria for the licensing of vehicles" used in taxi service (NY City Charter § 2300 [emphasis added]). * * *


In granting the TLC this broad authority, the City Charter includes guidelines for the TLC to consider, such as "safety, and design, comfort, convenience, noise and air pollution control and efficiency in the operation of vehicles" (NY City Charter § 2303 [b] [6]). Although the TLC has generally applied the "specs method" when promulgating rules about the design of taxis, it points to a major shortcoming of that method — the situation where no available model meets the specs in the rules as, for example, when Ford discontinued the Crown Victoria ... . The TLC determined that "[t]he most obvious alternative to vehicle specifications [is the] competitive selection of taxicab vehicle models," as embodied in the ToT project ... . This new method was intended to be a more efficient way to reach the same result and, in our view, falls within the broad authority granted to the TLC. Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 2015 NY Slip Op 05514, CtApp 6-25-15






No Appeal to the Court of Appeals Lies from the Appellate Division's Affirmance of the Denial of Resentencing Pursuant to the 2004 Drug Law Reform Act (DLRA)


The Court of Appeals determined no appeal lies from the Appellate Division's affirmance of the denial of resentencing pursuant to the 2004 Drug Law Reform Act (DLRA). The fact that the order (denying resentencing) was consolidated with appealable orders did not confer jurisdiction to hear the appeal upon the Court of Appeals:


"It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute," and courts "may not resort to interpretative contrivances to broaden the scope and application of statutes" governing the availability of an appeal ... . [W]e have held that no statutory provision authorizes a defendant to appeal from an Appellate Division order affirming the denial of the defendant's resentencing application pursuant to the 2005 Drug Law Reform Act ... . The 2004 DLRA includes similar language relating to appeals; accordingly, no appeal lies from an order of the Appellate Division affirming the denial of a resentencing application under the 2004 DLRA ... . Faced with this barrier to our review, defendant contends that the Appellate Division's consolidation of the order denying resentencing with other, appealable orders, transformed the nonappealable order into one that we may consider. We disagree. The Appellate Division's authority to consolidate appeals stems from its inherent authority to administer and manage its proceedings. The Appellate Division's use of this inherent authority does not expand or modify the scope of our jurisdiction, which is established by statute. People v Lovett, 2015 NY Slip Op 05512, CtApp 6-25-15






In the Face of Defendant's Claims Defense Counsel Did Not Adequately Represent Him, Counsel's Answering the Judge's Questions About Defendant's Allegations (Which Were Rejected by the Court) Did Not Place Defense Counsel in a Position Adverse to the Defendant's


The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that defense counsel's answering the judge's questions about his performance did not place the attorney in a position adverse to his client's.  The client, prior to trial, sought the appointment of new counsel by filing a form ("Affidavit in Support of Motion for Reassignment of Counsel") circling every reason for the appointment of new counsel listed on the form, including the failure to discuss strategy, the failure to seek discovery, the failure to contest identification evidence, and the failure to communicate with the defendant. The form did not reach the judge until after the defendant's trial and conviction. The defendant did not mention the motion or his concerns during the trial.  The judge, based on his observations during the trial, determined many of the circled claims on the form were not true. The judge asked the attorney about what he had done prior to trial and the attorney explained what he had done.  In so doing, the attorney did not take a position adverse to the defendant's:


"The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option" ... . A defendant may be entitled to new counsel, however, "upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel" (id. [internal quotation marks omitted]). Here, defendant claims that he was entitled to new defense counsel because counsel's responses to the allegations of ineffectiveness created an actual conflict of interest.


Although an attorney is not obligated to comment on a client's pro se motions or arguments, he may address allegations of ineffectiveness "when asked to by the court" and "should be afforded the opportunity to explain his performance" ... .


We have held that counsel takes a position adverse to his client when stating that the defendant's motion lacks merit ..., or that the defendant, who is challenging the voluntariness of his guilty plea, "made a knowing plea . . . [that] was in his best interest" ... . Conversely, we have held that counsel does not create an actual conflict merely by "outlin[ing] his efforts on his client's behalf" ... and "defend[ing] his performance" ... .


Applying these settled principles to the facts in this case, we conclude that defense counsel's comments in response to the judge's questions did not establish an actual conflict of interest. Defense counsel did not suggest that his client's claims lacked merit. Rather, he informed the judge when he met with defendant and for how long, what they discussed, what the defense strategy was at trial and what discovery he gave or did not give to defendant. Thus, he never strayed beyond a factual explanation of his efforts on his client's behalf.  People v Washington, 2015 NY Slip Op 05511, CtApp 6-25-15







Unambiguous Language in Rider Covered Loss Caused by Hackers Gaining Unauthorized Access to the Insured's Computers, Not Loss Caused by Fraudulent Billing Entries by Authorized Users


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the rider in a financial institution bond covered loss caused by hackers gaining access to the insured's computer system, not loss caused by the entry of fraudulent billing information into the computer system by authorized users.  Here fraudulent medical claims made by authorized users of the computer system cost the insured (Universal) $18 million. The language of the relevant rider was deemed unambiguous:


... [W]e conclude that it unambiguously applies to losses incurred from unauthorized access to Universal's computer system, and not to losses resulting from fraudulent content submitted to the computer system by authorized users. The term "fraudulent" is not defined in the Rider, but it refers to deceit and dishonesty (see Merriam Webster's Collegiate Dictionary [10th ed 1993]). While the Rider also does not define the terms "entry" and "change," the common definition of the former includes "the act of entering" or "the right or privilege of entering, access," and the latter means "to make different, alter" (id.). In the Rider, "fraudulent" modifies "entry" or "change" of electronic data or computer program, meaning it qualifies the act of entering or changing data or a computer program. Thus, the Rider covers losses resulting from a dishonest entry or change of electronic data or computer program, constituting what the parties agree would be "hacking" of the computer system. The Rider's reference to "fraudulent" does not also qualify what is actually acted upon, namely the "electronic data" or "computer program" itself. The intentional word placement of "fraudulent" before "entry" and "change" manifests the parties' intent to provide coverage for a violation of the integrity of the computer system through deceitful and dishonest access.


Other language in the Rider confirms that the Rider seeks to address unauthorized access. First, the Rider is captioned "Computer Systems," and the specific language at issue is found under the subtitle "Computer Systems Fraud." These headings clarify that the Rider's focus is on the computer system qua computer system. Second, under "EXCLUSIONS," the Rider exempts from coverage losses resulting directly or indirectly from fraudulent instruments "which are used as source documentation in the preparation of Electronic Data, or manually keyed into a data terminal." If the parties intended to cover fraudulent content, such as the billing fraud involved here, then there would be no reason to exclude fraudulent content contained in documents used to prepare electronic data, or manually keyed into a data terminal. Universal Am. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA., 2015 NY Slip Op 05516, CtApp 6-25-15











Liquor Authority Properly Complied with the Requirements for Issuing a Liquor License When Three or More Licensed Premises Are Located Within 500 Feet


The First Department, in a full-fledged opinion by Justice Acosta, determined a petition to annul the NYS Liquor Authority's conditional approval of a liquor license was properly denied.  The Liquor Authority properly considered the factors associated with the "500-foot-rule" requiring good cause for the issuance of a license when there are three or more licensed premises within 500 feet:


Ordinarily, applications for licenses to sell liquor for consumption on premises "shall be issued to all applicants except for good cause shown" (ABCL § 64[1]); however, no such license shall be granted for any premises within 500 feet of three or more existing licensed and operating premises, unless the Authority "determines that granting such license would be in the public interest" (ABCL § 64[7][b], [f]). In determining whether the granting of a license will promote the public interest, the Authority may consider:


"(a) The number, classes and character of licenses in proximity to the location and in the particular municipality or subdivision thereof.

"(b) Evidence that all necessary licenses and permits have been obtained from the state and all other governing bodies.

"(c) Effect of the grant of the license on vehicular traffic and parking in proximity to the location.

"(d) The existing noise level at the location and any increase in noise level that would be generated by the proposed premises.

"(e) The history of liquor violations and reported criminal activity at the proposed premises.

"(f) Any other factors specified by law or regulation that are relevant to determine the public convenience and advantage and public interest of the community" (ABCL § 64[6-a]).


These factors are intended to guide the Authority "in assuring that appropriate factors are taken into consideration which relate to the business and the impact it has . . . [and] to assure that quality of life impacts are fully incorporated into the responsible state decision-making apparatus" ... .


In cases implicating this 500-foot rule, "[b]efore it may issue any such license, the [A]uthority shall conduct a hearing, upon notice to the applicant and the municipality or community board, and shall state and file in its office its reasons therefor" (ABCL § 64[7][f]).


"A reviewing court is not entitled to interfere in the exercise of discretion by an administrative agency unless there is no rational basis for the exercise, or the action complained of is arbitrary and capricious" ... . Courts look to whether the determination "is without sound basis in reason and is generally without regard to the facts" ... .


Regarding the substance of the reasons stated by the Authority, this Court has held that something more than a "perfunctory recitation" is needed to comply with the requirement that the Authority state its reasons for concluding that issuance of a license would be in the public interest ... .


Here, the Authority's written statement sets forth detailed, concrete reasons for its determination, made after a hearing, that issuance of a liquor license ... would be in the public interest (ABCL § 64[7][b], [f]). Matter of BarFreeBedford v New York State Liq. Auth., 2015 NY Slip Op 05428, 1st Dept 6-23-15






Frivolous Lawsuit Warranted Sanctions and the Award of Attorney's Fees


The First Department determined sanctions and the award of attorney's fees were appropriate for a frivolous lawsuit brought by an attorney who had represented himself in a related divorce proceeding.  The lawsuit sought $27,000 allegedly loaned to the defendant-wife by plaintiff. However, the $27,000 claim was made in the divorce proceedings and, although the lower court did not directly rule on the loan, the claim was effectively rejected by the court in a "catch-all" provision denying all relief not specifically addressed:


A court may, in its discretion, award to any party costs in the form of reimbursement for expenses reasonably incurred and reasonable attorneys' fees resulting from "frivolous conduct," which includes: (1) conduct completely without merit in law, which cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) conduct undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; and (3) the assertion of material factual statements that are false (22 NYCRR 130-1.1[a], [c][3]). The court may also award financial sanctions on the same grounds (22 NYCRR 130-1.1[b]).


In determining whether conduct is frivolous, the court shall consider "the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel" (22 NYCRR 130-1.1[c]).


Here, the husband made a claim in the divorce action for repayment of the $27,000 "loan," and Supreme Court rejected it. He then failed to challenge that finding on direct appeal. Any argument that Supreme Court did not actually decide the issue of the "loan" because it did not specifically address it is rejected, since the court included the "catch-all" language that any claims not discussed were denied. In any event, the husband could have sought clarification from the court if he felt that the claim related to the "loan" had escaped the court's attention. Indeed, it would have behooved him to do so, as it is well settled that "res judicata bars a subsequent plenary action concerning an issue of marital property which could have been, but was not, raised in the prior matrimonial action" ... . Again, we are required to consider "the circumstances under which the conduct took place" when reviewing a sanctions motion (22 NYCRR 130-1.1[c]). Here, the circumstances are that the husband, an experienced divorce lawyer, ignored a long-standing principle of matrimonial jurisprudence. Thus, his decision to commence an action that he knew, or should have known, was futile from its inception, weighs heavily in favor of a finding that his conduct was intended solely to harass the wife.  Borstein v Henneberry, 2015 NY Slip Op 05390, 1st Dept 6-23-15







Criteria for Intervention Described


In finding the motion for leave to intervene was properly denied, the Second Department explained the criteria:


Upon a timely motion, a person is permitted to intervene in an action as of right when, among other things, "the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment" (CPLR 1012[a][2]...). In addition, the court, in its discretion, may permit a person to intervene, inter alia, "when the person's claim or defense and the main action have a common question of law or fact" (CPLR 1013...). " However, it has been held under liberal rules of construction that whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013 is of little practical significance [and that] intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings'" ... . Trent v Jackson, 2015 NY Slip Op 05467, 2nd Dept 6-24-15







Unsigned Deposition Transcripts and Party Admission in Police Report Admissible as Evidence in Support of Summary Judgment Motion


In reversing the grant of summary judgment to the defendant in a vehicle accident case, the Second Department noted the unsigned deposition transcripts of both plaintiff and defendant were admissible for purposes of the motion.  The court also noted that a party admission included in a police report was admissible, while the hearsay report itself was not:


"[T]he failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to a motion where . . . the moving party submits other proof, such as deposition testimony ... . Here, the defendant's certified deposition transcript, although unsigned, was admissible since it was his own testimony that he was proffering in support of his motion and, in effect, he adopted it as accurate ... . In addition, the transcript of the plaintiff's deposition testimony, which was unsigned, was also admissible for the purpose of the defendant's motion, since the transcript was certified by the reporter and the plaintiff did not challenge its accuracy ... .


With respect to the police accident report submitted by the defendant in support of his motion, it was not certified as a business record and thus constituted inadmissible hearsay (see CPLR 4518[a]...), except for that portion of the report which contained a party admission by the plaintiff that she did not have a recollection of the accident ... . Gezelter v Pecora, 2015 NY Slip Op 05440, 2nd Dept 6-24-15




Question of Fact Raised Whether Police Officers Used Excessive Force In Violation of Plaintiff's Civil Rights---Criteria Explained


The Second Department determined a question of fact had been raised about whether police officers used excessive force in violation of plaintiff's civil rights.  The court explained the relevant law:


"A claim that a law enforcement official used excessive force during the course of an arrest . . . is to be analyzed under the objective reasonableness standard of the Fourth Amendment" ... . The reasonableness of a particular use of force is judged from "the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" ..., and takes into account "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he [or she] is actively resisting arrest or attempting to evade arrest by flight" ... . "[A]n officer's decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others" ... . "Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide" ... . "If found to be objectively reasonable, the officer's actions are privileged under the doctrine of qualified immunity" ... . Williams v City of New York, 2015 NY Slip Op 05470, 2nd Dept 6-24-15






Lost Profits Sufficiently Proven in Breach of Contract Action---Criteria Explained


In affirming the judgment, the Second Department explained the criteria for the award of lost profits as damages in a breach of contract action:


To prevail on a cause of action alleging breach of contract, the plaintiff must demonstrate that it sustained "actual damages as a natural and probable consequence" of the defendant's breach ... . Where the plaintiff seeks to recover damages for lost profits, such profits must also be "within the contemplation of the parties at the time the contract was entered into" and, even though required to be proven with reasonable certainty, damages "resulting from the loss of future profits are often an approximation" ... . Here, contrary to the defendant's contentions, the evidence and credible testimony adduced at trial demonstrated that the plaintiff incurred actual damages due to the defendant's breach of the agreement ... . The plaintiff's witness testified that he determined the lost profits for the plaintiff by subtracting the expenses from the revenue, which would have been generated [if the contract had not been breached]. The evidence produced by the plaintiff provided a reasonably reliable foundation upon which to calculate the plaintiff's damages ... . Family Operating Corp. v Young Cab Corp., 2015 NY Slip Op 05437, 2nd Dept 6-24-15






Defendant's Waiver of 12-Person Jury Upheld


The First Department determined defendant had validly waived his right to be tried in front of a 12-person jury. During defendant's trial, after the court had been closed for several days due to Hurricane Sandy, one of the jurors informed the court he was leaving town. The defendant, against the advice of his lawyer, was insistent that he wanted the trial to continue with 11 jurors:


The court noted on the record that the excused juror had informed the court that he had a flight scheduled for that day, and that the court had called the juror that morning but could not reach him. Defense counsel objected to the court's discharge of the juror without first consulting with counsel. Counsel informed the court that, against her advice, defendant wanted deliberations to continue with the remaining 11 jurors. Defense counsel stated that she had told defendant "a number of times that I do not think we should go forward with 11," but defendant was "extremely insistent," was "tired of this process," and did "not want to retry the case." The court confirmed with defendant on the record that he wanted to continue with 11 jurors, and defendant executed a written waiver of a 12-person jury. Defense counsel also signed the written waiver.


Although the court should have given defense counsel an opportunity to be heard before it excused the juror (see CPL 270.35[2][b]), defendant entered a knowing, voluntary, and intelligent waiver of his right to a 12-person jury ... . Defense counsel stated that she had discussed with defendant the possibility of a retrial, and that defendant rejected that option ... . The court questioned defendant on the record and confirmed that he had discussed his decision with counsel, and that he understood but rejected counsel's advice. As defense counsel stated, defendant was insistent that deliberations continue with an 11-person jury. Defendant "must accept the decision he knowingly, voluntarily and intelligently made" ... . People v Perry, 2015 NY Slip Op 05394, 1st Dept 6-23-15







Resentencing Required---Sentencing Court Unaware It Had Discretion Re: Length of the Postrelease Supervision Period


The Second Department sent the matter back for resentencing because the judge was unaware he/she had the discretion as to the length of the postrelease period:


... [R]esentencing is required because the record supports the defendant's contention that the Supreme Court was unaware that it had discretion as to the length of the period of PRS. Specifically, the court stated that the law required it to impose a period of PRS of 5 years. In fact, the court had the authority to impose a period of PRS of between 2½ years and 5 years (Penal Law § 70.45[2][f]). People v Battee, 2015 NY Slip Op 05491, 2nd Dept 6-24-15







The Totality of Circumstances Provided the Police Officer with Reasonable Suspicion of Criminal Activity and Thereby Justified Pursuit of the Defendant


The Second Department determined defendant's motion to suppress a gun thrown away during a foot pursuit by a police officer was properly denied.  Unusual activity in and around a car (a "Malibu") in a high crime area gave the police an objective, credible reason to approach the car. Under the totality of the circumstances, when defendant began walking away, the police officer (Detective Tait), having a reasonable suspicion of criminal activity, properly pursued the defendant:


"Police pursuit of an individual significantly impede[s] the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed" ... . "Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit" ... . Here, Detective Talt had reasonable suspicion of criminal activity based on the defendant's flight, combined with the unusual activity of the occupants of the Malibu, Detective Talt's knowledge that that specific location was a high-crime area, and his knowledge that contraband could be hidden under a car hood. Accordingly, the court properly declined to suppress the gun. People v Jennings, 2015 NY Slip Op 05497, 2nd Dept 6-24-15






Superior Court Information Was Jurisdictionally Defective---The Offenses Were Not the Same As, or Lesser Included Offenses of, Those In the Felony Complaint


The Third Department determined defendant's plea to a superior court information (SCI) could not stand because the crimes in the information were not the same as, or lesser included offenses of, those in the felony complaint:


... [T]he SCI was jurisdictionally defective in this case. The crimes charged in the SCI, to which defendant pleaded guilty, were required to be the same or lesser included offenses of those listed in the felony complaint ... . However, the only crimes listed in the felony complaint were the class E felony of possessing a sexual performance by a child and two class A misdemeanors. The SCI, on the other hand, charged defendant with the class C felony of use of a child in a sexual performance and the class B felony of course of sexual conduct against a child in the first degree. Clearly, the latter crimes were not lesser included offenses of the former. Accordingly, due to this jurisdictional defect, we are constrained to conclude that the guilty plea must be vacated and the matter remitted to County Court for further proceedings. People v O'Neill, 2015 NY Slip Op 05517, 3rd Dept 6-24-15




Statements at Issue Were Statements of Opinion Directly Linked to the Plaintiff's Writings---Defamation Complaint Properly Dismissed


The Second Department determined the defamation action against a newspaper was properly dismissed.  The newspaper article referred to writings by the plaintiff which were described as racist.  The article questioned whether plaintiff, who allegedly held "white supremacist" views, should be the principal of a school with minority students.  The court determined the relevant statements in the article were statements of opinion which were linked directly to quotations from plaintiff's writings.  Therefore the statements constituted nonactionable opinion:


"Since falsity is a necessary element of a defamation cause of action and only facts' are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action'" ... . In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact ... . "The dispositive inquiry . . . is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff" ... .


In this case, the context of the complained-of statements was such that a reasonable reader would have concluded that he or she was reading opinions, and not facts, about the plaintiff. Moreover, in all instances, the Daily News defendants made the statements with express reference to the written materials authored by the plaintiff, including quotations from the books. Thus, the statements of opinion are nonactionable on the additional basis that there was full disclosure of the facts supporting the opinions ... . Silverman v Daily News, L.P., 2015 NY Slip Op 05463, 2nd Dept 6-24-15







Failure to Take Steps to Verify and Corroborate the Information from a Confidential Source Required Annulment and Expungement of the Misbehavior Determination


The Third Department determined the absence of information corroborating the confidential-source allegations which were the basis for the misbehavior report, coupled with the hearing officer's failure to interview either the source or the sergeant who obtained the confidential information, required annulment and expungement of the misbehavior determination:


... [C]onfidential information may provide substantial evidence supporting a prison disciplinary determination as long as it is sufficiently detailed and probative that the Hearing Officer may make an independent assessment of the reliability of the information ... . Petitioner contends that the Hearing Officer failed to independently assess the reliability of the confidential information considered here. Based upon our review of the record, we must agree. The misbehavior report was the primary evidence supporting the disciplinary determination, as the sergeant who prepared it did not testify at the hearing. The sergeant based the report upon confidential memoranda that she prepared after obtaining incriminating information directly from the confidential source. The memoranda, however, do not contain additional information or corroborating details to facilitate verification of the source's reliability ... . Moreover, the Hearing Officer did not personally interview either the source or the sergeant who obtained the information. In view of this, we agree with petitioner that the necessary independent assessment of the confidential information was lacking and that the determination must be annulled and all references thereto expunged from petitioner's institutional record ... . Matter of Cooper v Annucci, 2015 NY Slip Op 05548, 3rd Dept 6-25-15







Teacher Entitled to Tenure by Estoppel---Proper Way to Calculate Probationary Period Which Included Unpaid Maternity Leave Explained


The Second Department determined a teacher was entitled to tenure by estoppel.  The number of days the teacher was on unpaid, approved maternity leave was excluded from the probationary period. Properly calculated (the proper method was explained), the teacher worked beyond the three-year probationary period and was therefore entitled to tenure by estoppel:


Tenure by estoppel results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term" ... . A teacher who has acquired tenure by estoppel, but is nonetheless improperly terminated, is entitled to reinstatement, retroactive to the last date of employment, back pay, and all accrued benefits ... .


Where a teacher is granted a period of unpaid maternity leave during her three-year probationary period, that period of leave may properly be excluded from computation of a teacher's three-year probationary period ... . Contrary to the appellants' contention in this proceeding, such an extension of a teacher's probationary period is to be performed utilizing a workday-to-calendar day methodology. That is, for each workday missed as a result of a teacher's unpaid leave, the three-year probationary period is to be extended by the corresponding number of calendar days ... . Such a methodology is consistent with both Education Law § 3012(3), which provides that "no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights," and the purpose of the three-year probationary period in affording a school district an opportunity to evaluate an individual's performance as a teacher prior to granting tenure ... .


Applying the foregoing principles to this proceeding, we conclude that the petitioner worked past her extended probationary period end date. Accordingly, the Supreme Court properly determined that she acquired tenure by estoppel, and that she is entitled to reinstatement to her position, with tenure and back pay from the date her employment was terminated, i.e., January 21, 2011. Matter of Brown v Board of Educ. of Mahopac Cent. Sch. Dist., 2015 NY Slip Op 05471, 2nd Dept 6-24-15






Family Assessment Response (FAR) Reports Are Not Subject to Expunction (Expungement) Prior to the Expiration of the 10-Year Statutory Period


The Second Department determined the Office of Children and Family Services (OCFS) did not have the authority to expunge a Family Assessment Response (FAR) report prior to the end of the 10-year statutory period.  The decision includes an in-depth analysis of the early expunction (expungement) of reports pursuant to Social Services Law 422(5)(c) and why such early expunction (expungement) is not authorized for Family Assessment Response (FAR) reports pursuant to Social Services Law 427-a:


... Social Services Law § 427-a is not "silent" on the matter of expunction of FAR reports and records. Rather, it expressly requires that FAR reports and records be maintained for 10 years after the initial report is made (see Social Services Law § 427-a[4][c][i]; [5][c]). Thus, as OCFS correctly determined, pursuant to Social Services Law § 427-a, FAR reports and records are only subject to expunction 10 years after the initial report is made to the SCR, and not before.


...[T]he existence of an early expunction provision in Social Services Law § 422 supports ... this interpretation. In this respect, the failure of the Legislature to include an early expunction provision in Social Services Law § 427-a, when it had, prior to the enactment of Social Services Law § 427-a, included such a provision in a statute within the same statutory scheme, "should be construed as indicating that the exclusion was intentional" ... .


...[T]he interpretation of Social Services Law § 427-a as not incorporating the early expunction process set forth in Social Services Law § 422(5)(c) does not conflict with the legislative intent of section 427-a. As explained in the relevant legislative history, "[t]raditionally, CPS is required to respond to reports of child abuse and maltreatment with a standard investigation that is narrowly focused on determining whether a specific incident of abuse actually occurred and if the child is at risk" ... . "The focus of the CPS system on investigation of abuse and maltreatment has created an environment that, for many families, casts suspicion over any offer of services or service referrals" (id.). Implementation of a differential response, in the form of a FAR track, "permits a social service district to conduct an assessment of the family's needs and strengths rather than investigate the validity of the allegations in a child abuse and maltreatment report" ... . "The expectation of FAR is that families will be more likely to seek necessary help when a less adversarial, less threatening, approach is taken" ... . Matter of Corrigan v New York State Off. of Children & Family Servs., 2015 NY Slip Op 05473, 2nd Dept 6-24-15







Insured Was Entitled to Settle with Tortfeasor 30 Days After Insured's Notification of His Insurer of the Settlement Offer---Although Insurer Sent a Letter Responding to the Notification, It Was Sent to the Wrong Address and the Insured Never Received It


In determining the insurer's (GEICO's) motion to stay arbitration should have been denied, the Second Department explained the procedure where the insured has been offered a settlement by the tortfeasor for the full amount of the tortfeasor's policy and permission to settle is sought from the insured's carrier (GEICO here). The insured timely notified and requested permission to settle from GEICO, but GEICO sent its response to the wrong address and the insured never received it.  After the passage of 30 days, the insured accepted the settlement and served a demand for arbitration on GEICO re: the supplemental uninsured/underinsured motorist (SUM) benefits under the GEICO policy:


As a general rule, an insured who settles with a tortfeasor in violation of a policy condition requiring his or her insurer's consent to settle, thereby prejudicing the insurer's subrogation rights, is precluded from asserting a claim for SUM benefits under the policy ... . However, the language set forth in 11 NYCRR 60-2.3(f), which must be included in all motor vehicle liability insurance policies in which SUM coverage has been purchased, creates an exception to this rule in situations where the insured advises the insurer of an offer to settle for the full amount of the tortfeasor's policy, which obligates the insurer either to consent to the settlement or to advance the settlement amount to the insured and assume the prosecution of the tort action within 30 days ... . In the event that the insurer does not timely respond in accordance with this condition, the insured may settle with the tortfeasor without the insurer's consent, and without forfeiting his or her rights to SUM benefits (see 11 NYCRR 60-2.3[f]...).


Here, the burden was on GEICO to come forward with sufficient facts to establish justification for a stay of arbitration ... . GEICO's submission of its letter requesting additional documentation regarding the settlement, which was addressed to the wrong law firm at an address different from that of the law firm which had initially notified GEICO of the settlement offer, failed to sustain this burden. Matter of Government Empls. Ins. Co. v Arciello, 2015 NY Slip Op 05477, 2nd Dept 6-24-15







Defendant Entitled to Summary Judgment--Activity (Routine Cleaning) Not Covered by Labor Law 240 (1)---Re: Labor Law 200 and Common Law Negligence: Equipment Provided by Defendant Not Defective; Defendant Did Not Have Authority to Control Plaintiff's Work


The Second Department determined Supreme Court properly dismissed an action by plaintiff-janitor who fell from an A-frame ladder while cleaning the basketball backboard in a school gymnasium. The Labor Law 240 (1) cause of action was properly dismissed because cleaning the backboard was routine maintenance, not covered by Labor Law 240 (1).  The Labor Law 200 and common law negligence causes of action were properly dismissed because the defendant school demonstrated the ladder was not defective and it did not have the authority to control the manner in which plaintiff did his work:


... [T]he injured plaintiff's work did not constitute "cleaning" within the meaning of Labor Law § 240(1). The defendant established that the injured plaintiff was performing routine maintenance of the basketball backboards, done regularly throughout the course of the basketball season, that did not require any specialized equipment, and was unrelated to any ongoing construction or renovation of the school. As such, it was not a covered activity under Labor Law § 240(1) ... . ...


Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work ... . "To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'" ... . Where a plaintiff's injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it " either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'" ... . When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards ... . A defendant moving for summary judgment in such a case may prevail "only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard" ... .


To the extent that the plaintiffs allege that the accident was caused by a defect in the ladder, which was owned and provided by the defendant, a premises condition is at issue ... . However, the defendant established, prima facie, that the ladder was not in a defective condition and that, in any event, it did not create or have actual or constructive notice of any defect in the ladder ... . ...


To the extent that the plaintiffs allege that the accident was caused by the manner in which the work was performed, the defendant established, prima facie, that it did not have the authority to supervise or control the means and methods of the injured plaintiff's work ... . Torres v St. Francis Coll., 2015 NY Slip Op 05466, 2nd Dept 6-24-15





This case illustrates an important recurring issue---the sufficiency of papers in support of a defendant's motion for summary judgment. In bringing the motion, a defendant must think like a plaintiff. The defendant must consider all the possible theories under which it/he/she might be held liable, and address all of them affirmatively in the motion papers. What the plaintiff brings up it the answering papers has no relevance to the initial determination of the sufficiency of the movant's papers. Here there were two possible theories under which the defendant could be liable pursuant to Labor Law 200. The motion addressed both of them and succeeded. If only one or the other had been addressed, the motion would have failed.






Police Officer Who Refused a Light-Duty Assignment Was Not Entitled to Disability Benefits Pursuant to General Municipal Law 207-c


The Second Department determined a police officer was not entitled to refuse a light duty assignment during the period his entitlement to disability benefits pursuant to General Municipal Law 207-c was being determined:


A disabled officer receiving General Municipal Law § 207-c benefits is entitled to a due process hearing before those benefits may be terminated when the officer submits medical evidence contesting the finding of a municipality's appointed physician that the officer is fit for duty ... . Once such evidence has been submitted, an "order to report for duty may not be enforced, or benefits terminated, pending resolution of an administrative hearing, which itself is subject to review under CPLR article 78" ... . However, where the municipality's physician is of the opinion that the officer is able "to perform specified types of light police duty," payment of the full amount of salary or wages may be discontinued should the officer refuse to perform such light police duty if same "is available and offered to [the officer]" and enables him or her "to continue to be entitled to his [or her] regular salary or wages" (General Municipal Law § 207-c[3]...). If an officer who refuses to return to light duty fails to provide medical proof that he or she is unable to do so, the municipality may discontinue disability payments without a hearing ... . Matter of Garvey v Sullivan, 2015 NY Slip Op 05476, 2nd Dept 6-24-15






Bus Company's Duty of Care Did Not Include Keeping Steps to the Bus Dry and Free of Snow During a Snow Storm


Reversing Supreme Court, the Second Department determined the defendant bus company could not be held liable for a slip and fall on wet steps on a bus during a snow storm:


"[A] common carrier is subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case" ... . Here, contrary to the Supreme Court's determination, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by showing that it did not breach any duty to the plaintiff under the circumstances that existed at the time of the accident ... . Given the inclement weather conditions when the accident occurred, "it would be unreasonable to expect the [defendant] to constantly clean the steps of the subject bus" ... . Batista v MTA Bus Co., 2015 NY Slip Op 05430, 2nd Dept 6-24-15






Elements of Negligence, General Business Law 349 and Tortious Interference with Contract Causes of Action Succinctly Described


The Second Department determined that Supreme Court properly dismissed (for failure to state a cause of action) the negligence cause of action, should not have dismissed the General Business Law 349 cause of action, and properly denied the motion to dismiss the tortious interference with contract cause of action. The court succinctly described the elements of the three causes of action (facts not described in the decision):


To prevail on a negligence cause of action, a plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages. "Absent a duty of care, there is no breach, and without breach there can be no liability" ... . * * *


To state a cause of action under General Business Law § 349, the complaint must allege that " a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice'" ... . * * *


The elements of a cause of action to recover damages for tortious interference with contract are the existence of a valid contract between it and a third party, the defendant's knowledge of that contract, the defendant's intentional procurement of the third party's breach of that contract without justification, and damages ... . MVB Collision, Inc. v Allstate Ins. Co., 2015 NY Slip Op 05453, 2nd Dept 6-24-15






Question of Fact Whether State Exercised Due Diligence In Addressing Recurrent Blowing-Snow Problem on Highway


The Third Department, reversing the Court of Claims, determined questions of fact had been raised about whether the state had taken adequate measures to address a recurrent "blowing snow" condition in the vicinity of plaintiff's-decedent's highway accident. The court rejected defendant's argument that the "storm in progress" rule should be applied to blowing snow on a roadway. Rather the inquiry is whether the defendant exercised reasonable diligence in maintaining the roadway under the prevailing circumstances. There was evidence that the area in question was the site of several accidents and that installation of a snow fence may have prevented the problem. The state was unable to demonstrate it had undertaken a relevant study and was therefore unable to invoke qualified immunity:


... [I]t is a matter of established law that "[t]he pertinent inquiry is whether [defendant] exercised reasonable diligence in maintaining [the roadway] under the prevailing circumstances" ... . Applying this analysis, ongoing adverse conditions do not excuse defendant from its duty to remediate dangerous conditions, but are relevant to the inquiry as to whether it exercised reasonable diligence in doing so ... . * * *


Defendant may be held liable in negligence where it "failed to diligently remedy [a] dangerous condition[] once it was provided with actual or constructive notice or [where] it did not correct or warn of a recurrent dangerous condition of which it had notice" ... . "Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger" ... . * * *


... [A]n issue of fact exists with respect to whether defendant's actions in seeking to remedy the recurring hazard of windblown snow by relying solely on plowing were reasonable. * * *


... [D]efendant failed to show that it was entitled to summary judgment on the basis of qualified immunity. When defendant undertakes a "stud[y] [of] a dangerous condition and determines as part of a reasonable plan of governmental services that certain steps need not be taken, that decision may not form the basis of liability" ... . Although defendant contends that its decision not to utilize a snow fence or other measures intended to mitigate the hazard of windblown snow resulted from a "reasoned plan or study," the record is inadequate to demonstrate, as a matter of law, that such a study was undertaken ... . Frechette v State of New York, 2015 NY Slip Op 05538, 3rd Dept 6-25-15






Criteria for Liability for Acts of Independent Contractor and for Negligent Hiring of an Independent Contractor Explained (Criteria Not Met Here)


Plaintiff, who was working for the roofing contractor on a building damaged by fire, was asked by a salvager to help move a refrigerator. Plaintiff agreed and was injured while moving the refrigerator down some stairs.  The salvager was allowed to go through the building and pick out the items the salvager wanted (which included the refrigerator). Plaintiff sued the building owner (E & M). In finding the plaintiff did not have a cause of action against E & M, the First Department explained the relevant law with respect to liability for the acts of an independent contractor (the salvager) and negligent hiring of an independent contractor:


E & M established that even if it hired the salvager as an independent contractor, there is no basis to impose liability on it. "As a general rule, a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work" ... . Although "liability will attach where the employer is negligent in selecting, instructing or supervising the contractor, where the contractor is employed to do work that is inherently dangerous or where the employer bears a specific nondelegable duty'" ..., these exceptions are inapplicable... . * * *


Plaintiff's contention that issues of fact exist as to whether E & M or its principal were negligent in selecting the salvager, i.e. whether they failed to exercise reasonable care in ascertaining whether he was qualified to move a refrigerator down a flight of stairs, is also unavailing. "[A]n employer has the right to rely on the supposed qualifications and good character of the contractor, and is not bound to anticipate misconduct on the contractor's part...." ... . Thus, an employer "is not liable on the ground of his having employed an incompetent or otherwise unsuitable contractor unless it also appears that the employer either knew, or in the exercise of reasonable care might have ascertained, that the contractor was not properly qualified to undertake the work" ... . "Cases finding employers liable for negligent hiring have done so only in very specific circumstances" ... not present here. There is no competent proof that E & M knew or should have known of any propensity on the part of the salvager or his helper to engage in the conduct that allegedly caused the accident ... . Furthermore, plaintiff has not shown that E & M had any reason to question the qualifications of the salvager, who E & M knew had been used by its plumber on a prior occasion, to move a refrigerator ... . Moreover, there was no reason for E & M to suspect that the salvager would enlist an employee of the roofing contractor to assist him. Nelson v E&M 2710 Clarendon LLC, 2015 NY Slip Op 05391, 1st Dept 6-23-15







Notice of Claim Timely Served by an Unauthorized Method Deemed Valid/Motion to Renew Based Upon Information Known at the Time of the Original Motion Properly Heard in Exercise of Discretion


The First Department determined the savings provision of General Municipal Law 50-e applied and a notice of claim which was timely served by an unauthorized method was valid.  The court noted that a motion court can exercise its discretion to hear a motion to renew which relies on information known but not raised at the time the original motion was made:


Although the motion was based on information that was available to plaintiff earlier, "courts have discretion to consider such evidence in the interest of justice" ... .


Defendant moved for summary judgment on the ground that plaintiff's notice of claim was not served within the 90-day period set forth in General Municipal Law § 50-e, and plaintiff had not timely moved for an extension of time to serve. Plaintiff contended that she qualified under either or both prongs of the "savings provision" under General Municipal Law § 50-e(3)(c), which provides that "[i]f the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant. . .be examined in regard to it, or if the notice is actually received by a proper person within the time specified by this section, and the public corporation fails to return the notice, specifying the defect in the manner of service, within thirty days after the notice is received."


Moreover, "[t]he purpose of a notice of claim is to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence. The applicable statute should be applies flexibly so as to balance two countervailing interests: on the hand, protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error. General Municipal Law § 50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones" ... .


Here, the record shows that plaintiff served a notice of claim on defendant on December 8, 2011 via regular mail, which did not comply with the requirement that service be completed in person or via registered or certified mail. However, defendant subsequently demanded that plaintiff appear for examinations pursuant to General Municipal Law § 50-h with regard to her claim. Under such circumstances, plaintiff's service of the notice of claim is valid under the first prong of General Municipal Law § 50-e(3)(c). Person v New York City Hous. Auth., 2015 NY Slip Op 05417, 1st Dept 6-23-15







Defendant Entitled to Summary Judgment--No Notice of Wet Condition Where Plaintiff Fell


Reversing Supreme Court, the Second Department determined the defendant was entitled to summary judgment in a slip and fall case.  The defendant demonstrated it did not have actual or constructive notice of the condition (wet floor). An affidavit by a member of the maintenance crew stated that the area where plaintiff fell had been inspected 10 to 15 minutes before the fall and there had been no complaints about a wet condition. The court explained the relevant law:


The owner or possessor of property has a duty to maintain his or her property "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ... . A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it ... . To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall ... . "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" ... .


The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it neither created nor had actual or constructive notice of the condition alleged by the plaintiff to have caused the accident. In support of its motion, the defendant relied upon, among other things, the affidavit of Charles Barber, a member of the maintenance crew at the subject store on the date of the accident. Barber averred that he had inspected the area where the plaintiff alleged that she fell approximately 10 to 15 minutes prior to the accident and observed no water in the area at that time. He further averred in his affidavit that at no point prior to the accident did he ever receive any complaints of any kind concerning the area where the plaintiff allegedly fell. Mehta v Stop & Shop Supermarket Co., LLC, 2015 NY Slip Op 05450, 2nd Dept 6-24-15







"Extreme and Outrageous Conduct" Is Not an Element of "Negligent Infliction of Emotional Distress"---Elements of Private Nuisance, Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress Explained in Some Depth---Complaint Should Have Been Dismissed for Failure to State a Cause of Action


The Second Department, in a full-fledged opinion by Justice Miller, reversed Supreme Court and dismissed the complaint for failure to state a cause of action.  The opinion is important because it clarified "negligent infliction of emotional distress," explaining that "extreme and outrageous conduct" is not one of the elements. Although the court held that the complaint did not state causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, or private nuisance, the nature of those causes of action was explained in some depth. The defendants owned property next door to the plaintiffs' home.  The defendants rented to tenants, who were not parties to the lawsuit.  The tenants apparently held loud parties at which drugs were used and sold. The plaintiffs at one point called the police to complain about the tenants' behavior. Subsequently two masked men entered plaintiffs' home to intimidate them. Plaintiff-husband ultimately shot the two intruders and in the process accidently shot his dog. The men were arrested by the police. The opinion is too detailed to properly summarize here, but the essence of the court's ruling is that the tenants' behavior was not sufficiently linked to any acts or omissions by the defendants. The court wrote:


The elements of a private nuisance cause of action are: "(1) an interference 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" ... . * * *  ... [T]he duty to abate a private nuisance existing on real property arises from the power to possess the property and control the activities that occur on it. Accordingly, a landowner who has relinquished possession of his or her property will not be liable for a private nuisance that arises on the property if the landowner neither created the nuisance nor had notice of it at the time that possession of the property was transferred ... . In the absence of any such knowledge or consent to the objectionable activity which may be attributable to the landowner at the time the lease is executed, the common-law duty to abate a nuisance that exists during the course of a tenancy lies with the tenant, in his or her capacity as the one in possession of the property ... . 


... [U]nder New York law, a cause of action alleging intentional infliction of emotion distress "has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" ... . * * * " Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'" ... . * * * Although the individuals who broke into the plaintiffs' home may have engaged in extreme and outrageous conduct, the complaint alleges no basis upon which the intruders' conduct may be imputed to the defendants. The defendants' intentional conduct, as alleged in the complaint, amounts to nothing more than a failure to ensure that their tenants and their friends refrained from committing the acts described in the complaint. * * *


[Re: negligent infliction of emotional distress] .... [T]o the extent that certain of this Court's past decisions have indicated that extreme and outrageous conduct is an element of negligent infliction of emotional distress ... , those cases should no longer be followed. ... [A] breach of a duty of care "resulting directly in emotional harm is compensable even though no physical injury occurred" ... . However, the mental injury must be "a direct, rather than a consequential, result of the breach" ... , and the claim must possess "some guarantee of genuineness" ... . ... Applying the correct standard to the complaint in this case, we conclude that the plaintiffs' failure to adequately allege extreme and outrageous conduct is not fatal to their cause of action alleging negligent infliction of emotional distress ... . Nevertheless, we conclude that the complaint is deficient in another respect, as it failed to adequately allege facts that would establish that the mental injury was "a direct, rather than a consequential, result of the breach" ... . Taggart v Costabile, 2015 NY Slip Op 05464, 2nd Dept 6-24-15









Purchasers Entitled to Return of Downpayment Under Terms of the Purchase Contract and Pursuant to General Obligations Law 5-1311---Home Damaged by Hurricane Sandy Before Appraisal by Lender


The Second Department determined Supreme Court should have granted the purchasers' motion for summary judgment on the complaint seeking return of the downpayment.  The contract for sale of real property was contingent upon purchasers receiving a commitment for a loan.  The commitments received by the purchasers were contingent upon a property appraisal.  The house was damaged in Hurricane Sandy and the lender, based upon the post-Sandy appraisal, would not issue the loan. The Second Department determined the purchasers were entitled to a return of their downpayment under the terms of the contract and pursuant to General Obligations Law 5-1311:


"For more than a century it has been well settled in this State that a vendee who defaults on a real estate contract without lawful excuse, cannot recover the down payment" ... . Where, however, the obligations of a purchaser under a contract of sale are contingent upon the issuance of a firm financing commitment by a lender, a purchaser may be entitled to recover the down payment if he or she was unable to secure a firm commitment in accordance with the terms of the contract ... .


Here, the contract of sale was conditioned upon the issuance of a written commitment from an institutional lender. The contract of sale expressly provided that "a commitment conditioned on the Institutional Lender's approval of an appraisal shall not be deemed a Commitment' hereunder until an appraisal is approved." Accordingly, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that they were unable to secure a firm commitment in accordance with the contract of sale, and that they were entitled to the return of their down payment pursuant to the terms of the contract ... . In addition, the plaintiffs demonstrated, prima facie, that they were entitled to a return of their down payment by virtue of General Obligations Law § 5-1311, since a "material part" of the property was destroyed by Hurricane Sandy before legal title or possession of the property could be transferred (General Obligations Law § 5-1311[1][a][1]). Walsh v Catalano, 2015 NY Slip Op 05468, 2nd Dept 6-24-15






Question of Fact Whether Landlord Entitled to Pass On Increased Real Estate Taxes (Pursuant to a Tax Escalation Clause)---Increase Cannot Be Tied to Improvements Which Solely Benefit the Landlord


The First Department determined the landlord should not have been granted summary judgment.  Plaintiff-tenant sought a declaration that it was not responsible for increased real estate taxes related to improvements to the building which benefitted only the landlord and not the tenant. The matter was sent back for a determination whether and to what extent the improvements benefitted only the landlord:


The Court of Appeals has made clear that "[i]t is not the aim of . . . a [tax escalation] clause . . . to impose upon the tenant responsibility for increases in real estate taxes resulting from improvements on the property redounding solely to the benefit of the landlord" ... . 


The motion court incorrectly found that this principle was limited to circumstances where the improvement involved a vertical or horizontal enlargement of the building. ... The improvement at issue is a renovation solely of the residential aspects of the building. Plaintiff is a commercial tenant. Our declaration here simply states the well settled principle regarding tax escalation clauses.  Enchantments Inc. v 424 E. 9th LLC2015 NY Slip Op 05409, 1st Dept 6-23-15







Petitioner Was Entitled to a Reduction in the Assessed Value of a Home Depot Store Based Upon Its Expert's Appraisal


The Third Department determined the trial court had properly found petitioner's expert-appraisal of the value of a Home Depot store to be the most appropriate. Petitioner was therefore entitled to a reduction in the assessed value of the property. The Third Department carefully explained the valuation methods used by the competing experts (that discussion is not summarized here). As to the courts' role in property-tax assessment proceedings, the Third Department explained:


A local tax assessment is presumptively valid and, to overcome that presumption, a petitioner must present substantial evidence that the property is overvalued ... . Petitioner met this threshold burden here through its submission of the detailed appraisal of Harland, a certified real estate appraiser with considerable experience, who utilized accepted methodologies and adequately set forth his calculations and the necessary details regarding the properties ... . The appropriateness of the comparable properties used by Harland in his analysis goes to the weight to be given to his appraisal, not, as respondents contend, the appraisal's competency to raise a valid dispute regarding valuation ... .


With petitioner having rebutted the presumptive validity of the assessments, Supreme Court was obligated to "weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued" ... . "Where, as here, conflicting expert evidence is presented, we defer to the trial court's resolution of credibility issues, and consider whether the court's determination of the fair market value of the subject property is supported by or against the weight of the evidence" ... . Matter of Home Depot U.S.A. Inc. v Assessor of the Town of Queensbury, 2015 NY Slip Op 05556, 3rd Dept 6-25-15







Transcriber of Administrative Hearings Was an Employee Entitled to Unemployment Insurance Benefits---Appeals Board Not Required to Follow or to Explain Why It Didn't Follow an "Unappealed" Ruing by an Administrative Law Judge


The Third Department determined claimant, who transcribed administrative hearings for "The Mechanical Secretary," was an employee entitled to unemployment insurance benefits. The court noted that the unemployment insurance appeals board was not required to explain why it did not follow a prior "unappealed" ruling by an administrative law judge which went the other way:


"Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the [Board], if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" ... . "An employer- employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results" ... . Here, the record establishes that The Mechanical Secretary advertised for transcriber positions. The president would interview the applicants and assess the quality of their work. The transcriber was required to have certain equipment, but The Mechanical Secretary would loan the transcriber a transcription machine if needed. The Mechanical Secretary arranged to have the work delivered to and picked up from the transcribers within a certain area. In claimant's case, however, because she did not live in close proximity to the company, she was required to pick her work up at its office and to return the completed work to that office by 9:00 a.m. Claimant was occasionally reimbursed for her travel expenses. Significantly, The Mechanical Secretary set the nonnegotiable pay rate, supplied all the paper needed by the transcribers, and reviewed the final product for mistakes and would correct any minor mistakes or, where the mistakes were significant, send it back to be corrected by the transcriber. Furthermore, The Mechanical Secretary had to be notified if a transcriber was going to take any vacation. Given the evidence produced, we find that there is substantial evidence to support the Board's finding that The Mechanical Secretary exercised a sufficient degree of control over claimant's work to establish an employment relationship ... .


We are unpersuaded by The Mechanical Secretary's contention that the Board was bound by a prior unappealed Administrative Law Judge decision that found medical transcribers that it had used to be independent contractors. Claimant, who is not a medical transcriber, was not involved in that prior proceeding such that there was a full and fair opportunity for her to contest the decision, nor is the Board "required to conform to the precedent established in the prior unappealed decision or offer a rational explanation for not doing so" ... . Matter of Ingle (The Mech. Secretary, Inc.--Commissioner of Labor), 2015 NY Slip Op 05553, 3rd Dept 6-25-15





Factory-Work Packaging Yogurt Was Not "Suitable Employment" for a Skilled Carpenter


The Third Department reversed the Unemployment Insurance Appeals Board's determination claimant was not eligible for unemployment insurance benefits because he refused suitable employment.  Claimant is a skilled carpenter.  He refused a yogurt-packaging job in a factory.  The yogurt-packaging job was not, under the circumstances, "suitable employment" for the claimant:


Pursuant to Labor Law § 593 (2), a claimant who refuses "an offer of employment for which he or she is reasonably fitted by training and experience" will be disqualified from receiving unemployment insurance benefits ... . Significantly, a "claimant need not accept every job offered but, rather[,] only those job offers which bear a reasonable relationship to [the] claimant's skills" ... . Here, it is undisputed that claimant was skilled in finish carpentry and had no experience working in a factory. Consequently, substantial evidence does not support the Board's decision that he refused an offer of suitable employer ... . The Board's decision, in fact, runs contrary to a similar case in which the Board awarded benefits to another claimant who worked at the millwork company as a skilled craftsman and refused the same offer to work as a packager in a yogurt factory ... . In view of the foregoing, the Board's decision must be reversed. Matter of Reisen (Commissioner of Labor), 2015 NY Slip Op 05560, 3rd Dept 6-25-15







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