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March Page I

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


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Questions of Fact Existed Re: Whether Plaintiffs Were Entitled to Rely on Defendant's Assurances Dog Was Not Aggressive


Plaintiff was seriously injured by a dog procured from defendant after defendant had assured plaintiffs the dog (Brutus) was not aggressive. The Third Department determined plaintiffs were entitled to rely on defendant's assurances, in spite of three minor biting incidents when the dog was in plaintiffs' possession:


Defendants argue that because Brutus bit plaintiffs three times prior to the attack that is the subject of the complaint, plaintiffs could not have reasonably relied on defendants' representations as to the dog's behavior and cannot state a claim for fraudulent or negligent misrepresentation. Defendants also argue that those causes of action must fail because plaintiffs could have learned of Brutus' aggressive nature with due diligence. We are not persuaded. In order to establish their claims for negligent and fraudulent misrepresentation, plaintiffs must demonstrate that they justifiably relied on defendants' misrepresentations ... . Here, plaintiffs allege that they would not have adopted Brutus if they had been told the truth regarding his prior owner's reason for turning him over to the Center. Plaintiffs also allege that, after the three biting incidents, they sought the assistance of trainers to deal with what they perceived as a minor issue. Plaintiffs, who have experience owning and training animals, note that the three prior bites did not break the skin and were far different from the aggressive nature of the later attack. Plaintiffs only learned about Brutus' prior history when they were able to track down the prior owner by posting flyers and they submitted affidavits from the prior owner and her friend regarding their experiences with Brutus and their intent to have him euthanized when they took him to the Center. Under these circumstances, issues of fact exist as to whether plaintiffs reasonably relied on defendants' misrepresentation and whether plaintiffs could have discovered Brutus' dangerous nature with due diligence ... . Lawrence v North Country Animal Control Ctr., Inc., 2015 NY Slip Op 01846, 3rd Dept 3-5-15





Criteria for Landlord's Liability in a Dog Bite Case Explained


The Second Department determined that the property owner's and manager's motion for summary judgment in a case where a tenant's dog bit the plaintiff should not have been granted.  The court explained the analytical criteria:


"To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or a person in control of the premises where the dog was, knew or should have known of such propensities" ... . Vicious propensities include the " propensity to do any act that might endanger the safety of the persons and property of others in a given situation'" ... . "Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" ... . "To recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog" ... . Velez v Andrejka, 2015 NY Slip Op 01793, 2nd Dept 3-4-15







Longevity-Pay Grievance Not Arbitrable Under Terms of Collective Bargaining Agreement/Analytical Criteria Explained


The Second Department determined that, under the terms of the collective bargaining agreement (CBA), the grievance (re: longevity pay) was not arbitrable.  The court outlined the analytical criteria:


"The determination of whether a dispute between a public sector employer and employee is arbitrable is subject to [a] two-prong test" ... . "Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance" ... . "If there is no prohibition against arbitrating, the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute" ... .


Here, the County did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy. Thus, the only issue is whether the parties agreed to arbitrate the particular dispute ... .


"Unlike general labor disputes in the private sector involving arbitration, the intent to arbitrate of parties to a collective bargaining agreement in the field of public employment may not be presumed" ... . "Indeed . . . it must be taken, in the absence of clear, unequivocal agreement to the contrary, that the [parties to a collective bargaining agreement] did not intend to refer differences which might arise to the arbitration forum" ... .


Here, contrary to the Union's contention, the CBA did not broadly provide for the arbitration of any grievance that may arise under the CBA ... . Rather, as the Supreme Court correctly concluded, the CBA limited the availability of arbitration to specifically enumerated matters ... .  Matter of County of Rockland v Corr. Officers Benevolent Assn. of Rockland County, Inc. 2015 NY Slip Op 01798, 2nd Dept 3-4-15






Criteria for Intervention as of Right and Permission to Intervene Explained (Not Met Here)


The Third Department determined a fund, which was entitled to reimbursement from any damages awarded plaintiff in a pending medical malpractice action, did not have the right to intervene and was properly denied permission to intervene in the medical malpractice action.  The court explained the relevant analytical criteria:


As relevant here, any person may intervene as of right "when 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]). The Fund would be bound by any judgment because plaintiff has sought to recover medical costs, as well as other damages, in his complaints in these actions. Despite the Fund's argument, however, it appears that plaintiff is and will adequately represent the Fund's interests. At oral argument, the Fund acknowledged that plaintiff's counsel is competent and will act in good faith. Plaintiff has an incentive to maximize his recovery, considering that he will not receive anything personally if he obtains a settlement or verdict of $537,273.12 or less. Plaintiff is also contractually bound to protect the Fund's right to subrogation and has agreed to a lien on any recovery ... . Supreme Court correctly found that plaintiff is adequately representing the Fund's interests, and any argument that plaintiff may not do so in the future is pure speculation ... .


A court may permit intervention, in its discretion, when the person's claim has a common question of law or fact with the main action, but "the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party" (CPLR 1013). Although the Fund's asserted claim has common questions of law and fact with plaintiff's claims, intervention was properly denied. Intervention would cause some delay because it would lead to duplicative discovery and motion practice, as the Fund and plaintiff could each separately seek demands and relief from the multiple defendants ... . This could also cause some prejudice to defendants, who would be required to respond to similar repetitive demands and motions, as well as the possibility of the Fund calling additional witnesses or even experts at trial. The Court of Appeals has even acknowledged that allowing a provider of medical benefit payments to intervene could create tension between the injured party and his or her insurer,... and "inevitably complicates settlement negotiations" ... . Mavente v Albany Med. Ctr. Hosp., 2015 NY Slip Op 01849, 3rd Dept 3-5-15







Court Should Not Have Summarily Determined Declaratory Judgment Action In Absence of a Request to Do So/The Mootness Doctrine Precluded Court Rulings on an Expired Contract/The Open Meetings Law Was Violated by the Town


The Third Department determined Supreme Court should not have summarily considered the declaratory judgment aspect of this hybrid action without a request to do so and without converting the proceeding to a summary judgment action.  The Third Department further determined the mootness doctrine precluded the Supreme Court from ruling on the provisions of an expired contract, and the town had violated the Open Meetings Law by holding closed sessions.  The action concerned the use of property for motorcycle events. Local property owners brought the action alleging that the events violated the allowed use of the land:


It is well settled that a court's jurisdiction extends only to live controversies" ..., and a matter becomes moot "unless the rights of the parties will be directly affected by the determination of the [claim] and the interest of the parties is an immediate consequence of the judgment" ... . Where, as here, the passage of time or "a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy," the claim must be dismissed ... . The 2013 agreement, by its own terms, pertained solely to Safety Track's land uses and events that occurred during the 2013 track season and expired at the end of that year, thereby rendering the challenges to the 2013 agreement moot ... . Further, we do not agree with Supreme Court's finding that the exception to the mootness doctrine was satisfied... . ...


In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek declaratory relief, on the other hand" ... . In the absence of a formalized motion requesting the "summary determination of the causes of action which seek . . . declaratory relief, it is error for [a court] to summarily dispose of those causes of action" ... . 


It is undisputed that there was no pending motion for summary disposition of the declaratory judgment action when Supreme Court rendered its 2014 judgment. Nor did the court provide notice to the parties that it was considering the summary disposition of the declaratory judgment action, such that the parties would be afforded an opportunity to further develop the evidentiary record and offer competent proof supportive of their respective positions ... . 


... Generally, "[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Public Officers Law § 105]" (Public Officers Law § 103 [a]). While a governing body may enter into an executive session, it may do so only for certain purposes, including, as is relevant here, the consideration of an appointment or to engage in private discussions relating to proposed or pending litigation (see Public Officers Law § 105 [1] [f]...). However, the body must "identify the subject matter to be discussed . . . with some degree of particularity"... . * * * As the Town failed to demonstrate that it comported with the relevant statutory provisions when conducting the instant executive sessions, such sessions were violative of the Public Officers Law ... . Matter of Ballard v New York Safety Track LLC. 2015 NY Slip Op 01845, 3rd Dept 3-5-15






Trustee's Settlement of Claims Against Countrywide/Bank of America Stemming from Sale of Mortgage-Backed Securities Approved


The First Department, in a full-fledged opinion by Justice Saxe, determined the trustee properly exercised its discretion in settling the claims stemming from mortgage-backed securities sold by Countrywide Home Loans between 2004 and 2008. Countywide was subsequently purchased by Bank of America (BofA). The First Department explained the courts' powers re: reviewing the settlement under CPLR Article 77:


The ultimate issue for determination here is whether the trustee's discretionary power was exercised reasonably and in good faith ... . It is not the task of the court to decide whether we agree with the Trustee's judgment; rather, our task is limited to ensuring that the trustee has not acted in bad faith such that his conduct constituted an abuse of discretion ... .


We agree with Supreme Court that the Trustee did not abuse its discretion or act unreasonably or in bad faith in embarking on the settlement here. The Trustee acted within its authority throughout the process, and there is no indication that it was acting in self-interest or in the interests of BofA rather than those of the certificateholders.


Importantly, "if a trustee has selected trust counsel prudently and in good faith, and has relied on plausible advice on a matter within counsel's expertise, the trustee's conduct is significantly probative of prudence" (Restatement [Third] of Trusts § 77, Comment b[2]). While reliance on the advice of counsel may not always be the end of the analysis regarding a claimed breach of trust — it is possible for a trustee to specifically seek out legal advice that would support the trustee's desired course of conduct, or there may be other circumstances establishing that it was unreasonable to follow the legal advice (id.) — a party challenging the decisions of a trustee who followed the advice of a highly-regarded specialist in the relevant area of law can prevail only upon a showing that, based on the particular circumstances, the reliance on such counsel's assessment was unreasonable and in bad faith. Court approval of the settlement does not require that the court agree with counsel's judgment or assessment; all that is required is a determination that it was reasonable for the Trustee to rely on counsel's expert judgment. Matter of Bank of N.Y. Mellon, 2015 NY Slip Op 01880, 1st Dept 3-5-15






Merger Doctrine and "As Is" Clause Did Not Bar Suit/Fraud-Based Causes of Action Did Not Duplicate Breach of Contract Cause of Action


The First Department, in a full-fledged opinion by Justice Mazzarelli, over a dissent, determined, in the context of a motion to dismiss for failure to state a cause of action, the merger doctrine did not apply to a contract for the sale of an apartment building, the fraud and fraudulent misrepresentations causes of action were not duplicative of the breach of contract cause of action (which was time-barred), and sufficient allegations for piercing the corporate veil had been pled.  The opinion is detailed because of the complicated facts and cannot fairly be summarized here.  With respect to the merger doctrine and the fraud-based causes of action, the court wrote:


The merger doctrine in a real estate transaction provides that once the deed is delivered, its terms are all that survive and the purchaser is barred from prosecuting any claims arising out of the contract ... . The only exception to this rule is where the parties clearly intended that the particular provision of the contract supporting the claim would survive the delivery of the deed ... . Further, an "as is" clause in a contract to sell real property will ordinarily bar a claim for breach of contract ... . Plaintiff argues that the merger doctrine does not apply here because of the latent nature of the defects at issue. It further contends that its allegations of deceptive behavior on Seller's part to mask the true condition of the building render the "as is" clause inoperable.


Although plaintiff cites trial court opinions identifying a latency exception to the merger doctrine, the concept has not been adopted by any of the Appellate Divisions or by the Court of Appeals ... , and we are not adopting it here. Nevertheless, the merger doctrine is inapplicable in this case. Although the crux of the action is undoubtedly that plaintiff took title to a seriously defective building, the specific allegations in the complaint are that Seller breached the contract by failing to abide by those provisions designed to permit plaintiff to gain a true understanding of the condition of the property. ...[E]ach of those representations was explicitly intended by the parties not to merge into the deed.


Further, since the breach of contract cause of action is addressed to these representations, and not to the condition of the building itself, the presence of the "as is" clause is no bar to the claim. Additionally, while the "as is" clause states that Seller has made no representations as to "any other matter or thing affecting or relating to the property," it carries the caveat that this is "except as specifically set forth to the contrary in this agreement" (emphasis omitted). Thus, the three specific representations which plaintiff alleges were breached trump the "as is" clause. To the extent that plaintiff asserts fraud claims not directly related to the three surviving representations, the merger doctrine still does not apply (West 90th Owners Corp. v Schlechter, 137 AD2d 456, 459 [1st Dept 1988] ["fraud is a recognized exception to the merger doctrine"). * * *


Where "allegations of intentional fraud, though parallel in many respects to the breach of contract claim, include claims of fraudulent misrepresentations made by defendants which induced them to enter into the contract and close on the property, they are not merely redundant of the breach of contract claim . . . [and a] fraud cause of action is sustainable" ... . TIAA Global Invs., LLC v One Astoria Sq. LLC, 2015 NY Slip Op 01768, 1st Dept 3-3-15




Proof at Trial Did Not Sufficiently Pinpoint Time of the Alleged Sexual Offenses---Convictions Vacated


The Second Department determined the proof at trial did not sufficiently pinpoint the time of the alleged sexual offenses.  The offenses were alleged at trial to have been committed within a four-year time period for one victim and within a one-year time period for another.  The related convictions were vacated:


Here, numerous counts of the consolidated indictment charged various acts of criminal sexual act (see Penal Law § 130.45[1]) and sexual abuse (see Penal Law §§ 130.55, 130.60), which involved several single acts. These acts spanned a time period of at least four years with respect to Gabrielle, and approximately one year with respect to Angela. In an effort to specify a time period that was not unreasonably excessive, the District Attorney drafted the indictment to divide these time periods mostly into two-month intervals. Although the indictment, on its face, may have been sufficient, the trial testimony revealed that the complainants lacked any ability "to particularize the date and time of the alleged . . . offense[s]" ..., and that there was no real basis in fact for the intervals alleged with respect to these counts ... . Thus, "[t]he mere fact that the District Attorney artfully drafted the indictment by arbitrarily dividing" those otherwise excessive time periods into two-month intervals despite the absence of any basis in fact, "cannot detract from the conclusion that the time periods" with respect to these single-act crimes "were unreasonable" under the circumstances here ... . Under the circumstances of this case, despite the defendant's failure to preserve the issue for appellate review, we reach the issue in the interest of justice, and we vacate the defendant's convictions of criminal sexual act in the second degree, sexual abuse in the second degree, and sexual abuse in the third degree ... . People v Atta, 2015 NY Slip Op 01809, 2nd Dept 3-4-15




Under a Batson Analysis, the Prosecutor's Peremptory Challenges to Two Black Jurors Were "Pretextual" Requiring Reversal


The Second Department determined the reasons proffered by the prosecutor for the peremptory challenge of two black jurors were "pretextual" under a Batson analysis, requiring reversal.  With regard to one of the two pretextual challenges, the court wrote:


A new trial is necessary because the prosecutor exercised her peremptory challenges in a discriminatory manner (see Batson v Kentucky, 476 US 79) as to two black prospective jurors. In Batson, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories ... . In step one, the moving party must make a prima facie case of purposeful discrimination by "showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason" ... . If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party "offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome" ... . Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and " the trial court must determine whether the proffered reasons are pretextual'" ..., including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others... . * * *


With respect to the first prospective juror, the prosecutor employed a peremptory challenge to strike him as a juror because of a concern that his position as a church deacon would make it difficult for him to sit in judgment of another individual. Although the prospective juror indicated during voir dire that his position as a church deacon would not affect his decision making, the prosecutor maintained that it was "just [his] feeling that it may be difficult having [someone in] that position to then sit in judgment of someone."


Contrary to the Supreme Court's determination, the facially race-neutral reason advanced by the prosecutor for employing a peremptory challenge was pretextual. The prosecutor did not offer any explanation for how employment as a church deacon related to the factual circumstances of the case or qualifications to serve as a juror ... . Furthermore, the prosecutor's challenge was admittedly based on his "feeling" that a church deacon would have difficulty sitting in judgment of another, and the prosecutor failed to pursue questioning of the prospective juror to ascertain whether this intuitive feeling was founded in fact ... . When the reason advanced for a peremptory challenge relates to a juror's appearance, deference must be afforded to the trial court's findings with regard to pretext, as the trial court has the distinct advantage of being able to observe the juror ... . However, the same cannot be said when the reason advanced for the challenge is based on the juror's profession or background ... . Indeed, it would not "be acceptable for this Court to invoke the rule providing for deference to the trial court in matters of credibility in order to rubber stamp every determination relating to the legitimacy of a peremptory challenge" ... . People v Bell, 2015 NY Slip Op 01812, 2nd Dept 3-4-15




Failure to Include Restitution in Plea Agreement Required that the Sentencing Court Give the Defendant the Opportunity to Withdraw Her Plea Before Including Restitution in the Sentence


The Second Department determined County Court erred when it, in the absence of a prior agreement, imposed restitution as part of defendant's sentence without giving the defendant the opportunity to withdraw her plea:


Although a court is free to reserve the right to order restitution as part of a plea agreement, the County Court did not do so here. Instead, at the very end of the sentencing proceeding, after imposing the agreed-upon terms, the court briefly turned to other matters prior to stating that it was also signing restitution judgment orders.


The defendant contends, among other things, that, before adding restitution to the sentence, the County Court should first have given her the option to withdraw her plea of guilty or to accept a sentence including restitution. Preliminarily, we note that, in light of the fact that the court did not give the defendant a sufficient opportunity to withdraw her plea of guilty before imposing restitution, the defendant's claim is not subject to the preservation requirement ... . Moreover, we agree with the defendant that the County Court erred ... . People v Molinaro, 2015 NY Slip Op 01820, 2nd Dept 3-4-15





"Attempted Felony Assault" Charge Jurisdictionally Defective


The Third Department determined the "attempted felony assault" charge in the indictment was jurisdictionally defective because there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended:


We do find that the conviction for attempted assault in the first degree cannot stand. Defendant was charged under the theory that, during the course of the kidnapping, he attempted to cause serious physical injury when he choked the victim a second time after she made an abortive effort to get help (see Penal Law § 120.10 [4]). An attempt to commit a crime requires that a person, "with intent to commit a crime, . . . engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00). In contrast, felony assault punishes a felon for the actual consequences of his or her actions, and "there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended" ... . Accordingly, notwithstanding the fact that defendant did not advance this specific issue in his appellate brief, the count of the indictment charging him with attempted felony assault is jurisdictionally defective and must be dismissed ... . People v Mccann, 2015 NY Slip Op 01830, 3rd Dept 3-5-15





DLRA Provision Terminating Sentences After Three Years of Unrevoked Parole Did Not Apply to Non-Drug Related Offense by "Merger"


The Second Department, in a full-fledged opinion by Justice Rivera, determined that the provision of the Drug Law Reform Act (DLRA) [Executive Law former 259-j (3-a)] which allowed the termination of sentences for enumerated drug crimes after three years of unrevoked parole did not apply (under a merger theory) to a non-drug conspiracy offense where the maximum sentence for the conspiracy had not expired at the time the three-year-unrevoked-parole mark for the drug offenses had been reached:


The application of Executive Law former § 259-j(3-a) to this petitioner did not squarely fit within the express purpose of the 2004 DLRA. The 2004 DLRA was intended to grant specific relief to a clearly identified and circumscribed class, namely, "low level non-violent drug offenders" ... . A "manager of a drug ring" cannot be deemed to be the low level offender contemplated by the statute. Further, it is unreasonable to perceive someone convicted of conspiracy to murder as "nonviolent."


Notwithstanding the foregoing, the petitioner seeks more than the benefit heretofore conferred upon him by the 2004 DLRA and Executive Law former § 259-j(3-a). He seeks, in effect, to bootstrap the sentence imposed on the conspiracy conviction to the sentences imposed on the drug-related convictions in an attempt to discharge the remaining term thereof. However, this attempt must fail for the following reasons.


First, Executive Law former § 259-j(3-a) applies only to the specific drug-related felony offenses set forth in articles 220 and 221 of the Penal Law (see Correction Law § 205[4]). That statute cannot be reasonably construed to terminate the petitioner's sentence on the conspiracy conviction, a non-drug-related conviction. The outcome sought by the petitioner is contrary to established precedent. Courts applying the DLRA are "not given the discretion to fashion new sentences or add terms of imprisonment, but are constrained to make an existing sentence determinate in the manner dictated by the DLRA" ... .


Second, we disagree with the petitioner's reading of Penal Law § 70.30(1) ... . * * * The express language of Penal Law § 70.30(1) states that the maximum terms shall "be satisfied by discharge of the term which has the longest unexpired time to run." ... [A]t the time that [petitioner] became eligible for relief under Executive Law former § 259-j(3-a), none of the terms had expired or been discharged. The application of Executive Law former § 259-j(3-a) operated to effectively shorten the maximum term of his drug-related sentences (i.e., life) to the approximately 16 years that the petitioner served. Thus, upon the application of the early-termination provision under Executive Law former § 259-j(3-a), the maximum term of his sentence on the conspiracy conviction, which was 25 years, had the longest unexpired time to run (see Penal Law § 70.30[1][a]). People ex rel. Baez v Superintendent, Queensboro Corr. Facility, 2015 NY Slip Op 01827, 2nd Dept 3-4-15





Criteria for Administrative Expungement of a Report of Child Abuse or Maltreatment Explained


In affirming the dismissal of a petition seeking expungement of a "child abuse or maltreatment report" maintained by the NYS Central Register of Child Abuse or Maltreatment, the Second Department explained the relevant analytical criteria:


At an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a preponderance of the evidence ... . "It is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses" ... .


Judicial review of a determination that a report of maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record ... . Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ... .


To establish that maltreatment occurred, the agency must show that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of a parent or other person legally responsible for his or her care to exercise a minimum degree of care ... .  Matter of Iacono v New York State Cent. Register of N.Y. State Off. of Children & Family Servs. 2015 NY Slip Op 01802, 2nd Dept 3-4-15






Failure to Provide Personal Ropes to Firefighters Is a Proper Basis for a General Municipal Law 205-a Claim


The First Department determined the alleged violation of Labor Law 27-a(3)(a)(1)  was sufficient to support an action by firefighters against the City pursuant to General Municipal Law 205-a.  Firefighters were injured and killed jumping from a building without personal ropes. The failure to provide personal ropes is the basis of the suit.  Governmental immunity did not bar the suit:


The City unavailingly contends that Labor Law § 27-a(3)(a)(1) cannot provide a valid predicate for any General Municipal Law § 205-a claim. However, the statute, known as the Public Employee Safety and Health Act (PESHA), which imposes a general duty on an employer to provide employees with "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees" (Labor Law § 27-a[3][a][1]), is sufficient since it is " a well-developed body of law and regulation that imposes clear duties'" ... .


Moreover, the City failed to "show that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff's injuries" ... . There is evidence, including testimony and an investigative report, that the failure to issue personal ropes to the firefighters contributed to the injuries and deaths suffered when the firefighters jumped from windows using either no safety devices or a single rope that had been independently purchased by one of the firefighters. The City is also not entitled to dismissal of these claims pursuant to governmental function immunity, since the evidence concerning the removal of existing personal ropes in 2000, and the failure to provide new ropes in the period of more than four years from then until the fire giving rise to these claims, raises issues of fact concerning whether the absence of ropes "actually resulted from discretionary decision-making — i.e., the exercise of reasoned judgment which could typically produce different acceptable results" ... . Stolowski v 234 E 178th St LLC, 2015 NY Slip Op 01732, 1st Dept 3-3-15





Single Use of Vehicle to Carry Passengers "For Hire" Did Not Justify Excluding Vehicle from Coverage Under the "For Hire" Exclusion


The Second Department determined that an insurer, GEICO, was not justified in disclaiming coverage of a vehicle under a "for hire" exclusion.  The evidence demonstrated, at most, that the vehicle was carrying passengers "for hire" on one occasion only (at the time of the accident), and was therefore not subject to the "for hire" exclusion:


Pursuant to regulations issued by New York State Department of Financial Services, an insurer may exclude, from an automobile owner's policy of liability insurance, coverage for claims arising "while the motor vehicle is used as a public or livery conveyance" (11 NYCRR 60-1.2[a]). GEICO's disclaimer was based on an exclusion contained in its policy relating to "any vehicle used to carry passengers or goods for hire [except a] vehicle used in an ordinary carpool on a ride sharing or cost sharing basis." Exclusions from coverage are "construed strictly against the insurer" ... . In accordance with this rule of strict construction, a "single use of a vehicle for hire has been held not to make out use as a public livery or conveyance'" ... . The facts adduced at the hearing warranted the conclusion that, while GEICO's insured might have been employing his mini-van to transport a passenger "for hire" at the time of the accident, his use of the vehicle for such purpose entailed a "single isolated use" that was "not tantamount to its employment as a public or livery conveyance'" ... . Matter of New York Cent. Mut. Fire Ins. Co. v Byfield, 2015 NY Slip Op 01805, 2nd Dept 3-4-15






Involuntary Retention Appropriate---Respondent Suffered from Developmental Disability Which Originated Before the Age of 22


The Third Department reversed Supreme Court, finding the petitioner demonstrated respondent suffered from developmental disabilities justifying involuntary retention in a mental health facility:


Pursuant to Mental Hygiene Law article 15, when a facility seeks to retain an individual against his or her will, such retention may occur when the person has an alleged developmental disability that, as is relevant here, can be attributed to mental retardation that originated before he or she turned 22 years of age, has existed on a continuous basis and has severely limited his or her ability to function in society (see Mental Hygiene Law §§ 1.03 [22]; 15.01, 15.27 [a]). Further, the individual will be subject to involuntary care and treatment if it is "essential to his [or her] welfare, and . . . his [or her] judgment is so impaired that he [or she] is unable to understand the need for such care and treatment" (Mental Hygiene Law § 15.01; see Matter of Robert OO., 57 AD3d 1304, 1305 [2008]...). Our authority to review factual findings made in retention cases of this nature is as broad as that of the trial court ... and "we may make our own findings of fact if 'no fair interpretation of the evidence . . . can support the [court's] determination'" ... . Matter of William T., 2015 NY Slip Op 01857, 3rd Dept 3-5-15





Question of Fact Whether Unidentified Nurse Used Excessive Force In Assisting a Birth Procedure


The Third Department determined there was a question of fact whether a nurse employed by defendant hospital engaged in an act of independent negligence by using excessive force during a birth procedure resulting in a fractured skull.  Therefore the hospital's motion for summary judgment was properly denied:


Plaintiffs commenced this action against various defendants including, as relevant to this appeal, Bellevue and defendant Ellis Hospital (hereinafter collectively referred to as defendants) alleging, among other things, that the unidentified nurse employed by defendants who assisted [the attending physician] applied excessive force to the child's head causing his injuries. Defendants moved for summary judgment dismissing the complaint against them contending that they were not liable since [the physician] was not their employee and their nurse allegedly acted at her request and under her supervision. Supreme Court denied the motion and defendants now appeal.


"It is well settled that, in general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence or the attending physician's orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the attending physician's orders" ... . [The physician] testified that she could not remember who assisted her by attempting to flex the child's head and, although she acknowledged that she would usually ask a nurse to push "from below" as she "reach[ed] from above," she could not recall whether she had requested or instructed anyone to assist her during this particular procedure. Trifiletti v Cheon-Lee, 2015 NY Slip Op 01856, 3rd Dept 3-5-15





Criteria for Negligent Highway Design Explained---Qualified Immunity Is Part of the Analysis of Liability


The Third Department explained the analytical criteria associated with allegations of negligent highway design, including qualified immunity. Here it was alleged that a rock outcropping obscured on-coming traffic and the measures taken by the state to reduce the hazard were inadequate.  The case was dismissed because the plaintiff was unable to demonstrate the highway-design problems constituted the proximate cause of the collision:


"[I]n the field of traffic design engineering, [defendant] is accorded a qualified immunity from liability arising out of a highway planning decision. . . . Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan. Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger" ... . If defendant's response to an identified hazard is unreasonably delayed, defendant must demonstrate either that the delay "was necessary in order to study and formulate a reasonable safety plan, that the delay was itself part of a considered plan of action taken on the advice of experts, or that the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding" ... .


Although the parties continue to debate whether, consistent with the foregoing principles, defendant's response to the acknowledged hazard was adequate and, further, whether the documented delay in cutting back the offending outcropping was unreasonable, these issues need not detain us. Assuming, without deciding, that defendant's efforts in this regard indeed were inadequate and/or unreasonably delayed, thereby establishing that defendant was negligent, claimant failed to demonstrate that such negligence was the proximate cause of decedent's accident. Graff v State of New York, 2015 NY Slip Op 01847, 3rd Dept 3-5-15





Negligent Highway Design Not Demonstrated/Plaintiff's Amnesia Did Not Excuse Submission of Proof of Proximate Cause


The Third Department determined summary judgment was properly awarded to county in case alleging negligent highway design.  Plaintiff's vehicle left the roadway and went down an embankment, incurring traumatic brain injury resulting in amnesia re: the accident.  The complaint alleged there should have been a guide rail where plaintiff's vehicle left the road.  However, there was a twenty-foot wide flat area between the edge of the road and the embankment. The court noted that the plaintiff's amnesia did not excuse her from submitting proof of proximate cause:


"Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition" ... . While this duty includes providing adequate warning signs and guide rails or other barriers in appropriate circumstances, a municipality will not be held liable for a breach of duty unless the breach proximately caused the accident ... . Accordingly, to establish a cause of action for negligent highway design, plaintiffs were required to provide evidentiary facts that could support a finding that defendant breached its duty to maintain the road in a reasonably safe condition, and that this breach was a proximate cause of the accident. * * *


Plaintiff's amnesia as to the cause of the accident does not excuse her from submitting prima facie proof of proximate cause. In a proper case, an amnesiac plaintiff may be held to a lesser burden of proof as to proximate cause than a party who is able to provide an account of events ... . However, that doctrine is inapplicable where, as here, the defendant has no greater access to the underlying facts than the amnesiac plaintiff ... . Moreover, even when the doctrine applies, the burden remains on the amnesiac plaintiff to present prima facie proof of the defendant's negligence to permit a jury to base its verdict on evidence rather than speculation ... . This burden may not be satisfied by "inferences as to causation which are based solely upon speculation" ... . As plaintiffs neither made an evidentiary showing that defendant breached its duty to construct and maintain the road in a safe condition nor that such a breach proximately caused the accident, summary judgment was properly granted to defendant on the ground that plaintiffs failed to establish a cause of action for negligent highway design.  Lindquist v County of Schoharie, 2015 NY Slip Op 01852, 3rd Dept 3-5-15



Agreement Created Only a Temporary License to Use Land, Not an Easement


The Third Department, over a partial dissent, determined plaintiff was granted only a license to use land for agricultural purposes pending repayment of a loan, not an easement.  The two legal concepts were explained:


We recognize that "'it is often difficult to distinguish between an easement, which is an interest in real property, and a mere license, which implies no such interest, . . . is personal to the holder, is not assignable and is of limited duration'" ... . "'To create an easement by express grant there must be a writing containing plain and direct language evincing the grantor's intent to create a right in the nature of an easement rather than a revocable license'" ... . Aside from the word "grant," the agreement does not use language typically utilized to convey an interest in land, such as "convey" and "forever" ... . Moreover, the agreement expressly speaks to a loan and includes a clause purporting to authorize plaintiff to foreclose upon the property for nonpayment. Where, as here, there is no express time limitation for the right to use the property, that right should be deemed a license, and not an easement ..., particularly given that plaintiff drafted the agreement (see 22 NY Jur 2d, Contracts § 257). Both the language of the agreement and the loan context lead us to conclude, as did Supreme Court, that Buchanan merely conferred a license upon plaintiff to use the property pending repayment. Kampfer v DaCorsi, 2015 NY Slip Op 01843, 3rd Dept 3-5-15





Tax Exemption Properly Eliminated for Airplane Hangar Not Held for Public Use


The Third Department determined an airplane hangar, previously tax-exempt, was properly deemed taxable by the town assessor because it was not held for public use:


Where, as here, a municipality decides to eliminate a previously granted tax exemption, it has the burden of "'proving that the real property is subject to taxation'" ... . Faced with the burden of demonstrating that petitioner was not eligible for an exemption inasmuch as the hangar, as is relevant here, was not "held for a public use" (RPTL 406 [1]), respondents had to show that the hangar was not "'occupied, employed, or availed of, by and for the benefit of the community at large'" ... . That a private corporation "derives a benefit or that [a] county has leased the property to a private party does not by itself defeat the exemption" ... . A determination that a parcel is exempt from real property taxation turns on whether it has a "'public use' . . . that enhances the health, education, safety, or welfare of the residents of the municipality" ... .


The record reveals that the hangar is locked at all times and is not accessible to members of the general public; access to the bays is strictly limited to petitioner's three members and parties who execute rental agreements with petitioner. Matter of Hangair, LLC v Hillock, 2015 NY Slip Op 01850, 3rd Dept 3-5-15





Release Applied to Claims Unknown at the Time the Release Was Signed and to Claims Among Parties on the Same Side of the Underlying Lawsuit


The First Department determined the language of the release was broad enough to include claims not known to exist at the time the release was signed and claims among parties on the same side in the suit:


According to the language of the agreement, the release broadly barred "all and/or any" claims "arising from" or "resulting from" or "in connection with" "any act [etc.] concerning [the Fund]." This Court has actually construed similar broad language to bar fraud claims relating to the subject matter where the signatories to the agreement did not specifically refer to, or even know about, those fraud claims before executing their release ... . Similarly, courts have given effect to releases even when the releasors are subjectively unaware of the precise claims they are releasing ... . 


* * *  ... [T]he language in the release simply states that "each Party . . . irrevocably and fully releases and forever discharges each other Party." Had the parties wanted to release only specific individuals or entities, the agreement provided the language by which the parties could have done so. Thus, the release here at issue makes clear that each individual party released each other individual party regardless of the position in which those parties stood at the time they signed the release. Long v O'Neill, 2015 NY Slip Op 01733, 1st Dept 3-3-15






Testing and Monitoring Costs Associated with Remediation of a Petroleum Spill Are Taxable/Deference Is Accorded an Agency's Interpretation of a Broadly-Worded Statute


The Third Department determined that the costs of monitoring and testing done as part of a remediation effort at the site of a petroleum spill are taxable pursuant to Tax Law 1105(c)(5).  The Third Department explained the courts' review powers where an agency has interpreted a statute that is broadly worded:


Tax Law § 1105 (c) (5) imposes a sales tax on purchases of services related to "[m]aintaining, servicing or repairing real property, property or land . . . as distinguished from adding to or improving such real property, property or land, by a capital improvement." 20 NYCRR 527.7 (a) (1) further defines "[m]aintaining, servicing and repairing" as "all activities that relate to keeping real property in a condition of fitness, efficiency, readiness or safety or restoring it to such condition." Petitioner [Exxon Mobil] asserts that the monitoring and testing services paid for here were not taxable, as they were only intended to ascertain the condition of the affected property and not to remediate the petroleum spills. We disagree.


Under well-established principles of law, "an agency's interpretation of the statutes it administers must be upheld absent demonstrated irrationality or unreasonableness" ... . Petitioner points out that no deference will generally be afforded to administrative agencies in matters of pure statutory interpretation ... . Inasmuch as the present case involves the specific application of broad statutory language, however, deference to the agency that is charged with administering the statute is appropriate ... . Contrary to petitioner's further assertion, the burden rested upon it to establish that the specific sales at issue here were not taxable (see Tax Law § 1132 [c] [1]...).


As this Court and the Court of Appeals have "noted, both the statute and regulation contain broad language" ... . The removal of hazardous waste from a property constitutes a taxable maintenance service and, indeed, petitioner does not dispute that a purchase of services related to the remediation of spilled petroleum is taxable ... . Petitioner claims that the services at issue here are not related to the improvement of property affected by a petroleum spill, but that claim is not borne out by the record. Petroleum discharges are prohibited in New York and, when a spill occurs, petitioner is obliged to notify the Department of Environmental Conservation and may coordinate with that Department to remediate the spill (see Navigation Law §§ 173, 175, 176 [7]). Petitioner is required to conduct an environmental investigation of the spill area, including the monitoring and testing services at issue here, as part of its remediation effort. While an active cleanup of a spill site is not required in every case, the same monitoring and testing procedures are always employed, and it may take years for those procedures to reveal what type of remediation is required. Moreover, if active remediation is conducted, further monitoring and testing is required to ensure that the remedial system may be safely removed. Under these circumstances, there was nothing irrational in the finding that the monitoring and testing services at issue constituted an "integral part of the" taxable remediation efforts, even if they were billed separately ... .  Matter of Exxon Mobil Corp. v State of New York Tax Appeals Trib.. 2015 NY Slip Op 01840, 3rd Dept 3-5-15






Time Constraints, In Workers' Compensation Law 25, for Seeking Reimbursement for Compensation Paid by Self-Insured Employer Applied to Workers' Compensation Law 30 As Well


The Third Department determined the self-insured employer waived its right to reimbursement for compensation payments made to its employee because it failed to make a timely claim under Workers' Compensation Law 25(4)(a).  The court concluded that the wording of Workers' Compensation Law 30 did not require a different result.  Section 30 was interpreted to include the time constraints imposed by section 25:


Here, the Board correctly determined that the employer was required to file timely requests for reimbursement, but did not do so. Workers' Compensation Law § 25 (4) (a) provides that "[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid instalment or instalments of compensation due, provided [the employer's] claim for reimbursement is filed before award of compensation is made." If this statute alone is applied here, the employer is precluded from recovering the full wages paid to claimant pursuant to General Municipal Law § 207-c because the employer did not file requests for reimbursement prior to the initial awards of compensation benefits for the relevant time periods ... .


The employer contends that Workers' Compensation Law § 30 applies instead. That statute provides that "any salary or wages paid to . . . [a claimant] under and pursuant to [General Municipal Law § 207-c] shall be credited against any award of compensation . . . under this chapter" (Workers' Compensation Law § 30 [3]). To analyze these provisions, "the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" ... . Because these two provisions are related statutes in the Workers' Compensation Law, they "must be construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible" ... . Workers' Compensation Law §§ 25 and 30 both provide a right to reimbursement out of future benefits, with section 30 being more specific regarding the statutory basis for the wage replacement payments sought to be reimbursed. Workers' Compensation Law § 25 (4) (a) additionally provides that the employer will waive that right if it fails to timely submit a claim for reimbursement. "If by any fair construction, a reasonable field of operation can be found for [both of these related] statutes, that construction should be adopted" ... . A reasonable construction of these two statutes is to read them together and conclude that the right of reimbursement granted by both statutes will be waived if the employer fails to submit a timely request for reimbursement. Matter of O'Brien v Albany County Sheriff's Dept., 2015 NY Slip Op 01842, 3rd Dept 3-5-15





Current Builder Acquired a Vested Right to Variances Issued to Original Builder


The Second Department determined the builder had a vested right in variances issued 25 years before to the original builder.  The "vested right" concept was explained as follows:


Vested rights accrue where the owner does substantial construction and incurs substantial expense, in good-faith reliance on a permit ... . "Although many cases speak in terms of reliance on permits, a right may vest in certain situations when subdivisions' have been given a final grant of approval'" ... . An owner may acquire vested rights to a site where the site is but a part of a single project and substantial construction had been commenced and substantial expenditures made in connection with other phases of the integrated project which also benefitted or bore some connection to the affected site, such as infrastructure for the entire project ... . Where vested rights accrue, a successor-in-interest succeeds to the vested rights ... .


Here, the project was approved as an integrated project. [The builder] and its predecessors completed substantial construction of project-wide infrastructure to the benefit of the contemplated midrises and incurred substantial expenditures in good-faith reliance on the continuing validity of the variances. [The builder] thus accrued a vested right to complete construction of the midrises in accordance with the approved site plan and variances ... . Matter of Waterways Dev. Corp. v Town of Brookhaven Zoning Bd. of Appeals, 2015 NY Slip Op 01808, 2nd Dept 3-4-15





Failure to Obtain a Special Use Permit Does Not Preclude, as a Matter of Law, the Establishment of a Vested Right to a Nonconforming Use


The Third Department determined there were questions of fact re: whether the petitioner, the owner of a quarry, had a vested right to mine property it had purchased adjacent to the quarry, which had been in operation since the 1890's.  The court held that the petitioner's failure to obtain a special permit for the newly-acquired property did not preclude, as a matter of law, the establishment of prior nonconforming use rights:


The Court of Appeals has repeatedly rejected the notion that "permits are a prerequisite to establishing prior nonconforming use rights" ... . Thus, although a special permit was required for mining operations between 1975 and 2005, petitioner's failure to obtain one does not, as a matter of law, preclude it from establishing that it has a vested right to mine on its property notwithstanding a current or future prohibitive zoning ordinance ... . Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie, 2015 NY Slip Op 01851, 3rd Dept 3-5-15




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