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Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)


Individual Employees of Defendant Can Be Named In the Complaint Even Though They Were Not Named in the Notice of Claim


In this case a Notice of Claim was filed naming the Erie County Medical Center Corporation (ECMCC) as defendant. In the complaint, the individual doctors, employees of ECMCC, were named as defendants. Overruling precedent to the contrary, the Fourth Department determined it was not necessary to name the individual employees in the Notice of Claim in order to sue them. In a full-fledged opinion by Justice Scudder, the Fourth Department wrote:

               …[D]efendants contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was nevertheless required to name those individual defendants in the notice of claim as a condition precedent to the commencement of an action against them. Despite precedent supporting that contention, we agree with Supreme Court that there is no such requirement. * * *

              Although “[p]recedents involving statutory interpretation are entitled to great stability” …, we conclude that the courts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute.

               If the legislature had intended that there be a requirement that the individual employees be named in the notices of claim, it could easily have created such a requirement. Goodwin, et al, v Pretorius, et al, 101, CA 12-01441, 4th Dept. 3-22-13

Defendant Could Not Deny Ownership Of Vehicle (Which Was Allegedly Transferred to Another Prior to the Accident) Because License Plates Had Not Been Removed

The Fourth Department determined that a defendant, Myers, was estopped from denying ownership of a vehicle, which was alleged to have been transferred to another defendant, Herring, because Myers’ license plates had not been removed:

              With respect to the issue of ownership, we note that, pursuant to Vehicle and Traffic Law § 420 (1), “[u]pon the transfer of ownership .. . of a motor vehicle . . . , its registration shall expire; and the seller . . . shall remove the number plates from the vehicle.” Consequently, “[a] registered owner who transfers a vehicle without removing the license plates is estopped as against an injured third party from denying ownership” … . Inasmuch as Myers admittedly left his license plates on the vehicle after purportedly transferring ownership to Herring, Myers is estopped from denying ownership of the vehicle as against plaintiffs.  Marafferi, et al v Herring, et al, 267, CA 12-01829, 4th Dept. 3-22-13

Cause of Action Based on the Failure to Warn Mechanic About Remote Car Starter Survived Summary Judgment

The denial of summary judgment was affirmed by the Fourth Department.  The plaintiff, a mechanic, was injured when a remote car starter started the car he was working on, dragging and running over him.  The Court determined plaintiff had alleged sufficient facts to support the theory that the defendants (the owners/users of the car in question) had a duty to warn the plaintiff the car was equipped with a remote starter which could start the car when it was in gear and the clutch was not depressed:

                Contrary to the contention of defendants, we conclude that Supreme Court properly denied their motion for summary judgment dismissing the complaint. “Under general tort rules, a person may be negligent because he or she fails to warn another of known dangers or, in some cases, of those dangers [of] which he [or she] had reason to know”… .  Chambers v Evans, et al. 291, CA 12-01517, 4th Dept. 3-22-13




Question of Fact Raised About Owner’s Knowledge of Presence of Lead Paint

The Fourth Department determined a question of fact had been raised about whether a defendant/owner of the apartment had constructive notice of the presence of lead paint:

                The deposition testimony of [defendant] was equivocal and inconsistent with respect to whether he had constructive notice of a dangerous lead paint condition on his property. For instance, Weston alternately testified that there “could have been” peeling or chipping paint, that he did not recall whether there was peeling or chipping paint, and that he had “no problem” with peeling or chipping paint. [Defendant] similarly contradicted himself as to whether he knew that a child lived in the apartment.  Regarding the other [Chapman v Silber (97 NY2d 9)] factors, [defendant] testified that he believed that he had a right to re-enter the apartment to make repairs, and he admitted that he knew by 1990 that lead was bad for children and that it could be found in houses like his. In short, [defendant’s] testimony … raised triable issues of fact regarding constructive notice … .  Watson v Priore, et al, 293, CA 12-00977, 4th Dept. 3-22-13

Stuck Door Could Constitute a “Dangerous Condition”

In finding that a stuck door could constitute a “dangerous condition,” the Fourth Department wrote:

           Plaintiff commenced this action seeking damages for injuries he allegedly sustained when, in the course of his employment, he was delivering a package to defendant’s property. He attempted to open a door but, according to plaintiff, the door would not open because it was stuck and defendant had prior notice that “the door stuck on occasion.” Defendant moved for summary judgment dismissing the complaint on the sole ground that the “condition alleged by Plaintiff, [i.e.], the door that would not open on the date of the accident, is not an inherently dangerous condition giving rise to a duty in tort.” We conclude that Supreme Court erred in granting the motion.

           As the Court of Appeals has written, the issue “whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally [one] of fact for the jury” … . With respect to summary judgment motions, it is well established that “[a] motion for summary judgment must be denied ‘if there is any significant doubt as to the existence of a triable issue [of fact], or if there is even arguably such an issue’ . . . Moreover, summary judgment is seldom appropriate in a negligence action” … . Bielicki v Excel Industries, Inc., 335, CA 12-01494, 4th Dept. 3-22-13

*Assault by Another Student---Question Whether School District Had Notice of Dangerous Conduct Precluded Summary Judgment to Plaintiff

In reversing the trial court’s grant of summary judgment to the plaintiff on the issue of liability, the Second Department determined there was a question of fact concerning whether the defendant school district adequately supervised students (the plaintiff was assaulted by another student):

           "Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" … . "In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" … .  Braunstein v Half Hollow Hills Cent. Sch. Dist., 2013 NY Slip Op 02039, 2012-04442, Inex No 23108/09, 2nd Dept. 3-27-13

*Circumstances Under Which Contractor Can Be Held Liable for Slip on Snow and Ice

In this slip and fall case, the Second Department explained the circumstances under which a snow-and-ice-removal contractor can be held liable for injuries to third parties:

           Generally, "a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties" … . However, there are three recognized exceptions: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" … .  Santos v Deanco Servs, Inc, 2013 NY Slip Op 02065, 2012-02786, Inex No 5927/09, 2nd Dept 3-27-13

*“Professional” Standard of Care Can Be Required Based Solely on Nature of Services Provided

The First Department noted that a “professional” standard of care could be required of a party solely by virtue of the nature of services rendered:


           The court properly found that Impact had a professional duty independent of the parties' agreements. Although Impact, an environmental consultant, was not subject to licensing requirements, public policy requires that it should be held to a "professional" standard of care, given the nature of its services … . Indeed, "[p]rofessionals . . . may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties" … .  Southern Wine & Spirits of Am, Inc v Impact Envtl Eng’g, PLLC, 2013 NY Slip Op o2i46, 9651, 650083/10, 1st Detp 3-28-13

*Open and Obvious Nature of Condition Required Dismissal of Complaint

In reversing the denial of defendant’s motion to dismiss the complaint, the First Department determined the open and obvious nature of the danger precluded the lawsuit:

           Dismissal of the complaint as against the City is warranted inthis action where the 14-year-old decedent drowned after she and friends scaled a fence, ignored signs prohibiting swimming, and entered into the Bronx River, which runs through River Park, even though she did not know how to swim. Although the City has a duty to maintain its property in a reasonably safe condition, in view of all the circumstances …, "the duty to take reasonable precautions does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses" … .  Torres v City of New York, 2013 NY Slip Op 02019, 9607, 303086/11, 1st Dept 3-26-13

*City Deemed Immune from Suit—Governmental and Proprietary Functions Explained

Plaintiff was injured when a Department of Transportation (DOT) worker, who was setting up cones on the roadway in preparation for road repair, allowed plaintiff to ride through the work area on her bicycle.  The plaintiff was injured when she rode over a pothole. The First Department determined the defendant City was immune from suit because the DOT worker was performing a discretionary/governmental, not a proprietary function, when he allowed the plaintiff to ride through.  The decision includes detailed discussion of discretionary/governmental versus proprietary functions.  Wittorf v City of New York, 2013 NY Slip Op 02014, 8358, 103233/06, 1st Dept 3-26-13

*Child Care Agency Could Be Found Negligent for Failure to Remove Child from Foster Parents’ Home

In a full-fledged opinion by Justice Acosta, the First Department reversed the trial court’s dismissal of a complaint against a child care agency which places children in foster homes.  A child the defendant placed allegedly started a fire in which members of the foster family were either killed or severely injured.  The First Department held that the child care agency, although it did not have a duty to control the child when he was in the foster family’s physical custody, had a duty to remove the child from the foster home upon notice of his propensity for setting fires:


           In general, a defendant will not be liable for the conduct of third persons who cause harm to others … . However, the duty to control a third person's conduct may arise when the defendant has authority to do so, and because of either the relationship between the defendant and the third person or the relation between the defendant and the plaintiff … . An example is the parent-child relationship … .

          Thus, a child care agency, acting in loco parentis, has a duty to exercise reasonable care to prevent foster children under its supervision and control from harming others … .  Wynn, as Administratrix … v Little Flower Children’s Services, 2013 NY Slip Op 02156, 15276/95, 9200, 1st Dept 3-28-13

*1983 Action Against Department of Corrections Is Not Brought in the Court of Claims

The Third Department, in a decision by Justice Garry, reversed Supreme Court’s dismissal of a 1983 action against employees of the Department of Corrections and Community Supervision challenging a urinalysis report:

           Supreme Court found that it lacked jurisdiction based upon Correction Law § 24, which requires that actions alleging negligence by state correction officers be commenced in the Court of Claims; however, it has been established that this provision may not be applied to bar actions brought pursuant to 42 USC § 1983 … . Carrington v Moore, 513818, 3rd Dept 3-28-13


Defendants Accused of Crimes Not Listed in the Controlling Statutes Are Not Eligible for the Judicial Diversion Program---The Statutes Do Not Allow for Judicial Discretion

In a full-fledged opinion by Justice Centra, the Fourth Department determined a Monroe County Court Judge exceeded his authority by allowing defendants accused of crimes not listed in the relevant statute to participate in the judicial diversion program.  The Court wrote:

          CPL 216.00 (1) provides as follows:
           “ ‘Eligible defendant’ means any person who stands charged in an          indictment or a superior court information with a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law or any other specified offense as defined in subdivision four of section 410.91…’”

         It is undisputed that respondent defendants were not charged with any offenses under Penal Law §§ 220 or 221, or any specified offense in CPL 410.91. In our opinion, that ends the inquiry, and respondent defendants are not eligible for judicial diversion. It is well settled that “ ‘[w]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning’ ” ….Likewise, “statutory interpretation always begins with the words of the statute” ….

The opinion includes discussion of the related declaratory judgment action, the nature and application of petitions for mandamus to compel and prohibition, and the County Court Judge’s argument that the use of judicial discretion re: the diversion program is allowed by statute.  Matter of Doorley v Hon John L. DeMarco, et al, 122, OP12-01563, 4th Dept. 3-22-13

Insufficient Evidence of Recklessness In Shooting Case

The Fourth Department reversed an Assault 2nd conviction and dismissed the indictment after a “weight of the evidence” review.  The prosecution’s theory was that the defendant acted recklessly by pointing a sawed-off shotgun at the victim, disregarding the risk that it would fire. But the proof at trial was that the shotgun discharged just as the defendant picked it up. The Fourth Department wrote:

               The People … failed to present any evidence establishing that defendant brought the gun to the park; that the gun belonged to defendant; and that defendant had any knowledge that the gun was loaded with live ammunition or was aware of—and consciously disregarded—the risk that it might misfire (see generally Penal Law § 15.05 [3]).  People v Evans, 255, KA 10-01056, 4th Dept. 3-22-13


Notice of Intention to Offer Molineux Evidence During Jury Selection and Molineux Hearing Upon Completion of Jury Selection Are Timely

The Fourth Department determined that the People’s notice of intention to offer Molineux evidence, provided during jury selection, and the Court’s Molineux ruling, made upon the completion of jury selection, was timely:

              According to defendant, the timing of the court’s Molineux ruling upon the completion of jury selection denied him the opportunity to explore the potential impact of that evidence on voir dire. It is well settled that “a defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264 [1901]) or to a pretrial hearing on the admissibility of such evidence” … .   People v Holmes, 258, KA 09-01281, 4th Dept. 3-22-13



Indictment Rendered Duplicitous by Trial Evidence Required Reversal

The Fourth Department reversed a conviction finding the indictment was rendered duplicitous by the trial evidence:

              It is apparent from the record that the grand jury returned only a one-count indictment, having found the evidence of possession of the uncut cocaine insufficient to return a second count. The indictment was rendered duplicitous …because the People presented evidence at trial that defendant had constructive possession of both the uncut cocaine and the cocaine in the sandwich bag. Indeed, the prosecutor advanced that theory in her opening statement and on summation. “Under the circumstances, there can be no assurance that the jury ‘reached a unanimous verdict’ ” with respect to defendant’s constructive possession of the cocaine in the sandwich bag as opposed to the uncut cocaine … .  People v Montgomery, 260, KA 09-00153, 4th Dept. 3-22-13

Allowing the Jury to Hear About Defendant’s Prior Crimes Was Error

Although finding it to be harmless error, the Fourth Department determined the jury should not have been allowed to hear portions of defendant’s grand jury testimony which included references to being on parole, being imprisoned and having sold drugs:

          We agree with defendant that County Court erred in failing to consider the appropriate factors when it allowed the jury to hear portions of defendant’s grand jury testimony that included references to being on parole, serving five years for robbing banks, and having on occasion sold drugs. “Prejudicial material ‘not necessary to a full comprehension of the’ directly related evidence . . . is inadmissible, even though part of the same conversation . . . or, indeed, of the same sentence” … . That principle applies to the admission at trial of a defendant’s grand jury testimony just as it does to, e.g., audio recordings of telephone conversations … , statements made during the course of a crime to an undercover police officer …, and admissions made to police officers during custodial interrogation …. The court allowed the jury to hear such portions of defendant’s grand jury testimony after concluding only that the statements were voluntary.  In doing so, the court failed to consider whether such evidence was relevant and probative to any issue in this case … and then, if so, whether “its probative value exceed[ed] the potential for prejudice resulting to the defendant” … .  People v Woods, 322, KA 08-02465, 4th Dept. 3-22-13

SORA Finding Reduced Twenty Points---No Evidence or Findings Re: Targeting of Victim

The Fourth Department determined the People did not present sufficient evidence defendant targeted the victim and the SORA court did not set forth the relevant findings of fact and conclusions of law.  Therefore the SORA score was reduced by 20 points:

          At the SORA hearing, the People had “the burden of proving the facts supporting the [risk level classification] sought by clear and convincing evidence” … . Here, the People failed to meet their burden of establishing that defendant “established or promoted” his relationship with the victim “for the primary purpose of victimization” (Sex Offender Registration Act…) ..The People presented no evidence that defendant, who met the victim at a party, targeted the victim for the primary purpose of victimizing her …. As a result of the court’s error, defendant’s score on the risk assessment instrument must be reduced by 20 points, and thus he should be presumptively classified as a level two risk.  We therefore modify the order accordingly.

           We note in any event that we agree with defendant that the court failed to comply with Correction Law § 168-n (3), inasmuch as it failed to set forth the findings of fact and conclusions of law upon which it based its determination to assess points under risk factor 7 …

          The court merely recited its conclusion, i.e., that “[d]efendant established a relationship with [the victim] for the purpose of victimization.” People v Johnson, 341, KA 12-00361, 4th Dept. 3-22-13

Failure to Request Jury Charge for Lesser Included Offense Constituted Ineffective Assistance

In finding that defense counsel’s failure to request that the jury be charged with a lesser included offense constituted ineffective assistance, the Court of Appeals wrote:

            In his closing argument, [defense] counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: "on that particular charge [attempted murder], I'm going to ask that you actually check off the box that says 'not guilty,'" he added, as to the assault charges: "Make your decision . . . . I'm sure, whatever it is, it will be the right decision." *  *  *

           Counsel's belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement … .  We conclude that counsel's error in overlooking that issue rendered his assistance to defendant ineffective …. People v Nesbitt, 28, Ct. App. 3-26-13

Expert’s Testimony About the Behavior of Sexual Abusers Is Proper/Exclusion of Testimony About Complainant’s Prior False Allegations of Sexual Abuse Was Reversible Error

In an opinion by Judge Pigott, the Court of Appeals affirmed the appellate division’s reversal of defendant’s sexual abuse convictions.  The Court of Appeals disagreed with the appellate division and determined expert testimony allowed by the trial court about how sexual abusers gain the trust of their victims was admissible. But the Court of Appeals went on to find (agreeing with the appellate division) that the trial court’s exclusion of testimony (by Martinez) about the complainant’s prior allegedly false accusations of sexual abuse was reversible error.  On these two issues, Judge Pigott wrote:

           Expert testimony is properly admitted if it helps to “clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . Here, it was not an abuse of discretion for the trial court to permit expert testimony regarding the behavior of sexual abusers. That testimony is permissible as helpful for the jury to understand victims’ unusual behavior … . Although some of the testimony discussed behavior similar to that alleged by the complainant in this case, the expert spoke of such behavior in general terms … . In addition, the jury heard the expert testify that she was not aware of the facts of the particular case, did not speak with the complainant and was not rendering an opinion as to whether sexual abuse took place.

           We agree with the Appellate Division, however, that the proffered testimony of Martinez should have been permitted at trial. Evidence of a complainant’s prior false allegations of sexual abuse is not inadmissible as a matter of law . Rather, it may be permitted if the prior allegations “suggest a pattern casting substantial doubt on the validity of the charges” … .

           Here, Martinez’s proposed testimony went to a material issue of defendant’s defense, namely, whether the complainant had a history of making false allegations of sexual abuse by family members. Defense counsel sought to introduce the testimony as a prior inconsistent statement; to confront the complainant’s testimony that she never made an allegation against Martinez and to rebut the testimony of the complainant’s mother who testified she was unaware of any accusation made by complainant against Martinez. These statements opened the door to Martinez’s rebuttal, which, if believed, suggested that the testimony of the complainant and her mother were not credible.  People v Diaz, 52, CtApp 3-26-13

In a Sexual Abuse Case, Prosecutor’s Hypothetical Questions to Expert Which Mirrored Complainant’s Testimony Was Improper Bolstering

In another “sexual abuse” opinion by Judge Pigott, the Court of Appeals, as it did in People v Diaz (decided the same day), determined the expert’s testimony about Child Sexual Abuse Accommodation Syndrome, which included explanations about how an abuser gains the trust of the victim and encourages secrecy, etc., was admissible.  But here the prosecutor followed up the expert’s general testimony with hypothetical questions which mirrored the victims’ testimony.  The Court of Appeals determined the hypothetical questions constituted improper bolstering (but held the testimony to be harmless error under the facts):

           We agree with defendant …that the expert's testimony exceeded permissible bounds when the prosecutor tailored the hypothetical questions to include facts concerning the abuse that occurred in this particular case. Such testimony went beyond explaining victim behavior that might be beyond the ken of a jury, and had the prejudicial effect of implying that the expert found the testimony of this particular complainant to be credible - even though the witness began his testimony claiming no knowledge of the case before the court.  People v Williams, 53, CtApp 3-26-13

Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge

The defendant was charged with (and convicted of) assaulting jail deputies.  A video which may have captured at least some of the incidents was destroyed by “recording over” after 30 days, a jail policy. A request for any relevant electronic surveillance was made in the omnibus motion.  The indictment included incidents in November, 2006, and January, 2007. By the time the omnibus motion was made, only the video of the January incident was still available (pursuant to the 30-day “record over” policy).  The trial court agreed to give an adverse inference charge with respect to the January incident, but refused to give the adverse inference charge for the November incident.  The appellate division determined the adverse inference charge needn’t have been given because there was no evidence the video evidence would have been exculpatory.  In a full-fledged opinion by Judge Smith, the Court of Appeals reversed, finding the law of evidence required that the adverse inference charge be given:

           We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]) by holding that, under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.  People v Handy, 35, CtApp 3-28-13

Failure to Apply the Merger Doctrine In a Kidnapping Case is not a “Mode of Proceedings” Error---Failure to Object at Trial Precludes Review

In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that the failure to apply the merger doctrine, where kidnapping is deemed to merge with another substantive crime, is not a “mode of proceedings” error, and therefore is not reviewable in the Court of Appeals absent an objection at trial.  The merger doctrine was created to remedy overcharging by the prosecution where kidnapping was really part of another, less serious, offense.  Here the defendant argued the kidnapping charge, which was based on his briefly restraining a woman while threatening to shoot her, merged with the related reckless endangerment charge.  Because the alleged error was not preserved in the trial court by an objection, the issue before the Court of Appeal was whether the error should be deemed a “mode of proceedings” error which would allow the Court to hear the appeal, despite the lack of preservation.  The Court wrote:

           In light of our case law on preservation, all four Appellate Divisions have concluded that a merger claim must be raised in the trial court ... …. Defendant has offered no compelling justification for deviating from this established view and we see no valid reason to do so. Consequently, because the preservation rule applies to a merger claim in a kidnapping prosecution, defendant's failure to assert the claim in Supreme Court precludes review by our Court … . People v Hanley, 45, CtApp 3-28-13

Search of Camera in Possession of the Police for Illegal Images Was Valid Even though Underlying Warrant Was Issued In a Case Closed Before the Search

In a search, the defendant’s computer and camera were seized.  Based on a picture found on the computer, the defendant pled guilty to possessing a sexual performance of a child.  After his sentence was served and after the time to appeal had elapsed defendant’s attorney contacted the prosecutor and asked for defendant’s seized camera to be returned. At that time the camera was analyzed for the first time and images found on the camera were the basis for the predatory sexual assault conviction that was before the Court of Appeals. The defendant moved to suppress the images found on the camera arguing that at the time the images were found the authority provided by the warrant under which the camera was seized had lapsed, making the search of the camera illegal.  In a full-fledged opinion by Judge Lippman, the Court of Appeals determined that the defendant had no expectation of privacy in the contents of the seized camera, and, therefore, the search of the camera did not violate the Fourth Amendment.  Judge Lippman noted that “it would not be compatible with due process for the state to retain property under color of a search warrant beyond the exhaustion of any law enforcement purpose adequate to justify the withholding…”.  Here, the Court determined, a legitimate law enforcement purpose existed at the time the analysis of the camera was done.  The camera could not be returned until it was determined no illegal images were contained in it.  People v DeProspero, 44, CtApp 3-26-13


*Failure to Verify Weight of Cocaine May Constitute Ineffective Assistance

In a decision by Justice Lahtinen, the Third Department determined the defendant had raised a question whether he was afforded ineffective assistance of counsel because counsel did not independently verify the weight of the cocaine he was charged with possessing.  The matter was sent back to the motion court for a hearing on defendant’s CPL 440 motion to vacate his conviction.  The Third Department wrote:


           While failing to independently verify the weight of drugs does not necessarily  constitute  ineffective assistance …, this record contains sufficient factual issues as to whether  defendant  was  affirmatively given incorrect information by his counsel on an issue assertedly important in his decision to accept the plea and, as such, a hearing is required on his claim of ineffective assistance of counsel … People v Johnson, 103457, 3rd Dept 3-28-13

*Representation of Co-defendants by Attorneys In Same Firm Constituted Ineffective Assistance

Defendant brought a motion pursuant to Criminal Procedure Law Article 440 to vacate his conviction on the ground that he was deprived of effective assistance of counsel.  Defendant’s attorney was “of counsel” to the law firm of the attorney who represented a co-defendant.  The co-defendant agreed to testify against the defendant in return for a lesser sentence.  Ultimately the defendant pled guilty.  In reversing the judgment of conviction, the Third Department, in a decision by Justice Stein, wrote:


            When a single attorney or multiple attorneys associated with the same firm simultaneously represent clients in a criminal matter, "if the clients' interests actually conflict, and if the defendant has not waived the conflict, the defendant is deprived of the effective assistance of counsel"… People v Lynch, 104852, 104945, 3rd Dept 3-26-13

*Five-Day Time-Limit On Motion to Dismiss Based Upon Erroneous Information Provided by Prosecutor to Defendant Which Caused Defendant to Refrain from Testifying Before the Grand Jury

The Third Department, in a decision by Justice Peters, reversed County Court’s dismissal of an indictment based on the prosecutor’s (erroneously) telling the defendant he would be subject to cross-examination about a pending charge if he chose to testify before the grand jury.  There is a five-day time limitation for a motion to dismiss on that ground.  Defendant’s motion was deemed untimely:

          We agree with the People that County Court erred in dismissing the indictment on the ground that defendant was deprived of his statutory right to testify before the grand jury. County  Court ruled that the prosecutor's misstatement of law with respect to the questioning of defendant about  the unrelated pending  charge  for purposes  of  impeaching  his credibility caused defendant to withdraw  his request to testify before the grand jury, thereby  effectively depriving him  of  his right to testify under CPL 190.50 (5). Any alleged violation of that right, however, must be raised by  a motion to dismiss the indictment, pursuant to either CPL 170.50 or 210.20, no later than five days after arraignment on the indictment or such challenge will be deemed waived … .  People v Sutherland, 105155, 3rd Dept 3-28-13




Procedure for Invalidation a Stipulation to the Record

The Fourth Department noted the criteria for invalidating a stipulation to a record on appeal:

           It is undisputed … that plaintiff stipulated to settle the record … prior to seeking leave to reargue or renew and has not sought to be relieved from his stipulation … .  Once plaintiff stipulated to the record on appeal, he was no longer entitled to move to settle the record or, indeed, to seek leave to reargue or renew a motion to settle the record that preceded the stipulation.  “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” …, and plaintiff made no such showing here.  Hale v Meadowood Farms of Cazenovia, LLC, et al, 351, CA 12-01192, 4th Dept. 3-22-13


*Lawsuit Prohibited by Unambiguous Release


In reversing the trial court, the Second Department determined a medical malpractice complaint should have been dismissed based on the unambiguous language of a release signed by the plaintiff:

          The action should have been dismissed as against defendants-appellants based on the unambiguous language in the release, which clearly intended to put an end to the action …. Given the unambiguous terms of the release, the motion court should not have considered extrinsic evidence… . Bernard v Sayegh, 2013 NY Slip Op 02027, 8619, 111756/06, 1st Dept. 3-26-13

*Ambiguity in Separation Agreement Construed Against Drafter

The Second Department determined the ambiguity in a separation agreement about whether the decedent was obligated to maintain life insurance policy should be construed against the decedent, whose attorney drafted the document:

           Here, the separation agreement was ambiguous as to whether the decedent's obligation to maintain a life insurance policy naming the defendants as beneficiaries extended beyond the date of the defendants' emancipation. However, it is undisputed that the decedent's attorney drafted the separation agreement. Pursuant to the doctrine of contra proferentem, the Supreme Court should have construed the ambiguity against the decedent's estate … .  DeAngelis v DeAngelis, 2013 NY Slip Op, 2011-08587, Index No 8485/08, 2nd Dept 3-27-13


*Handwriting Expert Not Necessary to Create Question of Fact About Authenticity of Signature


The Second Department determined the defendant had raised a question of fact about the authenticity of his signature without submitting an affidavit by a handwriting expert:

            The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating the existence of a promissory note executed by the defendant, the unconditional terms of repayment, and the defendant's default thereunder … . However, in response, the defendant raised a triable issue of fact as to the validity of his signature on the note by pointing out several alleged irregularities in the document's signature page and by submitting an affidavit on his own behalf … . While the defendant did not submit an affidavit by a handwriting expert, where, as here, the defendant has provided more than his own unsubstantiated, conclusory allegations of fraud, expert testimony is not strictly necessary, and would be more appropriate for proof at trial … .  Cooper Capital Group, Ltd v Densen, 2013 NY Slip Op 02042, 2011-06030, Index No 39107/10, 2nd Dept 3-27-13


*Judicial Hearing Officer Does Not Have Power to Find Non-Witness Guilty of Contempt

The First Department noted that a judicial hearing officer (JHO) does not have the power to find any person in contempt except a witness before him:

          While CPLR 4311 and 4317(a) give a referee, upon consent of the parties, the power to hear and determine all trial issues before the court, CPLR 4301 specifically precludes a referee and, thus, a JHO from "adjudg[ing] any person except a witness before him guilty of contempt." While [the JHO] had the power to make factual findings concerning violation of his orders, he was without power to adjudge persons in contempt because neither contempt finding involved behavior occurring before him … .  Hoffman v Helm Capital Group, Inc, 2013 NY Slip Op 02141, 603109/08, 9537A, 1st Dept 3-28-13


*Religious Holidays in Teachers’ Collective Bargaining Agreement Violate the Establishment Clause

A provision in a collective bargaining agreement that allowed teachers to take up to five religious holidays as paid days off was deemed unconstitutional by the Second Department:

           "There is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State's power to force one to profess a religious belief" … . Here, the clear wording of the religious holidays provision rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant. As a result, the religious holidays provision violated the Establishment Clause of the First Amendment of the United States Constitution … .   Matter of Board of Educ … v Mineola Teachers Assn, 2013 NY Slip Op 02070, 2011-11373, Index No 7359/11, 2nd Dept 3-27-13


*Buyout Upon Dissolution Can Be Ordered by Judge

The Second Department determined a court can order a buyout of another’s interest in a limited liability company (LLC) upon judicial dissolution of the LLC:

           The Limited Liability Company Law “does not expressly authorize a buyout in a dissolution proceeding “ … . Nonetheless, in certain circumstances, a buyout may be an appropriate equitable remedy upon the dissolution of an LLC … . Under the facts of this case, the remedy of a buyout by the plaintiff is appropriate … . Contrary to the defendant’s contention, the provisions of the LLC agreement regarding dissolution of the LLC do not preclude an order authorizing a buyout upon the judicial dissolution of the LLC pursuant to Limited Liability Company Law § 702 … . Mizrahi v Cohen, 2013 NY Slip Op 02056, 2012-02021, Index No 3865/10, 2nd Dept 3-27-13


*Petition for Retention for Involuntary Psychiatric Treatment Granted


In determining the hospital’ petition for retention of a patient for involuntary psychiatric care should have been granted, the Second Department wrote:

          Paulina D. is a 23-year-old woman who suffers from severe anorexia nervosa. She has been at Elmhurst Hospital (hereinafter the Hospital) "continually" for 15 months. At one point during that period, Paulina D. weighed only 52 pounds. Orders were issued directing her involuntary admission and retention at the Hospital pursuant to Mental Hygiene Law §§ 9.27 and 9.33. In January 2013, the Hospital petitioned for an order authorizing Paulina D.'s continued involuntary retention pursuant to Mental Hygiene Law § 9.33. …

        "Pursuant to Mental Hygiene Law § 9.33, the Supreme Court may authorize the retention of a patient in a hospital for involuntary psychiatric care upon proof by clear and convincing evidence that the patient is mentally ill and in need of further care and treatment, and that the patient poses a substantial threat of physical harm to himself [or herself] or others" … .  Matter of Paulina D, 2013 Slip Op 01988, 2012-02212, Index No 500039/13, 2nd Dept 3-22-13















Court’s Sua Sponte Transfer of a Zoning-Related Case to Another County Was Improper/The Denial of a Request for a Variance Does Not Affect Real Property within the Meaning of CPLR 507

The Fourth Department determined Supreme Court erred in transferring a case to another venue sua sponte and in determining that an action seeking to annul the denial of a variance affected real property within the meaning of CPLR 507:

                Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations of respondent made in connection with petitioner’s application for an area variance from a provision of the Town of Whitestone’s Zoning Ordinance. The proceeding was commenced in Supreme Court, Onondaga County, and by …order …that court, sua sponte, transferred the proceeding to Supreme Court, Oneida County, pursuant to CPLR 507. We agree with petitioner that the court erred in transferring the proceeding sua sponte. CPLR 509 provides that the place of trial may be changed to another county “by order upon motion, or by consent.” CPLR 510 provides the grounds for the change of the place of trial, upon a motion. A court “is authorized to change venue only upon motion and may not do so upon its own initiative” …. Additionally, a CPLR article 78 proceeding seeking to annul a determination denying a request for an area variance does not affect the title to, or the possession, use or enjoyment of, real property, and thus the court erred in relying on CPLR 507 in transferring the proceeding.  Matter of Mimassi v Town of Whitestone Zoning Board of Appeals, 189, CA 12-01652, 4th Dept. 3-22-13

Choice of Forum/Choice of Law

The Fourth Department determined a choice of forum clause must be enforced and noted the difference between choice of forum and choice of law:

          Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1). According to the “Standard Terms and Conditions” of the agreement …, “[a]ny litigation arising in any way from this Agreement shall be brought in the Courts of Common Pleas of Pennsylvania having jurisdiction.”  That forum selection clause is “ ‘prima facie valid and enforceable unless it is shown by the challenging party to be[, inter alia,] unreasonable, unjust, [or] in contravention of public policy’ ” … 

           Contrary to plaintiff’s contention, the enforcement of the forum selection clause does not contravene New York public policy … .

The “Standard Terms and Conditions” also provide that “[t]he laws of the Commonwealth of Pennsylvania shall govern the validity of this Agreement, its interpretation and performance,” and plaintiff contends that the enforcement of the “limitation of legal liability” provision of the agreement pursuant to Pennsylvania law violates General Obligations Law §§ 5-322.1 and 5-324 and would thus contravene New York public policy. That contention, however, concerns choice of law, not choice of forum, and it may properly be raised before a court in the forum chosen by the parties in Pennsylvania … .“[O]bjections to a choice of law clause are not a warrant for failure to enforce a choice of forum clause” … .  Erie Insurance Company of New York, … v AE Design, Inc., 337, CA 12-01549, 4th Dept. 3-22-13

*Plaintiff Could Not Demonstrate Valid “Nail and Mail” Service

The Second Department affirmed the trial court’s determination that plaintiff was unable to demonstrate the defendant had been validly served using the “nail and mail” method:

          …[T]he Supreme Court properly granted that branch of the plaintiff's motion which was to dismiss the complaint pursuant to CPLR. Where service is effected pursuant to CPLR 308(4), the so-called "nail and mail" method, the plaintiff must demonstrate that service pursuant to CPLR 308(1) or (2) (personal service or residence service) could not be made with " due diligence'" … .This requirement must be " strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received'" … .

          Here, the plaintiff produced the process server's affidavit, which satisfied its prima facie burden regarding service. However, in her responsive affidavit, [defendant] rebutted that showing by stating specifically that (1) she was never personally served in this action, (2) she had never resided at the address where the process server attempted personal service and eventually affixed the papers, and (3) the summons and complaint were never affixed to the door of the subject premises where she had lived for more than 20 years. This showing was sufficient to warrant a hearing … .

          At the hearing, the plaintiff failed to demonstrate that its process server made a genuine effort to determine [defendant's] correct address or that he made “quality” efforts to serve her with process … . Aurora Loan Services, LLC v Gaines, et al, 2013 NY Slip Op 02034, 2011-04002, Index No 20180/08, 2nd Dept. 3-27-13

*Criteria for Motions to Dismiss Pursuant to CPLR 3211 Discussed in Detail

In a full-fledged opinion by Justice Dickerson, the Second Department laid out the requirements for determining a motion to dismiss pursuant to CPLR 3211(a)(7), the elements of the theory of agency, the requirements for a judgment based on documentary evidence pursuant to CPLR 3211(a)(1), and the elements of a cause of action alleging breach of a fiduciary duty.  Faith Assembly v Titledge Of NY Abstract, LLC, 2013 NY Slip Op 02046, 2011-04345, Index No 28579/09, 2nd Dept 3-27-13

*Notice of Appearance Does Not Waive Lack of Jurisdiction Defense

The Second Department noted that filing a Notice of Appearance does not waive the lack of personal jurisdiction which can be raised in a motion to dismiss pursuant to CPLR 3211(a)(8) or as a defense in the answer pursuant to CPLR 3211.  Frederic v Israel, 2013 NY Slip Op 02049, 2012-03475, Index No 20290/06, 2nd Dept 3-27-13

*Defaulting Party Can Give Testimony and Present Evidence at Damages Proceeding

The defendant’s answer in a partition action was struck due to his failure to comply with disclosure requests and court orders.  At the inquest the defendant was allowed to cross-examine plaintiff’s witnesses but was not allowed give testimony or offer proof in mitigation of the alleged damages.  The Second Department wrote:

           [A] defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages'" … . Indeed, where an entry of a default judgment against a defendant is made after an application to the court, the defendant is entitled to a " full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'" … .  Rawlings v Gillert, 2013 NY Slip Op 02063, 2011-11951, Index No 7570/08, 2nd Dept 3-27-13

*“Relation-Back” and “Savings Clause” Statutes Explained

The First Department discussed the difference between the relation-back doctrine of CPLR 203(f) and the savings clause of CPLR 205(a):

          In a prior appeal in this action, we held that plaintiffs could not utilize the relation-back provisions in CPLR 203(f) to cure their defective initial complaint, based on their failure to comply with the subject agreements' condition precedent to commencing an action against Impact, since the doctrine is dependent upon the existence of a valid preexisting action .. . However, on this appeal, we find that the savings clause of CPLR 205(a) does not bar plaintiffs' action, since the statute was "created to serve in those cases in which the prior action was defective and so had to be dismissed" … . The dismissal of the prior action for plaintiffs' failure to comply with a condition precedent was not a judgment on the merits …, and plaintiff commenced a new action within the six-month period required by CPLR 205(a).  Southern Wine & Spirits of Am, Inc v Impact Envtl Eng’g, PLLC, 2013 NY Slip Op o2i46, 9651, 650083/10, 1st Dept 3-28-13

*Excuse for Default Found Inadequate

The Second Department determined the motion court erred when it found defendant’s excuse for default in appearing or answering adequate:

          While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, a general assertion that the default was occasioned by the defendant's insurance broker or liability carrier is insufficient … . Here, the defendant's unsubstantiated claims that he believed that his insurance broker had forwarded the summons and complaint to his insurer and that his insurer was providing a defense are unreasonable given that the defendant was served with the plaintiff's motion for leave to enter a default judgment … .   Spitzer v Landau, 2013 NY Slip Op 02067, 2012-05686, Index No 001868/11, 2nd Dept 3-27-13


District Attorney’s Prosecution of a Case in Which the Complainant Was a Sitting Judge Created the Appearance of Impropriety---A Special Prosecutor Should Have Handled the Case

A sitting City Court judge was the complainant in a harassment case.  A judge and a defense attorney from another county were appointed to handle the case.  The defense attorney made a motion to have a special prosecutor appointed as well because of the relationship between the District Attorney’s Office and the complainant.  That request was denied and the denial was affirmed on appeal to County Court.  The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed, finding the District Attorney’s Office’s involvement in the case created the appearance of impropriety:

           Here, while we do not find that any actual impropriety occurred, there is an unacceptably great appearance of impropriety – the appearance that the District Attorney's Office refused to accept a reduced charge because the complainant was a sitting judge who demanded that the matter go to trial, rather than because a trial was, in its own disinterested judgment, appropriate. The complainant was a City Court Judge who had the authority to preside over cases involving this District Attorney's office, and the criminal charges were unrelated to her official position, so that her status as a judge should not have been a factor in the resolution of the case. Nor was there anything unique or unusual about the charges, since they involved communications between two people who had formerly been in an intimate relationship – a scenario frequently seen in harassment cases. However, despite protracted and repeated plea negotiations, the District Attorney's office did not offer defendant a reduced charge or agree to a plea that included a favorable sentence, such as an ACD, community service, or the like. While this alone would not be enough to raise an appearance of impropriety, there are other aspects of the record that do. Defendant's original counsel from the Public Defender's office, who had represented defendants in cases involving this District Attorney's office for more than a decade, averred that he had never before seen the office take such a hard-line position in a case involving comparable charges and a similar defendant. Although provided ample opportunity to respond, the District Attorney's office replied with nothing more than conclusory denials, failing to rebut the allegations with even a single example of a comparable case it had similarly refused to resolve with an ACD or a plea to a violation. Because the District Attorney's office failed to take steps to dispel the appearance of inappropriate disparate treatment, we conclude that this is one of those rare cases in which a significant appearance of impropriety was created, requiring disqualification.  People v Adams, 47, CtApp 3-28-13






Disorderly Conduct as a Family Offense Needn’t Occur in a Public Place

The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public:

            Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place in public, section 812 (1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior.
We thus reject respondent’s contention that the statute “requires more than a ‘risk.’ ”  Matter of McLaughlin v McLaughlin, 330, CAF 12-01556, 4th Dept. 3-22-13

*Reapplication for Visitation Can Not Be Conditioned on Counseling or Treatment

In reversing Family Court’s denial of a petition for visitation by a noncustodial parent without a hearing, the Second Department determined a hearing must held and no counseling or treatment can be ordered as a condition of future visitation:

          “[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child” … . Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child … . * * *

          Moreover, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” … .  Matter of Lew v Lew, 2013 NY Slip Op 02076, 2012-01599, Docket No V-6403/11, 2nd Dept 3-27-13

*Okay for Expert to Rely On Information from Social Workers Who Are Not Subjected to Cross-Examination

The Third Department, in a decision by Justice Peters, determined that an expert in a custody matter could rely on information provided by caseworkers who where not subject to cross-examination:

           Initially, both the mother and the attorney for the children contend that the opinion testimony of Elizabeth Schockmel, the court-appointed forensic psychologist, should have been stricken because her opinion was based in part upon information she obtained from Department of Social Services caseworkers who were not subject to cross-examination.  We disagree. "[T]he professional reliability exception to the hearsay rule . . . enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession" … . Here,   Schockmel testified – without contradiction – that information obtained from  collateral sources is commonly  relied upon  within her profession when  conducting a forensic psychological evaluation in the context of a custody proceeding …. Moreover, her opinion was  principally based upon  information she obtained from  her extensive interviews with the mother, father and  children, with the collateral source information serving as but "a link in the chain of data" that assisted her in forming her opinion … . Accordingly,  Schockmel's expert opinion testimony was  properly admitted.  Matter of Greene v Robarge, 512987, 3rd Dept 3-28-13

*Criteria for Grant of Visitation to Grandparent When Both Parents Alive

In affirming the grant of visitation to a grandparent (where both parents are living), the Third Department, in a decision by Justice Egan, wrote:

           Where a grandparent seeks visitation and, as is the case here, both of the child’s parents are living, Family Court first must ascertain whether “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72 [1]) in order to confer standing … . “An essential part of the standing inquiry is the nature and extent of the existing grandparent-grandchild relationship . . . [as well as] the basis for the parents’ objection to visitation” ….  Should Family Court determine that the grandparent has standing to seek visitation, the question then becomes whether such visitation is in the child’s best interests …. Inasmuch as Family Court had the advantage of assessing the witnesses’ testimony and demeanor firsthand, its credibility determination “should not be set aside if it is supported by a sound and substantial basis in the record” …. Matter of Laudadio, 514069, 3rd Dept 3-28-13

*Court Improperly Amended Allegations in Neglect Petition

The Third Department, in a decision by Justice McCarthy, determined Family Court improperly amended the allegations in a neglect petition:

            On this record, summary judgment was improperly granted. Significantly, the  petition as  filed only  alleges that respondent neglected the children as a result of the events surrounding respondent's March  2011
arrest. Nevertheless, Family Court granted the petition based on  "amplified" allegations of neglect that it found related to the father's alleged untreated mental illness. No amended petition was filed nor was respondent given an opportunity to amend his answer. While a court may amend the allegations in a neglect proceeding  "to conform  to the proof[,]. . . in such case the respondent shall be given reasonable time to prepare to answer the amended allegations" (Family Ct Act § 1051 [b] …).  Matter of Aiden XX, 514147, 3rd Dept 3-28-13

*No Need for Consent of Biological Father in Adoption Proceeding

In a decision by Justice Rick, the Third Department affirmed the adoption of a child without the consent of the biological father:

           A  biological father's consent to adopt a child over six months old  who was  born out of wedlock is required only if the father "maintained substantial and  continuous contact with the child as manifested by"  payment  of reasonable  child support and either monthly visitation or regular communication with the child or custodian (Domestic Relations Law  § 111 [1] [d])."Only after the [biological] father establishes his right of consent to the adoption, by satisfying both the support and  communication provisions of the statute, does the court proceed to determine whether he has forfeited that right by evincing 'an intent to forego his . . . parental . . . rights and  obligations'" as outlined in Domestic Relations Law  § 111 (2) (a)… . Matter of John Q v Erica R, 514216, 3rd Dept 3-28-13




Charges Based On Information Learned by the Improper Opening of Inmate’s Mail Required Annulment of the Determination

The Fourth Department annulled a determination finding petitioner had violated inmate rules which was based entirely on the contents of the inmate’s mail (opened and read by prison authorities).  The Fourth Department wrote:

                Pursuant to 7 NYCRR 720.4 (f) (2), the prison superintendent must request documentation from the person seeking authority to open incoming mail so as “to determine that there are sufficient grounds for reading the mail, that the reasons for reading the mail are related to the legitimate interests of safety, security, and order, and that the reading is no more extensive than is necessary to further th[o]se interests.” Here, the evidence presented at the hearing did not establish that the superintendent complied with the above mandate before authorizing the opening of petitioner’s mail. Because evidence that was admitted at the hearing was seized in contravention of respondent’s rules and regulations, the Hearing Officer’s determination based on that evidence “must be annulled and all references thereto expunged from petitioner’s file”… .  Matter of Singletary v Fischer, 167, TP 12-01564, 4th Dept. 3-22-13




Statute of Limitations to Reopen Tax Foreclosure Default Judgment Applies In Face of the Claim that Respondent Was Never Notified of the Proceeding

The Fourth Department determined the one month statute of limitations for a motion to reopen a default judgment of tax foreclosure applied even where the respondent asserts he or she was not notified of the proceeding:

We agree with petitioner, however, that respondent’s motion was untimely. “A motion to reopen a default judgment of tax foreclosure ‘may not be brought later than one month after entry of the judgment’ ” … . Here, the judgment of foreclosure was entered on March 31, 2010, and respondent did not move to vacate it until September 12, 2011, nearly 18 months after it was entered. Contrary to respondent’s contention, the statute of limitations set forth in RPTL 1131 applies even where, as here, the property owner asserts that he or she was not notified of the foreclosure proceeding … .  Matter of Foreclosure of Tax Liens …, 353. 12-01666, 4th Dept. 3-22-13

Housing for Actors and Theater Staff Deemed Tax-Exempt

The Fourth Department determined that the petitioner had demonstrated its property, which was used to house actors and staff for seasonal theaters and generated no income, met the criteria for tax-exempt property under Real Property Tax Law 420-a:

               According to [the] director, the housing of actors and staff together promotes countless hours of volunteer work in the form of “running lines together, discussing creative ideas, working on wardrobes, [and] creating sets,” all of which further the purposes and mission of petitioner. That director also averred that the properties are not open to the public and create no income for petitioner. …. [W]e note that housing used to further an exempt purpose has been found tax exempt in numerous other contexts… .  Matter of Merry-Go-Round Playhouse, Inc. v Assessor of City of Auburn, et al, 268, CA 12-01797, 4th Dept. 3-22-13

Statute of Limitations to Reopen Tax Foreclosure Default Judgment Applies In Face of the Claim that Respondent Was Never Notified of the Proceeding

The Fourth Department determined the one month statute of limitations for a motion to reopen a default judgment of tax foreclosure applied even where the respondent asserts he or she was not notified of the proceeding:

           We agree with petitioner, however, that respondent’s motion was untimely. “A motion to reopen a default judgment of tax foreclosure ‘may not be brought later than one month after entry of the judgment’ ” … . Here, the judgment of foreclosure was entered on March 31, 2010, and respondent did not move to vacate it until September 12, 2011, nearly 18 months after it was entered. Contrary to respondent’s contention, the statute of limitations set forth in RPTL 1131 applies even where, as here, the property owner asserts that he or she was not notified of the foreclosure proceeding … .  Matter of Foreclosure of Tax Liens …, 353. 12-01666, 4th Dept. 3-22-13

There Is No Transfer of Property Until the Deed Is Accepted by the Buyer



In a full-fledged opinion by Judge Read, the Court of Appeals determined that a grant of property takes place only when the deed is (1) delivered and (2) accepted.  There was a foreclosure sale.  In order to obtain a judgment for the deficiency between the amount of the foreclosed loan and the actual foreclosure sale price, a motion must be made within 90 days “after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser…”.  In this case the buyer at the foreclosure sale (M & T) did not at first accept the deed because M & T planned to assign its bid prior to the closing.  The deed was returned to the referee who agreed to hold it.  About three months later, M & T asked the referee to execute and resend the deed. About two weeks after that M & T filed a motion for a deficiency judgment. Defendants opposed the motion arguing it was made more than 90 days after the consummation of the sale. The appellate division agreed with the defendants.  The Court of Appeals reversed and wrote:

           As a general rule, a deed is presumed to have been "delivered and accepted at its date"; however, this presumption "must yield to opposing evidence" … . Here, M&T's attorney twice declined to accept or retain physical possession of the referee's deed dated May 11, 2010. As a result, the referee took back the deed and other closing documents and ultimately executed a deed on August 9, 2010, when M&T's attorney accepted it … . This constitutes "opposing evidence" sufficient to rebut any presumption of delivery in May 2010 … . M&T's motion was therefore timely because brought within 90 days "after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser" (RPAPL 1371 [2]) -- i.e., August 9, 2010.  M & T Real Estate Trust v Doyle, 55, CtApp 3-26-13

*Question of Fact About Whether Solar Panels Violate a Restrictive Covenant Precluded Dismissal of Complaint

In a decision by Justice Spain, the Third Department reversed the dismissal of a complaint alleging that solar panels installed on defendants’ residential property violated a restrictive covenant.  The Third Department wrote:

           We reach a different conclusion, however, with respect to plaintiff's assertion that the panels  violate the  second restrictive covenant in the deeds, which states: "Said premises shall not be used for the storage of building materials, automobiles  or automobiles  parts, nor  shall any  nuisances  be maintained on said premises, which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants"   (emphasis added).   We find that plaintiffs have alleged facts that could support a cause of action based on violation of this covenant. Specifically, we  hold that it was sufficient for plaintiffs to allege that the installation of six, 14-foot tall, 8-foot wide solar panels within a neighborhood that carries many aesthetic restrictions is, within the meaning of the restrictive covenant, a nuisance "which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants."  Faler v Haines, 515349, 3rd Dept 3-28-13


*Whether a Confidential Relationship Existed With Decedent Is a Question of Fact for the Jury/Application of Dead Man’s Statute Explained

In reversing the Surrogate’s Court verdict, the Third Department, in a decision by Justice Spain, determined that the existence of a confidential relationship with the decedent is a question of fact for the jury (Surrogate’s Court determined the existence of the relationship as a matter of law).  In addition, because the matter is to be retried, the Third Department included a useful discussion of how the Dead Man’s Statute (CPLR 4519) should be applied:

           Under  the  doctrine of "'constructive fraud,'" where  a  confidential relationship exists between  two parties to a transaction "'such that they were dealing on unequal terms due to one party's weakness, dependence or trust  justifiably reposed  upon  the  other  and  unfair advantage  is rendered  probable,'" the  burden  of proof  with  respect to allegations of undue influence will be shifted to the stronger party to show, by clear and convincing evidence, that no undue influence was used … In determining whether a confidential  relationship  exists,  "the  existence  of  a  family relationship does  not, per se, create a presumption  of undue influence; there must be evidence of other facts or circumstances showing  inequality  or  controlling influence" … ..The  existence of such a relationship will ordinarily be  a question of fact … .

           *  *  *
           The [Dead Man’s] statute precludes an interested party from being "examined as a witness in his [or her] own behalf or interest . . . concerning a personal transaction or communication between the witness and  the deceased person" (CPLR 4519 …). Given that the "purpose of the rule is 'to protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court'…, it   will not preclude any testimony elicited by the representative of the estate, nor does it preclude testimony of transactions between decedent and a non-interested third party …. Further, the statute's protections with regard to a particular transaction may be waived where the representative "testifies in his [or her] own behalf concerning a personal transaction of his adversary with the deceased" or when he or she “elicits testimony from an interested party on the personal transaction in issue” …  .  Matter of Nealon, 513733, 3rd Dept 3-28-13




Falling Off X-Ray Table Raised Question of Fact

The Fourth Department determined plaintiff had raised a question of fact re: medical malpractice where decedent fell off an x-ray table when the attendant left the room to develop the x-rays:

           Defendant failed to meet its “ ‘initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff[’s decedent] was not injured thereby’ ” … . With respect to decedent’s fall from the X ray table, defendant failed to present competent proof that it did not deviate from the applicable standard of care when the technician left the room to develop the X rays that had just been taken, with decedent still on the table.  Welsh, et al, v St Elizabeth Medical Center, 332, CA 12-01576, 4th Dept. 3-22-12

Experts’ Failure to Address Proximate Cause Precluded Summary Judgment

The defendants in a medical malpractice action were granted summary judgment finding that any departures from the standard of care were not the proximate cause of plaintiff’s injuries.  The Court of Appeals reversed because the defendants’ experts did not address proximate cause in their affidavits in support of the summary judgment motion.  The defendants therefore did not meet their burden on the issue of proximate cause. Orsi, et al, v Haralabatos, et al, 50, CtApp 3-26-13

*Assisting Resident Can Not Be Sued for Malpractice

In dismissing a medical malpractice complaint against a resident who assisted another doctor during surgery, the Second Department wrote:

           A resident or fellow who is supervised by a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice unless the resident or fellow knows that the supervising doctor's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, or the resident or fellow commits an independent act that constitutes a departure from accepted medical practice …. Poter v Adams, 2014 NY Slip Op 02061, 2012-03922, Index No 27069/09, 2nd Dept 3-27-13



Oral Partnership Agreement Dissolvable at Will Because of Lack of Specificity

In finding that an oral partnership agreement was dissolvable at will because no “definite term” or “particular undertaking” was included, the Court of Appeals wrote:

           …[W]e believe that [the] complaint lacks a fixed, express period of time during which the enterprise was expected to operate. Instead, the complaint alleges a flexible temporal framework: the parties were to solicit investments for an indefinite length of time; conduct an open-ended (possibly two-year) search for an unidentified business in an unknown business sector or industry; secure additional capital investments over the course of an unspecified period of time; and then purchase and operate the enterprise for an indeterminate duration (perhaps four to seven years) until a liquidity event would hopefully occur. Since the complaint does not set forth a specific or even a reasonably certain termination date, it does not satisfy the "definite term" element of [Partnership Law] section 62 (1) (b). 

* * *

           Furthermore, when the entire scheme is considered, the alleged sequence of anticipated partnership events detailed in the complaint are too amorphous to meet the statutory "particular undertaking" standard for precluding unilateral dissolution of a partnership. The stages of the plan … were to: (1) raise money; (2) identify a business to buy; (3) raise more money to purchase the business; (4) "operate the business to increase its value"; (5) "achieve the liquidity event"; (6) "sell the business"; and (7) secure profit from the sale. But these objectives are fraught with uncertainty and are less definitive than the declarations referring to specific industries that have been found to be inadequate by other courts *  *  *.  In the absence of a definite term of duration or a particular undertaking to be achieved, the partnership agreement at issue, however well-intended, was dissolvable at will by either partner under Partnership Law § 62 (1) (b). Gelman v Buehler, 37, Ct.App. 3-26-13


Internet Tax Held Constitutional

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined the Internet Tax (Tax Law 1101(b)(8)(vi) was constitutional on its face and did not violate either the Commerce Clause or the Due Process Clause.  The plaintiffs in the action, and, sued the New York State Department of Taxation and Finance.  The activities found to be legitimately taxable in New York were described by the Court as follows:

           Amazon offers an “Associates Program” through which third parties agree to place links on their own websites that, when clicked, direct users to Amazon’s website. The Associates are compensated on a commission basis. They receive a percentage of the revenue from sales generated when a customer clicks on the Associate’s link and completes a purchase from the Amazon site. The operating agreement governing this arrangement states that the Associates are independent contractors and that there is no employment relationship between the parties. Thousands of entities enrolled in the Associates Program have provided a New York address in connection with their applications.

Plaintiff is a Delaware corporation with its principal place of business in Utah. Overstock likewise sells its merchandise solely through the Internet and does not maintain any office, employees or property in New York. Similar to Amazon, Overstock had an “Affiliates” program through which third parties would place links for on their own websites. When a customer clicked on the link, he or she was immediately directed to, and if the customer completed a purchase, the Affiliate received a commission. According to the parties’ Master Agreement, the Affliates were independent contractors without the authority to obligate or bind Overstock.

Judge Smith dissented and would have found the statute unconstitutional under the Commerce Clause., et al, v NYS Department of Taxation and Finance, et al, 33, CtApp 3-28-13


Ice and Snow Accumulation of Floor of Building Constituted Negligence as a Matter of Law

The Fourth Department determined a worker was entitled to summary judgment under Labor Law 241 (6) based on a slip and fall on ice and snow.  The ice and snow had accumulated on the floor of a building where the worker was framing interior walls:

                Plaintiff alleged that defendants were liable for his injury pursuant to Labor Law § 241 (6) based on their alleged violation of 12 NYCRR 23-1.7 (d), which concerns slipping hazards arising from, inter alia, ice and snow. It is undisputed that there were in fact accumulations of ice and snow and that [defendant construction company] was made aware of that fact. Defendants presented no evidence in opposition to demonstrate that the floor was reasonably and adequately safe despite the violation (see § 241 [6]), and thus the court properly determined as a matter of law that defendants were negligent. Thompson v 1241 PVR, LLC, et al, 270, CA 12-01485, 4th Dept. 3-22-13

Scaffold, Safety Railing and Cross Braces Are Safety Devices

In affirming the denial of summary judgment to the plaintiff in a Labor Law 240 (1) action based upon plaintiff’s fall from a scaffold, the Fourth Department noted that a scaffold, safety railing and cross braces are safety devices:

           We agree with defendants … that the scaffold itself and the safety railing and cross braces on it constitute safety devices, and that the evidence submitted by plaintiff raises an issue of fact whether the safety devices provided by defendants afforded him proper protection, or whether additional devices were necessary … .

Justice Whalen dissented, arguing that, under the circumstances of plaintiff’s work on the scaffold, the safety railing and cross railings were not adequate safety devices. Kuntz v WNYG Housing Development Fund Company, Inc., et al, 1382, CA 12-00986, 4th Dept. 3-22-13

*Response to Flooding Caused by Storm Not “Routine Maintenance”

The First Department determined that summary judgment should not have been granted in favor of the defendant in a Labor Law 240 (1) action.  Plaintiff was called to address flooding caused by severe weather and fell into an open manhole.  The motion court granted the defendant’s motion for summary judgment finding that plaintiff was engaged in routine maintenance.  The First Department found that a manhole is a “structure” within the meaning of the statute and that there was a question of fact about whether plaintiff was engaged in “repair” or “routine maintenance:”

           Whether a particular activity constitutes a "repair" or routine maintenance must be decided on a case-by-case basis, depending on the context of the work … . A factor to be taken into consideration is whether the work in question was occasioned by an isolated event as opposed to a recurring condition. * * * The record here demonstrates that the work performed by plaintiff at the time of his injury was far from routine.  Dos Santos v Consolidated Edison of NY, Inc, 2013 NY Slip Op 02140, 8914, 105861/08, 1st Dept 3-28-13

*Failure to Wear Hard Hat Does Not Preclude 240(1) Claim

The First Department determined a worker was entitled to partial summary judgment on a 240(1) claim based on a falling pipe striking him in the head.  The fact that the worker was not wearing a hard hat did not raise a triable issue of fact on the 240(1) claim:

          The evidence demonstrates that plaintiff, a welder who was working at a power plant that was being constructed, was struck on the head by a pipe that fell from a height of approximately 85 to 120 feet as a result of a gap in a toeboard installed along a grated walkway near the top of a generator in the power plant … . It is undisputed that there was no netting to prevent objects from falling on workers and contrary to defendants' contention, plaintiff is not required to show exactly how the pipe fell, since, under any of the proffered theories, the lack of protective devices was the proximate cause of his injuries …. Nor is plaintiff required to show that the pipe was being hoisted or secured when it fell, since that is not a precondition to liability pursuant to Labor Law § 240(1) … .

          In opposition, defendants failed to raise a triable issue of fact since they failed to show that adequate protective devices required by Labor Law § 240(1) were employed at the site. That plaintiff was wearing a welding hood but not a hard hat does not raise an issue of fact since "[a] hard hat is not the type of safety device enumerated in Labor Law § 240(1) to be constructed, placed and operated, so as to give proper protection from extraordinary elevation-related risks to a construction worker" … .  Mercado v Caithness Long Is LLC, 2013 NY Slip Op 02005, 9634, 102473/09, 590277/11, 1st Dept 3-26-13


Summary Judgment Favor of Plaintiff-Company in Trespass Action Against Protesters Affirmed

The Fourth Department affirmed the grant of summary judgment for trespass against People United for Sustainable Housing (PUSH).  PUSH had staged “demonstrations concerning plaintiff’s use of funding it received to assist low-income customers with heating costs and increasing the energy efficiency of their homes.”  The Court determined the allegations of trespass were subject to the heightened standard of proof under the Civil Rights Law and further determined the heightened standard had been met:

           According to [PUSH], this action constituted an impermissible Strategic Lawsuit Against Public Participation (SLAPP action) in violation of Civil Rights Law § 76-a (1), because it hindered defendants’ efforts to challenge the use by plaintiff of the funding in question … . * * *

            We … reject plaintiff’s contention that the allegations in the trespass claims against PUSH do not constitute allegations within the meaning of a SLAPP action, inasmuch as they are indeed materially related to PUSH’s challenge to plaintiff’s application to renew its CIP permit. Thus, plaintiff’s action against PUSH was subject to “a heightened standard of proof” to avoid dismissal … . * * *

           “The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission . . . , or a refusal to leave after permission has been granted but thereafter withdrawn” … . It is well established that trespassing is not a protected First Amendment activity … . National Fuel Gas Distribution Corporation v PUSH Buffalo, et al, 318, CA—12-01219, 4th Dept. 3-22-13

​*Criteria for 1983 Action Against Municipality Based On Policy or Custom

In reversing the trial court’s setting aside a verdict in favor of the plaintiff in an action for false arrest, the Second Department laid out the criteria for a 1983 action against a municipality in this context:

          … [A]plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality where the plaintiff proves the existence of "(1) an official policy or custom [on the part of a municipal defendant] that (2) cause[d] the claimant to be subjected to (3) a denial of a constitutional right" … . "For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement[ ]or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers'" …, or have occurred pursuant to a practice "so permanent and well settled as to constitute a custom or usage' with the force of law" … .

          "A municipal custom or policy can be shown by establishing that an official who is a final policy maker directly committed or commanded the violation of the plaintiff's rights" … . Liability for a violation of 42 USC § 1983 may be predicated on "a single act, as long as it is the act of an official authorized to decide policy in that area" … .  Bassett v City of Rye, 2013 NY Slip Op 02037, 2011-10149, Index No 20430/05, 2nd Dept 3-27-13


*No Need to Be a Shareholder to Bring an Action Pursuant to BCL 720(b)

The Second Department noted there is no need to be a shareholder at the time a disputed resolution was adopted to bring an action for waste or breach of fiduciary duty pursuant to Business Corporation Law 720(b):

            Unlike Business Corporation Law § 626, which authorizes a shareholder to bring a derivative action in the right of the corporation, Business Corporation Law § 720(b) authorizes a corporation, or an officer or director thereof, to commence an action to redress corporate waste or breach of fiduciary duty owed by officers and directors of the corporation … . While Business Corporation Law § 626(b) requires the plaintiff to be a shareholder at the time of the transaction of which he or she complains, there is no similar rule when a corporation, a director, or an officer commences an action pursuant to Business Corporation Law § 720(b) … . Gabel v Gabel, 2013 NY Slip Op 02050, 2011-10621, Index No 9839/10, 2nd Dept 3-27-13












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