Chapter Twenty-Three
Rochester, New York
Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)
Click on the Case Name to View Full Decision
ARBITRATION
Complaint Should Not Have Been Dismissed Solely Upon the Determination an Arbitration Clause Was Valid and Applicable
The Second Department determined Supreme Court should not have dismissed an action bases solely on the fact the contract between the parties had an arbitration clause. Dismissal pursuant to CPLR 3211(a)(1) lies only if there has been arbitration and award:
In its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, the defendant ... contended that an arbitration clause contained in its contract with the plaintiff was valid and applicable, and, therefore, required dismissal of the complaint insofar as asserted against it. However, "[i]n the absence of arbitration and an award, CPLR 3211 furnishes no basis for a dismissal because of the presence in the contract of an arbitration provision" ... . Accordingly, the Supreme Court erred in granting the motion of the defendant New Clients, Inc., pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it based solely upon its determination that the arbitration clause was valid and applicable. Hui v New Clients, Inc., 2015 NY Slip Op 01924, 2nd Dept 3-11-15
CORPORATION LAW/CIVIL PROCEDURE
Corporation Is a Proper Respondent in an Article 78/Mandamus to Compel Proceeding
The Third Department determined that respondent corporation (CGFNS), which contracted with the state to provide credential verification services to the Department of Education for foreign-trained nurses, was a proper respondent in an Article 78/mandamus to compel proceeding. The proceeding was brought by the foreign nursing school after CGFNS indicated it could not verify the school's credentials:
CGFNS argues that it is not a "body or officer" subject to CPLR article 78 (CPLR 7802 [a]) and that it did not make a "determination" reviewable in this proceeding (CPLR 7803 [3]). CPLR 7802 (a) defines a "body or officer" against whom a CPLR article 78 proceeding may be instituted to include, as relevant here, "every court, tribunal, board, [or] corporation" (emphasis added). CGFNS is a not-for-profit corporation. Courts have recognized that corporations, both public and private, may be subject to CPLR article 78 as quasi-governmental bodies because they are "beholden to the [s]tate for their franchise or charter or the exercise of their functions" (... Siegel, NY Prac § 558 at 989; § 564 at 1001-1002 [5th ed 2011]). As a corporate entity, CGFNS is a "body or officer" subject to a writ of mandamus under CPLR article 78 (CPLR 7802 [a]; see CPLR 7803 [1], [3]...). Matter of American Univ. of Antigua v CGFNS Intl., 2015 NY Slip Op 02028, 3rd Dept 3-12-15
MUNICIPAL LAW/ADMINISTRATIVE LAW/LANDLORD-TENANT/CIVIL PROCEDURE
Mandamus to Compel Proceedings Properly Sought to Compel the NYC Housing Authority to Consider Requests for Increases in "Section 8" Rent Subsidies (A Ministerial Act), But a Particular Result Could Not Be Compelled (Because Exercise of Discretion Involved)
The First Department, in a full-fledged opinion by Justice Richter, determined that Article78/mandamus-to-compel proceedings were properly brought by owners of rental-properties against the NYC Housing Authority seeking rulings re: increased and suspended "Section 8" rent subsidies. The court held that the property-owners could compel the NYCHA to consider its requests (a ministerial act), but could not compel any specific result (an exercise of discretion). The action was deemed timely because the NYCHA had never denied the requests, therefore the four-month statute never started running. With respect increased subsidies, the court wrote:
An article 78 mandamus proceeding may be brought to compel an agency "to perform a duty enjoined upon it by law" (CPLR 7803[1]). It is well-settled that a mandamus to compel "applies only to acts that are ministerial in nature and not those that involve the exercise of discretion" ... . Thus, "the petitioner must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief" ... .
Supreme Court properly found that the determination of the amount of any increase in the Section 8 subsidy is not purely ministerial but a matter entrusted to NYCHA's discretion. An owner cannot receive a rent increase unless NYCHA first determines the reasonable rent (24 CFR 982.507[a][2][i]). In doing so, NYCHA is required to compare the unit's rent to comparable unassisted units and must consider a myriad of discretionary factors, including location, quality, size, type and age of the unit, and any services, utilities and amenities provided (24 CFR 982.507[b]). Because the determination of the amount of any rental increase involves the exercise of discretion, it is not subject to mandamus. * * *
Although the eventual determination of reasonable rent will be the product of NYCHA's judgment, the agency does not enjoy similar discretion to not make a decision at all on the rent increase requests. The applicable regulation, relied upon by NYCHA, provides that before any rent increase is allowed, NYCHA "must redetermine the reasonable rent" (24 CFR 982.507[a][2][i] [emphasis added]; see also 24 CFR 982.519[a] [under regulation relied upon by petitioners, NYCHA must annually adjust rent at owner's request]). Upon the proper submission of a request for rent increase, NYCHA must process the request and come to a determination, whether adverse to petitioners' position or not. NYCHA cannot leave petitioners in limbo, neither granting nor denying their requests, many of which have been pending for a significant amount of time. Thus, the petition states a claim for mandamus relief to the extent it seeks an order directing NYCHA to make a determination with respect to the rent increase requests ... . Matter of Flosar Realty LLC v New York City Hous. Auth., 2015 NY Slip Op 01906, 1st Dept 3-10-16
CIVIL PROCEDURE
"Single Motion Rule" Barred Motions to Dismiss Pursuant to CPLR 3211(a)
The Second Department determined Supreme Court properly denied motions to dismiss pursuant to CPLR 3211(a) based upon the "single motion" rule. The defendants had made motions to dismiss certain causes of action in the original complaint. Therefore the defendants could not make those motions again with respect to an amended complaint:
CPLR 3211(e) provides, in relevant part, that at any time before service of a responsive pleading is required, a party may move to dismiss a pleading "on one or more grounds set forth" in CPLR 3211(a), and that "no more than one such motion shall be permitted." Accordingly, this "single motion rule prohibits parties from making successive motions to dismiss a pleading" pursuant to CPLR 3211(a) ... . The rule bars both repetitive motions to dismiss a pleading pursuant CPLR 3211(a), as well as subsequent motions to dismiss that pleading pursuant to CPLR 3211(a) that are based on alternative grounds ... . Here, the defendants previously moved pursuant to CPLR 3211(a) to dismiss the original complaint on the grounds that documentary evidence established a complete defense to the action (see CPLR 3211[a][1]), that the action was time-barred (see CPLR 3211[a][5]), and that the complaint failed to state a cause of action (see CPLR 3211[a][7]). * * * Accordingly, those branches of the defendants' motion which were to dismiss ... [substantially identical] causes of action in the amended complaint were procedurally barred by the single-motion rule, and were properly denied (see CPLR 3211[e]...). Bailey v Peerstate Equity Fund, L.P., 2015 NY Slip Op 01911, 2nd Dept 2-11-15
CIVIL PROCEDURE/APPEALS
Sua Sponte Rulings Do Not Become the Law-of-the-Case and Do Not Bind an Appellate Court
The Second Department noted that a sua sponte determination does not become the law-of-the-case and does not bind the appellate court:
Supreme Court determined that, pursuant to the law-of-the-case doctrine, it was bound by the prior Supreme Court order to hold that [a nonparty] was a bona fide purchaser of the subject property. On that ground, the Supreme Court concluded that, "[h]aving failed to obtain a stay pursuant to CPLR 5519 to prevent the property from being sold, [defendant] [was] relegated to an action for money damages, and would not be able to recover the real property" ... . However, since the parties had not litigated the sua sponte determination as to [the nonparty's] status, application of the doctrine of law of the case was improper ... . In any event, this Court is not bound by the Supreme Court's prior determination finding [the nonparty] to be a bona fide purchaser and may reach the merits of that issue ... . Debcon Fin. Servs., Inc. v 83-17 Broadway Corp., 2015 NY Slip Op 01920, 2nd Dept 3-11-5
CIVIL PROCEDURE/NEGLIGENCE
Motion to Set Aside Verdict Properly Denied---The Jury Determined Defendant's Negligence Was Not the Proximate Cause of the Accident---Analytical Criteria Explained
In finding the plaintiff's motion to set aside the verdict as contrary to the weight of the evidence was properly denied, the Second Department explained how to analyze the jury's conclusion the defendant's negligence was not the proximate cause of the accident:
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence ... . "A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" ... . "[W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view" ... . Moffett-Knox v Anthony's Windows on the Lake, Inc., 2015 NY Slip Op 01929, 2nd Dept 3-11-15
CIVIL PROCEDURE/NEGLIGENCE
Jury's Failure to Award Damages for Future Pain and Suffering Did Not Warrant Setting Aside Verdict
The Second Department determined Supreme Court should not have granted plaintiff's motion to set aside the verdict based upon the jury's failure to award damages for future pain and suffering. The court explained the relevant analytical criteria:
In determining a motion pursuant to CPLR 4404(a) to set aside a verdict as against the weight of the evidence, the court must decide whether the evidence so preponderates in favor of the movant that the verdict could not have been reached upon any fair interpretation of the evidence ... . Resolution of the motion does not involve a question of law, but rather requires a discretionary balancing of many factors ... . Moreover, "[g]reat deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the factfinders, who had the opportunity to see and hear the witnesses" ... . Thus, "[w]here the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" ... .
Contrary to the plaintiff's contention, the jury's failure to award damages for future pain and suffering was based upon a fair interpretation of the evidence presented at trial, with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom, and there was no basis in the record for the trial court to disturb the jury's resolution of credibility issues against the plaintiff ... . Raso v Jamdar, 2015 NY Slip Op 01934, 2nd Dept 3-11-15
CIVIL PROCEDURE/FRAUD/FIDUCIARY DUTY, BREACH OF/REAL PROPERTY LAW/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW/FRAUD/CONVERSION/MONEY HAD AND RECEIVED/TRUSTS AND ESTATES
Statutes of Limitations for Actions Stemming from the Alleged Fraudulent Transfer of Real Property Explained
The Second Department determined plaintiff's actions, which stemmed from the allegation defendant had acquired a deed to his property by fraud, were timely. The court explained the statutes of limitations for actual and constructive fraud, breach of fiduciary duty, actions to quiet title, conversion by fraud, money had and received, and constructive trust. In essence, actions which have an equitable component are governed by a six-year statute of limitations:
The statute of limitations for a cause of action alleging a breach of fiduciary duty does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated ... . * * *
The statute of limitations for a cause of action sounding in breach of fiduciary duty is dependent on the relief sought. The Court of Appeals ruled in IDT Corp. v Morgan Stanley Deal Witter & Co. (12 NY3d at 139):
"New York law does not provide a single statute of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging injury to property' within the meaning of CPLR 214(4), which has a three-year limitations period. Where, however, the relief sought is equitable in nature, the six-year limitations period of CPLR 213(1) applies. Moreover, where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8)" (citations omitted).
Since the plaintiff's right to the subject property is in issue, awarding damages would not be adequate. Therefore, the six-year statute of limitations for causes of action sounding in equity should be applied ... . Since the second and third causes of action accrued in 2006, when the defendants allegedly acted contrary to their fiduciary obligations, to the plaintiff's detriment, those causes of action, interposed four years later in 2010, are not time-barred.
The first cause of action, to quiet title pursuant to RPAPL article 15, is not time-barred, since the plaintiff was seized or possessed of the premises within 10 years before the commencement of the action and is in essence seeking a determination that the quitclaim deed which he executed in 2003 was part of a mortgage transaction, and not a conveyance of title (see CPLR 212[a]; Real Property Law § 320...).
The fourth cause of action, alleging conversion based upon fraud, is not time-barred, since it is governed by the statute of limitations set forth in CPLR 213(8) ... .
The fifth cause of action, seeking damages for money had and received ..., is equitable in nature and, therefore, the applicable statute of limitations is six years ... . Since the defendants' receipt of money occurred in 2006, and the action was commenced in 2010, the cause of action is not time-barred. Similarly, the sixth cause of action, sounding in unjust enrichment, is equitable in nature, and is not time-barred ... .
The seventh cause of action alleging a constructive trust is equitable in nature and governed by a six-year statute of limitations ... . The elements of a cause of action to impose a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment ... . The cause of action accrued on the date of the "wrongful transfer" of the subject property ... . Loeuis v Grushin. 2015 NY Slip Op 01926, 2nd Dept 3-11-15
CONTRACT LAW
Subcontractor's Breach of Contract Cause of Action Should Not Have Been Dismissed Despite Absence of Privity
The Second Department determined the motion for dismissal (CPLR 3211(a)(7)) of a breach of contract/quantum meruit cause of action brought by a subcontractor should not have been granted. The documents submitted by the defendant did not eliminate the possibility that the defendant's dealings with the subcontractor could have given rise to a breach of contract action in the absence of privity:
Generally, a subcontractor may not assert a cause of action to recover damages for breach of contract against a party with whom it is not in privity ... . Nevertheless, "a subcontractor can sometimes state a cause of action [alleging] breach of contract or unjust enrichment against the owner where direct dealing between the owner and the subcontractor justify imposing an obligation upon the owner despite the initial lack of privity between them" ... . Vertical Progression, Inc. v Canyon Johnson Urban Funds, 2015 NY Slip Op 01939, 2nd Dept 3-11-15
CRIMINAL LAW/EVIDENCE
Rebuttal Evidence Re: a Defense that Was Not Asserted Should Not Have Been Allowed (Harmless Error)/Partial Closure of Courtroom During Testimony of Undercover Officers Proper
The First Department, over a dissent, determined that, although Supreme Court erred when it allowed the prosecution to reopen its case to present rebuttal evidence, the error was harmless in this bench trial. Defense counsel had mentioned an agency defense to the drug-sale charge, but then explained that the only defense raised at trial was defendant's complete noninvolvement. Under those circumstances evidence rebutting the agency defense, which was never asserted, should not have been allowed. The First Department also held that Supreme Court properly closed the courtroom during the testimony of undercover officers. With regard to the partial closure of the courtroom, the First Department wrote:
The Hinton hearing court, which closed the courtroom for the testimony of two undercover officers and which offered to permit family members or other persons designated by defendant to enter, properly exercised its discretion in rejecting defense counsel's proposal that a court officer screen members of the general public who sought to enter during the testimony. The court concluded that this suggestion would have been impracticable because there was no additional court officer available to be posted outside the courtroom, and because in any event the officer would frequently have to interrupt the testimony to report the presence of persons seeking to enter. Therefore, under the circumstances presented, defendant's proposal was not a "reasonable alternative[] to closing the proceeding" ... . People v Mallard, 2015 NY Slip Op 01882, 1st Dept 3-10-15
CRIMINAL LAW/EVIDENCE
Search of Backpack Which Was No Longer In Defendant's Possession, After Defendant Had Been Handcuffed, Justified by Exigent Circumstances
In finding the suppression motion was properly denied. The Second Department explained the law which justified the pre-arrest detention of the defendant and the search of defendant's backpack after defendant was handcuffed. The officer received a report of a shooting at a residence. The officer knew the defendant lived at the residence and saw blood on defendant's clothes. The defendant was handcuffed and his backpack was placed on a car about three feet away. After the defendant was handcuffed he told the officer his brother had been shot and the guns were in the backpack. At that point the officer had probable cause to arrest for criminal possession of a weapon and could search the backpack incident to arrest due to exigent circumstances:
Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence recovered incident to his arrest. "On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" ... . "Under the State Constitution, an individual's right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances" ... . For "compelling reasons," including the safety of the officers or the public, "a search not significantly divorced in time or place from the arrest' may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police" ... . People v Alvarado, 2015 NY Slip Op 01955, 2nd Dept 3-11-15
CRIMINAL LAW/ATTORNEYS
Defendant's Counsel Took a Position Adverse to Defendant's Motion to Vacate His Guilty Plea---Court Should Have Appointed New Counsel Before Hearing the Motion
The Second Department determined defendant should be appointed new counsel because his original counsel took a position adverse to the defendant's motion to withdraw his guilty plea:
Prior to the imposition of sentence upon the defendant's conviction of criminal possession of a controlled substance in the seventh degree, the defendant moved to withdraw his plea of guilty to that charge on the ground that his plea was not knowingly, intelligently, and voluntarily made. At sentencing, assigned counsel stated that the defendant's plea was validly entered, and denied certain factual allegations raised by the defendant.
The defendant's right to counsel was adversely affected when his attorney took a position adverse to his ... . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the motion ... . People v Armstead,2015 NY Slip Op 01956, 2nd Dept 3-11-15
CRIMINAL LAW/EVIDENCE
Police Were Not Justified In Entering the Curtilage of Defendant's Home (By Climbing a Fence) After Defendant Ignored the Officers' Command to "Stop"
The Second Department determined evidence seized after officers climbed a fence to gain access to defendant's property was properly suppressed. The officers had enough information to approach the defendant, who was in his yard, to request information, but did not have sufficient information to justify entering defendant's property after defendant dropped a bag and went into his house, ignoring the officers' request to stop:
The curtilage of the home, defined as the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself ... . The Supreme Court properly determined that the defendant's driveway and front yard, which were completely fenced-in and located in close proximity to his home, were within the curtilage of his home. The defendant manifested his expectation of privacy and that expectation is one that society recognizes as reasonable ... . Further, while the officers had an objective, credible reason to approach the defendant to request information ... , the defendant's conduct of dropping the bag, which produced "a heavy thud or a clank," and ignoring the officer's request to stop did not escalate the encounter to justify pursuit ... . People v Morris, 2015 NY Slip Op 01967, 2nd Dept 3-11-15
CRIMINAL LAW/EVIDENCE
Denial of Guilt to Department of Probation (DOP) Was Not a Violation of a Condition that Defendant Cooperate With the DOP
The Second Department determined defendant's denial of guilt to the Department of Probation (DOP) prior to sentencing was not a violation of a condition that he cooperate with the DOP. The sentencing court therefore was not justified in imposing an enhanced sentence:
As a condition of the court's promised sentence, the defendant agreed (1) to cooperate with the Department of Probation (hereinafter the DOP), (2) to appear on any scheduled court dates, and (3) to remain arrest free. The defendant appeared for his interview with the DOP and answered all of the questions asked, but in doing so, he also denied his guilt. However, he did not express any intention to withdraw his plea of guilty. At sentencing, the defendant contended that he did not deny his guilt to the DOP. Nonetheless, the court found that the defendant violated the "cooperation" condition by lying to the DOP. The court then imposed an enhanced sentence without first giving the defendant an opportunity to ask to withdraw his plea of guilty.
Although the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence ..., here, the defendant's denial of his guilt to the DOP was not a violation of the condition that he cooperate with the DOP ... . While a court is free to impose a condition requiring a defendant not to deny his or her guilt when interviewed by the DOP, the Supreme Court in the instant matter did not impose such a condition ... . Accordingly, it erred in imposing an enhanced sentence based on its conclusion that the defendant violated a condition of the plea of guilty... . People v Pianaforte, 2015 NY Slip Op 01969, 2nd Dept 3-11-15
CRIMINAL LAW/APPEALS
Failure to Transcribe Portion of Voir Dire Not Reversible Error---Criteria Explained
The Third Department determined the failure to transcribe a portion of the voir dire did not require reversal (because the defendant did not request that it be transcribed and could show no prejudice). The court explained the relevant analysis:
"Although we agree that verbatim recordation of the trial proceedings is the better practice, unless waived, the case law makes clear that the absence of a stenographic record does not, per se, require reversal of a defendant's conviction" ... . "'Rather, a defendant must show that a request was made that the voir dire proceedings be recorded, the request was denied, and the failure to record the proceedings prejudiced him or her in some manner'" ... . Here, voir dire was recorded, except one portion during which each counsel exercised peremptory challenges to the first panel of jurors. However, defendant did not request that this part (or any part) of voir dire be recorded ... and, importantly, he does not assert that an incorrect ruling or any prejudicial error occurred during the omitted portion ... . People v Chappelle, 2015 NY Slip Op 105486, 3rd Dept 3-12-15
CRIMINAL LAW/EVIDENCE
Criteria for Strip and Cavity Search Met
The Third Department determined the circumstances justified a strip search and a visual cavity search of the defendant. The court explained the relevant criteria:
...[T]he principles governing strip searches and body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied 555 US 938 [2008]). Insofar as is relevant here, "a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to . . . a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside a body cavity and the [ensuing] visual inspection must be conducted reasonably" ... . Although the police cannot routinely subject all drug arrestees to visual cavity inspections, the police are permitted — in the context of formulating the particularized factual basis required for such inspections — "to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person"... . People v Cogdell, 2015 NY Slip Op 106031, 3rd Dept 3-12-15
CRIMINAL LAW/EVIDENCE
Child's Disclosure of Sexual Abuse One Year After Abuse Ended Properly Admitted Under the "Prompt Outcry" Exception to the Hearsay Rule
The Second Department determined a child's disclosure of sexual assault one year after the abuse ended was properly admitted under the "prompt outcry" exception to the hearsay rule:
Evidence that a sexual assault victim promptly complained about the incident is admissible to corroborate the allegation that an assault took place ... . "An outcry is prompt if made at the first suitable opportunity' ..., and is a relative concept dependent on the facts' ... . "There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified" ... . "[W]hat might qualify as prompt in one case might not in another" ... .
Here, the trial court permitted testimony concerning the victim's first "outcry" to a friend which occurred approximately one year after the abuse had ended ... . Under all of the circumstances of this case, including the victim's young age, and the fact that she lived with the defendant during the relevant period, the trial court properly admitted evidence of the victim's outcry to her friend ... . People v Caban, 2015 NY Slip Op 01959, 2nd Dept 3-11-15
CRIMINAL LAW/EVIDENCE
Delay In Coming Forward With Defendant's Alibi Was a Proper Subject of Cross-Examination After Foundational Requirements Were Met
The Second Department determined defendant's girlfriend was properly cross-examined about her delay in coming forward with defendant's alibi. The prosecutor laid the proper foundation for the cross-examination:
...[T]he People properly elicited testimony from his girlfriend during cross-examination regarding her delay in coming forward to the authorities with certain exculpatory information. Before a defense witness may be cross-examined regarding his or her failure to come forward with exculpatory information at an earlier date, certain foundational requirements must first be met ... . Here, the prosecutor laid the necessary foundation prior to cross-examining the defendant's girlfriend about her apparent delay in informing law enforcement authorities of the defendant's alibi. The record indicates that, during a bench conference, it was ascertained that the defendant's girlfriend had not refrained from speaking to authorities under the advice of defense counsel. Moreover, the court instructed the jury that the defendant's girlfriend had no obligation to volunteer exculpatory information to law enforcement authorities. Under these circumstances, the People properly elicited evidence during the cross-examination of the defendant's girlfriend that she delayed in contacting the authorities with exculpatory evidence ... . People v Webster, 2015 NY Slip Op 01974, 2nd Dept 3-11-15
CRIMINAL LAW/EVIDENCE
"Constructive Possession" Theory Applied to Weapon Deemed to Have Been Discarded by Defendant During a Police Pursuit
The Third Department determined there was sufficient evidence defendant constructively possessed a weapon which was found near him after the police saw him discard something during a pursuit:
Constructive possession can be demonstrated where there is evidence — either direct or circumstantial — that defendant exercised "dominion and control over the weapon or the area in which it was found" ... . The People presented testimonial evidence of several police officers, including Gregory McGee, who averred that, after hearing a gun shot during his overnight shift, his investigation led him to observe defendant turning a street corner on a bicycle. When defendant saw McGee's marked police car, he became visibly nervous and immediately clutched the right side of his waistband. Believing that defendant was armed, McGee exited his vehicle, drew his firearm and ordered defendant to show his hands. Defendant refused to comply with the directive and a physical encounter ensued. As McGee holstered his handgun and attempted to grab his taser, defendant fled on his bicycle. McGee then radioed for assistance while pursuing defendant on foot and a responding police officer, Jason Seward, pulled his patrol car onto the sidewalk in order to block defendant. McGee testified that, as defendant ran around the patrol car, he observed defendant's hand emerge from under his sweatshirt and throw something, which created a sound of "metal hitting the ground." As Seward continued to pursue defendant, McGee found a handgun on the sidewalk a few feet from Seward's patrol car. Shortly thereafter, defendant was apprehended and the handgun was later confirmed to contain three rounds of "live" ammunition and one spent shell casing, indicating that the handgun had been fired once.
... "[V]iewing the evidence in a neutral light and according deference to the jury's credibility determinations," we find that defendant had constructive possession of the gun such that the conviction was not contrary to the weight of the evidence ... . People v Butler, 2015 NY Slip Op 105216, 3rd Dept, 3-12-15
CRIMINAL LAW/EVIDENCE
Presentation of Hearsay to Grand Jury Did Not Taint the Proceedings---Criteria Explained
The Third Department determined that the admission of hearsay before the grand jury (the audio of a videotape which could not be muted) did not constitute reversible error, mainly because the prosecution did not intentionally present inadmissible evidence:
We first address defendant's argument that the grand jury's exposure to inadmissible hearsay so tainted the proceedings that dismissal of the indictment is required. Dismissal of an indictment is an extreme remedy that is limited to "'those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury'" ... . Defendant's challenge relates to a recording of the bar's security camera footage that depicted the attack on the victim. Specifically, the victim's son made a video recording of a monitor as it played the surveillance footage, during which recording he and another person can be heard making several comments regarding the severity of the attacks upon the victim. The People explained to Supreme Court that they were unable to mute the video as it was being played during grand jury proceedings, and that the prosecutor provided an instruction to disregard the audio component of the video recording. Thus, it is apparent that the People did not intentionally present inadmissible hearsay or otherwise engage in an "over-all pattern of bias and misconduct" ... . Moreover, in light of the ample evidence supporting the assault in the second degree charge against defendant, we find no basis to determine that the hearsay evidence rendered the indictment defective ... . People v Boddie, 2015 NY Slip Op 105524, 3rd Dept 3-12-15
CRIMINAL LAW/EVIDENCE
Defendant Properly Precluded from Introducing Medical Records Without Accompanying Medical Testimony
The Third Department determined defendant was properly precluded from placing his hospital records into evidence in the absence of any accompanying medical testimony. The defendant in this DWI case wanted to use the hospital records to demonstrate his failure of the sobriety tests was due to his medical condition, not intoxication. The trial court correctly ruled that, without accompanying medical testimony, the jury would have to speculate about the meaning of the hospital records:
In support of his theory that his failure of the field sobriety tests was caused by his medical ailments as opposed to intoxication, defendant sought the admission of his hospital records — unaccompanied by any testimony from a medical professional. County Court denied the relief, concluding that defendant's hospital records, while generally admissible pursuant to CPLR 4518, would lead the jury to speculate as to defendant's medical condition unless a medical professional offered an explanation. The court did permit defendant to testify regarding his physical condition and hospital treatment, and to introduce photographs of his injuries at trial ... . Inasmuch as the hospital records, without explanatory testimony, would have required the jury to speculate as to whether defendant's injuries caused him to fail the sobriety tests, we find that the court properly excluded them ... . People v Collins, 2015 NY Slip Op 105558, 3rd Dept 3-12-15
CRIMINAL LAW/CONSTITUTIONAL LAW/CIVIL PROCEDURE
Criteria for Balancing the Need for a Public Trial and First Amendment Rights (Freedom of the Press) With the Defendant's Right to a Fair Trial Discussed in Some Detail---Here the Court's Sealing of Some Records and Closures of the Courtroom Reflected a Proper Discretionary Balance
The First Department, in a detailed decision, determined Supreme Court had properly balanced the requirement that a criminal trial be open to the public and the defendant's right to a fair trial. Because the court properly used its discretion to balance the two concerns neither mandamus nor prohibition was an available remedy. The decision is worth reading---many of the issues discussed are not noted here:
The First Amendment guarantees the public and the press a qualified right of access to criminal trials ... . This right must be kept in balance with the compelling interest of the defendant's Sixth Amendment right to a fair trial and the right to privacy of prospective jurors ... . The public's right of access may be limited where there is a compelling governmental interest and closure is narrowly tailored to serve that interest ... .
New York's approach to courtroom closure is "comparable to the federal analysis" ... . The press is not imbued with any special right of access, and while it possesses "the same right of access as the public," it has no right to information about a trial that is "greater" or "superior" to that of the general public ... . A " trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity'" ... . Decisions to seal or disclose records fall within the inherent power of the court to control the records of its own proceedings ... . While a court must guarantee that the defendant receives a fair trial, it must do so in a manner that balances the interests of "the defendant, jurors, witnesses, attorneys and the public at large" ... . Matter of Daily News, L.P. v Wiley, 2015 NY Slip Op 02010, 3rd Dept 3-12-15
CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA)
Criteria for (Upward) Departure from the Risk Level Assessed by the Board of Sex Offenders Explained
The First Department determined the SORA court properly departed from the recommendation by the Board of Sex Offenders (the Board) that defendant be assessed a level one sex offender. The defendant had communicated in an Internet chat room with a police officer posing as a 13-year-old girl. Upward departure (to level two) was deemed warranted because, although there was no actual victim, the defendant's behavior indicated he posed a risk to young girls and might re-offend. The court explained when departure from the Board's recommendation is warranted:
The court concluded that the Board's allocation to defendant of risk level one was inadequate and determined him to be a risk level two. The court stated, in relevant part:
"I don't think this level would be appropriate for somebody who might re-engage in this conduct because the next person that he's in contact with could very well be a real child and that person would be victimized, and I don't think that this qualifies under the lowest level. This is not like one single, you know, inadvertent contact with somebody. This is a relationship that he attempted to develop, and as if over the period of days he got more and more explicit, counsel, indicated to her what he wanted to do, all the while thinking she's a 13 year-old girl. I don't believe that this risk score or the Board's recommendation accurately reflects even the risk of his re-offending, counsel, or the harm that would be caused if he did re-offend, which are the two factors that the court is supposed to weigh in assessing his risk." ...
Although the Board's assessment of a risk level is presumed to be correct, the reviewing court is to consider it as only a recommendation from which it, as an exercise of its discretion, can depart if there is clear and convincing evidence that a departure is warranted (...Correction Law 168-n[3]). The court's analysis is not limited to tallying up points it believes the Board did not assess; rather, the court can adjust the risk level upwards if it determines that there are "aggravating factors not adequately accounted for in the [RAI]" ... . This rule derives from the Board's "Risk Assessment Guidelines and Commentary," (the Guidelines), which note that "an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Not to allow for departures would, therefore, deprive the Board or a court of the ability to exercise sound judgment and to apply its expertise to the offender" ... . Conversely, as noted, the Board's determinations are presumptive, and not to be routinely overturned ... . People v Macchia, 2015 NY Slip Op 01883, 1st Dept 3-10-15
CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA)
Failure to Follow Statutory Risk-Level-Determination Procedure Violated Defendant's Due Process Rights
The Second Department determined that ignoring the statutory SORA risk-level-determination procedure violated defendant's due process rights. The court exercised its interest of justice jurisdiction in the absence of an objection by the defendant:
Supreme Court sentenced the defendant to two one-year terms of incarceration, without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately prior to imposing sentence, and did so using a risk level assessment instrument prepared by the District Attorney's office. This procedure violated SORA and deprived the defendant of his right to due process ... . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before the defendant's release from custody (see Correction Law § 168-n[2]...). The court's determination should have been preceded by the Board's risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review ... . People v Grabowski, 2015 NY Slip Op 01930, 2nd Dept 3-11-15
ENVIRONMENTAL LAW/MUNICIPAL LAW/ADMINISTRATIVE LAW/APPEALS
Extent of Court Review of Town Board's Assessment of an Environmental Impact Statement Under the State Environmental Quality Review Act (SEQRA) Explained
The Second Department determined the Town Board had properly adopted the Final Generic Environmental Impact Statement (FEGIS) and Findings Statement re: an airport master plan (dealing with noise). The Second Department explained the court's review powers:
Judicial review of an agency determination under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) is limited to determining whether the challenged determination was affected by an error of law, or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure ... . Courts may review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination ... . " [I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively'" ... .
Here, the Town Board of the Town of East Hampton (hereinafter the Town Board) fulfilled its obligations under SEQRA by taking a hard look at potential noise impacts of the proposed actions and made a reasoned elaboration of the basis for its determination in the Final Generic Environmental Impact Statement (hereinafter FGEIS), which thoroughly analyzed noise data and potential noise mitigation based upon noise averaging methodology along with single event noise data. Matter of Committee to Stop Airport Expansion v Wilkinson, 2015 NY Slip Op 01941, 2nd Dept 3-11-15
FAMILY LAW
Nursing License Not Marital Property/Criteria Explained
The Second Department determined Supreme Court properly found that plaintiff's nursing license was not marital property. The Court explained the relevant analytical criteria:
Although the enhanced earnings from academic degrees and professional licenses attained during the marriage are subject to equitable distribution, it is incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate a substantial contribution to the titled party's acquisition of that marital asset. Where only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity ... . Here, there is no evidence that the defendant made a substantial contribution to the plaintiff's acquisition of her nursing degree. There is no evidence that the defendant made career sacrifices or assumed a disproportionate share of household work as a consequence of the plaintiff's education; his contributions were minor... . Badwal v Badwal. 2015 NY Slip Op 01910, 2nd Dept 3-11-15
FAMILY LAW/EVIDENCE
Corroboration Requirements for Child's Out-of-Court Statements Described
The Second Department agreed with Family Court's ruling that the child's out-of-court statements were sufficiently corroborated to be allowed in evidence. The court explained the analytical criteria:
"A child's prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability'" ... . "Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration" (Family Ct Act § 1046[a][vi]). " The Family Court has considerable discretion in deciding whether a child's out-of-court statements alleging incidents of abuse have been reliably corroborated'" ... . "The Family Court's credibility findings must be accorded considerable deference on appeal" ... . Matter of Zeeva M. (Abraham M.), 2015 NY Slip Op 01948, 2nd Dept 3-11-15
FAMILY LAW
Failure to Cooperate In Formulating Mental Health Treatment Plan for Child Constituted Neglect
The Second Department affirmed Family Court's finding of neglect based upon the mother's failure to cooperate in formulating a plan for mental health treatment of the child. The court explained the analytical criteria:
To establish neglect based upon a parent's failure to provide adequate medical care, a petitioner must prove, by a preponderance of the evidence, that the child's physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in supplying the child with adequate medical care, though financially able to do so (see Family Ct Act §§ 1012[f][i][A]...). A parent's unwillingness to follow a recommended course of psychiatric treatment which results in the impairment of a child's emotional health may support a finding of neglect ... . Even so, in the context of a petition alleging medical neglect, "the court's role is not as surrogate parent and the inquiry is not posed in absolute terms of whether the parent has made the right' or wrong' decision" ... . Rather, in deciding whether a parent has been neglectful by depriving his or her child of adequate medical care, the court must determine whether the parent has provided an acceptable course of treatment in light of all of the surrounding circumstances ... .
Here, the mother's refusal to consent to the course of medical treatment proposed by mental health professionals would not, by itself, have justified a finding of medical neglect. Nonetheless, the credible evidence established that the mother did not merely disagree with the course of medical treatment proposed for [the child], but also refused to cooperate in formulating any appropriate treatment ... . Matter of Jaelin L. (Kimrenee C.), 2015 NY Slip Op 01946, 2nd Dept 3-11-15
CIVIL PROCEDURE
Plaintiff Brought a Frivolous Lawsuit Solely to Harass/Costs Properly Imposed on Plaintiff
The Second Department determined plaintiff had brought a frivolous lawsuit to harass and costs were properly imposed on the plaintiff:
A court may award a party "costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct" (22 NYCRR 130.1.1[a]). "In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct" (22 NYCRR 130-1.1[a]...). "[C]onduct is frivolous if . . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (22 NYCRR 130-1.1[c]...). The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court's sound discretion ... .
Here, the Supreme Court properly determined, after a hearing, that the plaintiff engaged in frivolous conduct in commencing this action, as this action is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law," and was undertaken primarily to harass the defendants ... . Strunk v New York State Bd. of Elections, 2015 NY Slip Op 01936, 2nd Dept 3-11-15
LABOR LAW-CONSTRUCTION LAW
Question of Fact Whether Plaintiff's Negligence Was Sole Proximate Cause of Injuries in Labor Law 240(1) Action
The Second Department determined there were questions of fact precluding both plaintiffs' and defendant's motions for summary judgment in a Labor Law 240(1) action. Although the ladder which tipped over was not defective and was appropriate to the task, there were questions whether the ladder was mispositioned and, if so, who mispositioned it. The fact that plaintiff may have been negligent did not preclude recovery under Labor Law 240(1) as long a plaintiff's negligence was not the sole proximate cause of his injury:
In order to prevail on a Labor Law § 240(1) cause of action, a plaintiff must prove that the statute was violated and that the violation was a proximate cause of the injuries ... . Proof that the plaintiff's own negligence was also a proximate cause will not defeat the claim ... . When the evidence establishes, however, that the plaintiff's own negligence was the sole proximate cause of the injuries, the defendant may not be held liable for those injuries ... . The parties' submissions demonstrated that the ladder itself was not defective and was appropriate to [plaintiff's] task.
There are triable issues of fact ... as to whether the ladder was mispositioned and, if so, who mispositioned it, and, if it was mispositioned by [plaintiff], whether his conduct was the sole proximate cause of the ladder's tipping over ... . Daley v 250 Park Ave., LLC. 2015 NY Slip Op 01917, 2nd Dept 3-11-15
LEGAL MALPRACTICE/CIVIL PROCEDURE
Question of Fact Re: Whether the "Continuous Representation Doctrine" Tolled the Three-Year Statute of Limitations in a Legal Malpractice Action
The Second Department determined plaintiff had raised a question of fact re: whether the three-year statute of limitations in a legal malpractice action was tolled by the continuous representation doctrine. The court explained the doctrine as follows:
The three-year limitations period applicable to causes of action to recover damages for legal malpractice "may be tolled by the continuous representation doctrine where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" ... . "For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney" ... . " One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties'" ... . Beroza v Sallah Law Firm, P.C., 2015 NY Slip Op 01913, 2nd Dept 3-11-15
MUNICIPAL LAW
Transportation-Contract Bidding Requirement that the Carrier Have an "Out of Service" Rate Less than that Required by the State Was Not Preempted by State Law/The Requirement Was Not Anti-Competitive Merely Because It Excluded Petitioner from Consideration---Analytical Criteria Discussed
The Third Department determined the county's requirement that carriers bidding for a county transportation contract must have an "out of service rate" of less than 15% was not preempted by state law (which allows a 25% out of service rate) and was not "anti-competitive" because the requirement excluded petitioner from consideration. The court explained the relevant analytical criteria:
Preemption applies where there is "express conflict between local and [s]tate law" or "where the [s]tate has evidenced its intent to occupy the field" ... . In the Transportation Law, the Legislature has indicated an intention for the state "to regulate transportation by motor carriers," for both safety and economic reasons (Transportation Law § 137; see Transportation Law § 140 [2]...), and granted exclusive jurisdiction over safety regulations for motor carriers to the Commissioner of Transportation (see Transportation Law § 140 [8]), thereby preempting the field of safety regulations for motor carriers. Although the County's RFB specification of an out of service rate exceeded the inspection pass rate in DOT [Department of Transportation] regulations, which provide that a motor carrier's authority to carry passengers within the state may be suspended or revoked for an out of service rate of 25% or more (see 17 NYCRR 720.32 [a] [2]; see also Transportation Law §§ 145 [1]; 156 [2]), preemption does not apply under the circumstances here. * * *
General Municipal Law § 103 (1) requires that municipalities award purchase contracts above a certain monetary threshold to the "lowest responsible bidder" to protect the public's finances and prevent corruption or favoritism in the awarding of public contracts ... . Municipalities are permitted to include bid specifications that may be more favorable to some bidders over others, as long as the public interest is served and the specifications are not intended to ensure that one particular bidder be awarded the contract ... . Including specifications in a request for bids often has the effect of disqualifying some potential bidders who cannot meet those specifications, but this reality does not invalidate those specifications. If a challenged specification is not facially anticompetitive, courts apply "ordinary rational basis review" in assessing its validity ... . A petitioner bears the burden of demonstrating that the inclusion of the challenged specifications, and the ultimate award of the contract, was the product of actual impropriety, unfair dealing or statutory violation ... . ...
The County's bid specification requiring an out of service rate of less than 15% is not facially anticompetitive, as that standard does not, in and of itself, guarantee the award of the contract to a particular bidder ... . The bid specification here, requiring a safety rating higher than the minimum allowed by DOT for a motor carrier to continue operating within the state, does have some rational basis rooted in the public interest, namely, attempting to assure the safety of children being transported under the County's care. Matter of Blueline Commuter, Inc. v Montgomery County, 2015 NY Slip Op 519277, 3rd Dept 3-12-15
NEGLIGENCE
3/4 Inch Depression Obscured by Puddle of Water Not Trivial As a Matter of Law
The Second Department determined Supreme Court should not have granted summary judgment to the defendant in a slip and fall case. Plaintiff fell when she stepped in a depression which was filled with water. Defendant argued the 3/4 inch depression was trivial and Supreme Court agreed. The Second Department explained the "trivial defect" analytical criteria and noted that plaintiff had alleged the area was poorly lit:
"[W]hether 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 a question of fact for the jury" ... . "Property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" ... . "[T]here is no minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" ..., and "a mechanistic disposition of a case based exclusively on the dimension of the . . . defect is unacceptable" ... . To determine whether a defect is trivial as a matter of law, a court must examine "the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury" ... . "A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" ... . Tesoriero v Brinckerhoff Park, LLC, 2015 NY Slip Op 01938, 2nd Dept 115
NEGLIGENCE/MUNICIPAL LAW
Prior Written Notice Requirement Does Not Apply When It Is Alleged the Municipality Created the Dangerous Condition
The Second Department noted that the "written notice of a dangerous condition" pre-requisite for municipal liability does not apply when it is alleged the municipality created the dangerous condition:
A municipality that has enacted or is subject to a prior written notice statute, such as Village Law § 6-628 or CPLR 9804, may not be subjected to liability for injuries caused by a defective or dangerous condition that comes within the ambit of those laws, such as an alleged defective boardwalk ..., unless it has received written notice of the defect, or an exception to the written notice requirement applies ... . The only two recognized exceptions to the prior written notice requirement are where the municipality created the defect through an affirmative act of negligence, or where the defect resulted from a special use of the property by the municipality which conferred a special benefit on it ... . Moreover, "the affirmative negligence exception is limited to work by the [municipality] that immediately results in the existence of a dangerous condition'" ... .
Where, as here, the plaintiff expressly asserted in the complaint or a bill of particulars that the municipality created the defective condition by an affirmative act of negligence, the municipality, in order to make a prima facie showing in support of a motion for summary judgment, must demonstrate that it did not create the condition ... . Joyce v Village of Saltaire, 2015 NY Slip Op 01925, 2nd Dept 3-11-15
NEGLIGENCE/MUNICIPAL LAW
Criteria for Amendment of Notice of Claim and Serving a Late Notice of Claim Explained (Not Met Here)
The Second Department determined plaintiff's motion to amend his notice of claim and has motion to serve a late notice of claim were properly denied. The criteria for both motions were explained:
A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim ,,, . The proposed amendments to the notice of claim added events that were not described in the original notice of claim and asserted a new claim relating to the operator of the bus ... . Such amendments are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) ... . ...
Among the factors to be considered in determining whether to extend the time to serve a notice of claim are (1), in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose or a reasonable time thereafter, (2) whether the claimant demonstrated a reasonable excuse for the delay in serving the notice of claim, (3) whether the claimant was an infant, or mentally or physically incapacitated, and (4) whether the delay substantially prejudiced the public corporation in defending on the merits ... .
The plaintiff failed to submit evidence establishing that the Transit Authority had actual knowledge of the new facts within 90 days of the incident or a reasonable time thereafter. Priant v New York City Tr. Auth., 2015 NY Slip Op 01933, 2nd Dept 3-11-15
ZONING/CIVIL PROCEDURE/ENVIRONMENTAL LAW
Engineer/Engineering Firm Did Not Have Standing to Contest Variance
The Third Department determined the petitioner, Klein, an engineer who claimed to be representing neighbors opposed to a variance granted by the town zoning board, did not have standing to contest the variance:
The Town Code permits appeals by "any person aggrieved" by, among other things, the zoning administrator's decisions (Code of the Town of Queensbury § 179-14-040 [C]). As the Town Code does not define the quoted phrase, it must be interpreted according to its plain meaning ... . This language seems to be taken directly from Town Law § 267-a (4). This same phrase in that statute has been consistently interpreted to mean a person who "has sustained special damage, different in kind and degree from the community generally" ... . Even without establishing an injury in fact, a person is presumed to have standing if he or she falls within the statute's zone of interests and his or her property is sufficiently proximate to the property at issue ... .
The notice of appeal to the ZBA [Zoning Board of Appeals] listed Klein's engineering firm as the appellant and Klein as the appellant's agent. Klein and his firm did not exhibit any specialized harm and do not own property near the Kitchens' property. Thus, Klein does not have standing in his individual capacity or as an agent for his firm. Klein asserts that at the public hearings and in letters he identified himself as appearing on behalf of neighbors. While this is true, at no point up until the day before the hearing on his appeal did he identify who his clients were. The other petitioners involved in this appeal, who later claimed that Klein was their agent, were not listed on the notice of appeal and did not file a formal designation form naming him as their agent — as the Town generally requires — prior to the expiration of the statute of limitations for appealing an administrative determination. Under the circumstances, the ZBA did not err in finding that Klein was not a duly authorized agent of an aggrieved party during the requisite limitations period for the appeal and was not himself aggrieved, so he had no standing ... . Matter of Fund for Lake George, Inc. v Town of Queensbury Zoning Bd. of Appeals, 2015 NY Slip Op 518831, 3rd Dept 3-12-15