JUST RELEASED

March Page III

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/EDUCATION-SCHOOL LAW

 

Teacher's Termination for a One-Time Mistake "Shocks One's Sense of Fairness"

 

The First Department determined the termination of a teacher's employment was a punishment which "shocked one's sense of fairness."  The teacher, who was well-respected and had an unblemished record, was found to have engaged in sexual conduct with an adult colleague in the school building after hours. The incident was highly publicized.  In finding the punishment too severe, the court wrote:

 

"[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved" ... . * * *

 

While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake ... . Of critical significance is that, unlike matters involving some form of romantic involvement or other inappropriate conduct with a student, petitioner's engaging in what appeared to be consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper.  * * *

 

Nor is there is any indication in the record that petitioner's conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination ... . Matter of Brito v Walcott, 2014 NY Slip Op 01813, 1st Dept 3-20-14

 

ATTORNEYS

 

Attorney's Suit to Recover Fee Dismissed/Failure to Provide Client Notice Re: Right to Arbitrate/Failure to Comply with 22 NYCRR 1215.1

 

The Second Department determined an attorney's suit to recover a fee was properly dismissed because the dlient was not given notice by certified mail of the client's right to elect to arbitrate and because the defendant failed to provide a letter of engagement to or enter a written retainer agreement with the clent:

 

Except in limited circumstances, where an attorney institutes an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client's right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate (see 22 NYCRR 137.6). A plaintiff's failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, require dismissal of the complaint (see Herrick v Lyon, 7 AD3d 571). Here, the Supreme Court properly dismissed the complaint upon finding that the plaintiff failed to properly serve the defendant with written notice of his right to arbitrate the fee dispute, and upon the plaintiff's failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration... . 

 

In addition, the Supreme Court properly found that the plaintiff failed to comply with the requirements of 22 NYCRR 1215.1 and failed to establish that he was entitled to recover legal fees in quantum meruit. Except in limited circumstances, an attorney must provide his or her client with a written letter of engagement or enter into a written retainer agreement explaining, inter alia, the scope of the legal services to be provided, the fees to be charged, and the expenses and billing practices (see 22 NYCRR 1215.1). An attorney's noncompliance with 22 NYCRR 1215.1 does not preclude him or her from recovering the value of professional services rendered on a quantum meruit basis .. . Nonetheless, an attorney who fails to comply with rule 1215.1 bears the burden of proving the terms of the retainer and establishing that the terms of the alleged fee arrangement were fair, fully understood, and agreed to by the client (see id.). Here, the court properly found that the plaintiff failed to comply with 22 NYCRR 1215.1 and failed to establish that the terms of the fee arrangement were fair, fully understood, and agreed to by the defendant. Gary Friedman PC v O'Neill, 2014 NY Slip Op 01711, 2nd Dept 3-19-14

 

 

CIVIL PROCEDURE

 

"Relation-Back" Doctrine Applied Where City Mistakenly Not Named in the Complaint and Statute of Limitations Had Run

 

The Second Department determined the amended complaint against the city should not have been dismissed.  Plaintiff tripped and fell on the Brooklyn Bridge.  Plaintiff's notice of claim named the NYC Department of Transportation (DOT) and the city.  However, when the plaintiff commenced an action, only the DOT was named in the complaint.  The city moved to dismiss after the statute of limitations had run.  The Second Department held that the "relation-back" doctrine applied and the city was compelled to accept the amended complaint.  In explaining the "relation-back" doctrine, the court wrote:

 

Although the statute of limitations had expired on the cause of action insofar as asserted against the City, the plaintiff successfully demonstrated a basis for application of the relation back doctrine (see CPLR 203[b]...). In order for claims against one defendant to relate back to claims asserted against another, a plaintiff must establish that " (1) both claims arose out of the same conduct, transaction or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well'" ... . Here, the plaintiff's claim against the City and the claim against the DOT arose out of the same conduct, transaction, or occurrence, and the City is united in interest with the DOT such that it can be charged with notice of the action commenced by the plaintiff against the DOT ... . Moreover, no prejudice can be asserted by the City, given that a notice of claim was timely served upon both the City and the DOT, and the City proceeded to negotiate a settlement with the plaintiff. The plaintiff further demonstrated that her initial failure to name the City as a defendant was a mistake, rather than an intentional decision not to assert the claim in order to gain a tactical advantage... . Headley v City of New York, 2014 NY Slip Op 01717, 2nd Dept 3-19-14

 

 

CIVIL PROCEDURE/ADMINISTRATIVE LAW/LABOR LAW-CONSTRUCTION LAW/WORKERS' COMPENSATION

 

Finding by Workers' Compensation Law Judge Precluded Suit Under Labor Law and Common Law Negligence

 

Over a two-justice dissent, the Fourth Department determined the finding that no accident occurred by the Workers' Compensation Law Judge precluded plaintiff from suing under the Labor Law and common law negligence for an injury allegedly incurred while working on a house.  The court rejected the argument that the Workers' Compensation proceeding dealt soley with the existence or non-existence of an employer-employee relationship:

 

The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” ... . Thus, “[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” ... . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” ... .Here, defendant met his burden on his motion by establishing the “identicality and decisiveness of the issue” decided in the workers’ compensation proceeding... . Ridge v Gold, et al, 1300, 4th Dept 3-21-14

 

 

CIVIL PROCEDURE/MUNICIPAL LAW/EMPLOYMENT LAW

 

Untimely Demand for Reinstatement Warranted Dismissal of Action to Compel Reinstatement

 

The Fourth Department determined petitioner's action to compel reinstatement in his job as a policeman was untimely.  Petitioner should have made a demand for reinstatement within four months of learning he was not being held responsible criminally or civilly for the acts of misconduct alleged against him:

 

“Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee’s demand for reinstatement is refused” ... . “[T]he demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [petitioner] becomes aware of the facts which give rise to his [or her] right of relief” ... , and we note that the four-month limitations period of CPLR article 78 proceedings has been “treat[ed] . . . as a measure of permissible delay in the making of the demand” ... . Here, we conclude that petitioner’s right to demand reinstatement to his position arose, at the latest, on or about December 6, 2011, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury ... . Nevertheless, petitioner did not demand reinstatement to his position until approximately nine months later, on August 31, 2012, well over the four-month guideline applied in Devens ... . Thus, “it was [well] within the court’s discretion to determine that petitioner unreasonably delayed in making the demand” ... . Matter of Norton v City of Hornell..., 256, 4th Dept 3-21-14

 

CIVIL PROCEDURE/NEGLIGENCE

 

Plaintiff Could Not Rely On Code Provisions Not Mentioned in Plaintiff's Bill of Particulars to Defeat Summary Judgment

 

The Second Department determined Supreme Court correctly declned to allow plaintiff to rely on provisions of the Administrative Code which were not included in plaintiff's bill of particulars.  Plaintiff, in response to defendant's (16302 Jamaica's) motion for summary judgment, alleged that plaintiff had violated provisions of the code which required defendant, an out-of-possession landlord, to keep the premises where plaintiff fell safe.  But because the provisions relied upon in response to the summary judgment motion were not the same provisions listed in the bill of particulars, Supreme Court refused to consider them and granted summary judgment to the defendant.  

 

Although the plaintiff contends on appeal that 16302 Jamaica violated other provisions of the Administrative Code of the City of New York that imposed a statutory duty upon it to make repairs or maintain the premises in a safe condition, the plaintiff, in response to 16302 Jamaica's demand for a bill of particulars, failed to identify these provisions either in his initial bill of particulars, his first supplemental bill of particulars, or his second supplemental bill of particulars. Thus, 16302 Jamaica was never placed on notice during the course of discovery that the plaintiff would rely upon these additional provisions of the Administrative Code as a predicate for its liability. Under these circumstances, the Supreme Court did not improvidently exercise its discretion in declining to allow the plaintiff to rely on those Administrative Code provisions in opposing 16302 Jamaica's motion for summary judgment ... . Wenzel v 16302 Jamaica Ave LLC, 2014 NY Slip Op 01744, 2nd Dept 3-19-14

 

 

CONTRACT LAW/EMPLOYMENT LAW

 

Failure to Mention the Rate of Compensation Required Dismissal of the Contract Cause of Action Under the Statute of Frauds/However the Allegation Defendant Employed Plaintiff Was Sufficient to Allow the Quantum Meruit Cause of Action to Go Forward

 

The First Department determined the contract cause of action must be dismissed under General Obligations Law 5-701(a)(10) because there was no mention of the rate of compensation,  but that there were sufficient allegations to allow the quantum meruit cause of action to go forward:

 

In Davis & Mamber, this Court held that for a writing evidencing a contract "[t]o satisfy the Statute of Frauds . . . a memorandum must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter" ... . ... Davis & Mamber precluded a contract claim for failure to satisfy the applicable provision of the statute of frauds, because the relied-on writings lacked any reference to the agreed-on compensation; however, it permitted a quantum meruit claim, because the rule for a writing establishing quantum meruit claims is less exacting, requiring only that the writing "evidenced the fact of plaintiff's employment [by defendant] to render the alleged services" .... Here, as in Davis & Mamber, the emails ... fail to make any reference to payment terms, and accordingly fail to satisfy the statute of frauds as to the contract claim ... . However, they suffice to show that [defendant] employed plaintiff, and are therefore enough to satisfy the statute for purposes of plaintiff's quantum meruit claim.  Chapman, Spira & Carson LLC v Helix BioPharma Corp, 2014 NY Slip Op 01685, 1st Dept 3-18-14

 

 

CRIMINAL LAW/ATTORNEYS

 

Prosecutor's Remarks in Summation, in Combination with the Erroneous Admission of Portions of a Recorded Phone Call Made by the Defendant from Jail, Warranted Reversal

 

In reversing defendant's conviction, in part, because of the prosecutor's remarks in summation, the Second Department wrote:

 

...[C]ertain comments in the prosecutor's summation were improper, including the comments in which the prosecutor denigrated the defense, vouched for the truthfulness of prosecution witnesses, and shifted the burden of proof to the defense by, inter alia, stating that the defendant had not established reasonable doubt or established that the People's witnesses were untruthful or engaged in a "conspiracy," and improperly commented on the defendant's failure to call a certain witness... .  People v King, 2014 NY Slip Op 01770, 2nd Dept 3-19-14

 

 

CRIMINAL LAW/EVIDENCE

Police Did Not Have Founded Suspicion of Criminal Activity When Path of Parked Car Was Blocked by Police Vehicle/Suppression of Seized Drugs Should Have Been Granted

 

The Second Department determined defendant's suppression motion should have been granted.  After seeing a man approach the window of a parked car, but without seeing what was exchanged, the police blocked the parked car with the police vehicle, approached and ultimately arrested defendant.  The Second Department determined blocking the path of the parked car was a "stop" and the police did not have a "founded suspicion" of criminal activity at that point:

 

Although the detective who stopped the defendant's car was trained in identifying narcotics transactions and was aware of numerous drug transactions in the neighborhood, including some involving car deliveries of drugs, he did not see what the defendant and the pedestrian exchanged, could not see if one of the men gave the other something in return for something else, and did not see money pass between the two men .... Moreover, the detective saw only one exchange ... , did not describe any furtive conduct on the part of the two men ..., or, indeed, any other conduct that would give rise to a reasonable suspicion that he was observing a drug transaction .... The detective's observations supported only a "founded suspicion that criminal activity [was] afoot" ..., which is insufficient to justify the stop of the defendant's car ... . Consequently, that branch of the defendant's omnibus motion which was to suppress the crack cocaine must be granted. People v Loper 2014 NY Slip Opinion 01771, 2nd Dept 3-19-14

 

CRIMINAL LAW/EVIDENCE

 

Probable Cause to Search Vehicle for a Weapon After Defendant's Arrest Provided by Identified Citizen Informant

 

The Fourth Department determined a weapon was properly seized from a vehicle after defendant's valid arrest based on information from an identified citizen informant:

 

It is well settled that, “ ‘where police have validly arrested an occupant of an automobile, and they have reason to believe that [it] may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein’ ” ... .Here, as noted, there is no dispute that defendant was lawfully stopped and arrested. Rather, the issue before us is whether the police lawfully searched the vehicle defendant was driving. Even assuming, without deciding, that the police did not conduct a lawful inventory search, we conclude that a search was authorized because the police had probable cause to believe that a gun was inside the vehicle. Probable cause arose from the information provided to the police by the identified citizen informant, who stated that she observed one of the occupants of defendant’s vehicle in possession of what appeared to be a handgun used in the abduction of her boyfriend. “An identified citizen informant is presumed to be personally reliable” ...  and, here, the informant had a sufficient basis of knowledge inasmuch as she personally observed the weapon in question... . People v Holmes, 95, 4th Dept 3-21-14

 

 

CRIMINAL LAW

Grand Jury Proceedings Not Rendered Defective by Prosecutor's Introduction of New Evidence After First True Bill Voted

 

The Fourth Department determined an indictment should not have been dismissed.  The grand jury proceedings were not rendered defective when the prosecutor reopened the proceedings to introduce more evidence after the grand jury voted the first true bill:

 

... [T]he court held that the grand jury proceedings were defective because the People, without seeking a formal vote of at least 12 members of the grand jury, submitted additional evidence after the grand jury had voted the first true bill, but before an indictment had been filed. Contrary to the court’s conclusion, Cade [74 NY2d 410] does not hold that a grand jury must vote to vacate a prior true bill that has not been filed as an indictment in order to reopen the proceedings and introduce additional evidence in support of proposed charges that were not previously considered by the grand jury ... . Indeed, in Cade, the Court of Appeals noted that there are reasons, other than a prosecutor’s belief that the evidence before the grand jury was inadequate or that dismissal was likely, “why a prosecutor or a [g]rand [j]ury would choose to reopen the evidence. The prosecutor might, for example, supplement the evidence to bring additional or higher charges” ... . Moreover, unlike the procedure that was in any event approved in Cade, here the prosecutor never requested that the grand jury reconsider the lower charge of assault in the second degree in light of the additional evidence ... . Thus, inasmuch as there was no second presentment of that charge, the grand jury was not required to vacate its prior vote. We therefore conclude that the integrity of the grand jury was not impaired ... . In view of our conclusion, we do not address the issue whether defendant was prejudiced by the procedure employed here. People v Grimes, 131, 4th Dept 3-21-14

CRIMINAL LAW/ATTORNEYS

 

Dissent Would Have Reversed Based Upon Prosecutor's Mischaracterization of the Probative Force of the Particular Form of DNA Evidence Presented at Trial

 

Although the Fourth Department affirmed defendant's conviction, two justices would have reversed on prosecutorial misconduct and ineffective assistance grounds.  The murder prosecution was based upon circumstantial evidence, including DNA evidence.  The DNA evidence, according to the dissenters, formed the crux of the People's case. The dissent offers a detailed explanation of the different types of DNA evidence, and the probative scope of each. According to the dissenters, the prosecutor mischaracterized the DNA evidence in summation, ascribing to it more probative force than it really had. Defense counsel was deemed ineffective by the dissenters for failing to object.  From the dissent:

 

[FROM THE DISSENT:] In light of the circumstantial nature of all of the evidence against defendant, we cannot conclude that the jury would have reached the same result had not the prosecutor both mischaracterized and emphasized the DNA evidence on summation, which evidence the People made the linchpin of their case. Here, the testimony of the People’s forensic expert put defendant in only a statistically-undefined group of people whose DNA could have been found on the victim’s underwear, on the ligature, and in the sperm fraction from the vaginal swab. In other words, that evidence placed defendant in a class of people that could have contributed to the DNA, but the prosecutor argued to the jury that the analysis of the DNA established defendant as the DNA’s contributor. We conclude that the prosecutor’s willful and repeated mischaracterization of evidence of class as evidence of exactitude was misconduct that could have “ ‘tip[ped] the scales against defendant’ ” ... . We cannot conclude that the same result herein “would undoubtedly have been reached” absent that misconduct .... . People v Wright, 1247, 4th Dept 3-21-14

 

 

 

 

 

 

 

 

CRIMINAL LAW/CONSTITUTIONAL LAW

 

Conditioning Co-Defendant's Plea on a Promise Not to Testify in Defendant's Trial Is a Denial of the Right to Present a Defense

 

Although the Fourth Department affirmed defendant's conviction, the court agreed with the defendant that the People improperly conditioned co-defendant's plea upon his promise not to testify at defendant's trial and threatened to increase the co-defendant's sentence if he did testify.  The trial court eliminated the problem by permitting the co-defendant to testify without exposure to a more severe sentence:

 

We agree with defendant that it was improper for the People to condition the plea of a codefendant upon his promise not to testify at defendant’s trial and to threaten to increase the codefendant’s sentence should he violate that condition ..... As the United States Supreme Court wrote in Washington v Texas (388 US 14, 19), “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he [or she] has the right to present his [or her] own witnesses to establish a defense. This right is a fundamental element of due process of law.” Thus, “substantial interference by the State with a defense witness’ free and unhampered choice to testify violates due process as surely as does a willful withholding of evidence” ... . Here, however, defendant was not prejudiced by the improper plea condition inasmuch as the court granted his motion to permit the codefendant to testify on defendant’s behalf without exposure to a more severe sentence, and the court advised the codefendant of its ruling .... . People v Whitfield, 99, 4th Dept 3-21-14

 

 

MENTAL HYGIENE LAW/CIVIL COMMITMENT/CIVIL PROCEDURE/CONSTITUTIONAL LAW/APPEALS

 

Involuntary Mental Health Patient Should Not Have Been Released Pursuant to a Habeas Corpus Petition Without an "Examination Into the Patient's Alleged Disability and Detention," Despite the Hospital's Untimely Request for Continued Detention (in Violation of the Mental Hygiene Law)/Appellate Court's Ability to Hear a Moot Case Explained (Mootness Doctrine)

 

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that immediate release of an involuntaty patient from a mental health hospital pursuant to a writ of habeas corpus because of the facility's failure to comply with the Mental Hygiene Law provisions for continued detention was reversible error.  Supreme Court should have conducted an examination into the patient's alleged disability and detention.  The court discussed the nature and origin of the habeas corpus petition and the relationship between a habeas corpus petition brought under the Mental Hygiene Law and under Article 70 of the CPLR (finding them to be in essence the same). In addition, the Second Department discussed the mootness doctrine which, under certain circumtances, allows an appellate court to hear  a moot case.  The habeas corpus petition here had been rendered moot by the patient's release:

 

Generally, courts are precluded "from considering questions which, although once live, have become moot by passage of time or change in circumstances" .... . Typically, "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" ... . However, an exception to the mootness doctrine permits a court to review a case if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question ... .Here, the release of the patient renders this appeal academic. We nevertheless exercise our discretion to review the issues raised on this appeal pursuant to the exception to the mootness doctrine because the primary issue raised is an important one which implicates both the patient's fundamental liberty interest and the State's interest in protecting the mentally ill, and is one which is likely to recur. Further, the primary issue involved here may typically evade review because "[t]he Mental Hygiene Law contemplates that involuntary hospitalization in a mental health facility is often brief and temporary . . . [and the law] require[s] frequent periodic review of a patient's status, and the release of the patient unless OMH is granted successive court orders authorizing retention" ... . * * *

 

Here, the patient was initially involuntarily hospitalized pursuant to Mental Hygiene Law article 9 due to his alleged mental illness and, thereafter, the petition for a writ was filed on the patient's behalf. The purpose of the writ of habeas corpus was to determine whether the patient was being unlawfully detained (see CPLR 7002[a]... ). Therefore, in order to determine the cause and legality of the patient's detention, the Supreme Court was required to examine the facts of the patient's alleged mental disability and detention (see Mental Hygiene Law § 33.15[a], [b]; CPLR 7002). The Supreme Court's failure to conduct the required examination constitutes reversible error. We note that the Hospital supported its untimely retention application with, inter alia, two certificates from the patient's treating physicians. In those certificates, the physicians asserted that the patient was paranoid, unable to care for himself, and psychotic. Our determination should not be construed as an approval of the Hospital's dilatory conduct in filing the retention application. There is no dispute that the Hospital failed to comply with Mental Hygiene Law § 9.33. Under the circumstances presented, however, the remedy for such noncompliance is not the immediate release of a patient. We also caution that our reasoning should not be construed to authorize an unlimited violation of article 9 of the Mental Hygiene Law so as to allow a patient to be involuntarily retained, without a hearing, indefinitely. People v Munsey, 2014 NY Slip Op 01782, 2nd Dept 3-19-14

 

 

DISCIPLINARY HEARINGS (INMATES)

 

Inadequate Effort to Provide Requested Documents and Witnesses Required Annulment of the Misbehavior Determination

 

The Fourth Department annulled the determination against an inmate because of inadequate assistance.  The court found that the inmate was improperly denied requested documents and witnesses:

 

...[W]e note that the Hearing Officer indicated that the signatures of the hall captains were illegible and thus unidentifiable, even by those officers in the block to whom the Hearing Officer had spoken, but nevertheless agreed to “try” to comply with petitioner’s request to call those witnesses. The record does not reflect any efforts made by the Hearing Officer to do so.

 

We further agree with petitioner that he was denied meaningful employee assistance and was prejudiced by the inadequate assistance he received. Thus, at a minimum, petitioner would have been entitled to a new hearing in any event ... . Petitioner objected to the assistance provided to him, complaining that the assistant did not bring him copies of the documents being used against him and that the assistant did not want to help him. “When the inmate is unable to provide names of potential witnesses, but provides sufficient information to allow the employee [assistant] to locate the witnesses ‘without great difficulty[,’] failure to make any effort to do so constitutes a violation of the meaningful assistance requirement” ... . The record fails to set forth what efforts, if any, the employee assistant made to ascertain the names of the correction officers who signed the disbursement forms and what measures, if any, the assistant took to secure their presence at the hearing. Under the circumstances, it cannot be said that “reasonable efforts were made to locate petitioner’s witnesses” ... .

 

Furthermore, petitioner was denied the right to call a witness,i.e., the other inmate, as provided in the regulations ... . “The hearsay report of a correction officer that a witness refuses to testify unaccompanied by any reason from the witness proffered to the [H]earing [O]fficer for such refusal is not a sufficient basis upon which an inmate’s conditional right to call witnesses can be summarily denied” ... . Matter of Elder v Fischer, 90, 4th Dept 3-21-14

 

 

ENVIRONMENTAL LAW/ADMINISTRATIVE LAW/LAND USE

 

Challenge to Environmental Impact Statement Premature/Not Ripe for Adjudication Until the Special Use Permit and Site-Plan Approval (which Precipated the Enviromental Review) Are Issued 

 

The Second Department determined a challenge to finding pursuant to the State Environmental Quality Review Act (SEQRA) was not ripe.  The environmental review was precipitatied by an application for a special use permit and site-plan approval.  Although the town board had approved the final environmental impact statement (FEIS), the special use permit and site-plan approval were still pending:

 

An action taken by an agency pursuant to SEQRA may be challenged only when such action is final (see CPLR 7801[1]). An agency action is final when the decisionmaker arrives at a " definitive position on the issue that inflicts an actual, concrete injury'" ... . The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party ... .Here, the issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication... . Matter of Patel v Board of Trustees of Inc Vil of Muttontown, 2014 NY Slip Op 01756, 2nd Dept 3-19-14

 

 

EVIDENCE/MUNICIPAL LAW/CIVIL RIGHTS LAW

 

Hearsay in Medical Records Should Have Been Redacted/Not Relevant to Diagnosis and Not Clearly Attributable to Plaintiff as an Admission

 

Although the error was deemed harmless, the First Department determined hearsay statements should have been redacted from the plaintiff's medical records.  The plaintiff alleged the police had pushed him over a fence, causing injury.  The defendants alleged plaintiff jumped.  The medical records included references to the plaintiff's "jumping." The jury found for the defendants.  The court explained how hearsay in a medical report should be handled:

 

Hearsay entries regarding the cause of an injury contained in a medical record come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff's injuries ... . Alternatively, the entry may be admissible as an admission, but only if there is evidence that connects the party to the entry ... . The challenged entries were neither germane to treatment or diagnosis, nor were they admissions.

 

There was simply no evidence supporting defendants' position that the medical doctors needed to know whether plaintiff jumped or was pushed from the fence in order for doctors to determine what medical testing he needed upon admission to the hospital. No medical expert provided such testimony ... . Defendants' only expert, a biomechanical engineer and accident reconstruction expert, opined that plaintiff's injuries were consistent with a jump from a height and not a push to a fall. He did not give any opinion on issues relating to treatment or diagnosis. This is not a case where the conclusion is so obvious that no medical testimony is needed to lay the appropriate evidentiary foundation ... .

 

The particular challenged entries cannot be characterized as admissions. Although the Lincoln Medical and Mental Health Center Admission Assessment form has a box checked that "patient" is the source of the information, the particular entry on that record, "he jumped off the fence," is not clearly a direct statement attributable to or a quote of plaintiff. The Ambulance Call Report form identifies "PO" or the police officer as the source of the information that plaintiff "jumped off a fence." No other evidence in the record identifies plaintiff as being the source of this information. Nor is there any evidence connecting plaintiff to the 1/21/97 entry in the Progress Record that "s/p fell from a fence after being chased by police officers" or the 1/23/97 entry "fall from 2 storeys [sic]" to make them admissible as admissions by him. These entries should have been redacted from the medical records received in evidence.  Benavides v City of New York 2014 NY Slip Op 01682, 1st Dept 3-18-14

 

 

EMPLOYMENT LAW/CONTRACT LAW/MUNICIPAL LAW

 

Under the Unambiguous Terms of the Collective Bargaining Agreement, Plaintiff, a Retiree Who Was No Longer a Union Member, Was Not Subject to the Grievance-Filing Requirement and Could Sue Directly

 

The Fourth Department determined a retired employee was not required to go through the grievance procedure outlined in the Collective Bargaining Agreement because the unambiguous language of the CBA did not apply to retirees no longer union members:

 

In relevant part, the CBA defines the term “grievance” broadly as “a controversy, dispute or difference arising out of the interpretation or application of this contract.” The first step of the grievance procedure requires either the union or a “member” to present the grievance in writing. “It is well established that[,] when reviewing a contract, ‘[p]articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties manifested thereby’ " ... . Furthermore, we“must give the words and phrases employed their plain meaning” ... . Elsewhere in the CBA, the word “member” is used interchangeably with the word “employee,” and several CBA provisions that apply to “members,” such as provisions for holiday pay and annual physicals, clearly affect only active employees. In addition, the CBA provides that the Village recognizes the union “as the exclusive representative for collective negotiations with respect to salaries, wages, and other terms and conditions of employment of all full-time and part-time employees” (emphasis added).

 

Giving the word “member” its plain meaning, and interpreting the contract as a whole, we agree with plaintiff that the word “member” means a member of the union. It is undisputed that plaintiff ceased to be a member of the union after his retirement. Thus, according to the clear and unambiguous terms of the CBA, plaintiff, who was no longer a “member” of the union when he became aggrieved, could not file a grievance. Buff v Village of Manlius..., 37, 4th Dept 3-21-14

 

FALSE ARREST/FALSE IMPRISONMENT/MUNICIPAL LAW

 

Plaintiff Arrested Without a Warrant Based Upon Illegally Seized Evidence Granted Summary Judgment in False Arrest/Imprisonment Action

 

The Second Department determined plaintiff was entitled to summary judgment on his false arrest/imprisonment cause of action. Plaintiff was arrested without an arrest warrant based upon evidence seized in an illegal search:

 

"In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged" ... . " The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim'" ... .When an arrest is made without a warrant, a presumption arises that it was unlawful, and a defendant must then show that a factual question exists as to whether the arrest was based on probable cause ... . Evidence which is illegally obtained in violation of a plaintiff's rights may not be used to establish probable cause ... . Fakoya v City of New York, 2014 NY Slip Op 01709, 2nd Dept 3-19-14

 

 

FAMILY LAW/IMMIGRATION LAW

 

Mother Entitled to Hearing/Children May Be Eligible for Special Immigrant Status

 

The Second Department reversed Family Court and sent the mother's custody petition back for a hearing.  The mother alleged father had abandoned the children and the children, due to their immigration status, could be returned to El Salvador where they could be victimized by family and gangs. Mother argued the children could apply for special immigrant status if she were awarded custody:

 

The Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children. A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70[a]; Family Ct Act § 511...). According to the petitioner, the children's father has abandoned the children and, due to their immigration status, they could be returned to El Salvador where they have been subjected to abuse by family members and threats by gang members. The petitioner has alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status... . Matter of Sanchez v Bonilla, 2014 NY Slip Op 01761, 2nd Dept 3-19-14 

 

 

FAMILY LAW/CONTRACT LAW

 

Supreme Court Should Not Have Reformed Settlement Agreement/Criteria for "Mutual Mistake" Not Met

 

The Second Department determined Supreme Cout should not have found that mutual mistake required reformation of a settlement agreement.  The court explained the operative criteria:

 

"Marital settlement agreements are judicially favored and are not to be easily set aside" ... . Although a mutual mistake by the parties may form the basis for reformation of a marital settlement agreement, "the mistake must be so material that . . . it goes to the foundation of the agreement'" ... . "[T]o overcome the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties, evidence of a very high order is required" ... . The party seeking reformation must show clearly and beyond doubt that there has been a mutual mistake, and must show "with equal clarity and certainty the exact and precise form and import that the instrument ought to be made to assume, in order that it may express and effectuate what was really intended by the parties'" ... . Hackett v Hackett, 2014 NY Slip Op 01715, 2nd Dept 3-19-14

 

 

FAMILY LAW/EVIDENCE

 

Child's Out-of-Court Statements Corroborated by Child Abuse Expert/Hearsay Provided Adequate Basis for Finding of Abuse

 

The Second Department determined Family Court properly ruled that a child's out-of-court statements were corroborated by a child abuse expert:

 

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]). Validation testimony from an expert that the child's psychological and behavioral characteristics lead the expert to conclude that the child was sexually abused may supply the corroboration of the child's out-of-court statements necessary to make out a prima facie case of sexual abuse ... . However, as with any expert opinion, the validation testimony must meet a threshold of reliability ... . "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 ... .Contrary to the father's contention, the record supports the Family Court's determination that the testimony of the petitioner's child sexual abuse expert sufficiently corroborated Alexis S.'s out-of-court disclosures so as to establish a prima facie case of sexual abuse against the father... . Matter of Alexis S 2014 NY Slip Op 01759, 2nd Dept 3-19-14

 

 

IMMUNITY/CIVIL PROCEDURE/MUNICIPAL LAW/ADMINISTRATIVE LAW

 

Taxi Owners Not Entitled to Damages After Ruling by NYC Taxi and Limousine Commission (Which Was Alleged to Have Damaged the Taxi Owners in the Amount of Over $15 Million) Was Found Arbitrary and Capricious

 

The First Department determined a ruling by the NYC Taxi and Limousine Commission (TLC), which was found to be arbitrary and capricious by the Court of Appeals, did not entitle the petitioners (taxi owners who lease their taxis to drivers) to damages. The court determined the damages were not "incidental" within the meaning of Article 78 and were not available in an Article 78 proceeding (under the facts). The court futher determined the TLC was immune from suit because the ruling at issue was an exercise of discretion . The ruling by the TLC had effectively reduced the amount a taxi owner could charge a driver by requiring that tax payments for which the owner is responsible be included in the amount charged for the lease (called a "lease cap"). After that ruling was found arbitrary by the Court of Appeals, the taxi owners sought "incidental damages" of over $15 million:

 

Petitioners seek damages based on the Court of Appeals' determination that the TLC's effective reduction of the taxi "lease cap" had no rational basis. The Court of Appeals' determination, however, does not lead to a conclusion that the damages are "incidental to the primary relief sought" (CPLR 7806). Contrary to petitioners' argument, monetary injury incurred as a result of agency action does not necessarily constitute incidental damages simply because a court later finds the action to have been arbitrary and capricious. Certainly, whether damages are characterized as incidental "is dependent upon the facts and issues presented in a particular case" ... . Even so, incidental damages are generally confined to monies that an agency either collected from or withheld from a petitioner and then was obligated to reimburse after a court annulled a particular agency determination. * * *

 

CPLR 7806 explicitly limits the availability of damages in an article 78 proceeding ... . That article 78 permits the court, in certain circumstances, to award damages in an action that also reviews the validity of a government determination does not create a right to damages that does not otherwise exist. * * *...

 

[T]he TLC's determination in this case, however unjustified it may have been, was an exercise of discretion; the TLC did consider the issue of imposing the tax rule and decided to impose it. Putting aside the merits of its decision, there is no escaping that the TLC exercised its discretion. Indeed, a governmental function such as rulemaking is necessarily an "exercise of judgment and discretion performed in the public interest," and is protected as a discretionary act ... . Accordingly, in a plenary action, governmental immunity would preclude petitioners from recovering incidental damages. Metropolitan Taxicab Bd of Trade v New York City Taxi & Limousine Commn, 2014 NY Slip Op 01683, 1st Dept 3-18-14

 

 

JUDGES/CONSTITUTIONAL LAW

 

City-Judge Pay Disparity Justified by Population of Cities

 

The Fourth Department reversed Supreme Court finding that the pay disparity between City of Buffalo and City of Tonawanda judges, as set forth in Judiciary Law 221-i, was constitutional:

 

It is undisputed that the disparate judicial salary schedule set forth in Judiciary Law § 221-i does not implicate a suspect class or a fundamental right, and thus it is subject to the rational basis standard of review... . Such rational basis review “is a paradigm of judicial restraint” ... . “A statute subject to rational basis scrutiny is presumed to be constitutional, and the party challenging the statute bears the heavy burden of proving that there is no reasonably conceivable state of facts which rationally supports the distinction” ... . Thus, “the State has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data” ... .

 

Here, we conclude that there is a rational basis for the salary disparity between Tonawanda City Court and Buffalo City Court judges and, thus, that the disparity does not violate equal protection... . The cities of Buffalo and Tonawanda, although both located within Erie County and separated by only 12 miles, are very different municipalities. Buffalo is the largest city in Erie County and the second largest city in New York State. Tonawanda, by contrast, is “[o]ne of the smallest cities in Erie County.” Nearly one third of the residents of Erie County (28%) live in Buffalo, while only 1.5% of the county’s population resides in Tonawanda. In 2009, Buffalo’s population was 18 times the size of Tonawanda’s, i.e., 270,240 residents as compared to 14,766 residents. Tonawanda City Court has one full-time judge and one “half-time” judge, while Buffalo City Court has 13 full-time judges. Buffalo therefore has 20,787 residents per judge, which is more than twice the 9,844 residents per judge in Tonawanda.

 

We agree with defendants that it is rational for the State to pay a higher salary to judges who serve a larger population both as a proxy for caseload and as an indicator of potential future filings. Cassata v State of New York..., 183, 4th Dept 3-21-14

 

LABOR LAW-CONSTRUCTION LAW

 

"General Supervision" of Work Site Did Not Trigger Liability Under Labor Law 241(6)

 

The Second Department determined  a company (Draghi) hired by the home builder (Majestic)  to do framing work and general supervision was not liable to plaintiff (who was injured when he tripped while using stilts to work on the ceiling) under Labor Law 241(6):

 

Draghi demonstrated its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action insofar as asserted against it by establishing that it was not an owner, general contractor, or statutory agent of the owner or general contractor ... . Draghi did not hire any contractors and was not charged with "the duty of co-ordinating all aspects of [the] construction project" ... . Rather, Draghi merely assumed a role of "general supervision," pursuant to which it checked the progress of the work and reported to Magestic ... . Draghi demonstrated that it did not have the ability to control the activity which brought about the plaintiff's injury ... . Thus, Draghi established that it could not be held liable under Labor Law § 241(6)... . Gonzalez v Magestic Fine Custom Home, 2014 NY Slip Op 01713, 2nd Dept 3-19-14

 

 

LABOR LAW-CONSTRUCTION LAW

Construction Manager Not Liable Under Labor Law 241(6), Labor Law 200, or Under Common Law Negligence/No Control Over Work or Responsibility for the Premises

 

Over a dissent, the Fourth Department determined a construction manager was not liable as an agent of the owner under Labor Law 241(6) because the manager did not control the activity which resulted in the injury.  In addition the court determined the Labor Law 200 and common law negligence causes of action should hav been dismissed:

 

A construction manager may be liable as an agent of the owner if “the manager had the ability to control the activity which brought about the injury” ... . “ ‘Defendant established as a matter of law that it was not an agent of the owner because the owner had not delegated to it the authority to supervise and control plaintiff’s work’ ” ... . Pursuant to the express terms of the contract between defendant and the District, defendant “had no control over or responsibility for the safety of the workers at the construction site” ... . The deposition testimony and affidavits submitted by defendant established that defendant acted in accordance with its authority under the contract, i.e., coordinating the schedules of the contractors and ensuring that their work complied with the requirements of the construction documents, and did nothing more. * * *

 

“Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” ... . On the other hand, where the “ ‘plaintiff’s injuries stem not from the manner in which the work was being performed[ ] but, rather, from a dangerous condition on the premises, [an owner or] general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition’  ... . Regardless of which theory applies here, defendant was not an agent of the owner and “was not responsible either for the performance of [plaintiff’s] work or the premises on which that work was undertaken” ... . Hargrave...v LeChase Construction Services LLC, 1373, 4th Dept. 3-21-14

 

 

MUNICIPAL LAW/TAX LAW

 

County Not Entitled to Dismissal of Suit Seeking Refund of Taxes Declared Wrongly Collected by the Court of Appeals

 

The Second Department determined that the plaintiffs' action seeking the refund of taxes wrongfully collected on "mass property" was properly allowed to proceed.  "Mass property" includes things like power lines, poles, transformers, etc. The defendants had been collecting ad valorem taxes on the mass property for garbage collection.  Ultimately the Court of Appeals held that such taxes could not be collected on mass property, which did not produce garbage.  The defendants argued that they were not obligated to refund the taxes paid and moved to dismiss on that ground.  In affirming the denial of that motion, the Second Department explained that the invalidation of the ad valorem tax did not meet the criteria for when a court holding should be given only prospective application in the context of taxation:

 

...[W]here a municipality has reasonably relied upon a widespread and longstanding practice ... or a statute is later invalidated ..., and where applying the invalidation retroactively would call into question "a settled assessment roll or property rights based thereon," a court may exercise its discretion by giving its holding only prospective application ... . Here, the County defendants' submissions have not demonstrated that awarding the plaintiffs the refunds they seek would call into question settled assessment rolls or property rights based thereon. Keyspan Generation LLC v Nassau County, 2014 NY Slip Op 01721, 2nd Dept 3-19-14

 

 

NEGLIGENCE

 

Bicyclist's Negligence as a Matter of Law Did Not Warrant Summary Judgment to Defendant (Bus Driver, etc.)/There Can Be More than One Proximate Cause of an Accident

 

The Second Department determined that the fact that the plaintiff was riding his bicycle the wrong way on a one-way street (negligence as a matter of law)  did not mandate summary judgment for the defendant bus driver (Wright).  There can be more than one proximate cause to an accident and defendant failed to demonstrate it was free from fault:

 

Although the plaintiff concedes that he was negligent as a matter of law by traveling the wrong way on Adams Street in violation of Vehicle and Traffic Law § 1127(a) ..., there can be more than one proximate cause of an accident, and the proponent of a motion for summary judgment has the burden of establishing freedom from comparative fault as a matter of law ... .

 

Here, the defendants failed to make a prima facie showing as a matter of law that Wright was free from any comparative fault in the happening of the accident. There are triable issues of fact as to whether Wright failed to see what was there to be seen through the proper use of his senses ..., failed to exercise due care to avoid the collision (see Vehicle and Traffic Law § 1146[a]...), or was traveling at a reasonable and prudent speed as he approached the intersection in light of the conditions then present ... . Espiritu v Shuttle Express Coach Inc, 2014 NY Slip Op 01707, 2nd Dept 3-1914

 

NEGLIGENCE/EDUCATION-SCHOOL LAW

 

Knowledge of the Health Issue Underlying Plaintiff's Claim, and Knowledge of Another Similar Claim, Was Not Enough to Provide Defendant with Notice of Plaintiff's Claim/Request to File Late Notice of Claim Should Not Have Been Granted

 

Over a two-justice dissent, the Fourth Department determined Supreme Court erred in granting plaintiff's application to file a late notice of claim.  Plaintiff, a wrestler, had contracted herpes from another high school wrestler.  The school had knowledge of the issue (a Health Advisory) and of another wrestler's claim against the school based upon the same facts.  The Fourth Department determined that knowledge of the issue and the  other wrestler's claim was not sufficient to put the school on notice about the plaintiff's claim:

 

Where a claimant does not offer a reasonable excuse for failing to serve a timely notice of claim, a court may grant leave to serve a late notice of claim only if the respondent has actual knowledge of the essential facts underlying the claim, there is no compelling showing of prejudice to the respondent ..., and the claim does not “patently lack merit” ... . Here, respondents asserted that, until claimant made the instant application, they had no knowledge that he had contracted herpes or otherwise had been injured at the tournament. Although claimant offered no evidence to the contrary, he essentially contended that respondents should have known of his injury because another wrestler had filed a timely notice of claim regarding an identical injury and because respondents had received Health Advisory #279a.

 

As we have repeatedly stated, actual knowledge of the essential facts of a claim requires “[k]nowledge of the injuries or damages claimed by a [claimant], rather than mere notice of the underlying occurrence” ... . Here, claimant’s proof in support of his application establishes, at most, that respondents had constructive knowledge of his claim. In other words, there is nothing in the notice of claim filed by the other wrestler who was infected at the tournament or in Health Advisory #279a that gave respondents actual knowledge that claimant was similarly injured.Thus, even assuming, arguendo, that respondents suffered no prejudice from the delay and that the proposed claim against them does not patently lack merit, we conclude that the court abused its discretion in granting claimant’s application for leave to serve a late notice of claim ... . Matter of Candino v Starpoint Central School District, 83, 4th Dept 3-21-14

 

NEGLIGENCE/MUNICIPAL LAW/IMMUNITY

 

Requirements for a Negligence Action Against a Municipality (Based Upon Personal Injuries Allegedly Caused  by the Actions of Police Officers) Explained

 

The Fourth Department, in affirming the grant of summary judgment to the defendant municipality in a suit based upon injuries alleged to have been caused by police officers, the court explained the law relevant to negligence suits against municipalities:

 

With respect to the negligence cause of action, it is well settled that, in an action against a municipality, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. This is an offshoot of the general proposition that[,] ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ . . . The second principle relevant here relates not to an element of plaintiff[’s] negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” ... .

 

With respect to the issue whether a special duty exists, it is well settled “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public . . . Such a duty, . . . [i.e.,] a duty to exercise reasonable care toward the plaintiff[,] is born of a special relationship between the plaintiff and the governmental entity” ... . “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” ... . According to plaintiff, a special relationship was formed in this case by the second method, i.e., the voluntary assumption of a duty of care by the municipal agency. That method requires plaintiff to establish “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking ... .

 

We conclude that defendants met their burden on the motion by establishing as a matter of law that there was no voluntary assumption of a duty of care, and plaintiff failed to raise a triable issue of fact whether the police officers who came to the house assumed, through promise or action, any duty to act on his behalf. Even assuming, arguendo, that plaintiff raised a triable issue of fact with respect to that requirement, we conclude that he also failed to raise a triable issue of fact with respect to the fourth requirement, i.e., whether he justifiably relied on any such assumption of duty by the police officers ... . Consequently, we conclude that the court erred in denying the motion with respect to the negligence cause of action.

 

We further conclude, in any event, that the defense of governmental function immunity constitutes a separate and independent ground for dismissal of the negligence cause of action. That defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” ... . Here, defendants established that they were providing police protection and engaging in the investigation of possible criminal behavior. It is well settled that “[p]olice and fire protection are examples of long-recognized, quintessential governmental functions” ... . Furthermore, “defendants established that the conduct of the police officers throughout the course of their interaction with [plaintiff] was undertaken in the exercise of reasoned professional judgment of the officers, and was not inconsistent with accepted police practice. Accordingly, such conduct cannot serve as a basis for municipal liability" ... . Bower v City of Lockport..., 159, 4th Dept 3-21-14

 

 

TAX LAW/MUNICIPAL LAW

 

County Not Necessary Party In Suit to Recover Taxes Wrongfully Paid to Town

 

The Second Department determined plaintiff [Verizon] could seek the refund of wrongfully collected taxes against the town which collected them and the town could then seek reimbursement from the county.  The county was not a necessary party in the action brought by the plaintiff.  Plaintiff was the owner of "mass property" (power lines, poles, transformers, etc) which had been subject to taxes for refuse collection.  The Court of Appeals ruled "mass property," which produced no garbage, could not be so taxed:

 

Pursuant to the County Guaranty, the County is liable for refunds of tax payments made in connection with levies for special ad valorem taxes ... . However, in the actions at bar, Verizon chose to seek refunds from the Town, to which the payments had been made, rather than from the County directly. That was proper in light of our determination that the County is not a necessary party to actions seeking refunds of tax payments made in connection with levies for special ad valorem taxes ... . Accordingly, while the Town may seek indemnification from the County pursuant to the County Guaranty, the Supreme Court correctly determined that the Town is liable for these refunds in the first instance, and can be sued directly by a taxpayer. Thus, the Supreme Court did not err in entering the judgments against the Town defendants.  New York Tel Co v Supervisor of Town of Hempstead, 2014 NY Slip Op 01726, 2nd Dept 3-19-14

 

CONTRACT LAW

No Need to Allege "the Benefit Was Conferred at the Behest of the Defendant"

 

In a full-fledged opinion by Justice Acosta, the First Department determined  a 2012 Court of Appeals case (Georgia Malone & Co Inc v Reider, 19 NY3d 511) did not change the law of unjust enrichment and explained the nature of the relationship between the parties which must be alleged in the pleadings:

 

It is well established that to successfully plead unjust enrichment "[a] plaintiff must allege that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered'" ... . A claim for unjust enrichment "is undoubtedly equitable and depends upon broad considerations of equity and justice" ... . A plaintiff is not required to allege privity. It must, however, "assert a connection between the parties that [is] not too attenuated" ... . Thus, although a plaintiff could satisfy this requirement by alleging that the benefit was conferred at the behest of the defendant ..., the Court of Appeals has never required such a relationship. Rather, the pleadings merely have to "indicate a relationship between the parties that could have caused reliance or inducement" ... . Philips Intl Invs LLC v Pektor, 2014 Slip Op 01700, 1st Dept 3-18-14