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March Page III

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


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No Appeal Lies (as of Right) from an Order Which Does Not Decide a Motion Made on Notice


The Second Department noted that no appeal lies of right from an order which does not decide a motion made on notice (CPLR 5701(a)(2)).  Angelova v Ruchinsky, 2015 NY Slip Op 02081, 2nd Dept 3-18-15





Arbitrator Exceeded Her Powers to Modify an Award and Failed to Make a "Final and Definite" Award


The Third Department determined the arbitrator had exceeded her authority when she did not merely correct a miscalculation, but rather made new findings when modifying an award.  The court further determined that the arbitrator initially did not make a "final and definite" award when she failed to take into account a stipulation between the parties:



...[T]he arbitrator's modification of the original award exceeded the narrow grounds set forth in CPLR 7511 (c). A review of the modified award reveals that the arbitrator did not simply correct a "miscalculation of figures . . . in the [original] award" (CPLR 7511 [c] [1]) but, rather, made new factual findings as to the applicability of the parties' apparent stipulation relative to petitioner's counterclaim and its corresponding impact upon the moneys awarded, i.e., the arbitrator impermissibly revisited the merits of the parties' dispute. Under these circumstances, the modified award was properly vacated ... . 



We also are persuaded that Supreme Court properly vacated the original arbitration award and remanded the matter to the arbitrator for a rehearing (see CPLR 7511 [d]). CPLR 7511 (b) (1) (iii) permits a court to vacate an arbitration award if the court finds that a party's rights were prejudiced because the arbitrator, in making such an award, either "exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made." Although we find no basis upon which to conclude that the arbitrator exceeded her authority in rendering the initial award, we agree with Supreme Court that, by failing to address the existence and/or content of the parties' purported stipulation, ascertain whether the contested funds were in fact withheld by petitioner prior to the start of the arbitration and assess the corresponding impact, if any, upon petitioner's counterclaim, the arbitrator "so imperfectly executed" her powers that "a final and definite award" was not in fact made (CPLR 7511 [b] [1] [iii]). Matter of Delaney Group, Inc. (Holmgren Enters., Inc.), 2015 NY Slip Op 02174, 3rd Dept 3-19-15





Sua Sponte Dismissal of Complaint Not Justified/Lack of Standing Not a Jurisdictional Defect


In a foreclosure action, the Second Department noted that Supreme Court did not have the authority to, sua sponte, dismiss the complaint, even if the plaintiff did not have standing, which is not a jurisdictional defect.  (The Second Department determined the plaintiff did in fact have standing.):


The Supreme Court also erred in, sua sponte, directing dismissal of the complaint. "A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" ... . Here, the Supreme Court was not presented with extraordinary circumstances warranting sua sponte dismissal of the complaint. Even if the plaintiff had lacked standing it would not have constituted a jurisdictional defect and would not warrant a sua sponte dismissal of the complaint ... . Citimortgage, Inc. v Chow Ming Tung, 2015 NY Slip Op 02087, 2nd Dept 3-18-15




Amendment of Summons and Complaint after the Statute of Limitations Has Run


In affirming the amendment of a summons and complaint, (apparently) after the running of the statute of limitations, the Second Department explained the relevant law:


CPLR 305(c) authorizes the court, in its discretion, to "allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced." Where the motion is to cure "a misnomer in the description of a party defendant," it should be granted even after the statute of limitations has run where "(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought" ... . "Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue" ... . "However, while CPLR 305(c) may be utilized to correct the name of an existing defendant . . . it cannot be used by a party as a device to add or substitute a party defendant'" ... , and it may not be used "to proceed against an entirely new defendant, who was not served, after the expiration of the statute of limitations" ... . Sanders v 230fa, LLC, 2015 NY Slip Op 02107, 2nd Dept 3-18-15





Invoices Together with Purchase Orders Created an Agreement to a Reduced Sales-Contract Statute of Limitations


The Second Department determined the sales-contract statute of limitations was validly reduced from four years to one year by the terms of invoices:


While UCC 2-725(1) generally provides that a cause of action alleging breach of a sales contract must be commenced within four years after it has accrued, that provision also allows the parties to a sales contract to "reduce the period of limitation to not less than one year" (UCC 2-725[1]...). Here, the defendants met their initial burden by demonstrating that their invoices containing the one-year limitation period constituted an acceptance that, together with the plaintiff's purchase order, was effective in forming a contract, and that the one-year limitation period, an additional term set forth in the invoices, was presumed to have become part of this contract between the parties unless one of the three exceptions in UCC 2-207(2) applied (see UCC 2-207[1], [2]...). It is undisputed that the plaintiff's action was not commenced within one year from the alleged breach, as required by the additional term. The burden then shifted to the plaintiff, as the party opposing the inclusion of the additional term, to raise a question of fact as to whether one of the three exceptions under UCC 2-207(2) was applicable ... . The plaintiff failed to satisfy its burden.


Contrary to the plaintiff's contention, the abbreviated period of limitation was not against public policy (see CPLR 201; UCC 2-725[1]...). " Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'" ... . " Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentations in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed to'" ... . State of Narrow Fabric, Inc. v UNIFI, Inc., 2015 NY Slip Op 02110, 2nd Dept 3-18-15





The "Strict Compliance" Rule Re: Documents Required for a Drawdown from a Letter of Credit Explained


The First Department, in a full-fledged opinion by Justice Saxe, determined that minor discrepancies in the documents required by a letter of credit as a prerequisite for a drawdown did not violate the "strict compliance" rule.  Here a true copy of a document, rather than the original, was submitted.  The true copy was deemed to satisfy the "strict compliance" rule:


...[A]pplying the standard of strict compliance, plaintiff's drawdown request should have been honored because, under these circumstances, the production of a true copy of amendment 2, instead of an original, was sufficient even to satisfy the strict compliance standard.


Strict compliance has been said to require that "the papers, documents and shipping directions . . . be followed as stated in the letter [of credit]," that "[n]o substitution and no equivalent, through interpretation or logic, will serve," and that "[t]here is no room for documents which are almost the same, or which will do just as well" ... . Even slight discrepancies in compliance with the terms of a letter of credit have been held to justify refusal to pay ... .


"The [strict compliance] rule finds justification in the bank's role in the transaction being ministerial . . . and to require it to determine the substantiality of discrepancies would be inconsistent with its function" ... . The "reason for the strict [compliance] rule is to protect the issuer from having to know the commercial impact of a discrepancy in the documents" ... .


However, as this Court has recently observed, "According to the official UCC commentary, the strict compliance standard does not require that the documents presented by the beneficiary be exact in every detail" (BasicNet S.P.A v CFP Servs., Ltd., __ AD3d __, __, 2015 NY Slip Op 02080, [1st Dept 2015]) [summarized directly below]. The doctrine of strict compliance "does not mean slavish conformity to the terms of the letter of credit . . . [and] does not demand oppressive perfectionism" (id., quoting Official Comment 1, reprinted in McKinney's Cons Laws of NY, Book 62½, UCC 5-108 at 367). Ladenburg Thalmann & Co, Inc. v Signature Bank, 2015 NY Slip Op 02224, 1st Dept 3-19-15





(1) The Effect of  Minor Discrepancies Re: the Submissions Required by a Standby Letter of Credit (SLC) (2) The Criteria for Interpreting an SLC (3) the Nature of an SLC and (4) the "Independence Principle" as Applied to an SLC Discussed in Some Depth


The First Department, in a full-fledged opinion by Justice Andrias, reversed Supreme Court and determined the issuer of standby letters of credit (SLC) was required to honor them.  The opinion is detailed and fact-based.  Among the legal issues discussed are: (1) minor discrepancies re: the documents required to be submitted (for a drawdown) by the terms of an SLC do not violate the "strict compliance" rule; (2) how to interpret an SLC; (3) the nature of an SLC  (versus a guaranty); and (4) the "Independence Principle" which requires that an SLC be deemed separate and distinct from the other contractual agreements underlying the transaction:


Under New York law, in order to recover on its claim that the issuer wrongfully refused to honor its request to draw down on a letter of credit, the beneficiary must prove that it strictly complied with the terms of the letter of credit ... . "The corollary to the rule of strict compliance is that the requirements in letters of credit must be explicit, and that all ambiguities are construed against the [issuer]" ... . The reasoning is that "[s]ince the beneficiary must comply strictly with the requirements of the letter, it must know precisely and unequivocally what those requirements are" ... . "Where a letter of credit is fairly susceptible of two constructions, one of which makes fair, customary and one which prudent men would naturally enter into, while the other makes it inequitable, the former interpretation must be preferred to the latter, and a construction rendering the contract possible of performance will be preferred to one which renders its performance impossible or meaningless" ... . * * *


There are three parties to an SLC: the applicant who requests the SLC; the beneficiary to whom payment is due upon the presentation of the documents required by the SLC; and the issuer which obligates itself to honor the SLC and make payment when presented with the documents the SLC requires. In turn, there are three corresponding agreements: the agreement between the applicant and the beneficiary, which creates the basis for the SLC; the agreement between the issuer and the applicant; and the SLC itself ... .


"[A] fundamental principle governing these transactions is the doctrine of independent contracts, [which] provides that the issuing bank's obligation to honor drafts drawn on a letter of credit by the beneficiary is separate and independent from any obligation of its customer to the beneficiary under the ... contract and separate as well from any obligation of the issuer to its customer under their agreement" ... .


From the beneficiary's perspective, the independence principle makes a letter of credit superior to a normal surety bond or guaranty because the issuer is primarily liable and is precluded from asserting defenses that an ordinary guarantor could assert. Indeed, "a letter of credit would lose its commercial vitality if before honoring drafts the issuer could look beyond the terms of the credit to the underlying contractual controversy or performance between its customer and the beneficiary"... . BasicNet S.P.A. v CFP Servs. Ltd., 2015 NY Slip Op 02080, 1st Dept 3-17-15





Delaware Pleading Requirements Not Met in Shareholders' Derivative Action


The Second Department determined the shareholders' derivative action alleging breach of a fiduciary duty was properly dismissed for failure to meet the pleading requirements of the controlling Delaware law:


As the parties agree, the laws of Delaware, the State of incorporation, govern the issues raised on this appeal ... . Delaware Chancery Court Rule 23.1(a) provides that every shareholders' derivative complaint shall "allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and the reasons for the plaintiff's failure to obtain the action or for not making the effort." A plaintiff's demand on the directors pursuant to Rule 23.1(a) will be excused "if the derivative complaint pleads particularized facts creating a reasonable doubt that (1) the directors are disinterested and independent or (2) the challenged transaction was otherwise the product of a valid exercise of business judgment" ... . Demand may also be excused in certain circumstances "where particularized factual allegations create a reasonable doubt that, as of the time the complaint was filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand" ... . Here, the allegations of the amended complaint were insufficient to satisfy the pleading requirements of Rule 23.1(a). Walter v FalconStor Software, Inc., 2015 NY Slip Op 02112, 2nd Dept 3-18-15




Defendant Did Not Have the Right to Be Present During Discussion of Exclusion of a Sworn Juror


The Second Department determined the defendant's absence from a conference re: whether a sworn juror was grossly unqualified to serve did not violate defendant's right to be present at all material stages of the trial:


The defendant's right to be present at all material stages of trial was not violated by his absence from an in camera interview with a sworn juror, conducted in the presence of the prosecutor and defense counsel, to determine whether that sworn juror was grossly unqualified to serve (see CPL 270.35[1]). A defendant's statutory right to be present at trial (see CPL 260.20) "extends to all material stages of the trial, including ancillary proceedings in which defendant's presence could have a substantial effect on [his or her] ability to defend against the charges'" ... . A conference to determine whether a sworn juror should be excluded (see CPL 270.35) is an ancillary proceeding, at which the defendant's presence is "only necessary where defendant has something valuable to contribute'" ... .


Under the circumstances presented here, the defendant's presence at the conference could not have had a substantial effect on his ability to defend the charges, and the defendant could not have made a valuable contribution to the conference ... . People v Peoples, 2015 NY Slip Op 02143, 2nd Dept 3-18-15




Actus Reus for Burglary and Murder Not the Same---Consecutive Sentences Valid


The Fourth Department, over a two-justice dissent, determined the defendant was properly sentenced to consecutive terms for burglary and murder.  The defendant broke into the victim's home, dragged her downstairs and murdered her.  The court held that the actus reus for the burglary was completed before the murder:


Defendant was convicted of burglary for unlawfully entering the victim's dwelling, with the aggravating factors of causing physical injury to the victim (§ 140.30 [2]), and using or threatening the immediate use of a dangerous instrument (§ 140.30 [3]), i.e., a butcher knife. Defendant was charged with intentionally causing the victim's death by repeatedly stabbing her with a butcher knife. It is well established that, in considering whether sentences must run concurrently under Penal Law § 70.25 (2), "the court must determine whether the [actus reus] element is, by definition, the same for both offenses (under the first prong of the statute), or if the [actus reus] for one offense is, by definition, a material element of the second offense (under the second prong)" ... . "[W]hen the actus reus is a single inseparable act that violates more than one statute, single punishment must be imposed" ... . Although the actus reus elements of the burglary counts and the murder count overlap under the facts presented here, we nevertheless conclude that the People "establish[ed] the legality of consecutive sentencing by showing that the acts or omissions' committed by defendant were separate and distinct acts" ... . The evidence established that, after defendant entered the apartment through a window that he smashed with a cinder block, he dragged the victim from her bed and down the stairs to the living room, where he killed her. People v Brahney, 2015 NY Slip Op 02227, 4th Dept 3-20-15




Law re: Depraved Indifference Murder Changed in 2003 When People v Payne Was Decided by the Court of Appeals, Not in 2006 When People v Feingold Was Decided


The Fourth Department determined that County Court erred when it determined the law re: depraved indifference murder changed after defendant's judgment of conviction became final.  In denying defendant's motion to vacate his conviction, County Court held that the law changed in 2006 when the Court of Appeals decided People v Feingold. But the Fourth Department, agreeing with the Third Department, held that the law changed in 2003 when the Court of Appeals decided People v Payne, before defendant's judgment of conviction became final.  Therefore the matter was remitted to County Court:


At the time of defendant's trial, in 2002, the elements of depraved indifference murder were defined by People v Register (60 NY2d 270, cert denied 466 US 953), which held that the statutory language "under circumstances evincing a depraved indifference to human life" did not identify a culpable mental state, or mens rea; instead, the "depraved indifference" language stated "a definition of the factual setting in which the risk creating conduct must occur" (id. at 276). In other words, recklessness was the mens rea for depraved indifference murder (see Policano, 7 NY3d at 597). Beginning in 2003, however, the Court decided a series of cases — including People v Hafeez (100 NY2d 253), People v Payne (3 NY3d 266, rearg denied 3 NY3d 767) and People v Suarez (6 NY3d 202) — that culminated in 2006 with People v Feingold (7 NY3d 288), which explicitly overruled Register and held that "depraved indifference to human life is a culpable mental state" (id. at 294). Defendant's judgment became final after Hafeez and Payne but before Suarez and Feingold.


...[T]he motion court determined that the law regarding depraved indifference murder did not change until Feingold, and that defendant is therefore not entitled to any benefit under the new law. We agree with the Third Department, however, that "the law changed on October 19, 2004, when the Court decided People v Payne" (People v Baptiste, 51 AD3d 184, 185, lv denied 10 NY3d 932; see generally Epps v Poole, 687 F3d 46, 55, cert denied ___ US ___, 133 S Ct 1499; Baptiste v Ercole, 766 F Supp 2d 339, 353-355). Indeed, it was in Payne that the Court of Appeals first held that, absent unusual circumstances, "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (3 NY3d at 272). Although the new law on depraved indifference murder does not apply retroactively to judgments that became final prior to the change (see Policano, 7 NY3d at 603-604), defendant's judgment of conviction did not become final until after Payne was decided.  People v Wilkens, 2015 NY Slip Op 02228, 4th Dept 3-20-15




Abuse of Discretion to Deny Defendant's Request for New Defense Counsel---Request Was Supported by Specific Legitimate Concerns and Was Joined by Defense Counsel


The Fourth Department, over a dissent, determined Supreme Court should not have denied defendant's request for new counsel, which was echoed by defense counsel and supported by specific, legitimate concerns.  The conviction was reversed and a new trial ordered. The Fourth Department outlined the analytical criteria:


The determination "[w]hether counsel is substituted is within the discretion and responsibility of the trial judge . . . , and a court's duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[]" ... . Thus, where a defendant makes "specific factual allegations" against defense counsel ... , the court must make at least "some minimal inquiry" to determine whether the defendant's claims are meritorious ... . Upon conducting that inquiry, "counsel may be substituted only where good cause' is shown" ... .


Here, the court erred in determining that a breakdown in communication between attorney and client cannot constitute good cause for substitution of counsel. Although the mere complaint by a defendant that communications have broken down between him and his lawyer is not, by itself, good cause for a change in counsel ..., where a complete breakdown has been established, substitution is required ... . Here, both defendant and defense counsel agreed that they were unable to communicate, and nothing said by either of them during the court's lengthy inquiry indicated otherwise.


We conclude that the court also erred in suggesting that any breakdown in communication was "initiated or promoted by the defendant as opposed to defense counsel." That conclusion is not supported by the record, which shows that the breakdown in communication resulted from legitimate concerns defendant had about defense counsel's performance. People v Gibson, 2015 NY Slip Op 02236, 4th Dept 3-20-15




Motion to Vacate Conviction Based Upon Victim's Recantation Should Not Have Been Denied Without a Hearing


The Fourth Department determined Supreme Court erred when it denied defendant's motion to vacate his conviction without a hearing.  The motion was primarily based upon the victim's, defendant's daughter's, recantation of her rape allegations:


In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim's recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing ... .


The victim's trial testimony that defendant had sexually assaulted her was crucial to the prosecution's case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim's trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant ... . Under those circumstances, the court's denial without a hearing of that branch of defendant's motion based on the victim's recantation was an improvident exercise of discretion ... . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15




Appeal Waiver Did Not Encompass Youthful Offender Status/Defendant Should Have Been Adjudicated a Youthful Offender


The Fourth Department determined the defendant did not waive his right to appeal the court's failure to adjudicate him a youthful offender and further determined defendant should be so adjudicated:


... [T]he waiver [of appeal] does not encompass defendant's contention regarding the denial of his request for youthful offender status, inasmuch as "[n]o mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy" ... .


We agree with defendant that he should have been afforded youthful offender status. Defendant was 16 years old at the time of the offense and committed the offense when he and his two friends were walking to a park, saw a vehicle with the keys in the ignition, and wondered what it would be like to steal the vehicle. Defendant expressed remorse for his actions, which we conclude were the actions of an impulsive youth rather than a hardened criminal (see People v Drayton, 39 NY2d 580, 584, rearg denied 39 NY2d 1058). Thus, under the circumstances, we modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender ... . People v Angel T.C., 2015 NY Slip Op 02296, 4th Dept 3-20-15





Failure to Inform Defendant of the Period of Postrelease Supervision Required Reversal in the Absence of an Objection


The Fourth Department determined the defendant's conviction must be reversed because he was not informed of the period of postrelease supervision (PRS) at the time of the plea, and he could not be expected to object because he was not informed of the PRS until the end of the sentencing hearing:


...[D]efendant was not required to preserve for our review his challenge to the imposition of PRS under these circumstances. "A defendant cannot be expected to object to a constitutional deprivation of which [he] is unaware . . . [W]here the defendant was only notified of the PRS term at the end of the sentencing hearing, the defendant can hardly be expected to move to withdraw [the] plea on a ground of which [he or she] has no knowledge' . . . And, in that circumstance, the failure to seek to withdraw the plea or to vacate the judgment does not preclude appellate review of the due process claim" ... . Furthermore, "[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the [PRS] component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245). "[T]he record does not make clear, as required by Catu, that at the time defendant took his plea, he was aware that the terms of the court's promised sentence included a period of PRS" because only the term of incarceration of 20 years was stated on the record ... . While a term of PRS was mentioned earlier in the plea negotiations, it is undisputed that there was no mention of PRS at the plea proceeding and, based on our review of the record, we conclude that defendant was not "advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding" ... . People v Rives, 2015 NY Slip Op 02316, 4th Dept 3-20-15




Court's Failure to Elicit Unequivocal Declarations Jurors Could Set Aside their Biases Required Reversal


The Fourth Department determined the court's failure to elicit an unequivocal declaration jurors could set aside their bias and render an impartial verdict required reversal:


It is well established that "[p]rospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused" ... . While no "particular expurgatory oath or talismanic' words [are required,] . . . [prospective] jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict" ... . During voir dire, the statements of three prospective jurors with respect to the credibility of the testimony of police officers or bias in favor of the police cast serious doubt on their ability to render an impartial verdict ..., and those prospective jurors failed to provide "unequivocal assurance that they [could] set aside any bias and render an impartial verdict based on the evidence" ... . Contrary to the court's conclusion, we conclude that the nodding by these three prospective jurors as part of a group of prospective jurors who were "all nodding affirmatively in regard to the statement [of another prospective juror]" was "insufficient to constitute such an unequivocal declaration"... . People v Strassner, 2015 NY Slip Op 02342, 4th Dept 3-20-15




References to Defendant's Prior Bad Acts in a Recorded Phone Call Were Not Inextricably Intertwined with Admissible Statements and Should Have Been Redacted---Conviction Reversed


The Fourth Department determined the inadmissible statements about defendant's prior bad acts were not inextricably intertwined with the admissible portions of a recorded phone call.  The failure to redact the references to prior bad acts required reversal:


County Court committed reversible error by admitting evidence of prior bad acts of sexual abuse against the victim's mother and another woman. With the assistance of the police, the victim's mother recorded a telephone conversation between herself and defendant, and she made repeated references to the prior bad acts throughout the conversation in her attempt to have defendant admit to sexually abusing the victim. We conclude that the court erred in determining that the references to the prior bad acts were admissible because they were inextricably interwoven with the allegations against the victim. In the context of a recorded call, when references to prior bad acts in the conversation are "inextricably interwoven with the crime charged in the indictment," the entire conversation "may be received in evidence . . . where . . . the value of the evidence clearly outweighs any possible prejudice" ... . " To be inextricably interwoven . . . the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence' " ... . Here, we conclude that the disputed references were not explanatory of the rest of the conversation. The statements regarding defendant's prior bad acts were numerous, but they could have been redacted from the transcript of the recorded call without making the statements regarding the victim incomprehensible ... . In other words, the statements concerning the victim are "clearly understandable" by themselves and are "not dependent upon" the statements concerning defendant's prior bad acts ... . We further conclude that the prejudicial effect of those numerous references to the prior bad acts outweighed any probative value, and the references therefore should have been redacted ... . People v Gibbs, 2015 NY Slip Op 02362, 4th Dept 3-20-15






Even Though the People Indicated They Were Not Ready for Trial After Filing a Certificate of Readiness, the Presumption the Statement of Readiness Was Accurate and Truthful When Made Was Not Rebutted/How to Interpret a Plurality Opinion by the Court of Appeals Explained


The First Department determined the People's off-calendar statement of readiness was not illusory and, therefore, the defendant's speedy-trial motion was properly denied. The First Department explained how it interpreted the Court of Appeals decision in People v Sibbles, 22 NY3d 1174, which included two three-judge concurrences, one by Judge Lippman and one by Judge Graffeo:


The three judge concurrence by Chief Judge Lippman "would hold that, if challenged, the People must demonstrate that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not ready for trial" at the next court appearance after filing the certificate (22 NY3d at 1178). Chief Judge Lippman found that the People's desire to strengthen their case did not satisfy this requirement.


The three judge concurrence by Judge Graffeo "would decide th[e] case on a narrower basis" (22 NY3d at 1179). While recognizing established precedent that the requirement of actual readiness under CPL 30.30 "will be met unless there is proof that the readiness statement did not accurately reflect the People's position'"(id. at 1180, quoting People v Carter, 91 NY2d 795, 799 [1998]) and that "there is a presumption that a statement of readiness is truthful and accurate" (22 NY3d at 1180), Judge Graffeo found the statement of readiness "illusory" because "[t]he People initially declared that they were ready for trial on February 22 but within days sought copies of the injured officer's medical records," admitted at the next calendar call that they "were not in fact ready to proceed because they were continuing their investigation" and that they "needed to examine the medical records to decide if they would pursue introduction of the records into evidence at trial", and then "gave no explanation for the change in circumstances between the initial statement of readiness and the[ir] subsequent admission that the[y] ... were not ready to proceed without the medical records" (22 NY3d at 1181).


Following analogous precedent pertaining to plurality opinions by the United States Supreme Court, we apply the narrower approach of Judge Graffeo, which leaves intact well- settled law that a post-certificate assertion that the People are not ready does not, by itself, vitiate the previously filed certificate of readiness ... . * * *


[Here], unlike, Sibblies, there is no "proof that the readiness statement did not accurately reflect the People's position," so as to render the prior statement of readiness illusory (Sibblies, 22 NY3d at 1180 ...). Rather, defense counsel merely speculated that the certificate of readiness was illusory because the People announced that they were not ready at the next court appearance after it was filed, which is insufficient to rebut the presumption that the certificate of readiness was accurate and truthful ... . People v Brown, 2015 NY Slip Op 02042, 1st Dept 3-17-15





Criteria for Presentation of Exculpatory Evidence to the Grand Jury Explained (Not Met Here)


The Third Department explained the prosecutor's obligations re: the presentation of exculpatory evidence to the grand jury. [The decision also includes good discussions the criteria re: (1) shackling defendant during pre-trial hearings, (2) the court's discretion to deny defendant's request to call a witness (the victim) at the Wade hearing, and (3) serious prosecutorial misconduct, which are worth reading, although reversible error was not found.]:


With respect to the issue of exculpatory evidence, "[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination. . . . [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage" ... . Here, the exculpatory evidence cited by defendant "bore principally upon the victim's credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury" ... . People v Goldston, 2015 NY Slip Op 02146, 3rd Dept 3-19-15





Violation of Confrontation Clause Was Harmless Error


The Second Department determined the admission of hearsay DNA evidence (a report made by an analyst who did not testify), although it violated the Confrontation Clause, was harmless error because the inadmissible evidence was cumulative:


The defendant correctly contends that his rights under the Confrontation Clause of the Sixth Amendment were violated when the Supreme Court admitted a nontestifying DNA analyst's report linking the defendant to DNA evidence recovered at the crime scene ... .


"Confrontation Clause violations are subject to a constitutional harmless error analysis" ... . "Constitutional error requires reversal unless the error's impact was harmless beyond a reasonable doubt'" ... . "This determination is based on a review of the entire record"... ..


Here, in addition to the erroneously admitted report, the People presented evidence directly linking the defendant to the burglary. Specifically, the nontestifying analyst's supervisor testified that she herself analyzed the raw data from the evidence collected at the crime scene and the DNA collected from the defendant and drew her own conclusions. Thus, the erroneously admitted report was cumulative, as the expert who did testify reached that same conclusion after comparing the same raw data relied upon by the nontestifying analyst. Since there was no reasonable possibility that the erroneously admitted report contributed to the defendant's conviction, the error was harmless beyond a reasonable doubt ... . People v Cartagena, 2015 NY Slip Op 02136, 2nd Dept 3-18-15



No "Extraordinary Circumstances" Existed to Justify Granting Primary Custody of Child to Grandparents


The Fourth Department, in a full-fledged opinion by Justice Centra, determined Family Court should not have granted primary custody of the child to the grandparents.  Although the grandparents had played a primary role in the child's care for 10 years, with the mother's permission and participation, the "extraordinary circumstances" described by the Court of Appeals as necessary to justify awarding custody to nonparents were not present:


As the Court of Appeals held in the seminal case of Matter of Bennett v Jeffreys (40 NY2d 543, 544), "[t]he State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances." The Court thereafter held that, "[s]o long as the parental rights have not been forfeited by gross misconduct . . . or other behavior evincing utter indifference and irresponsibility . .. , the natural parent may not be supplanted" (Matter of Male Infant L., 61 NY2d 420, 427). "The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child" ... .


...[T]he arrangement between petitioners [the grandparents] and the mother since shortly after the child's birth and for 10 years thereafter was akin to a joint custody arrangement with petitioners having primary physical custody of the child and the mother visitation. Petitioners established that they took on the bulk of the responsibility for the child's financial support and education. There was no showing by petitioners, however, that the mother was unfit or that she surrendered or abandoned her child ... . The question then is whether they established "other equivalent but rare extraordinary circumstance[s] which would drastically affect the welfare of the child" ... .


As we have held, "[w]hat proof is sufficient to establish such equivalent but rare extraordinary circumstances cannot be precisely measured" ... . "[T]he fact that [a] parent agreed that a nonparent should have physical custody of the child or placed the child in the custody of a nonparent is not sufficient, by itself, to deprive the parent of custody" ... . Here, while the mother allowed petitioners to have primary physical custody of the child for a prolonged period, there were no other factors to show the existence of extraordinary circumstances ... . The record establishes that the child is psychologically attached to both petitioners and the mother, and there was no evidence that removing the child from petitioners' primary custody would result in "psychological trauma . . . grave enough to threaten destruction of the child" ... . The evidence at the hearing showed that the child exhibited some signs of stress after May 2012, but the record as a whole, including the Lincoln hearing, supports the conclusion that the child was stressed because of the family conflict, and would not suffer if the mother had custody of the child. Matter of Suarez v Williams, 2015 NY Slip Op 02293, 4th Dept 3-20-15





Court Should Have Taken Judicial Notice of Father's False Allegations in Prior Proceedings in the Same Court/Court Should Not Have Drawn an Adverse Inference from Mother's Failure to Call a Witness without Informing Mother of Its Intent to Do So


The Second Department, in reversing Family Court finding that mother committed the family offense of assault, determined Family Court should have taken judicial notice of father's false allegations in custody proceedings in the same court and should not have drawn an adverse inference from the mother's failure to call a witness without giving mother the opportunity to explain the witness' absence:


The Family Court improperly rejected the mother's request that it take judicial notice of the determination in the parties' prior custody proceeding, in the same court, in which the father admittedly made false allegations. That proceeding, and the court's findings therein regarding the father, were relevant to the court's assessment of the father's credibility in this matter. Accordingly, the court improvidently exercised its discretion in declining to take judicial notice of the prior custody proceeding ... .


Additionally, the Family Court erred in drawing a negative inference based on the mother's failure to call the child's maternal grandmother as a witness. " A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party'" ... . The court sua sponte drew a negative inference based on the mother's failure to call the grandmother as a witness, and failed to advise the mother that it intended to do so ... . Matter of Spooner-Boyke v Charles, 2015 NY Slip Op 02132, 2nd Dept 3-18-15






County Must Seek a Medical Income Execution Order (to Pay for a Child's Health Insurance) Where No Medical Income Execution Order Has Yet Been Issued in the Case


The Fourth Department determined petitioner-county must seek a judicial medical income execution order (to pay for a child's health insurance) and cannot simply issue an income execution on its own where no medical income execution has previously been issued in the matter:


Petitioner contends that, pursuant to CPLR 5241 (b) (2) (ii), it may issue a medical income execution to a new employer of the parent without going to court, and it was therefore error for the Support Magistrate to include the provision that a medical income execution "shall not [be issued] without such Court Order." We conclude that petitioner's reliance on CPLR 5241 (b) (2) (ii) is misplaced. A plain reading of that statute shows that it is not applicable here because neither parent provided health insurance coverage for the child at the time the Support Magistrate issued the order. The statute specifically provides that, "where the [parent] provides such coverage and then changes employment," an amended medical income execution may be issued by petitioner without returning to court (id. [emphasis added]). Inasmuch as there was no medical income execution that was issued in this case, there was nothing to "amend." Contrary to petitioner's further contention, a medical income execution can be issued only where a court has ordered a parent to provide health insurance benefits, and that has not occurred yet inasmuch as the Support Magistrate determined that such benefits are not available (see CPLR 5241 [b] [2] [i]...). Matter of Chautauqua County Dept. of Health & Human Servs. v Matteson, 2015 NY Slip Op 02259, 4th Dept 3-20-15






Fraud Action Based Upon Statements of Opinion Properly Pled/Negligent Misrepresentation Not Properly Pled--No Allegation of Privity or Privity-Like Relationship


In an action stemming from defendant-investment-ratings-agency's high rating of worthless residential-mortgage-backed securities, the Fourth Department determined the complaint properly pled a fraud cause of action, even though based upon statements of opinion. The court further determined the negligent misrepresentation cause of action was deficient in that privity or a privity-like relationship was not alleged:


Although statements of opinion generally are not actionable in a fraud cause of action ..., defendant correctly recognizes that statements of opinion may nevertheless be actionable as fraud if the plaintiff can plead and prove that the holder of the opinion did not subjectively believe the opinion at the time it was made and made the statement with the intent to deceive ... . As one court has explained, a fraud claim based on an expression of opinion "is actionable in an appropriate case not because the opinion is objectively' wrong. Rather, in an appropriate case it is actionable because the speaker either did not in fact hold the opinion stated or because the speaker subjectively was aware that there was no reasonable basis for it . . . In the first instance, the speaker will have lied as to his or her subjective mental state. In the second, he or she implicitly would have represented that there was a reasonable basis for the statement of opinion, knowing that the implicit representation was false" ... . Here, we agree with defendant that its credit ratings were statements of opinion, not fact ... , but we conclude that plaintiff adequately pleaded that defendant did not believe its opinions when it issued the ratings. Plaintiff set forth in detail the reasons why defendant was aware that the ratings were inflated, including its allegation that defendant failed to follow its own policies and procedures in determining the ratings. * * *


To establish a claim for negligent misrepresentation based on the allegedly inaccurate credit ratings, plaintiff must allege that "(1) the [defendant] must have been aware that the [ratings] were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party . . . was intended to rely; and (3) there must have been some conduct on the part of the [defendant] linking [it] to that party . . . , which evinces the [defendant's] understanding of that party['s] . . . reliance" ... . "The indicia, while distinct, are interrelated and collectively require a third party claiming harm to demonstrate a relationship or bond with the once-removed [defendant] sufficiently approaching privity' based on some conduct on the part of the [defendant]' " ... .


The complaints here failed to plead that a special or privity-like relationship existed between plaintiff and defendant ... . M&T Bank Corp. v McGraw-Hill Cos., Inc., 2015 NY Slip Op 02372, 4th Dept 3-20-15






When the One-Year Statute of Limitations Begins to Run for False Arrest, Malicious Prosecution and Assault and Battery Causes of Action Explained/Elements of False Arrest and Malicious Prosecution Explained


The Second Department explained when the one-year statute of limitations begins to run for false arrest, malicious prosecution and assault and battery causes of action.  The court further explained the elements of false arrest and malicious prosecution:


"Causes of action based on false arrest . . . accrue upon the subject's release[ ] from confinement' and are governed by a one-year statute of limitations" ... . "The one-year statute of limitations applicable to a cause of action for malicious prosecution (see CPLR 215[3]) does not begin to run until favorable termination of the underlying criminal proceeding" ... . * * *


...Supreme Court erred in denying that branch of the ... defendants' motion which was for summary judgment dismissing the third cause of action, which alleged assault and battery, insofar as asserted against them as time-barred. That cause of action is also governed by the one-year statute of limitations set forth in CPLR 215 (see CPLR 215[3]...). It is undisputed that the alleged assault and battery occurred more than one year prior to the commencement of this action. * * *


"A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution" ... . To be held liable for false arrest, "the defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his [or her] own volition'" ... . Similarly, in order for a civilian defendant to be considered to have initiated the criminal proceeding so as to support a cause of action based on malicious prosecution, " it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act'" ... . "Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney... . Williams v CVS Pharmacy, Inc., 2015 NY Slip Op 02115, 2nd Dept 3-18-15






Safety Device Requirement in Industrial Code Was Specific Enough to Support Labor Law 241(6) Action Based Upon the Absence of a Safety Guard on a Tile Grinder


The First Department, over a dissent, determined that a rule (Industrial Code) requiring that all safety devices be kept sound and operable was specific enough to support a Labor Law 241(6) action based upon the absence of safety guard from a tile grinder:


The motion court erred in finding that section 23-1.5(c)(3) was too general to support plaintiff's Labor Law § 241(6) claim. Industrial Code (12 NYCRR) § 23-1.5(c)(3) provides, "All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." In Misicki v Caradonna (12 NY3d 511, 520-521 [2009]), the Court of Appeals held that the third sentence of 12 NYCRR 23-9.2(a), which says, "Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement," imposed an affirmative duty, rather than merely reciting common-law principles, and that therefore its violation was sufficiently specific to support a Labor Law § 241(6) claim. The regulation plaintiff relies on here, 12 NYCRR 23-1.5(c), has a structure similar to 12 NYCRR 23-9.2(a): the first two sentences of section 23-9.2(a) and the first two paragraphs of section 23-1.5(c) employ general phrases (e.g., "good repair, "proper operating condition," "sufficient inspections," "adequate frequency") while the third sentence and paragraph "mandate[] a distinct standard of conduct, rather than a general reiteration of common-law principles, and [are] precisely the type of concrete specification' that Ross [v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993])] requires" (Misicki, 12 NY3d at 521). Since the final paragraph of section 23-1.5(c) is functionally indistinguishable from the third sentence of section 23-9.2(a), in that both mandate a distinct standard of conduct, we find that the Court of Appeals' reasoning in Misicki applies here, and reject the dissent's suggestion that the preamble of section 23-1.5 precludes any reliance on the section for purposes of Labor Law § 241(6). Becerra v Promenade Apts. Inc., 2015 NY Slip Op 02191, 1st Dept 3-19-15






Municipalities (Counties) Are Not "Persons" and Therefore Cannot Challenge a Statute on Due Process Grounds

The Fourth Department determined municipalities are not "persons" and cannot sue under the due process clause of the US or New York Constitutions to declare a statute unconstitutional.  Here the counties sought to have a law prohibiting reimbursement for certain Medicaid expenses (section 61) overturned:


Here, petitioners contend that respondents' enactment of section 61 impermissibly deprived them of vested rights to repayment under Social Services Law § 368-a, in violation of their rights under the due process clauses of the federal and state constitutions. The Fourteenth Amendment of the United States Constitution provides in relevant part that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." Similarly, article I, § 6 of the New York State Constitution provides in relevant part that "[n]o person shall be deprived of life, liberty or property without due process of law." Thus, the constitutional provisions share a common link, i.e., they protect a "person" (id.; see US Const, 14th Amend, § 1).


Contrary to petitioners' contentions, we conclude that they are not persons within the meaning of the constitutional due process provisions. This principle was stated clearly by the United States Court of Appeals for the Seventh Circuit, which concluded that "[m]unicipalities cannot challenge state action on federal constitutional grounds because they are not persons' within the meaning of the Due Process Clause" (City of East St. Louis v Circuit Court for Twentieth Judicial Circuit, St. Clair County, Ill., 986 F2d 1142, 1144). Other decisions, without using the term "person," also support the conclusion that a municipal body may not use the due process clause to challenge legislation of the municipality's creating state. Thus, "[i]t has long been the case that a municipality may not invoke the protections of the Fourteenth Amendment against its own state . . . A municipality is thus prevented from attacking state legislation on the grounds that the law violates the municipality's own rights . . . Moreover, while municipalities or other state political subdivisions may challenge the constitutionality of state legislation on certain grounds and in certain circumstances, these do not include challenges brought under the Due Process . . . Clause[] of the Fourteenth Amendment . . . This is because a municipal corporation, in its own right, receives no protection from the . . . Due Process Clause[] vis-a-vis its creating state' " ... . Matter of County of Chautauqua v Shah, 2015 NY Slip Op 02245, 4th Dept 3-20-15



Proof of General Cleaning Procedures Not Sufficient for Summary Judgment to Defendant in a Slip and Fall Case


In a slip and fall case, reversing Supreme Court, the Second Department explained (once again) that proof of general cleaning procedures (as opposed to proof when the area in question was last inspected or cleaned) is not sufficient to warrant summary judgment to the defendant:


A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it ... . To meet their burden on the issue of lack of constructive notice, the defendants were required to offer some evidence as to when the accident site was last cleaned or inspected prior to the injured plaintiff's fall ... . "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" ... . Here, the affidavit of the Safety and Security Manager for the subject IKEA store, which was submitted in support of the defendants' motion, only provided information about the store's general cleaning and inspection procedures concerning the promenade, and did not show when the subject area had last been inspected or cleaned prior to the happening of the accident ... . Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition ... . Furthermore, the defendants failed to establish, prima facie, that the alleged condition was too trivial to be actionable, or was open and obvious and not inherently dangerous as a matter of law. Barris v One Beard St., LLC, 2015 NY Slip Op 02083, 2nd Dept 3-18-15





NYC Abutting-Property-Owners Not Responsible for Defects in Sidewalk Tree Wells/City Did Not Have Written Notice of Defect in Tree Well Where Plaintiff Fell


The Second Department noted that NYC abutting-property-owners are not liable for the condition of tree wells within the sidewalk.  Here the city had not received notice of a defect in the tree well where plaintiff fell, therefore summary judgment was granted to the city:


A tree well does not fall within the applicable Administrative Code definition of "sidewalk" and, thus, "section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells" ... . * * *


"A municipality that has adopted a prior written notice law' cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" ... . The Court of Appeals has recognized two exceptions to this rule: (1) where the locality created the defect or hazard through an affirmative act of negligence; and (2) where a special use confers a special benefit upon the locality ... . The affirmative creation exception is "limited to work by the City that immediately results in the existence of a dangerous condition" ... .


In order to hold the City liable for injuries resulting from defects in tree wells in City-owned sidewalks, a plaintiff must demonstrate that the City has received prior written notice of the defect or that an exception to the prior written notice requirement applies (see Administrative Code of City of NY § 7-201[c][2]...). Donadio v City of New York, 2015 NY Slip Op 02093, 2nd Dept 3-18-15




Plaintiff Could Not Demonstrate Cause of Her Fall Without Resorting to Speculation


The Second Department determined summary judgment was properly granted to the defendant in a slip and fall case because the plaintiff could not identify the case of her fall:


"Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" ... .


"[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" ... . "Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture" ... .


Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting a transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation ... . Mitgang v PJ Venture HG, LLC, 2015 NY Slip Op 02101, 2nd Dept 3-18-15




"Wheel Stop" Is Open and Obvious


The First Department determined a "wheel stop" in a parking lot, over which plaintiff tripped, was open and obvious:


Defendants established their entitlement to judgment as a matter of law in this action where plaintiff was injured when she tripped and fell over a wheel stop in defendants' parking lot in the early evening. Defendants submitted evidence showing that the wheel stop was an open and obvious condition and not inherently dangerous ... . The evidence demonstrated that the wheel stop's placement had been approved by the local zoning board, the parking lot lights had been set to turn on at 4:00 p.m., the lights were inspected daily and found to be in good condition on the following day, and there had been no prior complaints about the wheel stop or inadequate lighting.


In opposition, plaintiff failed to raise a triable issue of fact. Her claim that an optical illusion created by inadequate lighting made the wheel stop less visible is insufficient to raise a triable issue of fact, as her testimony established that she was looking toward her car at the time of the accident ... . Moreover, a photograph marked at her deposition reveals that the portion of the curb on which plaintiff allegedly tripped was near a light post ... . Plaintiff's affidavit in which she claimed to have been unable to see the surface of the parking lot and wheel stop directly contradicts her earlier testimony and raises only a feigned issue of fact ... . Abraido v 2001 Marcus Ave., LLC, 2015 NY Slip Op 02204, 1st Dept 3-19-15




Question of Fact Whether Nonowner Occupied and Controlled Premises Where Plaintiff Fell


The Third Department determined there were questions of fact whether a nonowner of a premises, 68 Weibel Avenue, occupied and controlled the premises such that a duty to use reasonable care re: the condition of the premises arose. The owner of the property (third-party defendant) is the father of two sisters who operate defendant business across the street at 75 Weibel Avenue.  There was testimony that defendant business also occupied and controlled the area where plaintiff slipped on ice at 68 Weibel Avenue:


A nonowner who occupies or controls premises has a duty to exercise reasonable care regarding the condition of the premises ... . The boundaries of occupancy and extent of control are typically addressed in a written agreement, and may also be established or modified by a course of conduct ... . The absence of a written agreement creates a situation ripe for factual issues regarding relevant rights and responsibilities to the premises ... .


Here, there was no written agreement between defendant and third-party defendant regarding the premises. Defendant and third-party defendant had a close familial relationship, and it does not appear from the record that there was even an oral agreement specifically delineating their rights and responsibilities. In light of the absence of any agreement, defendant's conduct regarding the premises is particularly pertinent. Plaintiff testified that, although defendant had a retail store across the road at 75 Weibel Avenue, he was directed by defendant to make deliveries at the 68 Weibel Avenue shop. He recalled that an owner or an employee of defendant was always present at such address when he made a delivery. While there were other businesses that used the parking lot at 68 Weibel Avenue, plaintiff stated that there were never vehicles directly in front of defendant's shop other than a vehicle of an employee/owner of defendant. He parked at such location in front of the shop when making deliveries and was so parked on the date of his accident. A freestanding sign for defendant's business was located outside the building at 68 Weibel Avenue and in the vicinity where plaintiff parked. We agree with Supreme Court that, under the circumstances, there are triable issues of fact as to whether defendant exercised control over the pertinent part of the 68 Weibel Avenue premises. Contreras v Randi's Enter., LLC, 2015 NY Slip Op 02165, 3rd Dept 3-19-15






Hockey Player Assumed Risk of Having His Bare Foot Stepped on in the Locker Room by a Player Wearing Skates


The Fourth Department determined plaintiff, a varsity hockey player, had assumed the risk of having his bare foot stepped on in the locker room by a player who was still wearing his hockey skates:


"The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks' " ... . By engaging in such an activity, a participant "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ... . "The question of whether the consent was an informed one includes consideration of the participant's knowledge and experience in the activity generally" ... .


Initially, we reject plaintiff's contention that assumption of the risk does not apply because he was no longer playing hockey at the time of his injury. It is undisputed that the accident "occurred in a designated athletic or recreational venue" and that the activity at issue "was sponsored or otherwise supported by the [school district] defendant[s]" ... "[T]he assumption [of risk] doctrine applies to any facet of the activity inherent in it" ... . * * *


"As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" ... . "[A]wareness of risk is not to be determined in a vacuum [but] . . . is, rather, to be assessed against the background of the skill and experience of the particular plaintiff" ... . "[I]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" ... . Litz v Clinton Cent. Sch. Dist., 2015 NY Slip Op 02239, 4th Dept 3-20-15




Cheerleader Assumed the Risk of Practicing with an Injured Teammate


The Fourth Department determined plaintiff's daughter assumed the risk of practicing with a teammate who had a sprained ankle.  It was alleged that the injured teammate, because of the injury, held on to plaintiff's daughter too long before throwing her into the air, which in turn caused plaintiff's daughter to be injured:


It is well settled that, "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation" ... . We have previously held that cheerleading is the type of athletic endeavor to which the doctrine of assumption of the risk applies ... . That doctrine does not, however, shield defendants from liability for exposing participants to unreasonably increased risks of injury ... . * * *


We agree with defendant that the daughter's practicing with the teammate while knowing that the teammate had an injured ankle is analogous to a cheerleader practicing without a mat ..., or to an athlete playing on a field that is in less than perfect condition ... . We therefore conclude that defendant established as a matter of law that this action is barred by the doctrine of assumption of risk, and plaintiff failed to raise an issue of fact ... . Jurgensen v Webster Cent. Sch. Dist., 2015 NY Slip Op 02377, 4th Dept 3-20-15






The Jury Should Have Been Instructed on the Res Ipsa Loquitur Doctrine---Infection Developed After Injection


The Second Department determined plaintiff's motion to set aside the verdict should have been granted because the jury should have been instructed on the res ipsa loquitur doctrine.  Plaintiff developed an infection after a cortisone injection.  There was expert testimony that such an infection would not develop if standard procedures had been followed:


Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event (see Restatement [Second] of Torts § 328D). "Res ipsa loquitur, a doctrine of ancient origin ..., derives from the understanding that some events ordinarily do not occur in the absence of negligence" ... . "In addition to this first prerequisite, plaintiff must establish, second, that the injury was caused by an agent or instrumentality within the exclusive control of defendant and, third, that no act or negligence on the plaintiff's part contributed to the happening of the event ... . Once plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the mere fact of the occurrence" ... . Moreover, "expert testimony may be properly used to help the jury bridge the gap' between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does .. .


Here, the plaintiff presented expert testimony that a MRSA infection from an injection does not occur if the podiatrist adheres to the accepted standard of care. Bernard v Bernstein, 2015 NY Slip Op 02084, 2nd Dept 3-18-15






Out-of-Possession Landlord Not Liable---Criteria Described


The Second Department determined summary judgment should have been granted to the out-of-possession landlords and explained the applicable law. Plaintiff's leg went through the roof of landlords' building:


"An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct" ... . Here, the building defendants established, prima facie, that I Bldg and Surfside were out-of-possession landlords with no contractual obligation by submitting the lease, which obligated the tenant to maintain the premises and make all structural and nonstructural repairs ... . Although I Bldg and Surfside retained a right to enter the premises, the plaintiff failed to raise a triable issue of fact as to whether the allegedly dangerous condition on the premises violated an applicable statutory provision sufficient to impose liability upon them ... . The plaintiff did not contend that the building defendants assumed a duty to repair the premises by virtue of a course of conduct. Martin v I Bldg Co., Inc., 2015 NY Slip Op 02100, 2nd Dept 3-18-15





Failure to Link Specific Monetary Loss to Acts or Omissions of the Attorneys Required Dismissal


The Second Department determined plaintiff's legal malpractice action should have been dismissed because the plaintiff did not demonstrate a specific monetary loss was proximately caused by the negligence of the attorneys. Plaintiff alleged the attorneys failed to ensure that a note, guarantee and mortgage were enforceable against Nina, who disaffirmed liability on the ground of legal incapacity:


In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages ... . To establish causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, "but for the attorney's negligence" ... .


...The plaintiff failed to demonstrate the amount it could or would have collected if the note, the guaranty, and mortgage had been enforceable against Nina ... . In addition, the plaintiff failed to demonstrate that it was unable to recover the amounts due under the note by other legal means available to it under the terms of the note and guaranty, or that it was unable to obtain equitable relief from Nina even after she disaffirmed liability on the ground of legal incapacity (see Restatement [Second] of Contracts § 14, Comments b, c; see also Restatement of Restitution § 139). Since the plaintiff failed to demonstrate the extent to which it would have been unable to enforce the note and the guaranty after it was disavowed by Nina, and the precise extent to which it would have been able to recover had the note, the guaranty, and the mortgage been enforceable against her, the plaintiff failed to establish, prima facie, that any negligence on the part of [the attorneys] was a proximate cause of actual and ascertainable damages ... . Quantum Corporate Funding, Ltd. v Ellis, 2015 NY Slip Op 02104, 2nd Dept 3-18-15






Sufficient Factual Allegations of Malpractice Not Made/Denial of Motion to Reargue Appealable as of Right Because the Merits Were Dealt with By the Motion Court


The Third Department, in affirming the dismissal of a legal malpractice complaint, determined that the fact that the motion court dealt with the merits of a motion to reargue while denying it rendered the denial appealable as of right:


As a general proposition, "no appeal lies from the denial of a motion to reargue" ... . Where, however, the court actually addresses the merits of the moving party's motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied ... . Accordingly, Supreme Court's April 2013 order is appealable as of right (see CPLR 5701 [a] [2] [viii]...). * * *


To survive defendants' motion to dismiss, it was incumbent upon plaintiff to, among other things, "plead specific factual allegations establishing that but for counsel's deficient representation, there would have been a more favorable outcome to the underlying matter" ... , i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Rodriguez v Jacoby & Meyers, LLP, 2015 NY Slip Op 02151, 3rd Dept 3-19-15






County Has a Duty to Protect Jail Inmates from the Foreseeable Assaults by Other Inmates


The Fourth Department explained the law concerning when a municipality may be liable for an assault by one inmate (in county jail) upon another.  The court also noted that, absent a local law to the contrary, the county may not be held vicariously liable for the actions of the county sheriff or sheriff's deputies:


We agree with plaintiff ... that the court erred in granting defendant's motion and dismissing the complaint in its entirety on the ground that it owed no duty of care to plaintiff, who was being held in jail on a pending criminal charge at the time of the assaults. It is well settled that "[a] municipality owes a duty to inmates in correctional facilities to safeguard them from foreseeable assaults [by] other inmates" ... . "[T]his duty does not render the municipality an insurer of inmate safety, and negligence cannot be established by the mere occurrence of an inmate assault . . . Rather, the scope of the [municipality's] duty to protect inmates is limited to risks of harm that are reasonably foreseeable' " ... . We therefore modify the order... by ... reinstating that part of the first cause of action alleging that defendant breached the duty it owed to plaintiff to protect him from foreseeable assaults committed by other inmates. Villar v County of Erie, 2015 NY Slip Op 02229, 4th Dept 3-20-15






No Notice of Claim Requirement for Suit Against Sheriff/Sheriff Can Be Liable for Negligently Training and Supervising Deputies/Whether Sheriff Entitled to Governmental Immunity Cannot Be Decided at the Pleading Stage


The Fourth Department determined no notice of claim need be filed in an action by an inmate against the county sheriff.  The court further determined the sheriff has a duty to keep prisoners safe, the sheriff can be liable for negligently training and supervising deputies who work at the jail, and the factual question whether the sheriff is entitled to governmental immunity could not be decided at the pleading stage:


Service of a notice of claim upon a public corporation is not required for an action against a county officer, appointee, or employee unless the county "has a statutory obligation to indemnify such person under [the General Municipal Law] or any other provision of law" (General Municipal Law § 50-e [1] [b]) and, here, Erie County has no statutory obligation to indemnify defendant. Plaintiff "was not required to file a notice of claim naming [defendant] in his official capacity prior to commencing" an action against defendant ... .


We further conclude that the court erred in determining that defendant owed no duty of care to plaintiff. Pursuant to Correction Law § 500-c, a sheriff has a "duty to receive and safely keep' prisoners in the jail over which he has custody" ..., and plaintiff's first cause of action is based on an alleged violation of that duty to him. A sheriff may also be held liable for negligent training and supervision of the deputy sheriffs who worked in the jail ..., which forms the basis of plaintiff's second cause of action.


We reject defendant's contention that the court properly determined that he is immune from liability because his alleged negligence arises from discretionary acts for which he is entitled to governmental immunity. In the context of this CPLR 3211 motion, the issue whether defendant's alleged acts of negligence "were discretionary and thus immune from liability is a factual question which cannot be determined at the pleading stage' " ... . Villar v Howard, 2015 NY Slip Op 02232, 4th Dept 3-20-15



Garage Not Used Exclusively for an Exempt Purpose Not Entitled to Tax Exemption/Supreme Court Should Not Have Deemed the "Statement of Undisputed Material Facts" to Have Been Admitted by the Respondent, Despite Respondent's Failure to Provide a Paragraph by Paragraph Response As Required by the Rule


The Fourth Department determined that property (a parking garage) was not entitled to tax exempt status because it was not used exclusively for an exempt purpose, noting that parking for private-practice physician's offices was not exempt (parking for a hospital is). The Fourth Department further held that the respondent city did not admit to the petitioner's "Statement of Undisputed Material Facts," even though the city did not submit a paragraph by paragraph response as required by the relevant Rule of the Commercial Division:


It is well settled that, pursuant to the RPTL, "[r]eal property owned by a corporation or association organized or conducted exclusively for . . . hospital . . . purposes . . . and used exclusively for carrying out thereupon . . . such purpose[] . . . shall be exempt from taxation" (RPTL 420-a [1] [a]). Here, respondents concede that petitioner is organized for an exempt purpose, as a hospital, and thus only the second prong of the statute is at issue. "[T]he test of entitlement to tax exemption under the used exclusively clause of [RPTL 420-a (1) (a)] is whether the particular use is reasonably incident[al] to the [primary or] major purpose of the [corporation] . . . Put differently, the determination of whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes" ... . "The burden of establishing that the property is entitled to a tax exemption rests with the taxpayer" ... . Additionally, when a taxpayer in a tax certiorari proceeding seeks summary judgment, "it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor . . . , and he must do so by tender of evidentiary proof in admissible form" ... .


Here, we agree with respondents that petitioner failed to establish that the primary use of the subject parcels is for exempt purposes, and thus it failed to meet its burden on the motion. Indeed, the evidence submitted by petitioner in support of the motion established that an undetermined portion of the people who used the garage did so for purposes associated with nonexempt uses such as the adjacent private physicians' offices. Inasmuch "[a]s the private practice of medicine by a hospital's attending physicians is primarily a commercial enterprise, and such physicians' offices are not entitled to a tax exemption under RPTL 420-a . . . , the parking spaces subleased to those offices cannot be said to so further the hospital's purposes as to create an entitlement to an exemption" ... . * * *


...[W]e conclude that the court abused its discretion in deeming respondents to have admitted all the information in petitioner's "Statement of Undisputed Material Facts" submitted pursuant to Rule 19-a of the Rules of the Commercial Division of the Supreme Court ([hereafter, 19-a Statement] see 22 NYCRR 202.70 [g] [Rule 19-a (a)]). The 19-a Statement was merely an almost verbatim repetition of an affidavit submitted by one of petitioner's employees in support of the motion, and respondents clearly disputed the content of the information in it. Further, petitioner failed to submit sufficient evidence in admissible form in support of the 19-a Statement, as required by the Rule (see 22 NYCRR 202.70 [g] [Rule 19-a (d)]; ...). Although "the rule gives a motion court the discretion to deem facts admitted, the court is not required to do so" ... . Consequently, although "it would have been better for [respondents] to submit a paragraph-by-paragraph response to [petitioner's] statement" as required by the regulation (... see 22 NYCRR 202.70 [g] [Rule 19-a (b)]), under the circumstances the court abused its discretion in deeming the entire statement admitted. The evidence submitted in support of petitioner's motion failed to eliminate all "triable issues of fact and the court was not compelled to grant summary judgment solely on the basis of blind adherence to the procedure set forth in Rule 19-a" ... . Matter of Crouse Health Sys., Inc. v City of Syracuse, 2015 NY Slip Op 02258, 4th Dept 3-20-15





Stipulation of Settlement Not Enforceable/All Material Terms Not Included


The Second Department determined the purported stipulation of settlement did not meet the standards set forth in CPLR 2104:


Absent the formalities required by statute, a stipulation of settlement is not enforceable (see CPLR 2104...). Pursuant to CPLR 2104, "[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered." The stipulation must be "definite and complete" ... , and all material terms must be included ... .


In this case, the alleged written stipulation of settlement ..., entitled "Agreement in Principle," was not signed by all the parties to the litigation, and the agreement did not state that the two signatories to the agreement intended to bind all the parties to the agreement's terms. Further, as a material term of the agreement at issue was contingent upon the parties' executing a formal agreement, the agreement constituted a mere agreement to agree, which is unenforceable ... . De Well Container Shipping Corp. v Mingwei Guo, 2015 NY Slip Op 02090, 2nd Dept 3-18-15





Drivers Transporting Patients to a Physical Therapy Facility Are Employees Not Independent Contractors


The Third Department determined drivers for Agewell, a physical therapy center, (bringing patients to the facility) were employees, not independent contractors:


Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" ... . An employment relationship will be found "when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results," with "'control over the means [being] the more important factor'" ... . In contrast, "[i]ncidental control over the results produced," such as supplying form contracts, requiring periodic reports and attendance at meetings, giving instruction on what to wear or how to make a presentation, "without further indicia of control over the means employed to achieve the results[,] will not constitute substantial evidence of an employer-employee relationship" ... .


Here, the evidence presented at the hearing demonstrated that Agewell set the driver's schedules, determining the order in which multiple clients would be picked up, and required the drivers to sign in and out. Drivers typically used Agewell's vehicles with the company logo on them and its credit card when putting gas into the vehicles, but were reimbursed if they used their own vehicles. Claimant further testified that shirts and jackets with the company logo were provided and that he typically wore them, along with a name tag. Agewell also fielded complaints from clients and provided feedback to the drivers on their performance. Drivers were allowed to pursue their own business interests and many did, including claimant. Notwithstanding the existence of evidence in the record to support a contrary conclusion, the foregoing constitutes substantial evidence to support the Board's conclusion that the control retained by Agewell was more than incidental and sufficient to establish that claimant was its employee and not an independent contractor ... . Matter of McAlevey (Agewell Physical Therapy & Wellness, P.C.--Commissioner of Labor), 2015 NY Slip Op 02179, 3rd Dept 3-19-15




Claimant Was an Employee of a Cleaning and Janitorial Service


The Third Department determined claimant was an employee of a cleaning and janitorial service, Shield Cleaners:


"Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" ... . An employment relationship will be found "when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results," with "'control over the means [being] the more important factor'" ... . In contrast, "[i]ncidental control over the results produced," such as supplying form contracts, requiring periodic reports and attendance at meetings, giving instruction on what to wear or how to make a presentation, "without further indicia of control over the means employed to achieve the results[,] will not constitute substantial evidence of an employer-employee relationship" ... .


Here, claimant testified that Shield Cleaning contacted her with assignments and told her how long to spend at each assignment, and that she was required to accept unless she was performing another assignment or could produce documentation, such as a doctor's note, to show why she was not at work. Shield Cleaning worked out the requirements in advance and memorialized the agreements with the client in writing. Claimant was paid by the hour, required to submit time sheets, had a certain percentage of her paycheck deducted as insurance and agreed in writing not to solicit any of Shield Cleaning's clients as her own. She was also provided with supplies to perform her work and a t-shirt with the company's logo and telephone number on it. Claimant was paid regardless of whether the client paid, and any complaints about the work were directed to Shield Cleaning, rather than claimant. Notwithstanding the existence of evidence in the record to support a contrary conclusion, the foregoing constitutes substantial evidence to support the Board's conclusion that the control retained by Shield Cleaning was more than incidental and sufficient to establish that claimant was its employee and not an independent contractor ... . Matter of Dwightmoore (Lawrence M. Fanfair--Commissioner of Labor), 2015 NY Slip Op 02182, 3rd Dept 3-19-15





Even Employees "Working Off the Books" Are Barred from Suing Employer in Tort


The Second Department determined plaintiff's suit against his employer was barred by the Workers' Compensation Law, even if plaintiff was "working off the books:"


Workers' compensation benefits are [t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment" ... . "This precludes suits against an employer for injuries in the course of employment" ... . "[W]henever it appears or will appear from a plaintiff's pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and, in any event, of proving noncoverage falls on the plaintiff" ... .


Here, in support of their motion for summary judgment, the defendants presented evidence that the plaintiff was an employee of the defendant N.B. Painting and Decorating Corp. (hereinafter N.B. Painting), who was injured in the course of his employment, and that N.B Painting maintained a Workers' Compensation policy on the date of the accident. Accordingly, the defendants established prima facie that the exclusivity provisions of Workers' Compensation Law § 11 barred the plaintiff from seeking a recovery in tort against N.B. Painting ... .


In opposition, the plaintiff failed to raise a triable issue of fact. "[A]ll employees of an employer are deemed covered by the employer's workers' compensation policy, regardless of whether an employee may have been working off the books', where the employer has secured a policy of insurance coverage" ... . De Los Santos v Butkovich, 2015 NY Slip Op 02089, 2nd Dept 3-18-15






Application for Variance Properly Denied---Courts' Review Powers Re: Actions of Zoning Board Explained


The Fourth Department determined the zoning board properly denied the petitioner's application for a variance and explained the courts' review powers in this context:


It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board ... . Consequently, when reviewing the denial of an application for an area variance, "[j]udicial review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion' . . . [, and the b]oard's determination should therefore be sustained so long as it has a rational basis and is supported by substantial evidence' " ... . A reviewing court may not substitute its judgment for that of a local zoning board ..., "even if there is substantial evidence supporting a contrary determination" ... .


Here, the record establishes that respondent reviewed the appropriate statutory factors in making its determination (see General City Law § 81-b [4] [b]), and concluded that the application should be denied because, inter alia, the variances would cause an undesirable change to the character of the neighborhood, the variances are substantial, and petitioners' hardship is self-created (see § 81-b [4] [b] [i], [iii], [v]). Matter of People, Inc. v City of Tonawanda Zoning Bd. of Appeals, 2015 NY Slip Op 02257, 4th Dept 3-20-15



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