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


Emergency Doctrine Warranted Summary Judgment to Defendant Bus Company

The plaintiff, a bus passenger, was injured when the bus stopped quickly and she fell to the floor.  The Transit Authority moved for summary judgment under the emergency doctrine, submitting evidence the bus driver stopped to avoid a collision with a car that cut in front of the bus.  In granting summary judgment, the Second Department described the emergency doctrine as follows:

           Through the emergency doctrine, the law recognizes " that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency' … 

           "Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact for purposes of application of the emergency doctrine …, those issues may in appropriate circumstances be determined as a matter of law" …. Marri v New York City Tr Auth, 2013 NY Slip Op 03065, 2nd Dept, 5-1-13


Criteria for Negligence on Part of Out-of-Possession Landlord with Limited Right of Reentry

In dismissing a personal injury action stemming from plaintiff’s fall down a two-step interior stairway, the First Department explained the liability criteria for an out-of-possession landlord with limited right to reenter:


          As out-of-possession landlords, with a limited right to reenter, they could only be liable for negligence "based on a significant structural or design defect that is contrary to a specific statutory safety provision" …. The only condition alleged on appeal to serve as a predicate for [defendant’s] potential liability involves the riser heights of the steps. Even if the alleged Building Code provision, which concerns uniformity, were applicable and had been violated, the same would not constitute a significant structural or design defect and could not serve as a basis for liability against [defendant]. Drotar v Sweet Thing, Inc, 2013 NY Slip Op 03180, 1st Dept, 5-2-13

Plaintiff Was Unable to Demonstrate Landlord Had Knowledge of Presence of Lead Paint

Plaintiff’s inability to demonstrate the defendant had actual or constructive notice of the presence of lead paint in defendant’s building, in the face of defendant’s deposition testimony about his lack of knowledge, justified the dismissal of the lead-paint-injury complaint.  The Third Department explained:

"[I]n order for a landlord to be  held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected" ….To  establish constructive notice in the context of a lead paint case, the plaintiff must show "that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned,  (3) was aware  that paint was  peeling on  the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" … . Hines v Double D and S Realty Management Corp, 515525, 3rd Dept, 5-2-13

Contract-Based Duty Owed to Non-Party Explained


In this case a stove that was not secured to the wall with a bracket tipped over as children either stood or jumped on the oven door. One of the children was killed.  One of the many issues in the case was whether the contractor who installed the stove without the bracket was liable to the surviving child.  In upholding the denial of the contractor’s motion for summary judgment, the Third Department explained when a contractual relationship can give rise to tort liability to a third party:

           Defendant contends that, since he performed work as a contractor for the rental agent, he owed no duty to the surviving child and, thus, his motion for summary judgment in this regard should have been granted. "[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" …. The  three limited exceptions to this general rule include: "(1) where  the contracting party, in failing to exercise reasonable care in the performance  of his [or her] duties, launches a force or instrument of harm;  (2) where  the plaintiff detrimentally relies on  the continued performance  of the contracting party's duties[;] and  (3) where  the contracting party has entirely displaced the other party's duty to maintain the premises safely" …. Care must be taken in the application of the exceptions so that they do not "swallow up the general rule" …, and determining whether a duty exists is "a question of law for the courts" ….  Kelley…v Schneck…, 515645, 3rd Dept, 5-2-13

Okay to Compel Plaintiff to Produce Medical Reports Linking Injury to Lead Paint or Be Precluded from Introducing Such Evidence

In a lead-paint injury action, defendants moved to compel plaintiff to produce medical reports linking the injuries to lead and to provide an amended bill of particulars to reflect those injuries. In the alternative the defendants moved to preclude proof of plaintiff’s injuries in the absence of such medical reports.  Supreme Court granted the defendant’s motion and the Fourth Department affirmed.  In addition, the Fourth Department noted that Supreme Court was not required to take judicial notice of the federal Residential Lead-Based Paint Hazard Reduction Act (42 USC 4851), which provides a private right of action for lead-related damages, because plaintiff was not “relying” on the statute.  Hamilton v Miller…, CA 12-01574, 355, 4th Dept, 5-3-13



“Speaking Authorizations” Re Non-Party Healthcare Providers in Lead-Paint Injury Case Okay/But Not Okay for Non-Party Educators


In a lead-paint injury case, the Fourth Department determined Supreme Court properly granted a motion to preclude evidence of plaintiff’s mental or physical condition unless plaintiff provided defendant with so-called “speaking authorizations” allowing defendant to communicate with non-party healthcare providers about the plaintiff’s injuries.  However, the Fourth Department did not agree with Supreme Court’s grant of the same motion with respect to non-party educators (two justices dissented on that issue):

           In Arons v Jutkowitz …, the Court of Appeals provided the framework for conducting discovery with regard to nonparty healthcare providers, which includes the use of speaking authorizations. Arons, however, does not authorize defendant to obtain speaking authorizations for plaintiff’s educators. We decline to extend Arons to require production of speaking authorizations to anyone other than nonparty healthcare providers. The Arons decision is narrow in scope and provides a framework as to how parties must procedurally comply with the Health Insurance Portability and Accountability Act of 1996 when attempting to speak with an adverse party’s treating physician. Defendant made no showing that the discovery devices available under the CPLR and the Uniform Rules for the New York State Trial Courts were inadequate to obtain the necessary discovery. McCarter v Woods, CA 12-00678, 1117, 4th Dept, 5-3-13


Criteria for Non-Negligent Explanation for Striking Vehicle from Behind Described

In finding the defendant failed to demonstrate a non-negligent reason for his striking the plaintiff’s vehicle from behind (in defendant’s motion for summary judgment), the Fourth Department explained:

           A rear-end collision with a vehicle that is stopped or is in the process of stopping ‘creates a prima facie case of liability with respect to the [driver] of the rearmost vehicle, thereby requiring that [driver] to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ ” …. We agree with plaintiff that defendant failed to establish as a matter of law that the accident was the result of unanticipated brake failure, a nonnegligent explanation alleged by defendant in support of his cross motion… “Where, as here, .. . defendant[] intend[s] ‘to lay the blame for the accident on brake failure, it [is] incumbent upon [him] to show that the problem with the brakes was unanticipated, and that [he] had exercised reasonable care to keep them in good working order’ ” … .  Lyons v Zeman, CA 12-02074, 479, 4th Dept, 5-3-13


Duty to Defend Versus Duty to Indemnify---Question of Fact About Whether Intentional Conduct Policy Exclusion Applies

The plaintiff’s vehicle had been struck from behind by one Schwartz.  Plaintiff drove his vehicle into Schwartz and left the scene. Plaintiff was charged criminally for those actions.  In the personal injury action brought by Schwartz against plaintiff, the defendant insurance company defended plaintiff.  A $25,000 judgment was entered against plaintiff. Plaintiff then sued defendant insurance company for indemnification ($25,000).  Plaintiff moved for summary judgment, which was granted.  The Second Department reversed finding a question of fact had been raised by the insurer about whether plaintiff’s injuries were the result of his intentional conduct, a policy exclusion. In explaining the relevant law, the First Department wrote:

           "While the duty to defend is measured against the possibility of a recovery, the duty to pay is determined by the actual basis for the insured's liability to a third person" … . The burden to establish coverage and a duty to indemnify lies with the insured … . However, the insurer has the burden of proving facts establishing that the loss falls within an exclusionary clause of the insurance policy … .  * * *  [Here] …the insurer submitted evidence from the criminal prosecution and the underlying personal injury action, including Schwartz's deposition testimony, which raised a triable issue of fact whether the loss fell within a policy exclusion for bodily injury "intentionally" caused by the insured…Dryer v New York Cent Mut Fire Co, 2013 NY Slip Op 03056, 2nd Dept, 5-1-13

Criteria for Application of Equitable Estoppel to Late Disclaimer of Coverage

The circumstances under which an insurer can be equitably estopped from making a late coverage-disclaimer were discussed by the First Department.  Equitable estoppel based on the timing of a disclaimer alone will only be invoked when the insurer has controlled the defense and the character and strategy of the defense can no longer be altered (i.e., when the matter is close to trial).  201-208 Main St Assoc Inc v Arch Ins Co, 2013 NY Slip Op 03159, 1st Dept, 5-2-13


Father’s Application for Dismissal of Maternal Aunt’s Custody Petition (After Death of Mother) Granted

After the child’s mother died, petitioner, the child’s maternal aunt, sought custody.  In granting the father’s application to dismiss the petition, the Second Department wrote:

          As between a parent and a nonparent, the parent has a superior right to custody which cannot be denied absent a showing of surrender, abandonment, persisting neglect, unfitness, or other similar extraordinary circumstances …. A nonparent seeking custody of a child against the wishes of a parent has the initial burden of establishing the existence of extraordinary circumstances …. Once extraordinary circumstances are found, the court must then make the disposition that is in the best interests of the child … .  Here, the petitioner failed to establish the existence of extraordinary circumstances sufficient to warrant a hearing with regard to the child's best interests … . Matter of Andracchi v Reetz, 2013 NY Slip Op 03090, 2nd Dept, 5-1-13

Joint Custody Inappropriate Where Parents Can Not Cooperate

In affirming Family Court’s decision to award custody to mother because of the evidence that mother and father could not cooperate, the Second Department wrote:

           "[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" … . "However, joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child'" …. Since the record here is replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child, the Family Court erred in awarding the parties joint legal custody of the subject child …. Rather, an award of sole legal custody to the mother is in the child's best interests … . Matter of Wright v Kaura, 2013 NY Slip Op 03105, 2nd Dept, 5-1-13

Summary Judgment in Neglect Proceeding Based Upon Proceeding Concerning Other Children in Another County Upheld

In upholding the grant of summary judgment in a neglect proceeding based upon a prior “derivative neglect” determination (based upon drug abuse) with respect to other children in another county, the Third Department wrote:

           "Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists" ….  We note that "evidence of abuse of one child will not, in and of itself, establish a prima facie case of derivative neglect or abuse of another" … . Rather, a prima facie case of "'[d]erivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent's care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist'" … . * * * Here, the prior neglect determination was proximate in time– the order reflecting respondent's consent to a finding of neglect based upon excessive drug use was entered in January 2012, and petitioner moved for summary judgment in this proceeding less than one month later.  Matter of Alyssa WW … v Cortland County DSS, 514585, 3rd Dept, 5-2-13

Sole Custody to Mother Appropriate Because Voluntary Joint Custody No Longer Working

In affirming the grant of sole custody to the mother (in the face of a voluntary agreement of joint custody) because the parties’ relationship had deteriorated, the Third Department wrote:

           Initially, "[w]here a voluntary agreement of joint custody is entered into, it will not  be  set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child]…, and "an order entered on consent, without a plenary hearing, is entitled to less weight" …."[A] sufficient change [in] circumstances can be established where  . . . the relationship between  joint custodial parents deteriorates 'to the point where they simply cannot work together in a cooperative fashion for the good of their children'" … .  Matter of Youngs v Olsen, 514669, 3rd Dept, 5-2-13

Failure to Pay Pension Benefits to Wife Pursuant to Divorce Was an Action which Accrued Anew Each Time a Payment Was Missed for Statute of Limitations Purposes---Plaintiff Could Sue Only for Missed Payments Going Back Six Years from When Payments Began

Pursuant to a divorce, plaintiff was entitled to a share of her husband’s pension benefits starting in 1991.  Plaintiff did not start receiving the payments until 2005.  She did not bring an action on the unpaid benefits between 1991 and 2005 until 2010.  The Fourth Department determined that a cause of action for the unpaid benefits accrued anew when each payment was missed.  Because the statute of limitations is six years, the plaintiff could sue only for the unpaid benefits which accrued during the six years prior to when her action was started in 2010.  Bielecki v Bielecki, CA 12-01393, 264, 4th Dept, 5-3-13


Sanction for Failure to Negotiate in Good Faith Under Subprime Mortgage Laws Violated Contract Clause

Under CPLR 3408 (one of the Subprime Residential Loan and Foreclosure Laws enacted in response to the “subprime mortgage crisis”) settlement conferences between the bank and the homeowner are made mandatory.  The statute requires that the parties negotiate “in good faith to reach a mutually agreeable resolution, including a loan modification, if possible”… .  In this case, Supreme Court determined the bank had not negotiated in good faith.  As a sanction, Supreme Court compelled “specific performance of the original modification agreement” proposed by the bank at the outset of the settlement conference.  In a full-fledged opinion by Justice Dickerson, the Second Department, after describing the sanctions imposed in other cases, determined that the sanction in this case amounted to the Court’s rewriting the mortgage in violation of the Contract Clause and the bank’s due process rights.  Justice Dickerson wrote:

           …[T]the Supreme Court's interpretation of CPLR 3408(f) as authorizing it to, in effect, rewrite the mortgage and loan agreement would violate the Contract Clause of the United States Constitution …. * * *In addition, the Supreme Court's determination violated [the bank’s] due process rights. [The bank] was not on notice that the Supreme Court was considering a remedy such as the imposition of the terms of the modification proposal on a permanent basis… . Wells Fargo Bank, NA v Meyers, 2013 NY Slip Op 03085, 2nd Dept, 5-1-13

Denial of Motion for Severance Upheld---Defendant Suing for Two Types of Injuries Allegedly Linked to Two Different Groups of Defendants

In this case the plaintiff alleged his injuries were the result of exposure to coal tar pitch and asbestos “while employed as a laborer in the carbon electrode industry.”  The complaint separated the defendants into two groups, three companies were named with respect to the coal tar pitch (the appellants), and the other defendants were named with respect to the asbestos.  The appellants appealed the denial of their severance motion.  In affirming the denial of severance, the Fourth Department wrote:

           “The determination of whether to grant or deny a request for a severance pursuant to CPLR 603 is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking the severance” The burden is on the party seeking the severance to show that “a joint trial would result in substantial prejudice” ...Severance is appropriate where “individual issues predominate, concerning particular circumstances applicable to each [defendant] . . . [and there] is the possibility of confusion for the jury” …. Here, although appellants contended that a joint trial might result in juror confusion and would be inappropriate because plaintiff’s alleged injuries with respect to his exposure to coal tar pitch fumes and to asbestos were distinct, they did not satisfy their burden of establishing that a joint trial would result in substantial prejudice.  In re Eighth Judicial District Asbestos Litigation v Niagara Insulations, Inc, et al, CA 12-01809, 238, 4th Dept, 5-3-13

Prepayment Service Agreement Does Not Constitute a Debt that is Subject to a Restraining Notice Pursuant to CPLR 5222 (b)

The Court of Appeals determined that “an at-will, prepayment service agreement, which lacks any obligation to continue services or a commitment to engage in future dealings, [does not] constitute[] a property interest or debt subject to a CPLR 5222 (b) restraining notice.”

           The Appellate Division here affirmed the Supreme Court's findings of fact, which are supported by the record (see Karger, Powers of the New York Court of Appeals § 13:10, at 489 [3d ed. rev.][facts affirmed by the Appellate Division with evidentiary support are "conclusive and binding on the Court"]). The affirmed findings established that [defendant] prepaid for its service, and as such, there was no debt past due or yet to become due under the definition of CPLR 5201 (a). The only remaining issue is whether [defendant’s] oral agreement with GNAPs [a telephone switch service agreement which defendant decided weekly whether to continue] is an attachable property interest subject to restraint.  …[B]ecause [defendant] prepaid for services to be provided by GNAPs on a week-to-week basis, without any commitment or promise for additional services, or any assurance of a continued purchase of services, [defendant] neither owed any debt to, nor possessed any property of, GNAPs that could be subject to a restraint notice. Similarly, because [defendant’s] payments to GNAPs constitute neither a debt nor a present or future property interest, CPLR 5201 (a) and (b) are not applicable.  Verizon…v Transcom…, No 70, CtApp, 5-2-13


Height Differential Need Only Be More than “De Minimis”

In reversing the trial court and granting summary judgment to the plaintiff, the First Department noted that a “risk arising from a significant elevation differential” within the meaning of Labor Law 240(1) need only be based on a “height differential” that is more than “de minimis:”

           While the record did not specify the height, the uncontroverted evidence shows that the steel beams fell a short distance from the top of the A-frame cart to plaintiff's leg. Given the beams' total weight of 1,000 pounds and the force they were able to generate during their descent, the height differential was not de minimis (see McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2d Dept 2012] [elevation differential was within the scope of the scaffold law when a scaffold on wheels fell on the plaintiff who was at the same level as the scaffold, and it traveled a short distance]; Kempisty v 246 Spring Street, LLC, 92 AD3d 474, 474 [1st Dept 2012] [an elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance]; see also Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011] [recovery was permitted under the scaffold law when metal vertical pipes, on the same level as the plaintiff, toppled over on him]; Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]). Marrero v 2075 Holding Co, LLC, 2013 NY Slip Op 03160, 1st Dept, 5-2-13

Prevailing Wage Law Not Preempted by Federal Telecommunications Act or Labor Relations Act

In upholding the finding that petitioner had failed to pay the prevailing wage for work done for a school district, the Third Department determined the prevailing wage law was not preempted by the federal Telecommunications Act and the Labor Management Relations Act:

           Generally, a federal law may supersede a state law where Congress explicitly declares preemption as its intent …, or where the federal law is "'so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it'" …. The Court of Appeals has observed, however, that "[t]he presumption against preemption is especially strong with regard to laws that affect the states' historic police powers over occupational health  and safety issues" …. While the Telecommunications Act is intended to exclusively govern the field of telecommunications service (see 47 USC § 253 [a]), the prevailing wage law is a minimum labor standard … .As such, it falls within the Telecommunications Act's safe harbor provision, which provides that  "[n]othing  in this section  shall affect the  ability of  a [s]tate to impose, on a competitively neutral basis . . . requirements necessary to . . . protect the public safety and welfare" (47 USC  §  253  [b]). … Nor is the prevailing wage law preempted by the federal Labor Management Relations Act. That statute provides that federal law governs suits to enforce collective bargaining agreements (see 29 USC § 185 [a]). While it is true that the Department  of Labor refers to collective bargaining agreements  to determine  prevailing wages,  those  agreements  are  not  necessarily determinative, and the rights conferred by the prevailing wage law  are independent of those conferred by  such  agreements … .  Matter of Pascazi v Gardner, 513528, 3rd Dept, 5-2-13


The Term “Release” (Re Hazardous Substances) Did Not Apply to Migration of Hazardous Substance to Neighbor’s Property Underground

The Third Department determined there were two equally plausible interpretations of the term “sellers” as used in the contract ,rendering the contract ambiguous.  Therefore, the motion to dismiss the complaint prior to discovery was properly denied. In addition, the Third Department determined that the term “release” (re: hazardous substances) did not extend to the migration of hazardous substances to neighboring properties under ground:

           …[The provision] requires  indemnification  for environmental  claims  related  to, among other things, a "Release" of hazardous substances "at locations other than [500 Beech]." "Release"  is defined  to include  "any  spilling, leaking, pumping,  pouring,  emitting, emptying, discharging, injecting, dumping  or disposing of any Hazardous  Material  into  the  environment." In its Canadian action, the neighbor alleged that contaminants – which would be classified as "Hazardous Materials" under the agreement – in the ground  at 500 Beech migrated into the soil and  groundwater at 606 Beech. There is no allegation that hazardous substances were spilled, leaked or otherwise disposed of directly onto the property at 606 Beech. Rather, the allegation is that the flow of underground water carried those substances from 500 Beech, where they had been spilled or leaked, to the neighboring property. Although the hazardous substances eventually wound up at 606 Beech, there is no support for an allegation that the "Release" of those substances occurred at a location other than 500 Beech. Vectron International, Inc, v Corning Oak Holding, Inc, 515408, 3rd Dept, 5-2-13

Limitation of Liability Clause in House-Design Contract Valid

The defendant designed plaintiffs’ residence and the first floor was built two feet below what the regulations required resulting in increased flood insurance premiums.  In the contract between the parties, it was agreed to limit defendant’s liability to the amount of the fees paid by plaintiffs.  After noting that contractual liability-limit clauses are valid and enforced except in cases of “gross negligence,” the Third Department determined “gross negligence” had not been demonstrated:  In describing “gross negligence,” the Third Department wrote:

            In this context, it is settled  that  "gross negligence differs in kind, not only in degree, from claims of ordinary negligence.  It is conduct  that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing" … .  Soja v Keystone Tozze, LLC, 515422, 5-2-13

Broad Arbitration Clause Required Arbitration of Topic Not Directly Covered by Collective Bargaining Agreement

In upholding the lower court’s determination that a matter involving “shift swapping” in the sheriff’s department was subject to arbitration even though the topic was not directly covered by the collective bargaining agreement (CBA), the Fourth Department wrote:

           In determining whether the parties agreed to arbitrate the dispute at issue, “[o]ur review . . . is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom” …. “Where, as here, there is a broad arbitration clause and a ‘reasonable relationship’ between the subject matter of the dispute and the general subject matter of the parties’ [CBA], the court ‘should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them’ ” … .  Matter of Ontario County…, CA 12-01766, 309, 4th Dept, 5-3-13


Normal Behavior of Horse (Jerking Head Back) Not Actionable

The Court of Appeals affirmed the appellate division’s ruling that the plaintiff could not recover for injury to her hand resulting from a horse’s jerking its head back when plaintiff was holding the halter.  The Court of Appeals wrote:


           Under the rule of Bard v Jahnke, (6 NY3d 592, 596-597 [2006]), plaintiff cannot recover in the absence of a showing that defendant had knowledge of the animal’s “vicious propensity” or “propensity to do any act that might endanger the safety of the persons and property of others” …. No such showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of “behavior that is normal or typical for the particular type of animal in question” … .  Bloomer v Shauger, No 79, CtApp, 5-2-13

Normal Negligence Theories Apply to Injury Resulting from Animal Wandering Off (Cow Struck By Car)

The Court of Appeals determined that the line of strict liability “knowledge-of-an-animal’s-vicious-propensities” cases did not apply to this case, where a cow was negligently allowed to wander off, causing injury to the plaintiff who struck the cow with her car.  In a case like this, normal negligence theories apply:

           [Here the claim] … is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. To apply the rule of Bard -- that "when harm is caused by a domestic animal, its owner's liability is determined solely" by the vicious propensity rule (6 NY3d at 599) -- in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people's property.  We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal -- i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7) -- is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.  Hastings v Sauve, et al, No 78, CtApp, 5-2-13


Town Zoning Ordinances Prohibiting Exploration For and Production of Natural Gas (In Response to Concerns Over Hydrofracking) Upheld

In a full-fledged opinion by Justice Peters, the Third Department held that a town zoning ordinance which banned “all activities which related to the exploration for, and the production or storage of, natural gas and petroleum,” passed in response to concern over “hydrofracking,”  was not preempted by New York’s Oil, Gas and Solution Mining Law (OGSML) (ECL 23-0301, et seq).  The opinion includes an extensive discussion of the legislative history of the preemption language in the OGMSL, as well as the concepts of express, implied and conflict preemption. Norse Energy Corp, USA v Town of Dryden, et al, 515227, 3rd Dept, 5-2-13

For identical reasons, a similar ordinance enacted by the Town of Middlefield was held valid by the Third Department.  Cooperstown Holstein Corp v Town of Middlefield, 515489, 3rd Dept, 5-2-13


No Notice of Claim Required for Discrimination Claims Against Town

The issue before the Fourth Department was whether an action against the North Bailey Volunteer Fire Co alleging discrimination and tort causes of action must be preceded by a notice of claim pursuant to Municipal Law 50-e.  The Court concluded that, because the volunteer fire company was a “fire protection district,” it was part of the town and, therefore, a notice of claim was required as a condition precedent to suits in tort.  [The court noted that a “fire district,” in contrast, is a distinct legal entity and, therefore, not part of a town for purposes of a notice of claim.]  The discrimination claims, brought under the Human Rights Law, were deemed exempt from the notice of claim requirement because they were not “founded in tort.”  The tort claims, on the other, were subject to the notice of claim requirement. Thygesen v North Bailey Volunteer Fire Co, Inc, et al, CA 12-00789, 290, 4th Dept, 5-3-13


State Court Did Not Have Subject Matter Jurisdiction Over “Dangerous Sex Offender” Civil Management Proceeding Because Defendant Would Not Be Released Upon Finishing State Sentence---Defendant Had 19 Years to Go on Federal Sentence

As a sex offender (respondent) neared the end of his state sentence, the state (petitioner) sought a proceeding under article 10 of the Mental Hygiene Law alleging the respondent was a dangerous sex offender requiring civil management.  However, the respondent was also serving a federal sentence and would not be released for another 19 years.  For that reason, the Fourth Department determined the court did not have subject matter jurisdiction over the Mental Hygiene Law proceeding:


           It is well settled that a court is without subject matter jurisdiction “when it lacks the competence to adjudicate a particular kind of controversy in the first place. As the Court of Appeals has observed, ‘[t]he question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it’ ”….Moreover, subject matter jurisdiction requires that the matter before the court is ripe …. In other words, courts “may not issue judicial decisions that can have no immediate effect and may never resolve anything,” and thus “an action may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur” ….It is axiomatic that an article 10 determination issued in 2013 would have no immediate effect on a sex offender who is not to be released from federal prison until 19 to 22 years later, especially considering the well-accepted principle that a sex offender, who is at one point determined to be dangerous, may subsequently be found to no longer be dangerous—a principle recognized by article 10’s allowance for annual reviews ….  Matter of State v Calhoun, CA 11-02578, 314, 4th Dept, 5-3-13


Post-Arrest Search of Purse Not in Grabbable Area and Not in Vehicle Invalid

The Third Department made a careful analysis of the police actions after receiving an anonymous tip that two women in car were taking drugs.  The court determined the police acted properly in escalating the police intrusion from questioning to arrest, including the search of the car without a warrant.  However, the Third Department held that the post-arrest search of a purse that was not inside the car, and was not in the defendant’s “grabbable area,” was not valid.  In addition the Third Department held the defendant’s answer to a police officer’s question about who owned the purses should have been suppressed, because, at the time of the question, the defendant would not have reasonably believed she was free to go and she had not waived her right to remain silent.  But because her statement was not “involuntary” it would be available for impeachment at trial should she testify.  People v Boler, 104092, 3rd Dept, 5-2-13

Evidence of Physical Injury (re Assault) Insufficient

In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient:

           Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a "physical injury" within the meaning of Penal Law § 10.00(9). Physical injury is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00[9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a "physical injury"…, and the judgment must be reversed and the indictment dismissed.  People v Boley, 2013 NY Slip Op 03109, 2nd Dept, 5-1-13

Procedure for Sentencing as Persistent Felony Offender Not Followed

In sending the matter back for resentencing, the Second Department noted that the statutory procedure for sentencing as a persistent felony offender had not been followed:

           The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20(1)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10[2]…). People v Brown, 2013 NY Slip Op 03111, 2nd Dept, 3-1-13

Violent Felony Conviction for which Defendant Not Yet Sentenced Can Be Considered in SORA Assessment

The First Department determined a violent felony conviction for which the defendant had not yet been sentenced could be used as a risk factor in a SORA risk level assessment.  People v Franco, 2013 NY Slip Op 03168, 1st Dept, 5-2-13

Failure to Cooperate with Probation Department Is Valid Reason for Enhanced Sentence

The Second Department determined defendant’s failure to cooperate with the probation department in violation of his plea agreement was a valid ground for an enhanced sentence:

           The condition of the defendant's plea that he cooperate with the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement …. The defendant's violation of that condition, by refusing to be interviewed by the probation officer, allowed the Supreme Court to impose the enhanced sentence.  People v Patterson, 2013 NY Slip Op 03113

Procedure for Sentencing a Second Felony Offender Not Followed

The Second Department sent the matter back for resentencing because of the sentencing court’s failure to follow the statutory procedure for adjudicating defendant a second felony offender:

           As the People correctly concede, the sentencing court adjudicated the defendant a second felony offender (see Penal Law § 70.06) absent any indication of compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard …. Accordingly, we remit the matter to the County Court, Suffolk County, for resentencing in accordance with the mandates of CPL 400.21 ….  People v Puca, 2013 NY Slip Op 03114, 2nd Dept, 5-1-13

Procedure for Resentencing Under Drug Law Reform Act Not Followed

County Court failed to comply with the statutory procedure for resentencing pursuant to the Drug Law Reform Act of 2004 (Criminal Procedure Law 440.46).  County Court did not issue a written order re: the new sentence, did not issue written findings of fact and reasons for the sentence, and did not inform the defendant of his right to appeal the resentence or his right to withdraw his motion for resentencing.  The Third Department wrote:


           Resentencing under CPL 440.46 incorporates the detailed procedures of the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23…). Those procedures require, as relevant here, that an order issued by  the court informing a defendant of the sentence it will impose in the event of resentencing "must include written findings of fact and reasons for such order" (L 2004, ch 738, § 23 …). Defendant must also be notified that he  or she has a right to appeal that written order of proposed resentencing as well as a right – which can be exercised after the appeal and upon remand – to be  given an  opportunity to withdraw  the application for resentencing before any resentence is imposed…. People v Delayo, 104402, 3rd Dept, 3-2-13

Kicking In Window Satisfies Entry Element of Burglary

In this case, the Third Department determined kicking in a window satisfies the “entry” element of burglary and the recording by the police of a phone conversation between the defendant and his sister, although it may have violated the eavesdropping statute, was not an error preserved for appeal:

           "[T]he entry element of burglary is satisfied 'when a person intrudes within a building, no matter how slightly, with any part of his or her body'" …, and kicking in a window constitutes an entry even when the perpetrator then flees without further intruding into the building ….  *  *  *

           Defendant contended  that he  had  a reasonable expectation of privacy during this conversation,  and  now  further asserts that  police committed the crime of eavesdropping by recording this conversation (see Penal Law § 250.05).  We agree with Supreme Court's rejection of the privacy claim, and the unpreserved eavesdropping claim does not warrant modification in the interest of justice ….  People v McFarland, 104491, 3rd Dept, 5-2-13

Post-Arrest Exception to Warrant Requirement for Automobile Search Explained

In upholding a search of a purse inside a vehicle after a traffic stop for a seatbelt violation, the Third Department explained the post-arrest exception to the warrant requirement for an automobile search:

           Under the automobile exception to the warrant requirement, the police may search an automobile – including containers found inside – when they have arrested one of its occupants and there is "'probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape' “The search, however, need not be limited to items related to the crime for which the occupant is being arrested; it may be instituted when the circumstances provide probable cause to believe that any crime has been or is being committed … .  * * *
The Trooper testified that his search was prompted by his observation of the marihuana stem, the suspicious behavior of the front passenger with respect to the brown purse, the fact that none of the vehicle's occupants  acknowledged  ownership of such purse and the inconsistent statements made by them regarding their destination. Viewing these circumstances as an integrated whole, we conclude that the Trooper had probable cause to believe that a crime had  been or was  being  committed,  which  justified a search of the vehicle, including the brown purse found therein ….. Since we find no error in the search of the vehicle, we also reject defendant's claim that the statements he made thereafter should have been suppressed as "fruit of the  poisonous  tree."  People v Thompson, 104836, 3rd Dept, 5-2-13

Trial Court’s Refusal to Allow Defense Witness to Be Called Required Reversal

The Fourth Department (over two dissents) reversed defendant’s conviction and ordered a new trial because the defense was precluded from calling a witness.  The prosecution’s theory was that the defendant committed robbery, assault and burglary against the victim in retaliation for the victim’s informing the police defendant was growing marijuana in his house. It was anticipated the witness the defense was not allowed to call would testify that defendant accused him (the witness) of being the informant but did not assault or threaten him.  The Fourth Department explained:

           It is well settled that “a defendant’s ‘right to present his own witnesses to establish a defense . . . is a fundamental element of due process of law’ ” …In fact, “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” …Thus, the testimony of a defense witness should not be prospectively excluded unless the offer of such proof is palpably in bad faith …. Instead, courts upon proper objection should “rule on the admissibility of the evidence offered” …. Here, the People do not suggest that the testimony of the proposed witness was offered in bad faith, and the court did not make such a finding at trial. Indeed, there is no basis in the record for concluding that the offer of proof was palpably in bad faith. The court therefore should have allowed the proposed witness to testify, whereupon the prosecutor could object to any testimony she deemed inadmissible or improper.  People v Arena, KA 12-01632, 179, 4th Dept, 5-3-13

Suppression Ruling Reversed—Pat Down Search Justified for Officer Safety

Over two dissents, the Fourth Department reversed the grant of suppression by County Court.  The questioning of the defendant was instigated by the defendant’s staring at the officer as the officer was in his vehicle and the defendant was riding a bicycle.  The defendant ran his bicycle into a porch, fell and ran up the steps. At that point the officer approached him and asked him for identification.  The defendant kept putting his hand in his pocket after the officer asked him not to. The officer grabbed the defendant’s hand as defendant reached into his pocket.  As he did so, the officer touched an object he believed to be a handgun and he reached into the pocket and removed it.  The majority felt the officer was justified in grabbing the defendant’s hand and retrieving the object to protect his safety.  The dissenters felt the information available to the officer did not amount to reasonable suspicion of criminality such that a forcible stop and frisk was justified.  People v Sims, KA 12-01247, 324, 4th Dept, 5-3-13

Motion to Set Aside Convictions Based On Newly Discovered Evidence Should Have Been Granted

The Fourth Department determined the trial court should have set aside defendant’s criminal contempt convictions pursuant to Criminal Procedure Law 330.30(3) based upon newly discovered evidence (phone records calling into question complainant’s trial testimony).  The Fourth Department wrote:

           To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence”….  People v Madison, KA 11-00313, 389, 4th Dept, 5-3-13

Robbery Guilty Plea Rendered Insufficient By Statement Weapon Used Was “Fake”

The Fourth Department reversed defendant’s robbery convictions (by guilty pleas) because, in the plea allocution, defendant indicated the weapon involved was “fake.” People v Burroughs, KA 10-00663, 462, 4th Dept, 5-3-13

Criteria for Specific Performance of Plea Agreement Explained

The Fourth Department noted the criteria for a defendant’s right to specific performance of a plea agreement (criteria not met in this case):
“ ‘The remedy of specific performance in the context of plea agreements applies where a defendant has been placed in a no-return position in reliance on the plea agreement . . . , such that specific performance is warranted as a matter of essential fairness’ ” … Inasmuch as neither the prosecution nor the defense had taken any action on the second plea agreement …defendant was not placed in a “ ‘no-return position’ ” in reliance on the second plea agreement and is thus not entitled to specific performance of that agreement… . People v Weather, KA 11-01247, 482, 4th Dept, 5-3-13

Suppression Should Have Been Granted---People Failed to Meet Their Burden of Going Forward at Suppression Hearing

The Fourth Department ruled that suppression of tangible evidence and statements should have been granted because the People failed to meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct.  The Fourth Department further determined that the error was not harmless with respect to all but one of the charges:

           We agree with defendant, however, that County Court erred in denying that part of his omnibus motion seeking suppression of the physical evidence that was seized from his vehicle and the statements he made to New York State Police Investigators, inasmuch as the People failed to meet their “burden of going forward to show the legality of the police conduct in the first instance” … . * * *
Because the People failed to present evidence at the suppression hearing establishing the legality of the police conduct, defendant’s purported consent to the search of his vehicle was involuntary and all evidence seized from the vehicle as a result of that consent should have been suppressed … .Additionally, defendant’s statements to the police must be suppressed as fruit of the poisonous tree.. .  People v Purdy, KA 12-00534, 488, 4th Dept, 5-3-13

Statements Made by Defendant During First 15 Hours of a 60-Hour Interrogation Not Coerced

The Fourth Department determined the trial court properly ruled that the defendant’s statements during the first 15 hours of a 60-hour interrogation need not be suppressed as the product of coercion.  People v Collins, KA 09-00932, 1367, 4th Dept, 5-3-13

Conviction Reversed on Ineffective Assistance of Counsel Grounds

After reviewing a litany of errors made by defense counsel which demonstrated a lack of familiarity with the procedural and evidentiary principles underlying a criminal prosecution, the Court of Appeals reversed defendant’s conviction because of the ineffectiveness of his counsel:

           In order to sustain a claim of ineffective assistance of counsel, a court must consider whether defense counsel's actions at trial constituted "'egregious and prejudicial' error such that defendant did not receive a fair trial" ….. While a single error by defense counsel at trial generally does not constitute ineffective assistance …, courts must examine defense counsel's entire representation of defendant …. "[T]he claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole" …. "Defense counsel are charged with managing the day-to-day conduct of defendant's case and making strategic and tactical decisions" …. Counsel's performance in fulfilling this role is "objectively evaluated" …"to determine whether it was consistent with strategic decisions of a 'reasonably competent attorney'" ….  While defense counsel's errors in thiscase individually may not constitute ineffective assistance, "the cumulative effect of defense counsel's actions deprived defendant of meaningful representation" …. Defense counsel's actions throughout this case showed an unfamiliarity with or disregard for basic criminal procedural and evidentiary law. At the very least, a defendant is entitled to representation by counsel that has such basic knowledge, particularly so, when that defendant is facing a major felony with significant liberty implications. Considering the seriousness of the errors in their totality, we conclude that defendant was deprived of a fair trial by less than meaningful representation. People v Oathout, No 81, CtApp, 5-2-13


Department of Corrections Immune from Wrongful Confinement Suit

The Third Department affirmed the dismissal of a complaint by an inmate suing the Department of Corrections for wrongful confinement (after the annulment of a disciplinary determination) on immunity grounds: "[A]ctions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, [defendant] has absolute immunity for those actions"… . Loret v State of New York, 514609, 3rd Dept, 5-2-13

Department of Corrections Has Right to Force-Feed Inmate on Hunger Strike

The Court of Appeals determined that the state has the right to force-feed an inmate (Dorsey) who is on a hunger strike, once the inmate’s life is in jeopardy.  The opinion by Judge Graffeo is lengthy and deals with preservation requirements, the mootness doctrine, as well as the constitutional rights implicated in the refusal of medical care.  Judge Lippman dissented, addressing primarily his view that the issues discussed on appeal had not been preserved and the “exception to mootness” doctrine had been misapplied.  Judge Graffeo wrote:

           It is therefore evident that DOCCS' decision to intervene when Dorsey's hunger strike progressed to the point that his life was in jeopardy was reasonably related to legitimate penological objectives. Taking action to interrupt an inmate hunger strike not only serves to preserve life and prevent a suicide but also to maintain institutional order and security. There was no way that DOCCS could effectuate these interests other than to seek a judicial order permitting feeding by nasogastric tube -- less intrusive means had been attempted without success. Dorsey had been moved to the infirmary and medical staff within the facility had repeatedly counseled him in an attempt to get him to voluntarily abandon the hunger strike (as he had done before) to no avail. Matter of Bezio v Dorsey, No 65, CtApp, 5-2-13


Elements of Constructive Trust Not Demonstrated

The plaintiff had conveyed her 25% interest in real property to her cousin, allegedly with the understanding plaintiff would share in the proceeds if the property were sold. Eventually the cousin was deeded 100% of the property. The cousin lived on the property from 1989 to 2005.  The cousin deeded the property to her brother and his wife, the defendants. The defendants maintained the house and paid taxes on it, although they did not live there.  The plaintiff did not contribute to the property maintenance or taxes and did not submit any proof that the defendants had been unjustly enriched by owning the property (i.e. rental income). The Second Department upheld the referee in finding that the plaintiff had not proved the elements of a real-property constructive trust.  The Second Department explained the elements as follows:

           "The elements of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment… . These requirements, however, are not to be rigidly applied …. The ultimate purpose of a constructive trust is to prevent unjust enrichment, and it will be imposed " [w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'" ….  Broderson v Parsons, 2013 NY Slip Op 03050, 2nd Dept, 5-1-13


Six-Year Delay in Raising Attorney’s Conflict of Interest Waived the Objection

The Second Department determined plaintiffs six-year delay in moving to disqualify an attorney for the defendants on conflict-of-interest grounds constituted a waiver of any objection to the attorney’s participation.  The court described the legal analysis as follows:

           The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination" …. "Whether to disqualify an attorney is a matter which lies within the sound discretion of the court" … . Where a party seeks to disqualify its adversary's counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time … . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party's representation… . Hele Asset, LLC v S E E Realty Assoc, 2013 NY Sluip Op 03061, 2nd Dept, 5-1-13


Doctrine of Primary Jurisdiction

The plaintiffs, in a nuisance action, sought to enjoin the defendants “from maintaining more than one ‘main building’ on the premises, allegedly in violation of the Village Code.”  The Second Department, citing the doctrine of primary jurisdiction, ruled that the case for an injunction had not been made out because the plaintiffs never sought a determination of the legality of the use of the premises from the administrative agency responsible for zoning:

           The doctrine of primary jurisdiction "generally enjoins courts having concurrent jurisdiction to refrain from adjudicating disputes within an administrative agency's authority, particularly where the agency's specialized experience and technical expertise is involved" …. Here, the plaintiffs failed to properly seek a determination regarding the legality of the use of the premises under the Village Code from the administrative bodies authorized to administer and enforce the Village's zoning law … .  Massaro v Jaina Network Sys, Inc, 2013 NY Slip Op 03066, 2nd Dept, 5-1-13


Reporter’s Information Subject to Qualified Protection

A reporter spent four days “autotrekking” with petitioner’s husband a few months before the husband’s death in an “autotrekking” accident.  Petitioner subpoenaed the reporter to appear in an action arising from the death of her husband.  The First Department ruled the information gathered by the reporter was entitled to qualified protection under the New York Shield Law:


            Contrary to petitioner’s contention, all the information she seeks constitutes “unpublished news obtained or prepared by” Coburn, undisputedly a professional journalist, “in the course of gathering or obtaining [the] news” that was ultimately published in the article, and is therefore subject to qualified protection under the New York Shield Law (see Civil Rights Law § 79-h[c]… .

           Petitioner failed to make the “clear and specific showing” required to overcome the protection (see Civil Service Law § 79-h[c]). Even assuming that the information she seeks is “highly material and relevant” and “critical or necessary” to the maintenance of her claims, she has not shown that it is unobtainable “from any alternative source” … .  Matter of Gilson v Coburn, 2013 NY Slip Op 03177, 1st Dept, 5-2-13


Court Could Not Require Parolee to Submit Psychological and Medical Proof In Support of Name-Change Petition

In this case the Fourth Department determined the court could not require petitioner, a parolee, to provide psychological and medical proof in support of a petition for a name change.  The Fourth Department wrote:


           …[W]e agree with petitioner that the court erred in requiring him to provide psychological and medical proof in support of the amended petition; such proof is irrelevant when the petitioner seeks only to assume a different name, “not a declaration of a gender ‘change[] from male to female’ ” …. Here, petitioner has not requested a declaration regarding gender, but by the amended petition has asked the court “only to sanction legally petitioner’s desire for a change of name, after satisfying itself that petitioner has no fraudulent purpose for doing so and that no other person’s rights are interfered with thereby” ….  Matter of Anonymous, CA 12-02056, 426, 4th Dept, 5-3-13


Money Paid Into Court in Conjunction with Stay Pending Appeal Does Not Stop Accruing of Interest Until Prevailing Party is Paid

Where money has been paid into the court in conjunction with a stay pending appeal, interest accrues on it until prevailing party is paid.  The First Department explained:

           Contrary to respondents' claim, their payment of $1,763,080.64 into court on February 18, 2011 to stay the judgment pending appeal did not stop interest from accruing …. This is so even though respondents no longer had the use of the money after paying it into court …. Petitioner is entitled to simple interest until the date he was paid ….  Weiderhorn v Merkin, 2013 NY Slip Op 03166, 1st Dept, 5-2-13


Issue Whether Son of Sam Law Supersedes Retirement and Social Security Law Protection of Pension Benefits Not Preserved for Review

This case was remitted to the Third Department after the Court of Appeals determined the issue whether the Son of Sam Law (allowing the victims of crimes to seek compensation from the perpetrator) superseded Retirement and Social Security Law 110, which protects pension payments from creditors, had not been preserved for review.  The Third Department made it clear that it believes the Son of Sam Law does supersede the Retirement and Social Security Law, but the court was prohibited from addressing the subject due to the procedural posture of the case.  Matter of NYS Office of Victim Services v Raucci, 513039, 3rd Dept, 5-2-13


Inmate’s FOIL Request to District Attorney’s Office for His Communications with Victims of Sexual Offenses May Be Prohibited by Civil Rights Law

The Third Department remitted the case to Supreme Court for an in camera review of the information sought by an inmate’s FOIL request of the District Attorney’s office to turn over his communications with the victim’s of sexual offenses.  The Third Department determined any communications that fell under the protection of the Civil Rights Law could not be turned over:

           …"Civil Rights Law § 50-b (1) provides a statutory exemption from disclosure for documents that tend to identify the victim of a sex offense" … Civil Rights Law  §  50-b expressly prohibits the disclosure of information pertaining to the identity of victims of sex offenses, providing, in relevant part, that "[n]o report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection" and that "[n]o such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim" (Civil Rights Law § 50-b [1]). The District Attorney's office must make a "particularized showing that the statutory exemption from disclosure pursuant to Civil Rights La§ 50-b applies to all of the records petitioner seeks"… . Matter of MacKenzie, v Seiden, 513156, 3rd Dept, 5-2-13


Downtown Improvement/Sanitary District Charges/Downtown Special Assessment District Charges Not “Taxes” for Purposes of Empire-Zone Tax Credit

The question before the Third Department was whether petitioner’s limited liability company, which was a Qualified Empire Zone Enterprise (QEZE) and therefore was entitled to claim credit for “eligible real property taxes,” could also claim credit for a “downtown improvement tax.”  The issue was whether the “downtown improvement tax” was an “eligible real property tax.”  After extensive analysis of the meaning of “tax” in this context, the Third Department, in a full-fledged opinion by Justice McCarthy, determined it was not: "By long-standing precedent, statutory relief from real property 'taxation' . . . was held not to apply to taxes imposed for special benefits, typically in the form of special ad  valorem levies or special assessments" … .   Matter of Piccolo v NYS Tax Appeals Tribunal, 513539, 3rd Dept, 5-2-13

In a case which raised the same “tax versus ad valorem levy” issue in the QEZE context, the Third Department determined Sanitary District charges were not “taxes” entitled to credit.  Matter of Stevenson v NYS Tax Appeals Tribunal, 513540, 3rd Dept, 5-2-13

In another case with the same QEZE “tax versus ad valorem levy” issue, the Third Department determined that “Downtown Special Assessment District Charges” were not “taxes” entitled to credit.  Matter of Herrick v NYS Tax Appeals Tribunal, 513541, 3rd Dept, 5-2-13


Appraisal of Value of Gas-Line Easements Insufficient

The Third Department reviewed an eminent domain proceeding for gas-line easements and determined that the appraisal relied upon by the trial court did not include a sufficient explanation of the valuation methods employed to allow substantive cross-examination.  Because the other appraisal offered at trial was rejected by the trial court, the case was remanded.  Matter of Acquisition of Easements … v Porto Bagel, Inc, 514583, 3rd Dept, 5-2-13


Failure to Allow Inmate to Observe Search of Cell Required Annulment

In annulling a disciplinary determination because petitioner was not allowed to observe the search of his cell, the Third Department wrote:

           Department of Corrections and  Community Supervision Directive No. 4910 [V] [C] [1] provides, as relevant here, that "[i]f the inmate is removed  from quarters prior to [a] search, he or she shall be  placed outside the immediate area to be  searched, but allowed to observe the search. However, if, in the opinion of a supervisory security staff member, the inmate presents a danger to the safety and security of the facility, the inmate shall be  removed  from the area and  not allowed to observe the search." At the disciplinary hearing, petitioner raised his objection that he  was  improperly removed  from the area of his cell despite his request to observe the search. Absent  any  indication that a  supervisory staff member determined  that petitioner posed  a  danger  to the security of the facility, we  cannot  conclude  that the Department  of Corrections and Community Supervision complied with Directive No. 4910.  Matter of Mingo v Chappius, 514655, 3rd Dept, 5-2-13

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