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


Property Owner’s Liability for Snow and Ice on Sidewalk

In reversing the grant of summary judgment to the defendant in a slip and fall case, the Second Department explained the controlling law with respect to ice and snow on a municipal sidewalk abutting private property as follows:

           Section 7-210 of the Administrative Code of the City of New York, which became effective September 14, 2003, shifted tort liability from the City to the property owner for personal injuries proximately caused by the owner’s failure to maintain the sidewalk abutting its premises in a reasonably safe condition (including the negligent failure to remove snow, ice, or other material from the sidewalk), with several exceptions not relevant here ….

          Administrative Code of the City of New York § 7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable …. Thus, in support of a motion for summary judgment dismissing a cause of action pursuant to Administrative Code of the City of New York § 7-210, the property owner has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ….  Gyokchyan v City of New York, 2013 NY Slip Op 03302, 2nd Dept, 5-8-13


Jury Need Not Draw the Permissible Inference of Negligence Under Doctrine of Res Ipsa Loquitur, Even Where Defendant Offers No Proof

The Second Department explained that the doctrine of res ipsa loquitur makes out a prima facie case of negligence but the jury is not required to draw the permissible inference of negligence, even where the defendant offers no proof:

           The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident, upon a plaintiff’s showing that the event is of the kind which ordinarily does not occur in the absence of negligence and was caused by an agency or instrumentality within the exclusive control of the defendant, without any voluntary action or contribution on the part of the plaintiff …. “The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may-but is not required to-draw the permissible inference” …. “[T]he use of res ipsa loquitur does not relieve the plaintiff of the burden of proof” …. In a res ipsa loquitur case, the jury has great latitude; even when the plaintiff has established a prima facie case and the defendant has offered no proof, the jury nonetheless is entitled to find for the defendant …, subject, of course, to appellate review. Nikollbibaj v City of New York, 2013 NY Slip Op 03306, 2nd Dept, 5-8-13

College Had No Duty to Supervise Fraternity “Pledging” Activities

The Second Department affirmed the dismissal of an action brought by a student against his college alleging a failure to supervise a fraternity’s “pledging” activities (resulting in personal injuries).  The Court wrote:

         "Absent a duty of care, there is no breach, and without breach there can be no liability" …. The existence of a legal duty presents a question of law for the court … . "New York has affirmatively rejected the doctrine of in loco parentis at the college level and colleges in general have no legal duty to shield their students from the dangerous activity of other students'" …. A duty, however, may be imposed upon a college where it has encouraged its students to participate in an activity and taken affirmative steps to supervise and control the activity ….  * * * [T]he plaintiff did not sufficiently allege that the University defendants' involvement in the Fraternity's initiation process was of a degree that gave rise to a duty… . Pasquaretto v Long Is Univ, 2013 NY Slip Op 03308, 2nd Dept, 5-8-13



Notice Element of Lead-Paint Injury Cause of Action Explained


In affirming the denial of summary judgment in a lead-paint injury case, the Third Department explained the “notice” elements as follows:

         With respect to notice, "[i]t is well settled that in 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" …. In this context, constructive notice may  be demonstrated by a showing "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" … . Derr v Fleming, 515399, 3rd Dept, 5-9-13


Property Owner’s Obligation to Remove Snow and Ice from Sidewalk

The Second Department explained the obligation of the owner of an owner-occupied, two-family, residential house with respect to the removal of ice and snow from the abutting sidewalk:

         Since the defendants' property, a two-family house, was owner-occupied and used exclusively for residential purposes, the defendants were exempt from liability imposed pursuant to Administrative Code of the City of New York § 7-210(b) for negligent failure to remove snow and ice from the sidewalk …. Thus, the defendants may be held liable for a hazardous snow and ice condition on the sidewalk only if they undertook snow and ice removal efforts that made the naturally occurring condition more hazardous or caused the defect to occur because of a special use …. Unless one of these factors is present, an abutting owner of a two-family residence may not be held liable for the removal of snow and ice in an incomplete manner …. Rodrigo Texis Cuapio v Skrodzki, 2013 NY Slip Op 03293, 2nd Dept, 5-8-13

Question of Fact About Property Owner’s Liability for Condition of Sidewalk Raised

The Second Department determined a question of fact had been raised about whether a property owner was liable to a pedestrian who allegedly fell because of the condition of the sidewalk.  Because the sidewalk was essentially part of the defendant landowner’s driveway, the sidewalk was subject to “special use” by the landowner which may impose liability for the condition of the sidewalk:


         A landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner's premises unless the landowner either created the defective condition or caused it to occur because of some special use, or unless a statute or ordinance places the obligation to maintain the sidewalk upon the landowner and expressly makes the landowner liable for injuries occasioned by the failure to perform that duty …. It is undisputed that the ordinance at issue in this case does not expressly make the landowner liable for injuries occasioned by a failure to perform the duty of maintaining sidewalks in good repair. Accordingly, the question to be determined is whether the plaintiff raised a triable issue of fact as to whether the individual defendants created the alleged defective condition or caused it to occur because of some special use.  A driveway can constitute a special use of a sidewalk …. Rodriguez v City of Yonkers, 2013 NY Slip Op 03315, 2nd Dept, 5-8-13

Wrong Incident-Address in Notice of Claim (Not Intended to Mislead and Not Resulting in Prejudice to Defendant) Can Be Corrected

In this slip and fall case, the First Department determined the wrong address in the notice of claim, under the facts, was not intended to mislead and did not prejudice the defendant:

          In this trip and fall action, plaintiff's notice of claim listed the wrong street address… in describing the location of her fall on a sidewalk, adjacent to Central Park, and across the street from that address. However, plaintiff also annexed a photograph to the notice of claim which depicted the intersection …, which is nearly four blocks south of the incorrect address provided in the notice of claim, and the written description of the location in the notice was consistent with the area depicted in the photograph. Moreover, at the statutory hearing held six weeks after the notice was served, and three and a half months after the accident, plaintiff explicitly … identified the location in the photograph as also shown. We also note that less than five months after the hearing, plaintiff served the summons and complaint, providing the proper street address. Under these circumstances, we find that the mistake in the notice was not made in bad faith, nor was it intended to mislead or confuse the City, and hence, it should have been disregarded or plaintiff should have been allowed to correct the notice pursuant to GML § 50-e(6)… . Green v City of New York, 2013 NY Slip Op 03382, 1st Dept, 5-9-13


Daily Incidents of Molestation, Spanning Years, Constituted “Separate Occurrences” Triggering a Deductible for Each Policy-Period

The main issue in this case was whether nearly daily incidents of sexual molestation of a minor by a priest in the Roman Catholic Diocese of Brooklyn, spanning six years, should be considered a single “occurrence” or separate “occurrences” within the meaning of the relevant insurance policies.  If considered separate occurrences, then the deductible for each policy-period in which each occurrence was deemed to have taken place would apply. If considered a single occurrence, then only one deductible would apply for all the policy-periods.  The Court of Appeals, in an opinion by Judge Rivera, determined the on-going sexual molestation should be considered separate occurrences for each policy-period, triggering multiple deductibles.  The Court of Appeals also found that the raising of the “separate occurrences” argument by the insurance company was not a disclaimer and therefore was not subject to the timeliness requirement for disclaimers in the Insurance Law. There was a concurring opinion by Judge Smith and a “concurring in part and dissenting in part” opinion by Judge Graffeo. Roman Catholic Diocese of Brooklyn v National Union Fire Insurance Company …, No 69, CtApp 5-7-13

Sexual Assault by Son of Homeowners Not an Insured “Occurrence” Under Homeowners’ Insurance Policy

The Second Department determined a sexual assault allegedly perpetrated by the son of the homeowners was not an insured “occurrence” within the meaning of the homeowners’ insurance policy:


          Here, Joseph M. allegedly was insured under a homeowner's insurance policy issued by the plaintiff to his parents, which provided personal liability coverage for claims made against an insured for damages because of bodily injury caused by an "occurrence." The policy defined the term "occurrence" as "an accident . . . which result[ed] in . . . bodily injury."   The complaint in the underlying action alleged that the plaintiff in that action sustained bodily injury due to a sexual assault perpetrated by Joseph M. Since the bodily injuries allegedly sustained by the plaintiff in the underlying action were inherent in the conduct that Joseph M. allegedly engaged in, the alleged sexual assault cannot be construed as an accident within the definition of "occurrence" for which the plaintiff's policy affords coverage … . State Farm Fire and Cas Co v Joseph M, 2013 NY Slip Op 03318, 2nd Dept, 5-8-13

Question of Fact Raised About Whether Injury Incurred by State Trooper/Paramedic when Removing Injured Person from Crashed Car Was Covered “Occurrence” Under Trooper/Paramedic’s Supplementary Uninsured-Underinsured Motorist Policy

Plaintiff, a state trooper, licensed registered nurse and paramedic, was injured helping to remove an injured person (Williams) from a car struck by Prindle’s car. Plaintiff sued Prindle and the action was settled for the policy limit. Then plaintiff sought to recover under his own supplementary uninsured-underinsured motorist policy (hereinafter SUM) (the defendant in this case).  The defendant insurance company denied coverage, claiming plaintiff was not injured in an automobile accident.  In affirming Supreme Court’s finding that the insurance company was not entitled to summary judgment dismissing the action because the policy language allowed the interpretation plaintiff’s injury was related to the “use” of Pringle’s vehicle, the Third Department wrote:


           "[SUM] coverage policies, such as the one at issue herein, apply only when an insured's injuries are [proximately] 'caused by an accident arising out of [the underinsured] motor vehicle's ownership, maintenance or use'"….  Under the circumstances here, Supreme Court properly concluded that defendant failed to meet  its threshold burden of demonstrating  that plaintiff's injury was not caused by the use of Prindle's underinsured vehicle. We reject defendant's narrow interpretation of the SUM policy's provision requiring  that  the  insured's  injuries be directly caused by an accident that arose out of the use of a vehicle and defendant's related assertion that the accident complained of here occurred only at the time of plaintiff's injury. Construing the language of the policy liberally and resolving any ambiguity in favor of the insured …, defendant's interpretation is contrary to the plain meaning thereof.  Kesnick v New York Central Mutual Fire Insurance Company, 514901, 3rd Dept, 5-9-13


Burden Is On Parent to Demonstrate Exception to Statutory Relief from Making Reasonable Efforts to Reunite

The Second Department explained how the exception to Family Ct Act 1039-b[b], relating to making reasonable efforts to reunite parent and child, works. Once an enumerated condition which eliminates the need to make reasonable efforts to reunite is demonstrated, the burden switches to the parent to show that the exception should be applied.
Here …ACS [Administration for Children’s Services] established that the mother's parental rights with respect to a sibling of the subject child had been terminated "involuntarily" …. In support of its motion, ACS submitted the judgments terminating the mother's parental rights with respect to the child's two elder siblings …. In opposition to ACS's motion, the mother failed to prove that "reasonable efforts" [to reunite] should nonetheless still be required under the exception provided for in Family Court Act § 1039-b(b). We reject the mother's contention that the statute places the burden on the social services official to establish the inapplicability of the exception, rather than on the parent to establish its applicability. …Given the text of the statute, as well as its structure, which make the exception applicable to all six enumerated circumstances, some of which involve egregious conduct by the parent, the only reasonable interpretation is that once the social services official establishes the existence of an enumerated circumstance, the burden shifts to the parent to establish the applicability of the exception. Matter of Skyler, 2013 NY Slip Op 03325, 2nd Dept, 5-8-13

Sufficient Grounds for Custody Hearing Raised

The Second Department determined Supreme Court erred when it denied plaintiff’s motion for a change in custody/visitation without holding a hearing.  The plaintiff had alleged, among other things, the defendant operated a vehicle in an impaired state, posing a danger to the children:


          Here, the plaintiff made the necessary showing entitling him to a hearing regarding those branches of his motion which were to modify the Stipulation so as to award him sole legal custody and suspend the defendant's visitation with the children, unless supervised …. Furthermore, the record does not demonstrate that the Supreme Court possessed adequate relevant information to enable it to make an informed and provident determination as to the children's best interest so as to render a hearing unnecessary …. Accordingly, the Supreme Court erred in denying those branches of the plaintiff's motion which sought a modification of the existing custody arrangement, without first conducting a full evidentiary hearing to ascertain the children's best interests…. Nusbaum v Nusbaum, 2013 NY Slip Op 03307, 2nd Dept, 5-8-13


Defective Release Did Not Trigger 90-Day Clock for Payment of Settlement Amount

The Second Department determined that a release that was defective because it excluded subrogation claims did not start the 90-day clock, pursuant to CPLR 5003-a(e), for payment of the settlement amount:
Here, contrary to the plaintiff's contention, the general release provided by the plaintiff was defective, since it expressly excluded potential subrogation claims against the defendant. Therefore, it was insufficient to trigger the 90-day period within which the defendant was required to make payment of the settlement amount, and, accordingly, the plaintiff was not entitled to seek a judgment based on nonpayment under CPLR 5003-a(e)… . Pitt v New York City Hous Auth, 2013 NY Slip Op 03311, 2nd Dept, 5-8-13


“Service Charge” Could Be “Gratuity” to Which Employer Not Entitled

In upholding the sufficiency of a complaint seeking damages for violations of Labor Law section 196-d, alleging that a 15 to 20% “service charge” on catering and hospital forms was actually a “gratuity,” the Second Department wrote:

          Labor Law § 196-d provides, in pertinent part, that "[n]o employer . . . shall demand or accept, directly or indirectly, any part of the gratuities received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee." In Samiento v World Yacht Inc. (10 NY3d 70, 74), …the Court of Appeals held that depending upon the circumstances, even a mandatory service charge added to a bill "may be a charge purported to be a gratuity' within the meaning of [Labor Law § 196-d]." The Court stated that a mandatory service charge can purport to be a gratuity "when it is shown that employers represented or allowed their customers to believe that the charges were in fact gratuities for their employees" (id. at 81). "[T]he standard under which a mandatory charge or fee is purported to be a gratuity should be weighed against the expectation of the reasonable customer" and the "reasonable patron standard should govern when determining whether a banquet patron would understand a service charge was being collected in lieu of a gratuity" (id. at 79). Martin v Restaurant Assoc Events Corp, 2013 NY slip Op 03304, 2nd Dept, 5-8-13

Criteria for Labor Law 200 Claim Explained

The plaintiff fell when a plank on a catwalk broke.  In the course of the decision, which addressed several Labor Law claims, the Second Department explained the criteria for a Labor Law section 200 cause of action based on an alleged dangerous condition:

          Labor Law § 200 "is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" …. Where, as here, a "premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" …. In opposition to the defendants' prima facie showing that they lacked actual notice of a dangerous condition, the plaintiff's deposition testimony that he had seen rotten, discolored planks on the catwalk and had reported the condition to the defendants' foreman on three occasions in the two months prior to his accident was sufficient to raise a triable issue of fact as to whether the defendants had actual notice of the dangerous condition. Moreover, photographs of the broken catwalk in the record show cracked, warped, and discolored planks. Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged defect …. Ramirez v Metropolitan Transp Auth, 2013 NY Slip Op 03314, 2nd Dept, 5-8-13

Backhoe Bucket Not “Falling Object” Within Meaning of Labor Law 240 (1)

Plaintiff was severely injured when a backhoe bucket that had been suspended over him came down and crushed him.  With respect to the Labor Law 240 (1) cause of action, the issue was whether the backhoe bucket was a “falling object” within the meaning of the statute. In affirming Supreme Court’s determination that the backhoe bucket was not a falling object, the Third Department wrote:

          …[L]iability does not extend to "harm . . . caused by an inadequate, malfunctioning or defectively designed  scaffold, stay or hoist" unless the injury itself was  caused by  "the application of the force of gravity to an  object or person" … .  Viewing the facts in the light most favorable to plaintiffs, the accident occurred as a result of … jostling the controls, causing the backhoe's properly functioning hydraulic system to lower the bucket. Thus, the evidence  submitted  by  plaintiffs, if accepted  as true, would establish that "the backhoe  bucket  crushed  plaintiff[] . . . not because  of gravity, but  because  of its mechanical  operation by  an allegedly negligent co-worker" ….   Under these circumstances, Supreme Court properly dismissed plaintiffs' section 240 (1) claim because there was no falling object – "the harm [did not] flow[] directly from the application of the force of gravity to [an] object" …, but from the usual and ordinary dangers of a construction site … .  Mohamed v City of Watervliet, 515473, 5-9-13


Absence of Privity Precluded Application of Collateral Estoppel Doctrine

The Third Department, in reversing Supreme Court, determined the absence of privity precluded the application of the doctrine of collateral estoppel.  Northrop owned a gas station which was a designated spill site (gasoline). The Department of Environmental Conservation spent about $125,000 cleaning it up. Northrop sought payment for the clean-up from its insurance carrier (the defendant here). In a prior declaratory judgment proceeding Supreme Court determined the policy did not cover petroleum contamination. Then the state, the plaintiff here, started an action against the defendant insurance company under Navigation Law 190 seeking reimbursement of the clean-up expenses.  Supreme Court dismissed the complaint as barred by the doctrine of collateral estoppel (the prior declaratory judgment finding the insurance policy did not cover the clean-up expense).  In reversing, finding collateral estoppel should not have been invoked because Northrop and the state were not in privity, the Third Department wrote:

         Plaintiff is the entity that has undertaken the cleanup and now seeks reimbursement for monies expended. Thus, plaintiff has a right of indemnification against Northport to recoup these costs …, establishing an indemnitor-indemnitee relationship. Plaintiff's right of indemnification,  however, is independent of Northport's contractual right to have its insurance carrier, defendant, cover these costs under the terms of the liability insurance  policy. Moreover, Navigation Law § 190 authorizes plaintiff to commence a direct action against defendant, and this right is independent of plaintiff's right of indemnification against Northport. Given that plaintiff's rights are not conditioned upon and do not derive from Northport's, the existence of an indemnitor-indemnitee relationship between Northport and plaintiff does not establish privity between these parties.  State of New York v Zurich American Insurance Company, 514916, 3rd Dept, 5-9-13


Conflicting Expert Opinions, One of Which Was “Conclusory” with Respect to Proximate Cause, Raised Question of Fact

The Second Department reversed the dismissal of medical malpractice and wrongful death causes of action because a question of fact about whether there was a deviation from the standard of care by a hospital employee was raised by conflicting expert opinions, one of which was “conclusory” on the issue of proximate cause:

          Although, generally, a hospital cannot be held vicariously liable for the negligence of a private attending physician, concurrent liability will be imposed where, inter alia, a hospital's employees commit independent acts of negligence …. Here, Winthrop [the hospital] satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that Noble, its employee, did not commit any independent acts that deviated from the standard of care while attending to the decedent in the post-operative recovery area …. However, Winthrop failed to satisfy its prima facie burden with respect to the issue of proximate cause, as the opinion rendered by its expert on that issue was conclusory ... Therefore, the burden shifted to the plaintiff to raise a triable issue of fact only as to whether there was a deviation from the standard of care …. The plaintiff did so through the affidavit of her expert, who opined that Noble deviated from the standard of care by, inter alia, failing to recognize the signs of a complication and timely report those signs to Wong [the decedent’s private attending physician]. In light of the conflicting opinions of the parties' experts, summary judgment dismissing the medical malpractice and wrongful death causes of action insofar as asserted against Winthrop should have been denied …. Rosenstack v Wong, 2013 NY Slip Op 03316, 2nd Dept, 5-8-13



Pre-Deliberations Note from Juror Did Not Raise Question Whether Juror Was “Grossly Unqualified;” No Hearing Necessary

The Court of Appeals, over a substantial dissent by Judge Lippman, determined that a note from a juror to the judge, prior to deliberations, did not raise the question whether the juror was “grossly unqualified” and therefore did not trigger the need for an in camera interview of the juror pursuant to People v Buford, 69 NY2d 290.  The note used the term “we” and raised the inference the jurors were engaging in premature deliberations about the need for additional evidence.  The Court of Appeals wrote:

           Our intention in Buford was to create a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may "'possess[] a state of mind which would prevent the rendering of an impartial verdict'" …. Such scenarios include, but are not limited to, a juror's bias against a particular race …, a juror's intimate relationship with a prosecution witness …, or a juror's conversation with a member of the defendant's family seeking information about the defendant's background ….

           Here, there is no indication from the note's use of the word "we" that the note-writing juror's impartiality was in doubt or that the juror had committed any misconduct. The note's contents were indicative of two possibilities: that there had been premature deliberations and/or the jury was requesting additional evidence after the parties had rested and the evidence had closed. …People v Mejias and Rodriguez, Nos 67, 68, CtApp 5-7-13

Superior Court Information Not Jurisdictionally Defective Because Different Victims Named

In reversing the Appellate Division, the Court of Appeals determined a Superior Court Information (SCI) was not jurisdictionally defective because it named victims not identified in the felony complaint.  The defendant-respondent was charged with grand larceny based on his use of two persons’ identities to procure mortgages to purchase two properties.  Those “identity theft” victims were named in the felony complaint. The victims named in the SCI, however, were the two banks which issued the mortgages. The Appellate Division held the SCI was jurisdictionally defective because it didn’t name the same victims as the felony complaint. The Court of Appeals, in an opinion by Judge Lippman, held the defect was not jurisdictional because it was clear the felony complaint and SCI charged the same offenses:

           Here, the offense to which defendant pleaded guilty is the same offense for which he was charged in the felony complaint, and adding the names of the victims in the SCI did not render the offense a different one. Though the felony complaint did not name the banks that provided the loans, the complaint identified the specific properties in Queens and Brooklyn on which defendant took out mortgages in Hector Sandoval's name. … There was nothing inappropriate about adding the names of the victims as it did not change the offense alleged. … [T]here was no factual discrepancy between the felony complaint and the second SCI; the crimes were simply portrayed from a different perspective.  People v Milton, No 75, CtApp, 5-7-13

Defense Attorney’s Conflict of Interest Amounted to Ineffective Assistance

The Court of Appeals reversed the Appellate Division and granted defendant’s writ of coram nobis finding a conflict of interest on the part of defendant’s counsel, of which defendant was never made aware, amounted ineffective assistance.  Defendant’s appellate counsel had represented a co-defendant, Martin, who testified against the defendant at his trial.  During sentencing of Martin, counsel argued for leniency based upon his testifying against the defendant.  In appealing defendant’s conviction, counsel argued Martin was a liar and his testimony should be ignored.  The Court of Appeals wrote:


          It is undisputed that appellate counsel represented defendant and his codefendant simultaneously, that appellate counsel argued at Martin's sentencing hearing for leniency based on Martin's trial testimony adverse to the defendant, and that defendant neither knew nor had the opportunity to waive any conflict arising from appellate counsel's representation of defendant and Martin. Under these circumstances, an actual unwaived conflict existed.

          An attorney may not simultaneously represent a criminal defendant and a codefendant or prosecution witness whose interests actually conflict unless the conflict is validly waived …. Simultaneous representation of two clients with conflicting interests means the lawyer "cannot give either client undivided loyalty" …. Counsel has the duty to inform the client and the court so that the court may ascertain the nature of the conflict and give the client an opportunity to waive it ….  People v Prescott, No 80, CtApp, 5-7-13

Criteria for Downward Departure (SORA)

The Second Department explained the two factors a defendant must demonstrate for a downward departure in a SORA proceeding:


          First, a defendant must identify, as a matter of law, an appropriate mitigating factor, namely, a factor which "tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines"…. Second, a defendant must prove by a preponderance of the evidence the facts necessary to support that mitigating factor …. In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level …. People v Henry, 2013 NY Slip Op 03309, 2nd Dept, 5-8-13

Trial Judge’s Violation of CPL 310.30 in Responding to Jury Note Constituted Reversible “Mode of Proceedings” Error

In reversing a conviction because the trial judge did not handle a jury note properly, in violation of CPL 310.30, the Second Department explained:


         …[T]he court received a substantive jury note but did not set that note forth on the record and allow counsel a full opportunity to suggest an appropriate response. …[T]he court failed to fulfill its core responsibilities under CPL 310.30, thereby committing a mode of proceedings error that is exempt from the preservation requirements and requires reversal … . Accordingly, the judgment must be reversed, and a new trial ordered … . People v Howell, 2013 NY Slip Op 03342, 2nd Dept, 5-8-13

Arrest Based on Out of State Warrant Not Authorized

In reversing the denial of suppression, reversing the convictio
n and dismissing the indictment, the Second Department explained that the arrest based on out of state warrant (for a violation of probation) was not authorized.  A local criminal court warrant was required:

          The detective had no authority to arrest the defendant based on his information that there was an out-of-state violation of probation warrant, as the detective did not obtain a warrant from a local criminal court pursuant to CPL 570.32. While CPL 570.34 provides that a police officer may also arrest a person in this State without a warrant "upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year"…, a violation of probation is not a "crime" … . People v Miranda-Hernandez, 2013 NY Slip Op 03346, 2nd Dept, 5-8-13


Discrimination (Re Licensing) Based on Criminal Conviction Disallowed

The First Department annulled a determination denying petitioner’s renewal application for a stationary engineer license finding no rational basis for the denial. Petitioner had been convicted of participating in a kickback scheme.  The First Department noted that the equipment maintenance responsibilities of a stationary engineer were not implicated by the conviction.  The First Department wrote:

           [The actions underlying the conviction] bear no direct relationship to the equipment maintenance duties and responsibilities inherent in the stationary engineer license, and thus do not satisfy the first exception to the general prohibition of discrimination against persons previously convicted of criminal offenses (see Correction Law § 752[1]).The record further shows that respondent failed to afford petitioner the mandatory presumption of rehabilitation attendant to his certificate of relief from disabilities (see Correction Law § 753[2]), and appeared to have disregarded the additional evidence of rehabilitation submitted by petitioner. … We further find that respondent could not have rationally found petitioner to pose an unreasonable risk to public safety or welfare so as to satisfy the second exception to the general prohibition (see Correction Law § 752[2]). Petitioner disclosed his 2006 conviction, based on acts occurring in 2005 and earlier, on his license renewal applications from 2007 through 2010, all of which were granted. Matter of Dellaporte v NYC Dept of Buildings, 2013 NY Slip Op 03281, 1st Dept, 5-7-13


Unlicensed Contractor Could Not Sue for Breach of Contract or Quantum Meruit

The Second Department affirmed the dismissal of a contractor’s “breach-of-contract” and “quantum-meruit” causes of action because the contractor was not licensed, and thereby forfeited his right to recover:

          Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed both under the contract and on a quantum meruit basis …. Administrative Code of Suffolk County § 563-17(A) provides, in pertinent part, that "[i]t is unlawful for any person to engage in any business as a home improvement contractor without obtaining a license therefor." Graciano Corp v Baronoff, 2013 NY Slip Op 03301, 2nd Dept, 5-8-13

Anticipatory Repudiation Cause of Action Stated/Four-Year UCC Statute of Limitations Applied

In a full-fledged opinion by Justice Leventhal, the Second Department determined that the plaintiff had pled a valid “anticipatory repudiation” cause of action and that the four-year UCC statute of limitations applied.  The case concerned the return (for a refund) of drugs when the expiration date is close or has passed.  The plaintiff brought the action when it learned the refund would not be offered in full. Regarding the anticipatory repudiation and statute of limitations issues, Justice Leventhal wrote:


          Here, the complaint alleges that, when the defendants refused to accept the plaintiff's attempt to return the unsold merchandise, the defendants anticipatorily repudiated their respective return policies by unambiguously stating that they would not accept the returns. The complaint asserts that the defendants' anticipatory repudiation occurred before the plaintiff tendered the unsold merchandise to the defendants and before the plaintiff attempted to return the merchandise to the manufacturer in accordance with standard industry practice. When a party repudiates a contract prior to the time designated for performance and before all of the consideration has been fulfilled, the nonrepudiating party can seek to recover damages …. * * *

           The general rule applicable to actions to recover damages for breach of contract is that a six-year statute of limitations begins to run when a contract is breached or when one party fails to perform a contractual obligation …. However, UCC 2-725(1) provides that "[a]n action for breach of any contract for sale [of goods] must be commenced within four years after the cause of action has accrued" (see CPLR 203[a]). QK Healthcare, Inc v InSource, Inc, 2013 NY Slip Op 03312, 2nd Dept, 5-8-13

Statute of Frauds Precluded Real Property-Related Action/Equitable Part Performance Doctrine Not Applicable

The Second Department determined the statute of frauds barred the real-property-related action and, since the action was brought “at law,” the equitable “part performance” doctrine could not be applied:


          Here, the County established, prima facie, that there is no extant writing subscribed by the County or its agent referencing an alleged oral agreement involving real property, as described by the plaintiff (see General Obligations Law § 5-703[3];…). In opposition, the plaintiff failed to raise a triable issue of fact. "Part performance by the party seeking to enforce [a] contract [for the sale of real property] may be sufficient in some circumstances to overcome the statute of frauds, but only in an action for specific performance" (…see General Obligations Law § 5-703[4];…). Since, here, the action is pleaded as one at law, and seeks only money damages, without any specific prayer for equitable relief, the plaintiff cannot rely on the doctrine of part performance to defeat the statute of frauds defense …. Accordingly, the Supreme Court should have granted the County's motion for summary judgment dismissing the complaint, based on the statute of frauds. Zito v County of Suffolk, 2013 NY Slip Op 03324, 2nd Dept, 5-8-13

In-Court Stipulation Enforceable Even Though Party Not Represented by Counsel

The Third Department upheld an in-court stipulation concerning a mortgage foreclosure action that was entered without counsel:

          Open court stipulations of settlement are highly favored, binding on  the parties and  strictly enforced, and generally will not be  cast aside absent a showing  of "fraud, collusion, mistake or accident" … .The fact that a party was not represented by counsel when entering into a  stipulation, while certainly relevant, is not sufficient  in  itself to  invalidate  a  stipulation,  particularly where the party was advised to retain counsel and chose not to … Liquori v Liquori, 515502, 3rd Dept, 5-9-13

“Unconscionable Contract” Elements Explained

In finding the arbitration clause in a contract valid, the Third Department explained the criteria for an “unconscionable” contract as follows:

          As to the crux of petitioner's appeal – that the contracts at issue are unconscionable and/or constitute contracts of adhesion – "an unconscionable contract [is] defined as one which is so grossly unreasonable as to be unenforcible because  of an absence  of meaningful choice on  the part of one  . . . part[y] together with contract terms which are unreasonably favorable to the other" …   Unconscionability, in turn, has two  elements. Substantive unconscionability "appear[s] in the content of the contract per se" and may include, by way of example, "inflated prices, unfair termination clauses,  unfair  limitations on consequential damages  and  improper disclaimers of warranty"… .Procedural unconscionability, on the other hand, entails "an examination of the contract formation process and the alleged lack of meaningful choice" ….  In this regard, "[t]he focus is on such matters as the size and commercial  setting of the transaction, whether deceptive or high- pressured tactics were  employed,  the use of fine print in the contract, the experience and education of the party claiming unconscionability, and whether  there  was  disparity  in  bargaining power" … . Matter of Arbitration …, 515560, 2nd Dept, 5-9-13

Criteria for Common-Law Indemnification Explained

In upholding Supreme Court’s determination that a cause of action for common-law indemnification should not be dismissed, the Third Department explained:

          Common-law indemnification …is a quasi-contract claim in which a  contract is implied in law in order to avoid unjust enrichment, accomplished  by  shifting a  loss by  "placing the obligation where  in equity it belongs" …..   Common-law  indemnification avoids  unfairness  and  unjust  enrichment  by  "recogniz[ing]  that [a] person  who,  in whole  or in part, has discharged a duty which is owed  by  him  but  which  as between  himself and  another should have been discharged by  the other, is entitled to indemnity" …  It "requires a showing that [the] plaintiff and [the] defendant[] owed a duty to third parties, and that [the] plaintiff discharged the duty which, as between [the] plaintiff and [the] defendant[], should have been discharged by [the] defendant[]" … . Murray Bresky Consultants, Ltd v New York Compensation Manager’s Inc, 515591, 3rd Dept, 5-9-13


Review Criteria for Actions by Zoning Boards of Appeal

In upholding Supreme Court’s annulment of the village Zoning Board of Appeal’s denial of petitioner’s application for a site capacity variance, the Second Department described the review criteria as follows:
Generally, local zoning boards have broad discretion in deciding applications… . "Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure" …. "[A] determination will not be deemed rational if it rests entirely on subjective considerations, such as general community opposition, and lacks an objective factual basis" …. "Conclusory findings of fact are insufficient to support a determination by a zoning board of appeals, which is required to clearly set forth how and in what manner the granting of the variance would be improper" … .  Matter of Luburic v Zoning Bd of Appeals of Vil of Irvington, 2013 NY Slip Op 0333, 2nd Dept, 5-8-13


No Standing to Bring Judicial Dissolution Action/Could Not Demonstrate 50% Ownership

In upholding Supreme Court’s determination that the petitioner did not have standing to bring the judicial dissolution action because 50% ownership of the corporation stock (by the petitioner) was not demonstrated, the Third Department explained the relevant review process:


         As  the  party  seeking  judicial dissolution of the corporation, petitioner bore the burden of demonstrating by a preponderance of the evidence his standing to seek such relief based on  his ownership of at least one half of the votes of all of Sunburst's  outstanding  shares  (see  Business  Corporation  Law§ 1104 [a]…).Our review of Supreme Court's determination, made after a hearing, "is not limited to whether [its] findings were supported by credible evidence; rather, if it appears that a finding different from that of Supreme Court is not unreasonable, we must weigh the probative force of the conflicting evidence and the relative strength of conflicting inferences that may  be drawn, and grant judgment as warranted" …. However, deference is given to the trial court's credibility determinations, as that court "had the advantage of observing the witnesses firsthand and was in a better position to assess the evidence and weigh credibility" … .  Matter of Dissolution of Sunburst Associates, Inc v Vilardi, 515011, 35d Dept, 5-9-13


Review Criteria for Arbitration Award Explained/Contract Entered Into by Unlicensed Interior and Architectural Design Business Did Not Violate Public Policy

In a full-fledged opinion by Justice Mazzarelli, the First Department upheld an arbitrator’s award which had been confirmed by Supreme Court.  The issue at the heart of the case was whether the fact that the petitioner’s interior and architectural design business did not have a license to practice architecture warranted a finding that a contract entered into by the petitioner with the respondents violated public policy (such that the respondents did not have to pay for services rendered).  Justice Mazzarelli, after collecting relevant cases, determined there was no violation of public policy. The petitioner employed a licensed architect and periodically used a licensed and registered architect as an outside consultant.  In explaining the court’s role in reviewing an arbitrator’s award, the First Department wrote:

          Because of the great degree of deference afforded to arbitration awards, the available grounds for vacating them are extremely limited. Mere errors of law or fact reflected in an arbitration award are insufficient for a court to overturn it, since "the courts should not assume the role of overseers to mold the award to conform to their sense of justice" …. A court may only disturb the award "when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power" ….  Matter of McIver-Morgan, Inc, v Dal Piaz, 2013 NY Slip Op 03411, 1st Dept, 5-9-13


Presumption of Validity of Property Tax Assessment Rebutted

In affirming Supreme Court’s determination that petitioner’s Adirondack land had been over-valued for property tax purposes, the Third Department thoroughly examined the appraisal techniques employed and explained the review process as follows:

          …[W]e  find that petitioner rebutted the presumption of validity of the disputed tax assessments, by presenting a detailed competent appraisal by a qualified appraiser, based upon accepted appraisal techniques, which constituted substantial evidence of overvaluation and presented a genuine dispute concerning valuation … .  Upon  review of Supreme  Court's determination that petitioner met its burden of establishing, by a preponderance of the evidence, that parcels one  and  two  had  been  overvalued, we "weigh the entire record" … and  "review the trial court's finding to determine whether it is supported by or against the weight of the evidence" … .Valuation of assessed property presents the court with a factual question…, and this Court   will defer to the trial court's decision "unless such  finding is based upon [an] erroneous theory of law or [an] erroneous ruling in the admission or exclusion of evidence, or unless it appears that the court . . . has failed to give to conflicting evidence the relative weight which it should have and thus has arrived at a value which is excessive or inadequate" … . Matter of Adirondack Mountain Reserve v Board of Assessors of the Town of North Hudson, et al, 515190, 3rd Dept, 5-9-13


Public Access Easement to Recreation Area Granted/Public Hearing Not Required

In a full-fledged opinion by Justice Stein, the Third Department upheld the grant of a petition pursuant to the Eminent Domain Procedure Law (EDPL) to acquire a public access easement over private land abutting a recreation area on land owned by a hydroelectric facility. The condemnation proceeding was triggered when the owner of the private property abutting the recreation area blocked roads which for years had provided public access to the recreation area. In a lengthy and detailed opinion, the Third Department explained the applicable procedures pursuant to the EDPL and why statutory exemptions to the public hearing requirement of the EDPL applied in this case.  In the Matter of Eagle Creek Land Resources, LLC, et al v Woodstone Lake Development, LLC, 514046, 3rd Dept, 5-9-13


Investigatory Powers of NYS Commission on Public Integrity Explained

The investigatory powers of the NYS Commission on Public Integrity were at the heart of this case.  The Commission was investigating allegations the petitioner (the Chief Executive Officer of the State University of New York Research Foundation) provided a job to the daughter of a prominent politician for which she was not qualified and did little work.  During the course of the investigation the Commission issued a Notice of Reasonable Cause (NORC) to the petitioner alleging a violation of Public Officers Law 74 (3) and requiring, by subpoena, the petitioner to provide testimony.  The petitioner argued that the commission’s power to issue a subpoena, under the controlling statutes and regulations, ended upon the issuance of the NORC.  In rejecting that argument, and accepting the Commission’s contrary argument that its power to investigate continued after the issuance of an NORC, the Third Department wrote:


          Notably, the Commission's interpretation of its regulation is consistent with the overall purpose and spirit of Executive Law § 94, which is to "strengthen the public's trust and confidence in government through fair and just adjudicatory procedures that afford all parties due process protection and  fair and just resolution of all matters" (19 NYCRR 941.1…).   Following the issuance of a NORC, the Commission could become aware of other potential witnesses or additional information relevant to the possible violations.  Thus, construing the regulation to permit the Commission to continue its investigation, despite having issued a NORC, would best serve the underlying purposes of the statute. Conversely, to interpret the regulation as precluding investigation into new evidence, based solely on the fact that a NORC had been issued, would clearly impede the truth seeking function of the Commission.  In the Matter of O’Connor v Ginsberg…, 514200, 3rd Dept, 5-9-13


Adverse Possession Not Demonstrated

In reversing the adverse-possession ruling in favor of the plaintiffs, because the proof showed only non-exclusive, sporadic and incomplete use of the land, the Third Department wrote:


           …[W]e conclude that plaintiffs' vague testimony did not establish by clear and convincing evidence that they ever cultivated and improved the entire .17 acre of the disputed area, or that they usually cultivated and improved even a small portion of the disputed area for the full 10-year requisite time period. That is, the minimal and sporadic use that was demonstrated is insufficient, as a matter of law, to constitute the requisite cultivation or improvement …. Further, in light of Powell's testimony that he cared for the disputed area for defendants, plaintiffs cannot establish the "exclusivity" element, which requires a showing that "the adverse possessor . . . alone care[d] for or improve[d] the disputed property as if it were his/her own"….  Robbins v Schiff, 514749, 3rd Dept, 5-9-13



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