Rochester, New York
Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)
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COURT OF APPEALS
Fraud Upon the Court Must Be Demonstrated by Clear and Convincing Evidence/Striking of Pleadings and Entering Default Judgment Against Offending Party Appropriate Under the Facts
The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the standard for demonstrating a party has committed fraud upon the court is "clear and convincing." Under the facts, the court determined that defendants' fraud upon the court had been demonstrated and that striking the pleadings and entering a default judgment against the defendants was appropriate:
We ...conclude that in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending "party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action" ... . A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns "issues that are central to the truth-finding process" ... . Essentially, fraud upon the court requires a showing that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense ... . A finding of fraud on the court may warrant termination of the proceedings in the non-offending party's favor ... . For "when a party lies to the court and [its] adversary intentionally, repeatedly, and about issues central to the truth-finding process, it can fairly be said that [the party] has forfeited [the] right to have [the] claim decided on the merits" ... . Therefore, once a court concludes that clear and convincing evidence establishes fraud on the court, it may strike a pleading and enter a default judgment.
We caution that dismissal is an extreme remedy that "must be exercised with restraint and discretion" ... . Dismissal is most appropriate in cases like this one, where the conduct is particularly egregious, characterized by lies and fabrications in furtherance of a scheme designed to conceal critical matters from the court and the nonoffending party; where the conduct is perpetrated repeatedly and wilfully, and established by clear and convincing evidence, such as the documentary and testimonial evidence found here. Dismissal is inappropriate where the fraud is not "central to the substantive issues in the case" ..., or where the court is presented with "an isolated instance of perjury, standing alone, [which fails to] constitute a fraud upon the court" ... . In such instances, the court may impose other remedies including awarding attorney fees ..., awarding other reasonable costs incurred ... , or precluding testimony ... . In the rare case where a court finds that a party has committed fraud on the court warranting dismissal, the court should note why lesser sanctions would not suffice to correct the offending behavior ... . CDR Creances SAS v Cohen, 2014 NY Slip Op 03294, Ct App 5-8-14
CRIMINAL LAW/ATTORNEYS/VEHICLE AND TRAFFIC LAW
Defendant's Limited Right to Seek the Advice of an Attorney Before Consenting to a Breathalyzer Test Was Violated When the Sheriff's Department Administered the Test Without First Telling Defendant an Attorney Had Communicated with the Sheriff's Department on Her Behalf
The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined defendant's breathalyzer test results were properly suppressed. After her arrest for Driving While Intoxicated, the defendant did not ask to speak with an attorney and consented to the test. However, her family communicated with an attorney who called before the breathalyzer test was administered and told the sheriff's department not to test or question the defendant. The Court of Appeals determined the sheriff's department was obligated to inform the defendant about the attorney's communication before administering the test:
In People v Gursey (22 NY2d 224 )... we recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases. We held that, based on the warning procedure set forth in section 1194 (2) (b), "if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police 'may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication'" ... . Violation of this right to legal consultation generally requires suppression of the scientific evidence .... Because time is of the essence in obtaining accurate chemical test evidence ..., we further observed in Gursey that a suspect's communication with a lawyer regarding "the exercise of legal rights should not  extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses" ... .
It is therefore well established that "there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing" ... . In other words, conferring with counsel is permissible only if "'such access does not interfere unduly'" with timely administration of the test ... . * * *
In our view, the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically. Gursey contemplated that a lawyer retained to represent a DWI arrestee can directly communicate with the police, reasoning that "law enforcement officials may not, without justification, prevent access between the criminal accused and [the] lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly" with the administration of alcohol test ... . The fact that defendant consented to the breathalyzer about the same time that the attorney was communicating with the police is not dispositive since defendant, after conferring with counsel, could have revoked her consent prior to administration of the test (see generally Vehicle & Traffic Law §§ 1194  [b], 1194-a  [c]). The police therefore must advise the accused that a lawyer has made contact on the accused's behalf ... . Once so informed, the accused may choose to consult with counsel or forego that option and proceed with the chemical test. People v Washington, 2014 NY Slip Op 04190, Ct App 5-6-14
Proof Requirements for Criminal Enterprise Explained/Sufficiency of Evidence and Weight of Evidence Review Criteria Explained
The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined the Appellate Division had applied the wrong legal standards to its "sufficiency of evidence" and "weight of the evidence" review of defendants' enterprise corruption convictions. The Appellate Division concluded "the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communication between [the defendants] and any of the ... employees in furtherance of the criminal enterprise." The alleged criminal enterprise was a company, in which the defendants were principals, which did construction testing (concrete and steel, for example). It was alleged that the company routinely issued fraudulent certifications and test results indicating the construction materials (used at hundreds of construction sites) complied with the requirements of the city administrative code. The Court of Appeals determined that the structure of the company constituted "evidence of a leadership structure" and communication among the defendants and the company employees (regarding the issuance of fraudulent test results) could be easily inferred from the facts. The Appellate Division had vacated the enterprise corruption convictions. The Court of Appeals sent the case back to the Appellate Division for a "weight of the evidence" review of the enterprise corruption proof under the correct legal standards. (The Court of Appeals cannot do a "weight of the evidence" review.)
Sufficiency and weight review are distinct concepts. To determine whether a verdict was based on sufficient proof, a court must "marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained [their] burden of proof" ... . Evidence of guilt is legally sufficient if the facts, viewed in the light most favorable to the People, provide a valid line of reasoning and permissible inferences from which the finder of fact could have rationally concluded that the elements of the crime were established beyond a reasonable doubt ... .
A legally sufficient verdict, however, may be against the weight of the evidence ... . Unlike a sufficiency analysis, weight of the evidence review requires an intermediate appellate court to act, in effect, as a second jury ... by rendering its own determination of the facts as proven at trial ... . People v Kancharla, 2014 NY Slip Op 03295, Ct App 5-8-14
FREEDOM OF INFORMATION LAW (FOIL)/EDUCATION-SCHOOL LAW
Names of Retired Teachers Not Protected from Disclosure by Public Officers Law 89
The Court of Appeals, in a full-fledged opinion by Judge Smith, determined Public Officers Law 89 (7) did not exempt from disclosure the names of retirees who receive benefits from public employees' retirement systems. The question boiled down to statutory interpretation:
The answer to the question before us are retirees' names exempt from disclosure? is plain from the face of the statute. It exempts "the home address . . . of a retiree," but not the retiree's name. By contrast, it exempts both the name and home address of "a beneficiary of a public employees' retirement system." A "beneficiary" of a retirement system, as the term is commonly used, is a family member of an employee or retiree who is entitled to benefits after the employee's or retiree's death; it is so used on the website of one of the retirement systems in this case (NYSTRS,"Glossary of Benefit Terms," at http://www.nystrs.org/main/glossary/html [last visited April 21, 2014]). In some contexts, "beneficiary" might be read more broadly to include a retiree, for retirees do benefit from retirement systems. But "beneficiary" was obviously not used in that sense in this statute, because the statute provides a separate and more limited exemption for a "retiree." Matter of Empire Ctr for NY State Policy v New York State Teachers' Retirement Sys, 2014 NY Slip Op 03193, Ct App 5-6-14
CONSTITUTIONAL LAW/EMPLOYMENT LAW/EDUCATION-SCHOOL LAW/ARBITRATION LAW
Although Picketing by Teachers Was Protected Speech, the Manner in which the Picketing Was Carried Out Endangered the Safety of Students---Therefore the Teachers Were Properly Disciplined
The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with concurring and dissenting opinions, reversed the Appellate Division and found that teachers had been properly disciplined for picketing in their cars in a manner which made it more difficult for parents to drop off their children at the school. The court applied the so-called Pickering test (Pickering v Board of Educ...391 US 563 ) which addresses the free speech rights of public employees (which are somewhat curtailed). Under the court's Pickering analysis, the picketing was protected speech, but the manner in which the picketing was done endangered the students. The teachers, therefore, could be disciplined for the manner in which they exercised their right to free speech:
Under Pickering, the determination whether a public employer has properly disciplined a public employee "for engaging in speech requires 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public] . . . employer, in promoting the efficiency of the public services it performs through its employees'" ... . This balancing test recognizes that the public employer must be permitted a level of control over its employees so it may fulfill essential services, such as public safety and education, efficiently and effectively ..., but also that "[v]igilance is necessary" to ensure public employers do not use their authority "to silence discourse not because it hampers public functions but simply because superiors disagree with the content of [the] employees' speech" ... . Matter of Santer v Board of Educ of E Meadow Union Free Sch Dist, 2014 NY Slip Op 03189, Ct App 5-6-14
MENTAL HYGIENE LAW/CRIMINAL LAW/EVIDENCE
Sealed Records Relating to Vacated Convictions Were Sufficiently Reliable to Allow Expert Testimony to Be Based Upon Them In a Mental Hygiene Law Article 10 Trial (to Determine Whether a Sex Offender Should Be Committed to a Mental Health Facility)/However, a Presentence Report Mentioning Uncharged Offenses Was Not Reliable Enough to Be Used as a Basis for Expert Opinion
The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined that most of the hearsay relied upon by experts in a Mental Hygiene Law article 10 trial (to determine whether a sex offender should be committed to a mental health facility) was reliable enough to be admissible. The records deemed admissible related to sex offense convictions which were vacated. The records deemed inadmissible related to allegations which were never prosecuted and which were not supported by any reliable documents (mentioned only in a presentence report). The error in admitting the unreliable hearsay was deemed harmless:
The records Supreme Court unsealed here indictments, presentence reports, police reports, and victim's statements, among other documents in the possession of official entities are the types of records the Legislature contemplated the State would have access to in an article 10 proceeding (see Mental Hygiene Law § 10.08 [c]). Respondent pleaded guilty in satisfaction of the 1968 indictments charging him with committing a string of rapes and robberies. Although his conviction was later vacated on mental incompetency grounds, the facts remains that respondent was charged and indicted for those crimes; that is, he was alleged to have committed them. Mental Hygiene Law § 10.08 (c), by authorizing disclosure of records relating to the "alleged commission of a sex offense," necessarily contemplates the release of records, such as these, which document sex offenses that did not result in valid adjudications of guilt. The 1968 records also qualify for disclosure under the statute's catch-all provision because they contain "information relevant to a determination" of whether respondent requires civil management under article 10 (Mental Hygiene Law § 10.08 [c]).
Respondent further argues that CPL 160.60 should have barred disclosure of the sealed records. That statute provides, in pertinent part, that once a criminal action or proceeding has terminated in favor of the accused, "the arrest and prosecution shall be deemed a nullity," and the information about that arrest or prosecution may not be disclosed "[e]xcept where specifically required or permitted by statute or upon specific authorization of a superior court" (CPL 160.60 [emphasis added]). Respondent essentially claims that, because the 1968 charges were terminated in his favor and "deemed a nullity," he can no longer be "alleged" to have committed the underlying crimes and the records therefore do not qualify for disclosure under Mental Hygiene Law § 10.08 (c).
We disagree. CPL 160.60 states by its plain terms that its provisions may be superseded by another statute, such as Mental Hygiene Law § 10.08 (c), that permits disclosure of the sealed information. Although an arrest or prosecution terminated in a defendant's favor must generally be "deemed a nullity" under CPL 160.60, we decline to interpret that statute as barring the disclosure of records that, for the purposes of article 10, relate to a respondent's alleged commission of a sex offense. Matter of State of New York v John S, 2014 NY Slip Op 03292, Ct App 5-8-14
Similar issues and result in another opinion by Judge Abdus-Salaam. Presentence report mentioning an uncharged offense was not reliable enough to be used as a basis for expert opinion. Error deemed harmless. Matter of State of New York v Charada T, 2014 NY Slip Op 03293, Ct App 5-8-14
CONSTITUTIONAL LAW/ADMINISTRATIVE LAW/INSURANCE LAW/EMPLOYMENT LAW
Comptroller Has Authority to Audit Private Health Care Providers Who Are Paid through an Insurance Company Under Contract with the State for Health Care Provided to State Employees
The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the state comptroller had constitutional and statutory authority to audit the billing records of private health care providers (Handler and South) who receive state funds for care provided to state employees through an insurance company under contract with the state. The underlying audit concerned the health care providers' waiver of patients' co-payments which effectively reduced the cost of the care provided by 20%. Because the state was obligated to pay only 80% of the cost of the care, the comptroller determined the health care providers who waived the copayment were effectively overpaid by the state. The health care providers argued the comptroller did not have the power to audit them because they were paid by the insurance company, not the state:
Handler and South Island receive State insurance funds in exchange for services rendered to State insurance beneficiaries. The fact that the State relies on a third-party conduit, United [the insurance company], does not change the character of the funds. They remain State dollars directed to pay health care costs incurred by State beneficiaries and charged by Handler and South Island. Matter of Martin H Handler MD PC v DiNapoli, 2014 NY Slip Op 03191, Ct App 5-6-14
UNIFORM COMMERCIAL CODE/BANKING LAW
14-Day Period for Notifying a Bank of Improperly Paid Items Reasonable Under the Facts
The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that shortening the period during which a bank must be informed of an improperly paid item from one year to 14 days was reasonable under the facts. The court noted that the party which agreed to the shortened period was a sophisticated business entity and the shortened period may not be reasonable in other circumstances, with less sophisticated parties, for example. The improperly paid items in this case were checks and drawdown requests forged by an employee. Summary judgment was granted in favor of the bank because the bank had not been notified of the forged items within 14 days:
[With respect] to the application of UCC 4-406 (4), the UCC permits parties to alter the provisions of article 4 by agreement (see UCC 4-103 ). The Official Comments go so far as to say that there exists a "blanket power to vary all provisions of the Article" (id. at Comment 2). But that power is not boundless:"[N]o agreement can disclaim a bank's responsibility for its own lack of good faith or failure to exercise ordinary care or can limit the measure of damages for such lack or failure; but the parties may by agreement determine the standards by which such responsibility is to be measured if such standards are not manifestly unreasonable"(UCC 4-103 ).
The application of these limitations raises two issues: first, whether parties can vary the one-year period by agreement; we hold that they can; and second, whether shortening the one-year period to 14 days is manifestly unreasonable; we hold that it is not, at least under these facts. Clemente Bros Contr Corp v Hafner-Milazzo, 2014 NY Slip Op 03291, Ct App 5-8-14
Attorney Discharged without Cause Entitled to Fee as an Account Stated
The Third Department determined an attorney had been discharged without cause and was entitled to a charging lien and a retaining lien. The client had signed a retainer agreement and had not expressed any objection to the detailed itemized bill submitted by the attorney. The amount of the bill was therefore deemed an account stated. In explaining the options available to an attorney who has been discharged without cause, the court wrote:
...[A]n attorney who has been discharged without cause may pursue the following cumulative remedies: (1) a charging lien, (2) a retaining lien, and/or (3) a plenary action in quantum meruit ... . A charging lien is a statutory remedy codified in Judiciary Law § 475 that grants the attorney "a security interest in the favorable result of [the] litigation" ... . A retaining lien, on the other hand, permits the discharged attorney to retain the contents of the client's file until such time as the attorney has been paid or "the client has otherwise posted adequate security ensuring [the] payment [there]of" ... . With respect to either lien, a hearing may be required to determine the amount of compensation due and owing to the discharged attorney. Here, however, we have no quarrel with Supreme Court's finding that the firm was entitled to an award of $10,884.14 based upon an account stated. Roe v Roe, 2014 NY Slip 03317, 3rd Dept 5-8-14
Motion to Disqualify an Attorney Who Had Previously Represented Both Parties and Related Businesses Should Have Been Granted
The Second Department determined a motion to disqualify an attorney who had represented both parties in related matters should have been granted:
Here, prior to the commencement of this action, the defendant's attorney had provided legal advice to both the appellant, Barbara Gordon, and the defendant in their capacity as business partners and members of several limited liability companies. There was a substantial relationship between the involvement of the defendants' attorney in the formation of those limited liability companies, and his involvement as general counsel to those limited liability companies in connection with the instant action for an accounting. In his capacity as general counsel, the defendant's attorney was in a position to receive relevant confidences regarding several of those limited liability companies, in which the plaintiff's interests are now adverse to the defendant's interests. Thus, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant's motion to disqualify the defendants' attorney... . Gordon v Ifeanyichukwu Chuba Orakwue Obiakor, 2014 NY Slip Op 03232, 2nd Dept 5-7-14
Relation-Back Doctrine (Allowing Service of an Otherwise Time-Barred Amended Complaint) Explained
The Second Department determined the relation-back doctrine was properly applied to a second amended complaint which otherwise would have been time-barred. The court noted that the mistake in naming the correct party need not be excusable:
A party seeking the benefit of the relation-back doctrine must establish that (1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship, can be charged with notice of the institution of the action and will not be prejudiced in maintaining his or her defense on the merits by virtue of the delayed assertion of those claims against him or her, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been timely commenced against the new party ... . The mistake need not be excusable for the relation-back doctrine to apply ... . Castagna v Almaghrabi, 2014 NY Slip Op 03223, 2nd Dept 5-7-14
Replevin and Order of Seizure (Asserting a Superior Right to Property) Explained
The Second Department, in determining an order of seizure had been properly granted, explained the law of replevin and an order of seizure:
"The action of replevin is essentially possessory in its nature."... . "A cause of action sounding in replevin must establish that the defendant is in possession of certain property of which the plaintiff claims to have a superior right" ... .
"An order of seizure is not a final disposition of a matter but is a pendente lite order made in the context of a pending action where the movant has established, prima facie, a superior right in the chattel" ... . Pursuant to CPLR 7102, an application for an order of seizure must be supported by an affidavit that "clearly identif[ies] the chattel to be seized" and states, among other things, facts demonstrating "that the plaintiff is entitled to possession" of the chattel, that "the chattel is wrongfully held by the defendant," and that "no defense to the claim is known to the plaintiff" (CPLR 7102[c]...). Southeast Fin LLC v Broadway Towing Inc, 2014 NY Slip Op 03254, 2nd Dept 5-7-14
Rule Requiring Submission of Order or Judgment for Signature within 60 Days Applies Only When Court Directs that the Proposed Order Be Settled or Submitted for Signature
The Fourth Department determined an action had not been abandoned for failure to submit the order for signature within 60 days pursuant to 22 NYCRR 202.48. That rule applies only when the court directs a party to submit or settle an order or judgment:
...[W]e agree with plaintiff that the court erred in dismissing the complaint sua sponte pursuant to 22 NYCRR 202.48. That rule provides that "[p]roposed orders or judgments . . . must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted . . . Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown" (22 NYCRR 202.48 [a], [b]). As the Court of Appeals wrote, "[b]y its plain terms, section 202.48 (a) speaks to the circumstances where the court's decision expressly directs a party to submit or settle an order or judgment" (Funk v Barry, 89 NY2d 364, 367). Thus, the Court held that "the 60-day period applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature" (id. at 365). Here, the order of reference did not explicitly direct plaintiff to settle or submit an order or judgment for signature. Rather, it directed plaintiff to submit a "Motion or [an] Ex Parte Application" seeking a judgment of foreclosure and sale. We therefore conclude that the court erred in dismissing the complaint in reliance on 22 NYCRR 202.48... . Midfirst Bank v Bellinger, 2014 NY Slip Op 03365, 4th Dept 5-9-14
CIVIL PROCEDURE/ATTORNEYS/PRIVILEGE/INSURANCE LAW
Insurance Company's Documents Protected by Attorney-Client Privilege/Where there is a Discrepancy Between an Order and the Related Decision, the Decision Controls
The Fourth Department determined Supreme Court should not have ordered disclosure of documents generated by an insurance company in relation to plaintiff's claim because they were protected by attorney-client privilege. (The court noted, with respect to the lower court's decision and order in this case, that where there is a discrepancy between and order and a decision, the decision controls:)
A party seeking to invoke the attorney-client privilege must show that "the information sought to be protected from disclosure was a confidential communication' made to the attorney for the purpose of obtaining legal advice or services . . . [, and] the burden of proving each element of the privilege rests upon the party asserting it" ... . "For the privilege to apply when communications are made from client to attorney, they must be made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose.' . . . [F]or the privilege to apply when communications are made from attorney to clientwhether or not in response to a particular requestthey must be made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship" ... .
It is well settled that "[t]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business" ... . Notably, "while information received from third persons may not itself be privileged . . . , a lawyer's communication to a client that includes such information in its legal analysis and advice may stand on different footing. The critical inquiry is whether, viewing the lawyer's communication in its full content and context, it was made in order to render legal advice or services to the client"... . Nicastro v New York Cent Mut Fire Ins Co, 2014 NY Slip Op 03381, 4th Dept 5-9-14
CIVIL PROCEDURE/INTELLECTUAL PROPERTY/PERSONAL PROPERTY/CONTRACT LAW
Once an Amended Complaint is Served the Action Must Proceed As if the Original Complaint Never Existed---A Summary Judgment Motion Based Upon an Affirmative Defense Asserted for the First Time in the Answer to the Amended Complaint Was Properly Brought, Even Though a Prior Summary Judgment Motion on the Same Ground Had Been Denied/Medical Billing Software, i.e., Intellectual Property, Is "Personal Property" Covered by General Obligations Law 5-903---The Automatic Renewal Provision of the Medical Billing Contract Was Therefore Void
The First Department, in a full-fledged opinion by Justice Gische, determined that an amended complaint supersedes the original complaint and an affirmative defense asserted in the answer to the amended complaint could be the basis of a summary judgment motion, even though the same ground was asserted in a prior, unsuccessful summary judgment motion. The substantive issue was whether billing software licensed to a doctor was "service ... to or for ... personal property" within the meaning of General Obligations Law 5-903 (2). The court determined the billing software was covered by the General Obligations Law and, therefore, the automatic renewal provision in the contract between the software company and the doctor could not be enforced. The "General Obligations Law" affirmative defense was not asserted in the original answer and a summary judgment motion based on the unpled affirmative defense had previously been denied:
We find that the second summary judgment motion, brought after the pleadings were amended on a substantive issue not previously decided by the court, was procedurally proper. "Once plaintiff served the amended complaint, the original complaint was superseded, and the amended complaint became the only complaint in the action. The action was then required to proceed as though the original pleading had never been served" ... . Thus, defendant's appeal from the prior order denying summary judgment became moot ..., and "sufficient cause . . . exist[ed]" for his motion for summary judgment dismissing the amended complaint ... . ...
General Obligations Law § 5-903 does not define "personal property," although it broadly defines "person" as "an individual, firm, company, partnership or corporation" and also states that its restrictions apply unless "the person receiving the service" is served with advanced notice calling its attention to the renewal clause in the contract (General Obligations Law § 5-903). The statute does not require that the person own the "personal property" being serviced, and section 5-903 has been analyzed by courts in a variety of circumstances to determine its applicability. Personal property has been interpreted to include intellectual property as well as tangible personal property ... . The purpose of the notice provision is to protect service recipients from the harm of unintended automatic renewals of contracts for consecutive periods ... . Since § 5-903 is remedial in nature it is construed broadly ... .
We find that the parties' agreement was "for service . . . to or for . . . personal property" within the meaning of the General Obligations Law. The services provided were directly and inextricably related to the billing and medical records of the practice, which are personal property. Healthcare IQ LLC v Tsai Chung Chao, 2014 NY Slip Op 03216, 1st Dept 5-6-14
Plaintiff Cannot Be the Only Link between the Defendant and the Forum/Defendant's "Minimum Contacts" with New York Not Demonstrated
The Second Department determined New York courts did not have subject matter jurisdiction in an action against a Texas physician who had treated plaintiff's late mother when she resided in Texas and Florida. The court explained the relevant analysis:
Where a motion is made to dismiss an action for lack of personal jurisdiction, it is the plaintiff who bears the ultimate burden of proving a basis for such jurisdiction ... . A plaintiff relying on CPLR 302(a)(3)(ii) "must show that (1) the defendant committed a tortious act outside New York; (2) the cause of action arose from that act; (3) the tortious act caused an injury to a person or property in New York; (4) the defendant expected or should reasonably have expected the act to have consequences in New York; and (5) the defendant derived substantial revenue from interstate or international commerce" ... . Once those elements are met, an assessment must then be made as to whether a finding of personal jurisdiction satisfies due process ... .
Here, the plaintiff failed to establish that the defendant's alleged tortious act prescribing medication in Texas to the plaintiff's mother while she was in Texas and in Florida caused injury in New York ... . Moreover, under the circumstances, the plaintiff failed to establish that the defendant expected or should reasonably have expected the act to have consequences in New York, or that the defendant "derive[d] substantial revenue from interstate . . . commerce" (CPLR 302[a][ii]). In addition, the plaintiff failed to establish that the defendant had the requisite "minimum contacts" with New York such that the prospect of defending a suit here comported with "traditional notions of fair play and substantial justice," as required by the Federal Due Process Clause ... .
On February 25, 2014, the Supreme Court of the United States rendered a decision refining the "minimum contacts" analysis set forth in International Shoe Co. (see Walden v Fiore, _____ US _____, 134 S Ct 1115). The Supreme Court determined that a "plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him" (id. at 1122). Moreover, the Supreme Court held that, "[d]ue process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the random, fortuitous, or attenuated' contacts he makes by interacting with other persons affiliated with the State" ... . Waggaman v Arauzo, 2014 NY Slip Op 03259, 2nd Dept 5-7-14
CIVIL PROCEDURE/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS/COURT OF CLAIMS
Most of Plaintiff's Causes of Action Were Allegations Concerning the Conduct of a State Employee in His Official Capacity---Therefore, Those Causes of Action Were Actually Against the State and Could Only Be Heard in the Court of Claims/Elements of Intentional Infliction of Emotional Distress Explained
The Second Department upheld the dismissal of several causes of action (brought in Supreme Court) which were determined to constitute actions against the state because they were directed at the official conduct of an individual employed by the state. Actions against the state can be heard only in the Court of Claims. The suit was brought by a doctor employed by the SUNY Downstate Medical Center and alleged breach of contract, wrongful termination of employment, promissory estoppel, defamation and intentional infliction of emotional distress. The Second Department concluded that only defamation should survive because that cause of action was against plaintiff's boss, Dr. Abulafia, in his individual, not official, capacity. The intentional infliction of emotional distress cause of action, which was also against Dr. Abulafia in his individual capacity, was dismissed because it was not sufficiently alleged:
"The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the Statei.e., where the State is the real party in interest" ... . Generally, "[t]he Court of Claims has exclusive jurisdiction over actions for money damages against State agencies, departments, and employees acting in their official capacity in the exercise of governmental functions" ... . "Where, however, the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interesteven though it could be held secondarily liable for the tortious acts under respondeat superior" ... .
Contrary to the plaintiff's contention, the Supreme Court properly granted those branches of the defendants' motion which were to dismiss the causes of action to recover damages for breach of contract, wrongful termination of employment, and promissory estoppel insofar as asserted against Abulafia, correctly concluding that it lacked subject matter jurisdiction to entertain those cases of action insofar as asserted against Abulafia, as those causes of action arose from acts performed, and determinations made, by Abulafia as a State employee acting in his official capacity... . * * *
"In order to state a cause of action to recover damages for intentional infliction of emotional distress, the complaint must allege conduct that was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [was] utterly intolerable in a civilized community'" ... . Even accepting as true the allegations in the complaint regarding Abulafia's conduct, and according the plaintiff the benefit of every possible favorable inference ..., Abulafia's conduct was not "so outrageous in character, and so extreme in degree" as to qualify as intentional infliction of emotional distress ... . Borawski v Abulafia, 2014 NY Slip Op 03221, 2nd Dept 5-7-14
Courts Do Not Have Subject Matter Jurisdiction Over Disputes Requiring Inquiry Into Religious Doctrine
The Second Department determined a dispute among religious parties could not be determined in the courts because it would involve an impermissible inquiry into religious doctrine or practice:
"The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs. Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution" ... . Here, the claims asserted by the plaintiff are nonjusticiable, as they cannot be resolved based on neutral principles of law. Rather, resolution of the issues raised would necessarily involve an impermissible inquiry into religious doctrine or practice ... . Rodzianko v Parish of the Russion Orthodox Holy Virgin Protection Church Inc, 2014 NY Slip Op 03249, 2nd Dept 5-7-14
Defendant Entitled to Suppression Hearing Where People Provided No Information About How Defendant Came to the Attention of Law Enforcement Personnel
The First Department determined the defendant's motion papers, although conclusory, were sufficient to warrant a hearing on whether defendant's statements should be suppressed. The People had provided no information about how the defendant came to the attention of law enforcement:
Although the People provided defendant with extensive information about the facts of the crime and the proof to be offered at trial, they provided no information whatsoever, at any stage of the proceedings, about how defendant came to be a suspect, and the basis for her arrest, made hours after the crime at a different location. The People never explained, even by implication, whether defendant met a description, was named by a witness familiar with her, or was connected to the crime in some other way. While the People disclosed defendant's detailed confession, it did not shed any light on how she came to be arrested ... .
Accordingly, given defendant's complete lack of relevant information, that portion of her motion papers alleging a "lack of probable cause to arrest the defendant based on the unreliability of the information provided to the police and/or the insufficiency of the description," while conclusory, was sufficient to state a basis for suppression and raise a factual issue requiring a hearing ... . People v Wynn, 2014 NY Slip Op 03352, 1st Dept 5-8-14
Murder Conviction Against the Weight of the Evidence---Strangulation Was the Result of an Attempt to Increase Sexual Pleasure---No Intent to Kill
The Second Department determined that defendant's conviction for intentional murder was against the weight of the evidence. The victim died of strangulation, but the defendant's actions were motivated by the desire to increase sexual pleasure, not by an intent to kill. People v Davis, 2014 NY Slip Op 03277, 2nd Dept 5-7-14
Judge's Failure to Apply the "Prejudice versus Probative" Balancing Test to Evidence of Uncharged Bad Acts and Crimes, Combined with the Judge's Failure to Give the Jury Limiting Instructions About How Such Evidence is to Be Considered by Them, Required Reversal of Defendant's Conviction
The Third Department reversed defendant's conviction because the judge never ruled on the admissibility of uncharged prior bad acts and crimes by applying the "prejudicial effect versus probative value" Molineux test, and the judge never gave limiting instructions to the jury about the limited applicability of such evidence. The charged offense was assault by administering alcohol to the victim (defendant's wife) without her consent. The prior bad acts and crimes which were entered into evidence included nonconsensual sex, withholding medication and domestic violence:
To be sure, "[p]rior bad acts in domestic violence situations are more likely to be considered relevant and probative evidence because the aggression and bad acts are focused on one particular person, demonstrating the defendant's intent, motive, identity and absence of mistake" ... and, further, may be "relevant to provide background information concerning the context and history of [the] defendant's relationship with the victim" ... . That said, even assuming that all of the uncharged crimes/prior bad acts at issue here, which, as noted previously, included allegations of nonconsensual sex, domestic violence, bullying and the withholding of certain medications from the victim, fell within one or more of the recognized Molineux exceptions ... and indeed constituted relevant and probative evidence, the record fails to reflect that County Court balanced the probative value of such evidence against its prejudicial effect. More to the point, even further assuming that our review of the record disclosed evidence of County Court's implicit finding in this regard ..., the record nonetheless reveals that, despite an appropriate request by defense counsel during the course of the charge conference, no appropriate limiting instructions were provided to the jury ... . The absence of such instructions clearly impacted the jury's deliberations as evidenced by the jury's inquiry as to whether the coercion charge "encompass[ed] just the use of alcohol or . . . extend[ed] to unwilling sex. People v Elmy, 2014 NY Slip Op 03300, 3rd Dept 5-8-14
Cell Phone In Possession of Inmate Met the Definition of "Dangerous Contraband" in the Context of a "Promoting Prison Contraband" Charge
The Third Department, in a full-fledged opinion by Justice Egan, determined that a cell phone constituted "dangerous contraband" within the meaning of "promoting prison contraband in the first degree." The testimony of the supervising superintendent about the protections put in place concerning the recording and restrictions on inmate phone calls were sufficient to demonstrate the cell phone met the definition of "dangerous contraband:"
In this regard, the Court of Appeals has instructed that "the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility's institutional safety or security" ... . Notably, "the distinction between contraband and dangerous contraband" does not turn upon "whether an item is legal or illegal outside of prison . . . [as] [i]t is obvious that an item, such as a razor, may be perfectly legal outside prison and yet constitute dangerous contraband when introduced into that unpredictable environment" ... . Similarly, as our case law makes clear, the item in question need not be inherently dangerous in order to qualify as dangerous contraband. Indeed, although weapons are perhaps the most commonly recognized source of dangerous contraband in a prison setting ... , courts have applying the Finley test reached the very same conclusion with respect to other items made, obtained or possessed by prison inmates, including illegal quantities of drugs ..., a disposable Bic lighter ... and hand-drawn maps or knotted links of wire that could be used to facilitate an escape .... Although the majority in Finley did not expressly address this issue, Judge Pigott opined in his concurrence/dissent that, "[i]f the contraband at issue is not inherently dangerous . . . , the People must present specific, competent proof from which the trier of fact may infer that use of the contraband could potentially create a dangerous situation inside the facility" ... . As a cell phone admittedly is not an inherently dangerous item, the question is whether the People adduced sufficient proof to establish the cell phone's potential to be used in such a pernicious manner as to elevate it to the level of dangerous contraband. People v Green, 2014 NY Slip Op 03303, 3rd Dept 5-8-14
Police Officer's Convictions for "Criminal Diversion" (Obtaining Another's Prescription Medication), and "Official Misconduct" Not Supported by Legally Sufficient Evidence
The Third Department reversed defendant's convictions for criminal diversion and official misconduct because the offenses were not supported by legally sufficient evidence. The defendant, a police officer, was accused of obtaining someone's prescription drugs in exchange for something of pecuniary value (criminal diversion). She was also accused of flashing her badge to a pharmacist and asking the pharmacist to hurry up with a prescription drug (official misconduct). The Third Department determined the "criminal diversion" charge was not supported by evidence the drug involved (a muscle relaxant) was a "prescription medication." And, in the absence of evidence the defendant knew that flashing her badge constituted an unauthorized exercise of her official functions, there was not sufficient evidence to support the "official misconduct" charge. People v Barnes, 2014 NY Slip Op 03310, 3rd Dept 5-8-14
Statement Elicited by Unnecessary Force Properly Suppressed
The Fourth Department determined the defendant's statement which led to the discovery of cocaine was the product of unjustified force used by the arresting officer. Based upon a radio broadcast about a nearby robbery (in which the defendant was not involved), the police were justified in stopping defendant's car, having the defendant get out of the car, and patting the defendant down for weapons. After that, however, the arresting officer was not justified in pinning the defendant against the car and repeatedly asking him if he "had anything on him:"
...[T]he People failed to prove beyond a reasonable doubt that defendant's admission that he possessed drugs was the "result of a free and unconstrained choice' " by defendant ... . Before repeatedly asking defendant whether he had "anything" on him, the arresting officer conducted a pat frisk and found no weapons. There was thus no need for the officer to be concerned about his safety. Moreover, although defendant did not respond when he was initially asked whether he had anything on him, that did not justify the use of physical force by the officer. It is clear that, as the court determined, defendant's eventual incriminating response was prompted by the officer's continuing use of force while repeating the same question that defendant refused to answer or answered in a manner that did not satisfy the officer. Although the People assert that the officer was unable to complete his pat frisk because defendant was attempting to flee, the court stated in its findings that defendant "did not flee or resist," and the court's determination in that regard is supported by the record and will not be disturbed ... . People v Daniels, 2014 NY Slip Op 03406, 4th Dept 5-9-14
People's Failure, at a Reconstruction Hearing, to Prove Defendant Was Present for the Sandoval Hearing Required Reversal and a New Trial
The Fourth Department determined the People, at a reconstruction hearing, had failed to prove the defendant was present during a Sandoval hearing. The conviction was therefore reversed and a new trial was ordered. People v Walker, 2014 NY Slip Op 03411, 4th Dept 5-9-14
Sworn Allegations About the Conduct of a Juror in Defendant's Motion to Set Aside the Verdict Were Sufficient to Require a Hearing About Whether a Substantial Right Had Been Prejudiced
The Fourth Department determined defendant was entitled to a hearing on his motion to set aside the verdict:
The sworn allegations in defendant's moving papers, i.e., that he learned after the verdict was rendered that a juror who had allegedly been "holding out" contacted defendant's aunt between the first and second days of deliberation and discussed the likelihood of a guilty verdict when the jury reconvened the following morning, "required a hearing on the issue whether the juror's alleged misconduct prejudiced a substantial right of defendant" ... . People v Tucker, 2014 NY Slip Op 03415, 4th Dept 5-9-14
Defendant's Motion for DNA Testing Should Have Been Granted
The Fourth Department held defendant's post-conviction motion for DNA testing was sufficient to require a hearing to determine if DNA evidence still existed and, if so, whether it could be tested. The evidence identifying the defendant as the attacker was not overwhelming and semen, found on the victim's clothes, had never been tested:
Following the attack, a semen stain was found on the crotch of the jumpsuit that the complainant had been wearing. There was no indication that the source of the semen could have been anyone but the attacker ..., but no DNA testing was performed on the jumpsuit. Based on the record before us, we conclude that "the evidence of defendant's guilt was not so overwhelming that a different verdict would not have resulted if . . . DNA testing excluded him" as the source of the semen on the jumpsuit ... . We therefore remit the matter to Supreme Court for a hearing to determine whether the jumpsuit is still in existence and, if so, whether there is sufficient DNA material for testing ... . People v Flax, 2014 NY Slip Op 03416, 4th Dept 5-9-14
Newly Discovered Evidence Indicating Defendant Was Not the Shooter Required a New Trial
The Fourth Department, over a dissent, determined defendant was entitled to a new trial on the basis of new evidence presented in his motion to set aside the verdict:
It is well settled that, in order to establish entitlement to a new trial on the ground of newly discovered evidence, "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' " ... .
We conclude that defendant met his burden of establishing all six factors by a preponderance of the evidence (see CPL 440.30 ...). People v Bryant, 2014 NY Slip Op 03419, 4th Dept 5-9-14
Indictment Dismissed after Trial as Multiplicitous and Duplicitous/Grand Larceny Can Not Be Based Upon the Violation of a Regulation that Is Civil in Nature
The Fourth Department reversed defendant's conviction and dismissed the indictment in a prosecution alleging public assistance fraud in the operation of a daycare home. The indictment charged the defendant with grand larceny, falsifying business records and offering a false instrument for filing. Essentially, the charges alleged the defendant billed for services provided by an unlicensed care-giver, and billed for services which were not provided. The Fourth Department held that the entire indictment was rendered multiplicitous and duplicitous by the trial evidence. In addition, the court determined that the grand larceny count could not be based upon the violation of a regulation requiring the presence of a licensed assistant.
With respect to multiplicity and duplicity, the court wrote:
Prosecutors and grand juries must steer between the evils known as duplicity' and multiplicity.' An indictment is duplicitous when a single count charges more than one offense . . . It is multiplicitous when a single offense is charged in more than one count . . . A duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his [or her] ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other. If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he [or she] actually committed" ... . An indictment that is not duplicitous on its face may be rendered so based upon the trial evidence ... .
Here, the People correctly concede that counts 5 through 7, 9, 15 through 17, and 19 of the indictment are duplicitous and multiplicitous inasmuch as they are based on "distinct but not identifiable vouchers." Those counts are all based on the same time period and the same vendor number and, according to the People, there is no way to identify which voucher refers to which count ... . ...
With respect to the remaining counts of the indictment, we agree with defendant that counts 8, 10, 18, and 20 of the indictment were rendered duplicitous by the trial evidence.. . . As noted above, the People alleged that defendant submitted vouchers for monies to which she was not entitled because, at various dates and times, she (1) billed for hours when neither she nor her certified assistant were at the daycare, and (2) she billed for hours when the children were not at the daycare. There is no basis in the record to determine, with respect to each of those counts, whether the jury convicted defendant based upon the first act (billing for hours when the children were watched by uncertified assistants) or the second act (billing for hours when the children were not at daycare), or whether certain jurors convicted defendant upon the former and others upon the latter. Thus, "it is impossible to verify that each member of the jury convicted defendant for the same criminal act"... .
With respect to grand larceny based upon the violation of a regulation, the court wrote:
Count one of the indictment alleges that, between October 1, 2007 and July 30, 2008, defendant "stole property having a value in excess of [$3,000], to wit: a sum of money, belonging to [DSS]." Under Penal Law § 155.05 (1), "[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself [or herself] or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof." Larceny includes "obtaining property by false pretenses" (§ 155.05  [a]). A defendant commits larceny by false pretenses when he or she "obtain[s] possession of money of another by means of an intentional false material statement about a past or presently existing fact upon which the victim relied in parting with the money" ... .
Here, the People alleged that defendant committed larceny by false pretenses by charging for times when unlicensed assistants were watching the children in violation of OCFS regulations, and by billing for times when the children were not receiving daycare services. We question whether submitting vouchers for daycare services rendered by an uncertified assistant falls within the definition of larceny. OCFS's regional manager testified that, although it is a "regulatory violation" for an uncertified assistant to watch children at a group day care, the regulations do not state that daycare providers are not permitted to bill for services rendered by an uncertified assistant. Indeed, the DSS special investigator referred to those hours as "billable" on his charts, although unauthorized by the regulations.
Even assuming, arguendo, that billing for services provided by an uncertified assistant constitutes a "wrongful[ ] tak[ing]" within the meaning of Penal Law § 155.05 (1), we note that "[c]onduct which is wrongful in the civil context is not necessarily wrongful' within the meaning of the larceny statutes" ... . People v Casiano, 2014 NY Slip Op 03362, 4th Dept 5-9-14
Court Should Not Have Deferred, Over Defense Counsel's Objection, to Defendant's Request that the Jury Not Be Charged on a Lesser Included Offense---To Do So Denies Defendant His Right to the Expert Judgment of Counsel
The Fourth Department determined the court erred in deferring to the defendant's request that the jury not be charged to consider a lesser included offense. Defense counsel strongly objected to the defendant's request and so informed the court. The decision concerning whether to request a "lesser included" jury instruction is solely the province of defense counsel:
In Colville (20 NY3d at 23), the Court of Appeals held that "the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." In that case, the trial court agreed with defense counsel that a reasonable view of the evidence supported his request to submit two lesser included offenses to the jury (id.). Nevertheless, "contrary to defense counsel's request and repeated statements that, in his professional judgment, the lesser-included offenses should be given to the jury, the judge did not do so because defendant objected" (id.). The jury convicted the defendant of murder, and the Court of Appeals reversed and ordered a new trial, concluding that, "[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him" (id. at 32). People v Brown, 2014 NY Slip Op 03374, 4th Dept 5-9-14
Resentencing Defendant to Original Sentence (Imposing No Post Release Supervision) Did Not Require Defendant's Presence
The Fourth Department, over a dissent, determined defendant was properly sentenced even though he was not present at the resentencing. The original sentence did not include a period of post release supervision [PRS]. The resentence also did not impose PRS. Therefore, there was no error which adversely affected the defendant:
Defendant ... contends that the court erred in conducting the resentence in his absence and without assigning counsel (see Correction Law § 601-d  [a]; CPL 380.40 ...). That contention is not properly before us because we may only "consider and determine any question of law or issue of fact involving error or defect . . . which may have adversely affected the appellant" (CPL 470.15 ). Here, the only issue presented at resentencing was whether the court would impose a period of PRS, and the District Attorney had already informed the court and defendant in writing that the People would consent to the reimposition of the original sentence, i.e., without a period of PRS. Inasmuch as the court reimposed that original sentence, "defendant was not adversely affected by any error, because the result, i.e., freedom from having to serve a term of PRS [with respect to this count of the indictment], was in his favor" ... . People v Mills, 2014 NY Slip Op 03388, 4th Dept 5-9-14
Plaintiff Wife Not Entitled to Distributive Award of Husband's Separate Property Which Was Not Shown to Have Appreciated During the Marriage
The Second Department explained the equitable distribution principles applied to separate property which has not been demonstrated to have appreciated during marriage.
Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property" ... . The defendant overcame the presumption that funds he deposited into the account of Clark Development, LLC (hereinafter CD, LLC), a company he formed during the marriage, were marital funds by presenting sufficient evidence that the source of the funds was separate property ... . Moreover, although appreciation of, or increase in the value of, separate property is considered separate property, "except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (Domestic Relations Law § 236[B][d]), the plaintiff failed to carry her burden of establishing that CD, LLC, as the defendant's separate property, appreciated in value during the parties' marriage ... . Accordingly, the Supreme Court erred in directing that the plaintiff was to receive a distributive award relating to CD, LLC. Clark v Clark, 2014 NY Slip Op 03224, 2nd Dept 5-7-14
Similar issue and result in Turco v Turco, 2014 NY Slip Op 03257, 2nd Dept 5-7-14
Fraud Cause of Action Against Merrill Lynch Re: Credit Default Obligations Sufficiently Pled/Disclaimers and Disclosures Did Not Preclude Claim of Fraud
The First Department determined a cause of action for fraud against Merrill Lynch had been sufficiently pled. The underlying agreement related to credit default obligations (CDO's). The court noted that an unjust enrichment cause of action is not viable when the lawsuit is based on a written agreement:
...[The] factual allegations provide sufficient details to inform the ...defendants ... of the alleged fraudulent conduct, namely that the CDO was secretly designed by an undisclosed hedge fund, Magnetar, which was secretly placing massive short bets against the very same deals it was sponsoring. Defendants, however, argue that plaintiff cannot establish the element of reasonable reliance (an element of both affirmative misrepresentation and concealment) as a result of the disclosures and disclaimers for the Auriga CDO. We cannot agree.
The offering circular states, "All or most of the Collateral Debt Securities Acquired by the Issuer . . . will be Acquired from a portfolio of Collateral Debt Securities selected by the Collateral Manager . . . ." If Magnetar rather than 250 Capital was doing the selecting, the statement in the offering circular was misleading. The identity of the person selecting the collateral was material: The offering circular says, "The performance of the portfolio of Collateral Debt Securities depends heavily on the skills of the Collateral Manager in analyzing and selecting the Collateral Debt Securities." * * *
Under the circumstances, it cannot be said that the disclaimers and disclosures in the offering circulars preclude a claim of fraud on the ground of a prior misrepresentation as to the specific matter, namely that the CDO's collateral had been carefully selected by an independent collateral manager, in the interests of the success of the deal and for the benefit of Auriga's long investors. Loreley Fin (Jersey) No 38 Ltd v Merrill Lynch ..., 2014 NY Slip Op 03326, 1st Dept 5-8-14
Similar issues and result re: Citigroup in a full-fledged opinion by Justice Renwick. Loreley Fin (Jersey) No 3 Ltd v Citigroup Global Mkts Inc, 2014 NY Slip Op 03358, 1st Dept 5-8-14
INSURANCE LAW/CONTRACT LAW
Contract to Share Commissions with Person Not Licensed to Sell Insurance is Illegal and Unenforceable
The Second Department determined an alleged oral agreement(with Tellkamp) to share commissions for the sale of insurance with plaintiff, who initially was not licensed to sell insurance, was unenforceable. But, for those policies sold after plaintiff was licensed, he might be entitled to commissions under a quantum meruit theory.
At the time that the plaintiff allegedly contracted with Tellkamp and began providing services, the plaintiff was not licensed by the State of New York as an insurance broker or a licensed insurance agent appointed by Phoenix Life, and he was not licensed by the State of New Jersey as an insurance producer (see Insurance Law §§ 2103, 2104, 2112; NJ Stat Ann §§ 17:22A-29, 17:22A-28). Accordingly, he was not legally permitted to receive payment of insurance commissions, either directly from the insurers or indirectly from Tellkamp (see Insurance Law § 2114[a]; NJ Stat Ann § 17:22A-41; Ops Gen Counsel NY Ins Dept No. 07-05-23 [May 31, 2007]). The alleged contract was therefore illegal and is unenforceable ... . Ziv v Tellkamp 2014 NY Slip Op 03261, 2nd Dept 5-7-14
MUNICIPAL LAW/REAL PROPERTY LAW
City's Annexation of Town Land Was in the Overall Public Interest
The Fourth Department determined the annexation of vacant town land by the city was demonstrated to be in the overall public interest, despite the loss of tax revenue to the town:
The municipality seeking an article 17 annexation has the burden of proving that the annexation is in the overall public interest" (...see General Municipal Law § 712...). "A reviewing court must weigh[ ] the benefit or detriment to the annexing municipality, the territory proposed to be annexed, and the remaining governmental unit from which the territory would be taken" ... . "Benefit and detriment are customarily defined in terms of municipal services such as police and fire protection, health regulations, sewer and water service, public utilities and public education" ... . "Another factor to consider is whether the municipality seeking the annexation and the territory proposed to be annexed have the requisite unity of purpose and facilities to constitute a community' " ... . Matter of City of Fulton v Town of Grandby, 2014 NY Slip Op 03371, 4th Dept 5-9-14
Allegation Plaintiff Driver Stopped Suddenly for No Reason Raised a Question of Fact About Whether the Driver Who Struck Plaintiff's Vehicle from Behind Was Negligent
The Second Department determined defendant driver (Catania) whose vehicle struck plaintiff's vehicle from behind had raised a question of fact about whether there was a non-negligent explanation for the collision. Defendant alleged plaintiff stopped suddenly for no reason:
The Supreme Court erred in granting the plaintiff's motion for summary judgment on the issue of liability. Although the plaintiff's affidavit in support of the motion demonstrated that his vehicle was struck in the rear, thus raising an inference of Catania's negligence, the plaintiff's submissions, which included a transcript of Catania's deposition testimony, revealed a triable issue of fact as to whether Catania had a nonnegligent explanation for the collision. Catania testified at his deposition that his vehicle was stopped at a traffic light at a distance of approximately eight feet behind the plaintiff's vehicle. When the light changed to green, Catania maintained a safe distance between the two vehicles, but the plaintiff came to an abrupt stop for no apparent reason when there was no pedestrian or vehicular traffic in front of it, and the two vehicles collided. Under these circumstances, a triable issue of fact exists... . Fernandez v Babylon Mun Solid Waste, 2014 NY Slip Op 03230, 2nd Dept 5-7-14
Tenant's Common Law Duty to Keep Sidewalk on the Premises Safe Applies Even Though Another Party Agreed to Maintain the Sidewalk in Its Lease
The First Department noted that a tenant has a common law duty to keep a sidewalk on the leased premises safe, even if another party is obligated to maintain the sidewalk in its lease. Plaintiff slipped and fell on ice on the sidewalk:
It is well established that a tenant owes a common-law duty of reasonable care to maintain the demised premises in a reasonably safe condition, independent of any obligation that might be imposed by the existence of a lease ... . The fact that nonparty C.L.B. #6 Inc. (CLB#6) was required to maintain the sidewalk under its lease with the landlord is irrelevant to CLB's common-law duty to maintain the demised premises ... . Additionally, whether a gas station was also a tenant of the premises is also irrelevant to CLB's duty ... . Because CLB never produced the lease between itself and CLB#6, which might reflect whether the subject sidewalk was part of the demised premises, it failed to establish prima facie that it owed no duty to maintain the subject sidewalk ... . Williams v Esor Realty Co, 2014 NY Slip Op 03343, 1st Dept 5-8-14
Question of Fact About Whether Skater Assumed the Risk of a Collision with a Skating Guard Who May Have Acted Recklessly
The Second Department determined a skater may not have assumed the risk of a collision with a skating guard. There was a question of fact about whether the skating guard had acted recklessly:
Voluntary participants in a sport or recreational activity "may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" ... . Although collisions between skaters are a common occurrence, and thus an inherent risk to ice skating ..., "participants do not consent to acts which are reckless or intentional" ..., or to any "unassumed, concealed or unreasonably increased risks" ... .
Here, the evidence submitted by the City in support of its motion failed to establish as a matter of law that the injury-causing event was a known, apparent, or reasonably foreseeable consequence of the plaintiff's participation in the sport. The City's submissions raised questions of fact as to whether the conduct of its employee, the skating guard who allegedly caused the plaintiff's accident, was reckless or intentional and unreasonably increased the risk of a collision ... . Kats-Kagan v City of New York, 2014 NY Slip Op 03235, 2nd Dept 5-7-14
Intentional Conduct Cannot Be the Basis for a Negligent Infliction of Emotional Distress Cause of Action
The Second Department determined a cause of action for negligent infliction of emotional distress cannot be based upon intentional conduct. Plaintiff alleged he was attacked with a hammer by the defendant:
A cause of action to recover damages for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, "generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety" ... . "Such a claim must fail, where, as here, no allegations of negligence appear in the pleadings'" ... . Here the plaintiff's allegations in the verified complaint that the defendant "deliberately and violently" attacked him with a hammer, while using racial and ethnic slurs, are premised on intentional conduct and not negligence. Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Santana v Leith, 2014 NY Slip Op 03251, 2nd Dept 5-7-14
Owner of Animal Which Strays Can Be Liable in Tort for Related Motorcycle Accident
The Fourth Department determined plaintiff's complaint should not have been dismissed. Plaintiff's decedent was killed when his motorcycle struck a cow which had wandered off defendant's land:
The Court [of Appeals has] held that "a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animali.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" ... . Sargent v Mammoser, 2014 NY Slip Op 03372, 4th Dept 5-9-14
Late Notice of Claim Can Be Allowed Even in Absence of Reasonable Excuse Where Defendants Had Actual Notice
The Second Department explained the criteria for determining whether to allow a late notice of claim, noting that the lack of a reasonable excuse does not necessarily require denial of the application where there is actual notice and an absence of prejudice:
The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the court ... . Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense ... . Neither the presence nor absence of any one factor is determinative ... . The absence of a reasonable excuse is not necessarily fatal ... . However, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance ... .
Here, the City defendants had actual notice of the essential facts constituting the claim well within the 90-day period for serving a notice of claim. Bakioglu v Tornabene, 2014 NY Slip Op 03219, 2nd Dept 5-7-14
Allegations that Town Was Negligent in Maintaining a Sewer System Involve a Proprietary Function Subject to Ordinary Rules of Negligence
The Fourth Department determined plaintiff's causes of action against a town alleging negligent maintenance, as opposed to design, of a sewer system properly survived summary judgment. Maintenance is a proprietary function of the town and is subject to ordinary negligence principles:
If the municipality acted in a proprietary role, i.e., "when its activities essentially substitute for or supplement traditionally private enterprises" ..., ordinary rules of negligence apply. If, however, the municipality acted in a governmental capacity, i.e., "when its acts are undertaken for the protection and safety of the public pursuant to general police powers" (id. at 425 [internal quotation marks omitted]), the court must undertake a separate inquiry to determine whether the municipality owes a special duty to the injured party ... . In the event that the plaintiff fails to prove such a duty, the municipality is insulated from liability. Even in the event that the plaintiff proves such a duty, however, the municipality will not be liable if it proves that the alleged negligent act or omission involved the exercise of discretionary authority ... .
With respect to municipal sewer malfunctions, it is well settled that a municipality's design of a sewer system constitutes a governmental function ..., while a municipality's "operation, maintenance and repair of th[at] sewer system is a proprietary function, and thus the Town's liability in that respect is not contingent upon the existence of a special relationship"... . Gilberti v Town of Spafford, 2014 NY Slip Op 03382, 4th Dept 5-9-14
NEGLIGENCE/VEHICLE AND TRAFFIC LAW
Questions of Fact Raised About Whether Ambulance Driver Was Engaged in an Emergency Operation at the Time of the Accident, and If So, Whether the Ambulance Driver Was Reckless in Violation of Vehicle and Traffic Law 1104
The Second Department determined questions of fact existed about whether an ambulance driver (Stewart) was engaged in an emergency operation at the time of the accident and, if so, whether Stewart acted recklessly in violation of Vehicle and Traffic Law 1104:
Vehicle and Traffic Law § 114-b defines emergency operation as: "[t]he operation . . . of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency." In the instant case, the plaintiff presented evidence that the radio call to which Stewart was responding was for the police to assist, and that Stewart sought to offer assistance in the form of "crowd control . . . until the police got there." Under the circumstances presented here, we agree with the plaintiff that triable issue of fact is presented as to whether Stewart was operating the ambulance as part of an emergency operation as contemplated by the statute ... .
We also find that the record presents factual issues as to whether Stewart's conduct constituted reckless disregard. The "reckless disregard" standard requires proof that Stewart intentionally committed "an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" ... . In the instant matter, the plaintiff submitted an affidavit from a nonparty witness that raised triable issues of fact as to whether the ambulance slowed down prior to entering the intersection at which the collision occurred. Although Stewart claimed that she was traveling five miles per hour through the subject intersection, the witness averred in his affidavit that Stewart was driving at a high rate of speed, without ever slowing down, on the wrong side of the road through a steady red signal. "Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact" ... . Thus, triable issues of fact have been raised ... . Torres v Saint Vincent's Catholic Med Ctrs of NY, 2014 NY Slip Op 03256, 2nd Dept 5-7-14
NEGLIGENCE/VEHICLE AND TRAFFIC LAW/MUNICIPAL LAW
Suit Against Town by Representatives of Ambulance Personnel Killed in an Accident Prohibited by Volunteer Ambulance Workers' Benefit Law/Question of Fact Whether Ambulance Driver Was Reckless (in Violation of Vehicle and Traffic Law 1104)
The Second Department determined the town was protected against a suit by representatives of ambulance personnel killed when the ambulance was involved in an accident. Volunteer Ambulance Workers' Benefit Law section 19 provides an exclusive remedy (much like the Workers' Compensation Law) and thereby precluded the lawsuit against the town. The Second Department also determined a question of fact had been raised about whether the ambulance driver was reckless. Therefore suit against the driver was not precluded by Vehicle and Traffic Law 1104 which imposes a "reckless disregard" standard for causes of action against the drivers of emergency vehicles. It is worth noting that the question of fact under the "reckless disregard" standard was found to exist in spite of a Department of Motor Vehicles hearing which determined the ambulance driver did not act recklessly. Ryan v Town of Riverhead, 2014 NY Slip Op 03250, 2nd Dept 5-7-14
PRIVILEGE/IMMUNITY/FALSE IMPRISONMENT/CRIMINAL LAW
Division of Parole's Mistake Which Resulted in the Incarceration of the Claimant Was Privileged---Claimant's Action for False Imprisonment Properly Dismissed
The Third Department, in a full-fledged opinion by Justice Peters, determined a mistake made by the Division of Parole, which resulted in claimant's prosecution and imprisonment for a violation of parole at a time when his parole had been terminated, was privileged. Therefore, the claimant's action for false imprisonment was properly dismissed:
To establish a claim of false imprisonment, claimant must demonstrate, among other things, that the confinement was not privileged ... . "To that end, it is settled that '[a]n otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction or parole authorities'" ... . Here, there is no dispute that claimant's confinement was pursuant to parole violation warrants that were valid on their face. Yet, according to claimant, because his sentence should have terminated by law on March 10, 2005, the Division acted without jurisdiction when it commenced the April 2005 parole revocation proceeding, revoked his parole and thereafter subjected him to various periods of incarceration.
"'There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not'" ... .
While the [Division of Parole's] ....interpretation of Executive Law former § 259-j (3-a) may well have been mistaken, any such "error in judgment neither negates nor defeats defendant's claim of privilege" ... . The statute vested the Division with the authority to grant a termination of sentence under certain described circumstances, and interpreting the provisions that implement such power is a legitimate part of the Division's function .. . The Division made a reasoned judgment ...[which] was neither inconsistent with nor contrary to extant judicial authority ... . Thus, at most, the Division "acted in excess of its jurisdiction, not in the complete absence [thereof], and its conduct therefore was privileged"... . Marsh v State of New York, 2014 NY Slip Op 03320, 3rd Dept 5-8-14
REAL PROPERTY LAW
Co-Tenant Acquired Entire Parcel by Adverse Possession
The Second Department determined a co-tenant of land owned by tenants in common had adversely possessed the entire parcel for the required 20-year period. The court explained the applicable legal principles:
"Adverse possession must be proven by clear and convincing evidence" ... . "To establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period" ... . " [A]n inference of hostile possession or a claim of right will be drawn [where] the other elements of adverse possession are established, unless, prior to the vesting of title, the party in possession has admitted that title belongs to another'" ... . Moreover, under the law existing at the time title allegedly vested here, in the absence of an overt acknowledgment during the statutory period that ownership rested with another party, actual knowledge of the true owner, or co-owner as is the case here, did not destroy the element of claim of right ... . "Where, as here, the party claiming adverse possession is a tenant-in-common in exclusive possession, the statutory period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession" ... . Galli v Galli, 2014 NY Slip Op 03231, 2nd Dept 5-7-14
REAL PROPERTY LAW/MUNICIPAL LAW/ENVIRONMENTAL LAW/CONSTITUTIONAL LAW
Village's Opting to Remove Petitioner's Land from the Land Available for Purchase by New York City to Maintain the City's Drinking-Water Watershed Was Not a Regulatory Taking
The Third Department determined the village had acted appropriately when it opted to exclude portions of land within the village from New York City's watershed acquisition program. Petitioner was attempting to sell an easement for her land to the City. When the village opted to exclude petitioner's land from the City's acquisition program, the petitioner brought an action claiming the village had exceeded its authority by improperly restricting the ownership and transferability of her property. Petitioner further argued that the village's action constituted a de facto regulatory taking of her property for which she was entitled to compensation:
Through voluntary agreement and accepting DEC [Department of Environmental Conservation] conditions, the City consented not to be a potential purchaser of some upstate property if the local municipalities opted to exclude the property from land acquisition by the City. This was part of a delicate balance designed to protect the watershed and save the City significant money while safeguarding the economic vitality of upstate communities ... . It was not an improper attempt by a local municipality to regulate who owns or occupies property ... , but, in essence, the withdrawal of one potential purchaser who received a significant benefit. * * *
Where, as here, "the contested [resolution] falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including 'the [resolution's] economic effect on the landowner, the extent to which the [resolution] interferes with reasonable investment-backed expectations, and the character of the government action'" ... . The resolution's result was that one potential purchaser who had not made any offer during the years when an easement on petitioner's farm could have been purchased no longer remained a potential purchaser. Petitioner has since found another willing purchaser. The resolution did not hinder the use that was being made of the property as a farming operation. The purpose of the resolution was to protect the Town's potential for growth and economic sustainability, which was one of the many goals of the various parties involved ... and consistent with an overriding purpose of maintaining a safe, ample and relatively inexpensive drinking water supply for the City. Petitioner "did not meet [her] heavy burden of showing that the [resolution] resulted in a regulatory taking"... . Matter of Nelson v City of New York, 2014 NY Slip Op 03319, 3rd Dept 5-8-14
RELIGION/CIVIL PROCEDURE/REAL PROPERTY LAW
Former Parishioners Did Not Have Standing to Challenge Sale of Church Property Which Had Been Authorized by Supreme Court Pursuant to the Religious Corporation Law
The Third Department determined former parishioners of a church should not have brought an action for declaratory judgment contesting the church's (court-ordered) authorization to sell church property pursuant to the Religious Corporation Law. The proper procedure would have been to bring a motion to intervene pursuant to CPLR 5015 (a). The court went on to determine that the parishioners did not have standing to challenge the sale because they were not members of the religious corporation:
Plaintiffs' action was an impermissible collateral attack on the authorization order. The proper procedure would have been to move to vacate that order pursuant to CPLR 5015, which permits "any interested person" to move for such relief (CPLR 5015 [a]), rather than commencing a second plenary action collaterally attacking an order in a prior action ... . ...
Additionally, Supreme Court properly dismissed the complaint because plaintiffs lack standing to challenge the sale of the property. Plaintiffs may have been members of the congregation or "ecclesiastical body" of St. Patrick's, but that does not make them members of the religious corporation ... . "Member" is defined for religious corporation purposes as "one having membership rights in a corporation in accordance with the provisions of its certificate of incorporation or by-laws" (N-PCL 102 [a] ; see Religious Corporations Law § 2-b ). Pursuant to the incorporation documents and bylaws of St. Patrick's and the relevant statutes, St. Patrick's is managed by a five-member board of trustees consisting of the diocesan bishop, the vicar general of the diocese, the rector of the church and two laypersons selected by the other trustees (see Religious Corporations Law §§ 90, 91)[FN3]. Religious Corporations Law § 5 "vests the custody and control of a religious corporation's [*3]real property in the board of trustees" ... . As plaintiffs are not members of the religious corporation, they lack standing to challenge decisions concerning the transfer of the corporation's property ... . Citizens for St Patrick's v Saint Patrick's Church of W Troy, 2014 NY Slip Op 03314, 3rd Dept 5-8-14
State's Decrease in Its Contribution to Judges' Health Care Insurance Violated the Compensation Clause of the NYS Constitution
The First Department determined that the state's decrease in its contribution to the cost of judges' health care insurance violated the Compensation Clause of the NYS Constitution. The reduced contribution increased the amounts withheld from judges' salaries and thereby constituted an unconstitutional decrease in compensation. Bransten v State of New York, 2014 NY Slip Op 03214, 1st Dept 5-6-14
TRUSTS AND ESTATES
Sole Heir Did Not Have Standing to Bring Action for Recovery of Estate Property---No Allegations of Misconduct by Personal Representative
The Fourth Department determined plaintiff the sole heir, did not have standing to bring his own action for recovery of the property of the estate because there were no allegations of misconduct on the part of the personal representative:
...[T]he estate representative is charged with the duty of recovering property of the estate, and that plaintiff, as decedent's sole heir, has no independent cause of action, either in his own right or the right of the estate, to maintain an action for recovery of the property of the estate, absent extraordinary circumstances ... . Extraordinary circumstances include collusion of the personal representative with others or an "unreasonable refusal" of the personal representative of the estate to commence an action ... . Inasmuch as the extraordinary circumstances must relate directly to the actions of the personal representative of the estate, we conclude that the court erred in determining that the "unique and novel circumstances" of this case, i.e., "homicide, possible forgery, perjury, false statements, and possible conflicts of interest," constitute the requisite extraordinary circumstances... . Castor v Pulaski, 2014 NY Slip Op 03386, 4th Dept 5-9-14
TRUSTS AND ESTATES/CIVIL PROCEDURE
Request for Petitioner's Income Tax Records Properly Denied---Insufficient Showing the Desired Information Could Not Be Gained from Other Sources
Over a two-justice dissent, the Fourth Department determined petitioner could not be ordered to turn over his income tax records. Petitioner claimed that he had provided the down payment and monthly mortgage payments for decedent's home where petitioner resided. Petitioner further claimed that decedent promised the home to him in a verbal agreement (and therefore the home should not pass by the will to petitioner's sister). Respondent wanted access to petitioner's tax records to see if petitioner had sufficient income to make the down payment:
We conclude that Surrogate's Court properly denied respondent's motion, inasmuch as respondent has not made a sufficiently strong showing that the information contained in petitioner's income tax records "were indispensable to this litigation and unavailable from other sources" ..., such as "other financial or business records" ... . Indeed, respondent "failed to make any factual showing in this regard, since the hearsay affirmation[s] of [respondent's] attorney [are] wholly conclusory" ..., petitioner's deposition testimony, the only exhibit submitted in support of the motion, accounted for petitioner's employment history during the times in question, although in a vague manner ..., and respondent did not establish that it sought the requested information from any alternate source... . Matter of Monaco, 2014 NY Slip Op 03423, 4th Dept 5-9-14
Unexplained Collapse of Worker on the Job Properly Presumed to Arise Out of Employment
The Third Department determined the worker's death was compensable. The worker, who had an enlarged heart, collapsed on the job and later died. There was evidence that the heart arrhythmia which may have caused death may have been work-related:
"'Unexplained or unwitnessed accidents which occur in the course of employment are presumed, pursuant to Workers' Compensation Law § 21 (1), to arise out of such employment'" ... . In order to rebut the presumption, the employer was required to come forward with substantial evidence demonstrating that decedent's death was not work-related ... .
The employer relies on the autopsy report and an independent medical report by Stephen Nash, a cardiologist who reviewed the records on the employer's behalf. Nash opined that decedent's death was caused by a cardiac arrhythmia superimposed on the underlying condition of his enlarged heart. Nash attributed evidence of decedent's lack of sleep as a contributory factor, but did not rule out decedent's work as playing a role in his death. Although decedent's coworkers witnessed the accident and the autopsy report lists the enlarged heart as the cause of death, the Board appropriately invoked the presumption of compensability inasmuch as "the cause of decedent's fatal arrhythmia remains unexplained" ... . Matter of Estate of Moody v Quality Structures Inc, 2014 NY Slip Op 03313, 3rd Dept 5-8-14