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
Court of Appeals Can Not Hear the Appeal of an Issue Not Preserved by Objection
The Court of Appeals could not hear the defendant's appeal because the issue was not preserved by an objection or by an express decision on the question by the trial court. "The issue argued on this appeal is whether the police were required to again read defendant his Miranda rights when they interviewed him a second time, at his request and in the presence of counsel. In particular, defendant contends that the courts below erred in determining that the presence of counsel obviated the need for police to advise him of his right to remain silent during the second interview. Defendant, however, did not make this argument in his motion papers to the trial court or at the suppression hearing. Moreover, while a general objection — such as that contained in defendant's omnibus motion — is sufficient to preserve an issue for our review when the trial court "expressly decided the question raised on appeal" ..., here, Supreme Court did not expressly decide the issue of whether the police were required to advise defendant of his right to remain silent under the circumstances presented by the second interview." People v Graham, 2015 NY Slip Op 03767, CtApp 5-7-15
CIVIL PROCEDURE/CRIMINAL LAW
Court Can Not Use Its Contempt Power to Compel the District Attorney to Prosecute a Criminal Matter
The District Attorney did not wish to proceed with disorderly conduct prosecutions against persons who demonstrated in support of the Occupy Movement. The City Court judge handling the cases, however, ordered the district attorney to appear at a scheduled suppression hearing, threatening to exercise the court's contempt powers if the district attorney did not appear. The district attorney appeared but informed the judge no witnesses would be called. When the judge persisted, again threatening to use the contempt powers, the district attorney brought an Article 78 proceeding seeking a writ of prohibition. The writ was granted and the Court of Appeals affirmed. Under the doctrine of separation of powers, only the district attorney can decide whether to prosecute. The courts can not compel the prosecution of criminal actions:
"Prohibition is available to restrain an inferior court or Judge from exceeding its or his [or her] powers in a proceeding over which the court has jurisdiction" ... . To demonstrate a clear legal right to the extraordinary writ of prohibition, a petitioner is required to show that the challenged action was "in reality so serious an excess of power incontrovertibly justifying and requiring summary correction" ... .
"The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions" ... . Under the doctrine of separation of powers, courts lack the authority to compel the prosecution of criminal actions ... . Such a right is solely within the broad authority and discretion of the district attorney's executive power to conduct all phases of criminal prosecution (see County Law § 700 ... ).
The courts below correctly determined that a trial court cannot order the People to call witnesses at a suppression hearing or enforce such a directive through its contempt powers. Any attempt by the Judge here to compel prosecution through the use of his contempt power exceeded his jurisdictional authority. It is within the sole discretion of each district attorney's executive power to orchestrate the prosecution of those who violate the criminal laws of this State ... . Matter of Soares v Carter, 2015 NY Slip Op 03879, CtApp 5-7-15
Assault and Robbery Committed by Separate Acts Involving the Same Victim--Consecutive Sentences Justified
The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined defendant was properly sentenced consecutively for robbery and assault. The defendant first demanded that the victim turn over a necklace the victim was wearing. As the victim was complying, the defendant shot the victim. The court determined the two crimes were committed by separate acts, thereby justifying consecutive sentences. The dissent dealt with a different issue: i.e., whether CPL 430.10 prohibited Supreme Court from "reconfiguring" defendant's sentence after the case was remitted to it by the Appellate Division. After the Appellate Division determined two of the original sentences should have been imposed concurrently, the original 40-year sentence was reduced to 25. On remand, the sentencing court "reconfigured" the sentences to bring them up again to 40 years. CPL 430.10 prohibits the sentencing court from "modifying" a sentence after it has begun to be served. The "reconfigured" 40-year sentence was affirmed here by the Court of Appeals. With respect to the consecutive sentences, the court explained:
Penal Law § 70.25 (2) mandates that concurrent sentences be imposed for "two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other." We have held that, "[t]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue" to discern whether the actus reus elements overlap ... . Even where the crimes have an actus reus element in common, "the People may yet establish the legality of consecutive sentencing by showing that the 'acts or omissions' committed by defendant were separate and distinct acts" ... . Conversely, where "the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed" ... . The People bear the burden of establishing the legality of consecutive sentencing by "identifying the facts which support their view" that the crimes were committed by separate acts ... .
Even if, as defendant contends, the statutory elements of his robbery and assault convictions overlap, the People have demonstrated in this case that the assault count and the robbery count at issue were committed by separate and distinct acts. People v Rodriguez, 2015 NY Slip Op 03877, Ct App 5-7-15
Charging the Defendant with the Use of Two Weapons During a Single Incident Did Not Render the Indictment Duplicitous---Only Proof of the Use of One Weapon Was Required
The indictment alleged the defendant committed assault and reckless endangerment by using a pistol and a rifle. The proof at trial demonstrated the defendant shot the victim twice, using two weapons, in the course of the same incident. The judge charged the jury using the conjunctive language of the indictment. When the jury asked if it must find both weapons were used to commit the offenses, the judge explained that only the use of one of the weapons needed to be proved. The Court of Appeals affirmed, concluding the indictment was not duplicitous, i.e., the indictment did not charge two crimes in a single indictment count:
CPL 200.30 (1) requires that "each count of an indictment may charge one offense only." Thus, a count is duplicitous if it charges more than one offense. ..."[W]hether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act." Under Penal Law § 120.10 (1), a person is guilty of assault in the first degree when "with intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." Thus, the prosecution was not required to prove that defendant used two weapons. Penal Law § 120.25 states that a person is guilty of reckless endangerment in the first degree when, "under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person." Again, the prosecution was not required to prove that defendant used both weapons.
...[T]he evidence at trial did not render the charges duplicitous. There was evidence that defendant attacked the victim out of one impulse - to seek revenge for the fiancée's alleged assault on defendant's sister...."[A]s a general rule . . . it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime." Although defendant used two guns, this was a single incident ... . People v Flanders, 2015 NY Slip Op 03768, CtApp 5-7-15
CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA)
Plea of "Nolo Contendere" to a Sex Offense in Florida Constitutes a "Conviction" of a Sex Offense Requiring Registration in New York
Petitioner pled "nolo contendere" to a sex offense in Florida. Petitioner contended that the offense was based on his having consensual sex with a 15-year-old classmate when petitioner was 18. The Florida court withheld adjudication. The Court of Appeals determined petitioner was required to register as a sex offender upon his move to New York. The "nolo contendere" plea meets the definition of "conviction" in New York. A "sex offender" in New York is one who has been "convicted" of a "sex offense" which includes a felony in another jurisdiction for which the offender is required to register as a sex offender (the case here):
We held in People v Daiboch (265 NY 125 ), ... that the entry of a nolo contendere plea in another jurisdiction, followed by a judgment placing the defendant on probation for two years, was a prior conviction for purposes of sentencing the defendant as a second offender. Although Daiboch did not involve SORA, we confronted the same issue presented by this case: whether a defendant's out-of-state nolo contendere plea for which a non-incarceratory sentence was imposed qualifies as a conviction in New York. Nolo contendere pleas, like Alford pleas, are "no different from other guilty pleas" (Matter of Silmon v Travis, 95 NY2d 470, 475  [recognizing that an Alford plea may generally be used for the same purposes as any other conviction]). And because New York defines a conviction to include the entry of a guilty plea, regardless of the subsequent sentence or judgment, the ultimate disposition of petitioner's Florida conviction is irrelevant. New York distinguishes between a conviction and a "judgment of conviction," the latter of which includes "a conviction and the sentence imposed thereon" (CPL 1.20 ). As we have previously observed, the Legislature intended the Criminal Procedure Law to provide the "definitive meaning" of the term "conviction" for other criminal statutes, and it meant what it said when it defined "conviction" separately from a judgment or sentence ... . Matter of Kasckarow v Board of Examiners of Sex Offenders of State of N.Y., 2015 NY Slip Op 03878, Ct App 5-7-15
General Permit System by Which Smaller Communities Obtain Authorization to Discharge Stormwater Does Not Violate Federal or State Law
The Court of Appeals, in a full-fledged opinion by Judge Read, over a three-judge partial dissent, determined that the system by which smaller municipalities can obtain authorization for stormwater discharge without a public hearing did not violate federal or state law. The court's own overview of this very complex opinion provides the best summary:
Runoff from rain and snow melt courses over roofs, roads, driveways and other surfaces, picking up pollutants along the way. It then passes through municipal storm sewer systems into rivers and lakes, adding the pollutants accumulated during its journey to those bodies of water. These municipal storm sewer systems thus differ from other entities that discharge effluents into our State's surface waters (for example, industrial or commercial facilities and sewage treatment plants) in three major ways: precipitation is naturally occurring, intermittent and variable and cannot be stopped; although municipalities operate sewer systems, stormwater contamination results from the often unforeseen or unpredictable choices of individual residents and businesses (for example, to let litter pile up or to use certain lawn fertilizers), as well as decisions made long ago about the design of roads, parking lots and buildings; and because stormwater runoff flows into surface waters through tens of thousands of individual outfalls, each locality's contribution to the pollution of a particular river or lake is difficult to ascertain or allocate through numeric limitations.
Federal and state law prohibit discharges of stormwater from New York's municipal separate storm sewer systems in urbanized areas (referred to as MS4s) without authorization under a State Pollutant Discharge Elimination System (SPDES) permit. As an alternative to an individual SPDES permit, municipal separate storm sewer systems that serve a population under 100,000 (or small MS4s) may seek to discharge stormwater under a SPDES general permit. The 2010 General Permit — the subject of this lawsuit — requires these municipal systems to develop, document and implement a Stormwater Management Program (SWMP) in compliance with detailed specifications developed by the New York State Department of Environmental Conservation (DEC or the Department) to limit the introduction of pollutants into stormwater to the maximum extent practicable. To obtain initial coverage (i.e., authorization to discharge) under the terms of the 2010 General Permit, small MS4s must first submit a complete and accurate notice of intention (NOI) to DEC.
After the 2010 General Permit took effect on May 1st of that year, the Natural Resources Defense Council, Inc. (NRDC) and seven other environmental advocacy groups (collectively, NRDC) brought this hybrid CPLR article 78 proceeding/declaratory judgment action against DEC to challenge certain aspects of the 2010 General Permit. NRDC claims generally that by allowing small MS4s to gain coverage under the 2010 General Permit based upon an NOI reviewed only for completeness and not subject to an opportunity for a public hearing, DEC has created an "impermissible self-regulatory system" that fails to force local governments to reduce the discharge of pollutants to the maximum extent practicable — the statutory standard — and violates federal and state law [FN2]. Equating NOIs with applications for individual SPDES permits, Supreme Court granted partial relief to NRDC (35 Misc 3d 652 [Sup Ct Westchester County 2012]). The Appellate Division, as relevant here, rejected NRDC's federal and state law challenges to the 2010 General Permit (120 AD3d 1235 [2d Dept 2014]). We granted NRDC leave to appeal (23 NY3d 901 ), and now affirm. Matter of Natural Resources Defense Council, Inc. v New York State Dept. of Envtl. Conservation, 2015 NY Slip Op 03766, CtApp 5-7-15
Uncle Was Properly Found to Be a "Person Legally Responsible" for the Abused Child---He Was Therefore a Proper "Respondent" in a Child Abuse/Neglect Proceeding
The Court of Appeals, over a three-judge dissent, determined the abused child's uncle, as a person legally responsible (PLR) for the child's care, was a proper "respondent" in the child abuse/neglect proceeding. The uncle argued he was not a PLR for the abused child and Family Court therefore did not have jurisdiction over the abuse/neglect proceeding against him:
"...[T]he common thread running through the various categories of persons legally responsible for a child's care is that these persons serve as the functional equivalent of parents" ... . We held that deciding whether "a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case" ... . We listed factors to be considered when determining who is a PLR, which include (1) "the frequency and nature of the contact," (2) "the nature and extent of the control exercised by the respondent over the child's environment," (3) "the duration of the respondent's contact with the child," and (4) "the respondent's relationship to the child's parents" ... . Matter of Trenasia J. (Frank J.), 2015 NY Slip Op 03765, CtApp 5-7-15
Whether Plaintiff "Justifiably Relied" on Alleged Misrepresentations Is Not Generally a Question Which Can Be Resolved in a Motion to Dismiss for Failure to State a Cause of Action
Reversing the appellate division, over two-judge dissent, the Court of Appeals determined (in the context of a motion to dismiss for failure to state a cause of action) plaintiff had sufficiently pled "justifiable reliance" on the representations at issue. The complaint alleged defendant (Goldman Sachs) "fraudulently induced plaintiff to provide financial guaranty for a synthetic collateralized debt obligation (CDO), known as ABACUS. In its complaint, plaintiff alleges that defendant fraudulently concealed the fact that its hedge fund client ..., which selected most of the portfolio investment securities in ABACUS, planned to take a "short" position in ABACUS, thereby intentionally exposing plaintiff to substantial liability; had plaintiff known this information, it would not have agreed to the guaranty." The complaint further alleged defendant affirmatively misrepresented the role of the hedge fund in answer to plaintiff's questions. Those allegations were sufficient to survive a motion to dismiss:
To plead a claim for fraud in the inducement or fraudulent concealment, plaintiff must allege facts to support the claim that it justifiably relied on the alleged misrepresentations. It is well established that "if the facts represented are not matters peculiarly within the [defendant's] knowledge, and [the plaintiff] has the means available to [it] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, [the plaintiff] must make use of those means, or [it] will not be heard to complain that [it] was induced to enter into the transaction by misrepresentations" ... . Moreover, "[w]hen the party to whom a misrepresentation is made has hints of its falsity, a heightened degree of diligence is required of it. It cannot reasonably rely on such representations without making additional inquiry to determine their accuracy" ... . Nevertheless, the question of what constitutes reasonable reliance is not generally a question to be resolved as a matter of law on a motion to dismiss ... . ACA Fin. Guar. Corp. v Goldman, Sachs & Co., 2015 NY Slip Op 03876, Ct App 5-7-15
LABOR LAW-CONSTRUCTION LAW
Plaintiff, Who Fell Through an Open Manhole, Entitled to Summary Judgment on Labor Law 240 (1) Cause of Action---Failure to Set Up Guard Rails Was a Proximate Cause--Liability Imposed Regardless of Plaintiff's Own Negligence and Regardless of Whether the Owner, Contractor or Agent Supervised or Controlled the Work
The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined plaintiff, who fell through an uncovered manhole, was entitled to partial summary judgment on his Labor Law 240 (1) claim based on testimony the manhole should have been surrounded by guard rails. The court also determined there was a question of fact whether the safety consultant, IMS, was liable as a "statutory agent" under Labor Law 240 (1). The court explained that the obligation to provide safety devices is a nondelegable duty which imposes liability regardless of whether owner, contractor or agent supervises or controls the work. Where 240 (1) is violated, the plaintiff's negligence is not a defense, unless plaintiff's negligence is the sole proximate cause of the injury:
Section 240 (1) provides, in relevant part:
"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor [certain enumerated] [*4]and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work ... . "Where an accident is caused by a violation of the statute, the plaintiff's own negligence will not furnish a defense"; however, "where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability" ... . Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury ... . Barreto v Metropolitan Tr. Auth., 2015 NY Slip Op 03875, CtApp 5-7-15
Admission of Child Abuse Made by Defendant to Psychiatrist Protected by Physician-Patient Privilege---Even Though the Admission Can Be Disclosed in Child Protective Proceedings, the Privilege Applies in a Criminal Trial
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that an admission of child sexual abuse made to the defendant's psychiatrist was privileged. The psychiatrist should not have been allowed to testify about the admission at defendant's trial. The error was not harmless. The Court made it clear that the relaxed evidentiary standards in child protective proceedings where physicians are required to report abuse, do not extend to the context of a criminal trial where the defendant's liberty is at stake:
The Legislature has determined that the protection of children is of paramount importance, so much so that it has either limited or abrogated the privilege through statutory enactments.
The People erroneously assert that these exceptions place offenders on notice that the physician-patient privilege does not apply to statements or admissions triggering a duty to disclose. But it is one thing to allow the introduction of statements or admissions in child protection proceedings, whose aim is the protection of children, and quite another to allow the introduction of those same statements, through a defendant's psychiatrist, at a criminal proceeding, where the People seek to punish the defendant and potentially deprive him of his liberty. Evidentiary standards are necessarily lower in the former proceedings than in the latter because the interests involved are different. Thus, the relaxed evidentiary standards in child protection proceedings lend no credence to the People's argument that defendant should have known that any admission of abuse he made to his psychiatrist would not be kept confidential. People v Rivera, 2015 NY Slip Op 03764, CtApp 5-7-15
ADMINISTRATIVE LAW/MUNICIPAL LAW/TAX LAW
Revocation of Empire-Zone-Business Certifications Upheld in 9 of 11 Instances
The Third Department, in a full-fledged opinion by Justice Lynch, considered the Empire Zone Designation Board's revocation of petitioners' certifications as empire zone businesses. The Department of Economic Development (DED) was directed, in 2009, to conduct a review of all certified businesses to determine whether decertification was warranted on one of two grounds: "First, DED could decertify a business enterprise if it was a "shirt-changer," that is, if the enterprise was certified prior to August 1, 2002, and it "caused individuals to transfer from existing employment with another business enterprise with similar ownership . . . to similar employment with [the enterprise] or if the enterprise acquired, purchased, leased, or had transferred to it real property previously owned by an entity with similar ownership, regardless of form of incorporation or ownership" (General Municipal § 959 [a] [v] ; see 5 NYCRR 11.9...). Second, DED could decertify a business enterprise if it failed to meet the 1:1 benefit-cost test ... . The latter test required decertification where it was determined that the enterprise "has submitted at least three years of business annual reports [and it] has failed to provide economic returns to the [s]tate in the form of total remuneration to its employees (i.e., wages and benefits) and investments in its facility that add to a greater value than the tax benefits the business enterprise used and had refunded to it" ... . Applying the standard criteria for review of administrative determinations, the Third Department upheld all but two of the 11 decertifications, but also determined retroactive decertifications were improper. Matter of Lyell Mt. Read Bus. Ctr. LLC v Empire Zone Designation Bd., 2015 NY Slip Op 03906, 3rd Dept 5-7-15
Court's Arbitration-Award Review Powers Explained
The Second Department determined the petition to vacate the arbitration award was properly denied. The court explained its review powers:
"Judicial review of an arbitrator's award is extremely limited" ... . "A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden,' and must establish a ground for vacatur by clear and convincing evidence" ... . An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) an arbitrator who exceeded his or her power; or (4) the failure to follow the procedures of CPLR article 75 (see CPLR 7511[b]). An arbitration award may be vacated pursuant to CPLR 7511(b)(1)(iii) where "an arbitrator . . . exceeded his or her power," which includes those circumstances in which the award "violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" ... .
The petitioner's contention that the arbitration award dated August 14, 2012, was against public policy is without merit. "An arbitration award violates public policy only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state" ... . Matter of County of Nassau v Patalano, 2015 NY Slip Op 03837, 2nd Dept 5-6-15
Awareness of a Conflict of Interest for Eight Months Constituted a Waiver of Any Objection to Opposing Counsel
In a custody proceeding, the Second Department determined mother's motion to disqualify father's counsel, based upon a conflict of interest, should not have been granted. The mother was aware of the conflict for eight months prior to making the motion and therefore had waived any objection to father's counsel:
The disqualification of an attorney is a matter which lies within the sound discretion of the court ... . "A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. While the right to choose one's counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties' substantive rights, thus requiring any restrictions to be carefully scrutinized" ... . Where a party seeks to disqualify counsel of an adversary in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time ... . "If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party's representation" ... . Here, the mother brought the issue of the potential conflict to the court's attention in April 2014, even though the record reflects that she had been aware of this issue for at least eight months at that time. Therefore, the mother waived any objection to the father's choice of counsel. Matter of Valencia v Ripley, 2015 NY Slip Op 03852, 2nd Dept 5-6-15
Doctrine of Judicial Estoppel Precluded Plaintiff from Taking a Position Contrary to the Position Plaintiff Took In Two Prior Successful Actions
The Third Department determined the position taken by plaintiff in prior successful actions, i.e., that defendant was the owner of certain lots, precluded plaintiff, under the doctrine of judicial estoppel, from taking the position defendant was not the owner of those lots in the instant proceeding:
Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, "if a party assumes a position in one legal proceeding and prevails in maintaining that position, that party will not be permitted to assume a contrary position in another proceeding simply because the party's interests have changed" ... . "The doctrine rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise" .... . Green Harbour Homeowners Assn., Inc. v Ermiger, 2015 NY Slip Op 03899, 3rd Dept 5-7-15
CIVIL PROCEDURE/FORECLOSURE/CONSTITUTIONAL LAW/CONTRACT LAW
Supreme Court Should Not Have Determined the Mortgage Company Did Not Negotiate a Loan Modification in Good Faith Without a Hearing, and Could Not, Pursuant to the Contract Clause, Order the Mortgage Company to Enter a Loan Modification Agreement
After defendant, Ms Hepburn, failed to answer the summons and complaint in a mortgage foreclosure action, the plaintiff mortgage company moved for an order of reference (the appointment of a referee to compute the amount due). Supreme Court denied the motion and, sua sponte, determined the mortgage company had not negotiated a loan modification in good faith (CPLR 3408), and directed the mortgage company to offer a loan modification within sixty days. The Second Department determined Supreme Court should have granted the motion for an order of reference (which was not opposed), should not have made a finding the mortgage company failed to negotiate a loan modification in good faith without conducting a hearing, and could not, pursuant to the Contract Clause, order the mortgage company to enter a loan modification agreement:
The Supreme Court should not have, sua sponte, determined that the plaintiff failed to negotiate in good faith as required by CPLR 3408, and directed it, within sixty days, to offer a loan modification to Ms. Hepburn allowing her to assume the subject mortgage. "It is well-settled that an action to foreclose a mortgage is equitable in nature and triggers the equitable powers of the court" ... . "Once equity is invoked, the court's power is as broad as equity and justice require" ... . A court "may impose a sanction sua sponte, but the party to be sanctioned must be afforded a reasonable opportunity to be heard" ... .
Here, the only matter before the Supreme Court was the plaintiff's motion for an order of reference. Without an evidentiary hearing or notice to the parties, the Supreme Court sua sponte determined that the plaintiff had not acted in good faith in its negotiations with Ms. Hepburn at settlement conferences, which were held over a 16-month period, and thereupon denied the plaintiff's motion. Such procedure did not afford the plaintiff an opportunity to oppose the Supreme Court's finding that it had not met it obligation to negotiate in good faith as required by CPLR 3408 or to oppose the imposition of sanctions ... . Moreover, even if sanctions for failure to negotiate in good faith were appropriate in this matter, the Supreme Court erred in directing the plaintiff to, in effect, enter into a contract with Ms. Hepburn ... . Such a sanction violates the Contract Clause of the United States Constitution ... . PHH Mtge. Corp. v Hepburn, 2015 NY Slip Op 03817, 2nd Dept 5-6-15
Even Records Demonstrated to Be Material and Necessary to the Prosecution or Defense of an Action Are Not Discoverable If Privileged and the Privilege Is Not Waived
Even though disclosure of a non-party sibling's medical records was demonstrated to be material and necessary (CPLR 3101(a)(1)), the Second Department determined discovery was precluded because the records are privileged (CPLR 3101 (b)) and the privilege was not waived:
Even when the party seeking disclosure has demonstrated that such disclosure is material and necessary in the prosecution or defense of an action (see CPLR 3101[a]), discovery may still be precluded where, as here, the requested information is privileged and thus exempted from disclosure pursuant to CPLR 3101(b) ... . "Once the privilege is validly asserted, it must be recognized and the sought-after information may not be disclosed unless it is demonstrated that the privilege has been waived" ... . Washington v Alpha-K Family Med. Practice, P.C., 2015 NY Slip Op 03831, 2nd Dept 5-6-15
Doctrines of Res Judicata and Collateral Estoppel Precluded Plaintiffs' Action---Doctrines Clearly Described
The Second Department determined plaintiffs' breach of contract action was precluded by the doctrines of res judicata and collateral estoppel because all the relevant issues had been raised and determined in defendant's successful mortgage foreclosure actions. The Second Department offered the following clear descriptions of the res judicata and collateral estoppel doctrines:
The doctrine of res judicata provides that "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" ... . The doctrine of res judicata bars a party from relitigating any claim which could have been or should have been litigated in a prior proceeding ... . Therefore, under res judicata, or claim preclusion, a valid final judgment will bar future actions between the same parties involving the same cause of action ... .
The claims asserted by the plaintiffs in this case concern the parties' rights and obligations under the mortgage agreements between the plaintiffs and the defendant. As such, those claims needed to be—and, in fact, were—raised by the plaintiffs in defending against the foreclosure action, and thus the plaintiffs are barred from relitigating those claims in this action ... . * * *
Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent proceeding or action an issue that was raised in a prior action or proceeding and decided against that party or those in privity ... . For the bar to apply, the issue must have been material to the first action and "essential to the decision rendered therein," and it must be the point that is to be determined in the second action, such that "a different judgment in the second would destroy or impair rights or interests established by the first" ... . In addition, the party against whom preclusion is sought must have had a "full and fair opportunity to contest the matter in the prior action" ... .
In this case, the claims sought to be relitigated are identical to those that were decided against the plaintiffs in the foreclosure action. These claims were material to the action and were essential to the decision rendered. Moreover, the plaintiffs had a full and fair opportunity to contest the prior determination ... . SSJ Dev. of Sheepshead Bay I, LLC v Amalgamated Bank, 2015 NY Slip Op 03824, 2nd Dept 5-6-15
CIVIL PROCEDURE/CONTRACT LAW
120-Day Time Limit for Bringing a Summary Judgment Motion Properly Extended by Stipulation
The Fourth Department determined the 120-day time limit for making summary judgment motions (after the filing of a note of issue) was properly extended by stipulation. The dissent felt that such a stipulation was invalid because it violated public policy: "While we agree with our dissenting colleague that the court was not required to accept the express stipulation of the parties to extend the 120-day deadline in CPLR 3212, we note that the court in fact did so in advance of the motion ... . Moreover, unlike our dissenting colleague, we do not view the timing requirements applicable to motions for summary judgment as a matter of public policy that may not be affirmatively waived by a party ...". Bennett v St. John's Home & St. John's Health Care Corp., 2015 NY Slip Op 03952, 4th Dept 5-8-15
CIVIL PROCEDURE/TORTIOUS INTERFERENCE WITH CONTRACT/CONTRACT LAW
Motion to Dismiss In Which Documentary Evidence Was Submitted---Court's Role Is to Determine Whether Plaintiff Has a Cause of Action, Not Whether Plaintiff Has Stated a Cause of Action---Although the Complaint Alleged Interference With a Competitive Bidding Process Involving Public Entities, the Case Fit an Exception to the Rule that Competitive Bidding Issues Be Determined in an Article 78 Proceeding---It Was Alleged a Private Party (Defendant) Interfered with the Competitive Bidding Process
Reversing Supreme Court, the Third Department determined plaintiff had adequately pled a cause of action for tortious interference with contract. The plaintiff alleged that defendant subverted a bidding process for the installation of artificial turf at state and local schools. Usually competitive bidding cases are brought in an Article 78 proceeding against the relevant public entity. This case fit an exception to that rule because it was brought against a private party working with the public entities. There was also some question whether the proceeding was a motion to dismiss for failure to state a cause of action or a motion for summary judgment. Because documentary evidence was submitted, the court's role was to determine whether the plaintiff has a cause of action, not whether plaintiff has stated one:
...[S]ince the motion (made shortly after serving the answer and before disclosure) argued an absence of any legal viability of the alleged causes of action, Supreme Court did not err in treating the motion as a narrowly framed post-answer CPLR 3211 (a) (7) ground asserted in a summary judgment motion ... . When dismissal is sought for failure to state a cause of action and, as here, plaintiff submits affidavits, "a court may freely consider [those] affidavits . . . and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one'" ... .
Turning to the merits of the motion, "the laws requiring competitive bidding were designed to benefit taxpayers rather than corporate bidders and, thus, should be construed and administered with sole reference to the public interest" ... . Therefore, the remedy for an alleged violation of the competitive bidding statutes typically involves a timely CPLR article 78 proceeding challenging the bidding process ... . However, a narrow exception to the limited remedy may exist where a plaintiff does not seek relief from the public entity, but brings an action against someone working on behalf of the public entity in the competitive bidding process who allegedly engaged in egregious conduct unknown to the public entity aimed at intentionally subverting a fair process ... . Allegations of restricting competition to artificial turf manufactured by A-Turf could be part of a cognizable claim under the narrow exception ... . Chenango Contr., Inc. v Hughes Assoc., 2015 NY Slip Op 03903, 3rd Dept 5-7-15
Failure to Provide Addresses of Witnesses and the Nature of Their Testimony Justified the Denial of Defendants' Motion to Change Venue
The Second Department determined defendants failed to meet their burden (imposed by CPLR 510 (3)) in support of their motion for a change of venue. Although the defendants alleged the inconvenience of witnesses, they failed to provide the addresses of those witnesses and failed to described the nature of the witnesses' testimony. "CPLR 510(3) provides that the court may, upon motion, change the place of the trial of an action where 'the convenience of material witnesses and the ends of justice will be promoted by the change' (CPLR 510). The party seeking the change, which is discretionary in nature, must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which those witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses will be inconvenienced if the venue of the action is not changed ... . " Fitzsimons v Brennan, 2015 NY Slip Op 03801, 2nd Dept 5-6-15
In Consolidated Actions Started in Different Counties, the County Where the First Action Was Brought is the Proper Venue
The Second Department determined the proper venue for consolidated actions started in different counties is the county where the first action was brought: " '[W]here actions commenced in different counties have been consolidated pursuant to CPLR 602, the venue should be placed in the county where the first action was commenced, unless special circumstances are present which decision is also addressed to the sound discretion of the court'..." . Fitzsimons v Brennan, 2015 NY Slip Op 03802, 2nd Dept 5-6-15
COURT OF CLAIMS
Claimant's Motion to File a Late Notice of Claim Properly Denied---Application of Statutory Factors Explained
The Second Department determined claimant's motion for leave to file a late notice of claim was properly denied. Claimant had other remedies available and the claims were deemed to be without merit. The statutory factors (Court of Claims Act 10(6)) to be weighed are: "... whether the delay in filing was excusable; whether the State had notice of essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the State is prejudiced; and whether the claimant has any other available remedy ... . 'No one factor is deemed controlling, nor is the presence or absence of any one factor determinative'...". Borawski v State of New York, 2015 NY Slip Op 03795, 2nd Dept 5-6-15
Court's Erroneous Ruling that Defendant Did Not Have Standing to Contest a Search Was Followed by Defendant's Entering a Guilty Plea---Because Defendant May Not Have Pled Guilty Had the Suppression Motion Been Held and Suppression Granted, the Matter Was Remitted for a Suppression Hearing (After Defendant Had Completed His Sentence)
The Fourth Department determined Supreme Court erroneously ruled defendant did not have standing to contest a search. After that ruling the defendant pled guilty and has since completed his sentence. Because the suppression hearing should have been held, and because the defendant may not have pled guilty had suppression been granted, the matter was remitted for a suppression hearing. People v Kendrick, 2015 NY Slip Op 03979, 4th Dept 5-8-15
Where One Resident Consents to a Search and Another Resident Does Not Consent, the Search Can Not Be Executed---However, the Refusal to Consent Is Only Operative As Long As the Objecting Resident Is Physically Present
The Third Department explained that where one resident consents to a search of the premises, but another resident does not consent, the search can not be conducted. However, a resident's refusal to consent is operative for only as long as the resident is present at the premises. Here the objecting resident left the premises and the police properly executed the search with the consent of the remaining resident:
Even in the absence of a warrant, police may lawfully search a residence where an inhabitant with apparent authority to consent to the search freely and voluntarily does so ... . However, where one resident consents to a search and another refuses, "[the] warrantless search of [the] shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him [or her] on the basis of consent given to the police by another resident" ... . Notably, however, the objecting resident's refusal operates to counteract the other resident's consent only so long as the objecting resident is physically present on the premises ... . People v Grillo, 2015 NY Slip Op 03880, 3rd Dept 5-7-15
Persons Entering the Hall of Justice, In Which Signs Are Posted Warning that Those Entering the Premises Are Subject to Being Searched, Impliedly Consent to a Full Search, Including the Opening of Objects Found in the Search
The Fourth Department determined the defendant impliedly consented to a search of his person after entering the Hall of Justice. Signs in the Hall of Justice warned that those who enter the building were subject to search. The defendant's argument that consent extended to no more than a frisk was rejected. The court found the defendant consented to a full search of his person and the opening of a foil packet found on his person:
Here, defendant was warned before walking through the magnetometers that he could be subject not just to a pat frisk, but to a search. Given a reasonable person's knowledge of the increased security measures in government buildings in the past decade and the notifications posted for entrants into the Hall of Justice, we conclude that a reasonable person would have understood that the impending search could involve more than a pat frisk if the initial magnetometer scans indicated the presence of metal on his or her person ... . We therefore further conclude that the deputies' search of defendant's person did not exceed the scope of defendant's implied consent.
Defendant's contention that the opening of the foil package, once it was removed from his person, was a separate, improper search incident to an arrest is unpreserved for our review because defendant failed to raise that contention in his omnibus motion or before the suppression court ... . In any event, that contention has no merit. As defendant correctly concedes, he was not under arrest when he was taken to the adjacent room. Moreover, inasmuch as defendant impliedly consented to a search of his person and belongings before entering the Hall of Justice, and did not revoke said consent before the deputies opened the foil package, we conclude that the deputies' opening of the package to check if it contained a small weapon, such as a razor blade, was not improper ... . People v White, 2015 NY Slip Op 03963, 4th Dept 5-8-15
Court Should Not Have Instructed the Jury on the Initial Aggressor Exception to the Justification Defense---No Evidence to Support the Exception
The First Department, over a dissent, determined the trial court should not have instructed the jury that the justification defense would not apply if the jury determined defendant was the initial aggressor. The victim was swinging a mop handle, while the defendant used a gun. The majority held that there were no facts in the record from which it could be inferred the defendant was the initial aggressor: "In charging the jury on the justification defense, the court erred when, over defendant's objection, it included the initial aggressor exception to the defense embodied in Penal Law § 35.15(1)(b). This concept, that defendant would not have been justified in using deadly physical force if he was the initial aggressor, was completely inapplicable to the facts of the case. Although the jury could have reasonably determined that defendant's use of deadly force was unjustified (where defendant used a gun against the deceased, who wielded a mop handle), it could not have reasonably found that defendant was the initial aggressor because the evidence does not support such a conclusion. There was no evidence that defendant was the first person in the fatal encounter to use or threaten the imminent use of deadly force, or any kind of force, for that matter. On the contrary, the evidence tended to indicate either that it was the deceased who first used force, by swinging a mop handle at defendant, or that defendant and the deceased used or threatened force simultaneously." People v Valentin, 2015 NY Slip Op 03914, 1st Dept 5-7-15
Records of Pedigree Information Which Was Linked to the Defendant and Was Supplied by the the Person Who Purchased a Prepaid Cell Phone Properly Admitted as Circumstantial Evidence Defendant Purchased the Phone
The First Department determined "[a]uthenticated records showing that the person who purchased a particular prepaid cell phone, which was linked to the crime, supplied pedigree information linked to defendant were properly admitted as circumstantial evidence of defendant's identity as the purchaser of the phone. In the context of the case, the pedigree information did not constitute assertions of fact, but circumstantial evidence that the declarant was, in all likelihood, defendant ... . Rather than being factual, the pedigree information was analogous to a fingerprint left on a document, tending to show the true identity of its author ... . Although the purchaser of the phone was not under a business duty to provide the pedigree information, that requirement of the business records exception to the hearsay rule did not apply, because the initial declaration was independently admissible ... . The possibility that the phone could have been purchased by an unknown person who had somehow acquired defendant's pedigree information goes to weight, not admissibility." People v Patterson, 2015 NY Slip Op 03788, 1st Dept 5-5-15
23-Week-old Child Who Was Born Alive and Lived for 2 1/2 Hours After Removal from Life-Support Was a "Person" Within the Meaning of the Manslaughter Statute
The Fourth Department determined the 23-week-old child delivered by cesarean section was a "person" within the meaning of the manslaughter statute. The child's mother was severely injured in a head-on collision with defendant's vehicle and the child was delivered to save the mother's life. The child was taken off life-support because of the high risk of cognitive and neurological deficits and died 21/2 hours later. The court, in essence, determined the child was a "person" because she was born alive.
The Penal Law provides that a defendant "is guilty of manslaughter in the second degree when . . . [he or she] recklessly causes the death of another person" (§ 125.15 ). Furthermore, " [p]erson,' when referring to the victim of a homicide, means a human being who has been born and is alive" (§ 125.05 ), and the Penal Law defines homicide as "conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks" (§ 125.00).
Defendant first contends that the evidence is not legally sufficient because, pursuant to the above statutory scheme, a child who is less than 24 weeks of gestational age is not a person. That contention is without merit. Penal Law § 125.00 uses the disjunctive "or" in defining who may be the victim of a homicide, and it is a well-settled rule of statutory interpretation that "[u]se of the conjunction or' in a statute usually indicates that the language is to be construed in an alternative sense"... . Therefore, a victim who is born alive may be a person for the purposes of a homicide pursuant to section 125.00, regardless of whether he or she is less than 24 weeks of gestational age. People v Hardy, 2015 NY Slip Op 03961, 4th Dept 5-8-15
Incorrect Information About Sentencing Provided to the Defendant by the Court and Counsel Warranted Vacating the Plea In the Absence of Preservation
The Fourth Department concluded that wrong information provided to the defendant about sentencing required vacation of the plea, in the absence of preservation by a motion to withdraw the plea. The defendant was wrongly told by the court and counsel that his sentences on the instant offense and an unrelated offense would necessarily run consecutively. Because there was no way to expect defendant to know the information was incorrect, the error need not be preserved by a motion to withdraw the plea. Because the plea was based upon complete confusion by all concerned, the plea was vacated:
We agree with defendant, however, that his plea should be vacated on the ground that it was not voluntarily, knowingly or intelligently entered based on the mistaken understanding of the legally required sentence shared by County Court and counsel. Although defendant failed to preserve his contention for our review ..., we conclude that the narrow exception to the preservation requirement applies ... . Here, it is clear from the face of the record that the prosecutor incorrectly stated that the sentence on the instant conviction must run consecutively to the sentence imposed on an unrelated conviction, when in fact that was not the case because the instant offense occurred prior to the unrelated conviction (see generally Penal Law § 70.25). It is equally clear that this error was not corrected by defense counsel or the trial court. Thus, preservation was not required "[i]nasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea . . . proceedings" that consecutive sentences were not required by law ... . " [D]efendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge' " ... . Even assuming, arguendo, that the narrow exception to the preservation requirement is inapplicable, we would nevertheless exercise our power to address defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15  [c]).
On the merits, we conclude that defendant's plea should be vacated because "[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea," based on the prosecutor's erroneous statement that [*2]consecutive sentences were required and the failure of the court or defense counsel to correct that error. We "cannot countenance a conviction that seems to be based on complete confusion by all concerned" ... . People v Brooks, 2015 NY Slip Op 03969, 4th Dept 5-8-15
CRIMINAL LAW/MUNICIPAL LAW/CONSTITUTIONAL LAW
Ordinance Prohibiting "Unnecessary Noise" Is Not Unconstitutionally Vague
The defendant was stopped by the police for a violation of a city ordinance prohibiting "unnecessary noise" (a loud car stereo). The defendant argued that the stop, which resulted in drug charges, was not justified by probable cause because the "unnecessary noise" ordinance is "unconstitutionally vague." The Fourth Department determined the ordinance was not unconstitutionally vague because it is tailored to the context of what can be heard more than 50 feet from a vehicle on a public highway and is sufficiently definite to put defendant on notice his conduct was forbidden:
Municipal ordinances "enjoy an exceedingly strong presumption of constitutionality' " ..., and such legislative enactments "are to be construed so as to avoid constitutional issues if such a construction is fairly possible"... . "The void-for-vagueness doctrine embodies a rough idea of fairness' " ..., and "an impermissibly vague ordinance is a violation of the due process of law" ... . In addressing such a challenge, courts first "must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute" ... . "Second, the court must determine whether the enactment provides officials with clear standards for enforcement"
* * * ... [T]he City Ordinance is not unconstitutionally vague because the section under which defendant was convicted was tailored to a specific context—the creation of "unnecessary noise" beyond 50 feet of a motor vehicle on a public highway (City Ordinance § 40-16 [b]). In our view, "[w]hat is usual noise in the operation of a car [radio or other sound production device] has become common knowledge . . . and any ordinary motorist should have no difficulty in ascertaining" whether the noise in question violates the applicable standard ... . Based on the foregoing, we conclude that the ordinance in question was "sufficiently definite" to put defendant on notice that his conduct was forbidden, and that it provided the police "with clear standards for enforcement" ... . People v Stephens, 2015 NY Slip Op 03991, 4th Dept 5-8-15
Police Officer's Draping Defendant's Striped Shirt Over Defendant's Chest During a Show-Up Identification Was Tantamount to Pointing Out the Defendant as the Perpetrator---Victim Had Told the Police the Perpetrator Was Wearing a Striped Shirt
The Second Department, over a dissent, determined the show-up identification procedure was unduly suggestive, requiring suppression of the identification testimony and a new trial. The defendant did not match the description of a person who had just robbed the victim at knife-point. However, the victim said the robber was wearing a brown and white striped shirt. When a police officer spotted the defendant, he was shirtless but was carrying a red and white striped shirt. The victim was driven to where the defendant was being held, but she was only able to identify the defendant as the robber after an officer draped the striped shirt over his chest:
Here, the active police involvement in the identification process—the police officers' draping of the shirt over the defendant's chest immediately after the complainant had hesitated in identifying the shirtless defendant as the perpetrator and before she did identify him—renders this showup identification procedure unduly suggestive ... . The actions taken by the police officers suggested to the complainant that the defendant was the perpetrator. Although the complainant saw the shirtless defendant, she did not identify him as the perpetrator until after the police held the striped shirt up against him. This action by the police is akin to the police having pointed out the defendant as the perpetrator ... . People v James, 2015 NY Slip Op 03864, 2nd Dept 5-6-15
Evidence Seized In Violation of Probationer's Constitutional Rights Should Not Have Been Used as the Basis for a Probation Revocation
The Fourth Department determined evidence which was suppressed because it was unconstitutionally seized could not be used to support a revocation of probation, noting that a probationer loses some privacy and Fourth Amendment rights, but not all of both:
The Court of Appeals has "recognized . . . that a probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both" ..., and "that a person on parole, although legally in custody and subject to supervision, is nevertheless constitutionally entitled to protection against unreasonable searches and seizures. A person on probation, subject to similar restraints (see CPL 410.50, subds. 1, 2)[,] should be similarly protected" ... . Furthermore, with respect to evidence that was illegally seized from a person under a revocable disposition, "the Court of Appeals has applied the New York constitution to suppress such evidence at a parole revocation hearing . . . , and it would seem to follow a fortiori that such evidence would not be admissible at a probation violation hearing, which is even closer to a criminal action than a parole violation hearing" ... . Here, the court concluded that the stop and search of defendant and his home were violative of defendant's rights under the Constitutions of New York and the United States. Consequently, the court erred in relying upon the evidence seized as a result of those improper searches to conclude that defendant violated a condition of his probation... . People v Robinson, 2015 NY Slip Op 03967, 4th Dept 5-8-15
DISCIPLINARY HEARINGS (INMATES)
Failure to Interview Witnesses Justified Annulment of the Determination
The Third Department determined the failure of the employee assistant to interview the witnesses identified by the petitioner and the hearing officer's direction that witnesses not be interviewed required annulment of the determination:
We agree with petitioner that he was deprived of meaningful employee assistance. The record establishes that when petitioner complained of inadequate assistance, the hearing was adjourned to provide petitioner with additional employee assistance. Upon reconvening, petitioner again complained that, although the employee assistant interviewed the four witnesses he requested, the employee assistant failed to speak with the other 15 identified inmates involved in the incident. In response, the Hearing Officer stated that he, in fact, had instructed the employee assistant not to speak with those 15 inmates as the information petitioner was seeking was irrelevant to the determination. Under these circumstances, the employee assistant should have interviewed the inmates involved and reported back to petitioner with the results in order to assist petitioner in preparing an adequate defense ... . Moreover, under these circumstances, we find that the Hearing Officer improperly interfered with and deprived petitioner of his right to employee assistance by directing the assistant not to contact 15 inmates involved in the incident on the basis that he considered the information requested to be irrelevant. Accordingly, the determination must be annulled. Matter of Williams v Fischer, 2015 NY Slip Op 03901, 3rd Dept 5-7-15
FAMILY LAW/MUNICIPAL LAW
County Department of Human Services Was Entitled to a Hearing On Whether It Should Be Held In Contempt for Failing to Place a Person In Need of Supervision In Foster Care
The Fourth Department determined the County Department of Human Services should not have been held in contempt without a hearing for failing to return the respondent (a person in need of supervision) to foster care. The Department had raised a defense, i.e., the Department had tried but was unable to place the respondent, and was therefore entitled to a hearing. Matter of Andrew B., 2015 NY Slip Op 03999, 4th Dept 5-8-15
Family Court Should Not Have Denied Nonparent's Petition for Custody of a Child, and Awarded Custody to the Father and Mother, in the Absence of an Evidentiary Hearing
The Third Department determined there were questions of fact whether non-parent petitioner could show extraordinary circumstances warranting the award of custody of a child petitioner cared for for years. Family Court had awarded custody to the father and mother without a hearing:
Under settled law, "a parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances" ... , and the nonparent bears the "heavy burden of establishing extraordinary circumstances to overcome the [parent's] superior right to custody" ... . "The pertinent factors to be considered in determining whether extraordinary circumstances exist include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role" ..., as well as "the child's psychological bonding and attachments, the prior disruption of the parent['s] custody, separation from siblings and potential harm to the child" and other relevant factors ... . A "consent order, standing alone, does not constitute a judicial finding [or an admission] of . . . extraordinary circumstances" ... . However, we have stressed that, "with few exceptions, an evidentiary hearing is necessary to determine whether extraordinary circumstances exist" ... . Matter of Liz WW. v Shakeria XX., 2015 NY Slip Op 03888, 3rd Dept 5-7-15
There Must Be a Determination of Paternity Before Making an Abandonment Finding
The Second Department, in a full-fledged opinion by Justice Dillon, determined Family Court should have granted appellant's request for DNA testing before finding that appellant had abandoned the child (thereby freeing the child for adoption). Appellant did not know whether he was the father of the child and there was no evidence of his paternity. Appellant feared the abandonment finding would negatively affect his relationship with his four children. The Second Department held the abandonment finding could not be made unless appellant is the father, so whether appellant is the father must be determined first:
We are asked to address whether a Family Court may render a determination that a putative father has abandoned a child so as to free the child for adoption, if there is not first a threshold finding that the putative father is, in fact, the father of the child. For the reasons set forth below, we conclude that where paternity is not ascertained in fact or by law, the Family Court may not conclusorily find that a respondent is not a "consent father," or that his consent, while otherwise required, has been forfeited by reason of his abandonment of the child. Matter of Heaven A. A. (Tyrone W.--Stephanie A.), 2015 NY Slip Op 03833, 2nd Dept 5-6-15
FAMILY LAW/TRUSTS AND ESTATES
Divorce and Right to Equitable Distribution Did Not Abate Upon Husband's Death
The Second Department determined the divorce action and the right to equitable distribution did not abate upon the husband's death. The final adjudication of divorce had been made before the husband's death and death did not abate a vested right to equitable distribution:
Contrary to the contention of the executor of the husband's estate, the actions did not abate upon the death of the husband. The Supreme Court had made the final adjudication of divorce before the husband's death, but had not performed the " mere ministerial act of entering the final judgment'" ... . Moreover, a cause of action for equitable distribution does not abate upon the death of a spouse ... . " Consequently, if a party dies in possession of a vested right to equitable distribution, and that right has been asserted during the party's lifetime in an action in a court of this State, that right survives the party's death and may be asserted by the estate'" ... . Charasz v Rozenblum, 2015 NY Slip Op 03798, 2nd Dept 5-6-15
HUMAN RIGHTS LAW/EMPLOYMENT LAW
Plaintiff's Age-Discrimination Lawsuit Properly Survived Summary Judgment
The First Department, over an extensive dissent, determined defendant's motion for summary judgment in an age-discrimination suit was properly denied. Plaintiff alleged she was terminated because of her age and was able to raise a question of fact about whether the reasons for termination proffered by the defendant were pretextual. The core of plaintiff's allegations were remarks made by the person who replaced plaintiff as executive director of defendant-club---remarks noting plaintiff looked "tired" and perhaps needed to "rest" or questions whether plaintiff was "up for" meetings or whether a meeting might be "too much for" her:
...[W]e find that when plaintiff's testimony is credited for purposes of this motion, these remarks directly reflect age-based discriminatory bias ..., and raise an inference of age-related bias sufficient to make out plaintiff's prima facie case of employment discrimination ... . In concluding that no inference of discriminatory motive can be drawn from this evidence, the dissent fails to abide by the precept that "all of the evidence must be viewed in the light most favorable to the party opposing the motion, and all reasonable inferences must be resolved in that party's favor" ... .
Plaintiff has ... met her burden of showing pretext by "respond[ing] with some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete" ... . Rollins v Fencers Club, Inc., 2015 NY Slip Op 03769, 1st Dept 5-7-15
Late Notice of the Accident by the Insured (in Violation of the "Prompt Notice Condition), Coupled with the Injured Plaintiff's Failure to Make Reasonable Efforts to Identify and Notify the Insurer, Relieved the Insurer of Any Obligation to Defend or Indemnify the Insured
Plaintiff was injured while skiing at a ski resort (Nevele's). The Third Department determined Nevele failed to give timely notice of the accident/injury to its insurer, Lexington. Nevele did not inform Lexington for ten months. The policy included a "prompt notice condition." The court noted that, because the injured party can also notify the insurer of an accident, late notice will be excused if the injured party is unable to identify the insurer after making reasonable efforts. Here the plaintiffs sent a letter to Nevele asking Nevele to notify its insurer, but did nothing further to learn the identity of or notify the insurer. Plaintiffs' efforts were not sufficient to excuse the late notice:
Because an injured party is allowed by law to provide notice to an insurance company (see Insurance Law § 3420 [a] ), he or she is also generally held to any prompt notice condition precedent of a policy ... . However, such an injured party can overcome an insurance company's failure to receive timely notice — which would otherwise vitiate coverage — by a demonstration that he or she did not know the insurer's identity despite his or her reasonably diligent efforts to obtain such information ... .
As proof of their reasonably diligent efforts, plaintiffs submitted two letters that they had sent to Nevele with an attached questionnaire. The letters provided notice of the contemplated personal injury action, requested that Nevele complete the questionnaire and requested that Nevele either kindly refer the letter to Nevele's insurance company or inform plaintiffs if Nevele was not insured. The attached questionnaire requested insurance carrier information. However, despite the fact that [plaintiff's] accident did not involve any automobile, that questionnaire only specifically requested insurance information regarding Nevele's automobile insurer. Nevele responded to the second correspondence, but it did not respond to the question relating to insurance coverage. The record is devoid of evidence that plaintiffs took any further efforts to ascertain Lexington's identity.
* * * Given the combination of plaintiffs' initial failure to specifically ask for the relevant insurance information, their failure to ask for such information after Nevele's communication and their failure to promptly follow up in any other manner, plaintiffs failed to raise a triable issue of fact as to their reasonable efforts to ascertain Lexington's identity ... . Kleinberg v Nevele Hotel, LLC, 2015 NY Slip Op 03891, 3rd Dept 5-7-15
Whether the Insurer Is Obligated to Indemnify the Driver Turns on Whether the Driver Acted Intentionally When His Vehicle Struck the Rear of Decedent's Vehicle----There Was a Question of Fact Whether the Incident Was an Accident or the Result of Intentional Conduct
The Fourth Department determined there was a question of fact whether the striking of decedent's car from behind was intentional or accidental. If the rear driver acted intentionally, his insurer had no duty to indemnify the rear driver. The court explained the terms "accidental" and "intentional" in this context:
"In deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen" ... . We must look to the allegations of the complaint in the underlying action, but may also consider extrinsic facts ... .
Insurable " [a]ccidental results can flow from intentional acts' " ... . On the other hand, "when the damages alleged in the [underlying] complaint are the intended result which flows directly and immediately from [the insured's] intentional act, . . . there is no accident, and therefore, no coverage" ... . "[M]ore than a causal connection between the intentional act and the resultant harm is required to prove that the harm was intended" ... . The exclusion for an intentional injury, however, will apply where the injuries are " inherent in the nature' of the wrongful act"... . Kemper Independence Ins. Co. v Ellis, 2015 NY Slip Op 04011, 4th Dept 5-8-15
Person Injured After Being Thrown from a Motorcycle Is an "Occupant" of the Motorcycle Within the Meaning of the Insurance Law and Is Therefore Not Eligible for First-Party No-Fault Benefits
The Fourth Department, in a full-fledged opinion by Justice Sconiers, determined a person injured after being thrown from a motorcycle was an "occupant" of the motorcycle within the meaning of the Insurance Law and therefore ineligible for first-party no-fault benefits:
Previously, motorcycle operators and passengers injured in motor vehicle accidents were generally entitled to first-party benefits under the no-fault law. Former section 672 (1) (a) of the Insurance Law provided that those entitled to first-party benefits under the no-fault scheme encompassed "persons, other than occupants of another motor vehicle." That category included motorcyclists on a par with pedestrians ... . The statute was amended in 1977 to exclude occupants of motorcycles from such benefits (see L 1977, ch 892, § 9), thereby terminating the treatment of motorcycle occupants "as pedestrians rather than motorists [who] enjoy the benefits of no-fault at no cost" ... . The successor of the amended statute, Insurance Law § 5103 (a) (1), currently provides that, under a policy of insurance issued on an automobile, first-party benefits are available to "[p]ersons, other than occupants of another motor vehicle or a motorcycle" ... . The exclusions in the Kemper and Farm and Family insurance policies of "any person while occupying a motorcycle" are consistent with Insurance Law § 5103 (a) (1) and the regulations promulgated thereunder (see 11 NYCRR 65-1.1 [d]). Boyson v Kwasowsky, 2015 NY Slip Op 03964, 4th Dept 5-8-15
INSURANCE LAW/PRIVILEGE/CIVIL PROCEDURE
Reports by Attorneys Which Relate to an Insurer's Decision to Accept or Reject a Claim Are Discoverable---Reports by Attorneys Made After the Claim Is Rejected Are Not Discoverable
The Fourth Department determined the records generated by attorneys which related to an insurer's decision whether to accept or reject a claim were discoverable as records made in the regular course of business---even if the records relate in part to potential litigation. Records generated by attorneys after the claim was denied are privileged and not discoverable:
"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' " ... . "Reports prepared by . . . attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable . . . , even when those reports are mixed/multi-purpose' reports, motivated in part by the potential for litigation with the insured" ... . Here, the documents submitted to the court for in camera review constitute multi-purpose reports motivated in part by the potential for litigation with plaintiff, but also prepared in the regular course of defendant's business in deciding whether to pay or reject plaintiff's claim, and thus plaintiff is entitled to disclosure of those documents. Lalka v Aca Ins. Co., 2015 NY Slip Op 03995, 4th Dept 5-8-15
FALSE ARREST/FALSE IMPRISONMENT
Re: False Arrest and False Imprisonment---Allegations Sufficient to Survive Motion to Dismiss for Failure to State a Cause Action
The Fourth Department determined plaintiff's causes of action for false arrest and false imprisonment properly survived a motion to dismiss for failure to state a cause of action: "
Although liability for false arrest and false imprisonment generally will not be imposed where a civilian complainant merely furnishes information to law enforcement authorities rather than taking " an active role in the [arrest] of the plaintiff, such as giving advice and encouragement or importuning the authorities to act' . . . with the intent that [the] plaintiff be confined" ..., we conclude that the complaint and plaintiff's submissions in opposition to defendant's motion here sufficiently allege that defendant's employees made false statements to investigators with the intent of having plaintiff be arrested and confined ... . Harrison v Samaritan Med. Ctr., 2015 NY Slip Op 03971, 4th Dept 5-8-15
LABOR LAW-CONSTRUCTION LAW
Lateral Shift of Heavy Equipment, Which Pinned Plaintiff Against a Column, Not Gravity-Related---Not Covered Under Labor Law 240 (1)
The First Department determined Supreme Court should have dismissed plaintiff's Labor Law 240 (1) cause of action because plaintiff's injury was not caused by a falling object. Plaintiff was moving an 8000 pound piece of equipment across a flat platform when the equipment shifted laterally and pinned plaintiff against a column. Because the accident did not flow from the application of the force of gravity, it was not covered under Labor Law 240 (1):
Plaintiff and his coworkers were moving a piece of an 8,000-pound piece of equipment across a flat platform. The ultimate goal was to place the equipment onto the forks of a forklift. Plaintiff testified that because two wheels broke off, the workers were pushing and pulling the equipment when it pinned him against a column on the side of the platform. Plaintiff testified that they did not lift the equipment into the air, and that it did not fall. Nor did he know what caused the equipment to shift laterally towards his side. Plaintiff's testimony established that the piece of equipment that pinned him to the column was not a "falling object" and that he was not a "falling worker," and the accident did not otherwise flow from the application of the force of gravity. Thus, he was not covered by Labor Law § 240(1) under the current case law ... . Martinez v 342 Prop. LLC, 2015 NY Slip Op 03770, 1st Dept 5-5-15
LABOR LAW-CONSTRUCTION LAW
Violation of an Industrial Code Provision Does Not Conclusively Establish Negligence in a Labor Law 241 (6) Action
The Fourth Department noted that the fact that an Industrial Code provision was violated does not establish negligence sufficient to support partial summary judgment: "Despite our conclusion that defendants violated 12 NYCRR 23-9.5 (c), we reject plaintiff's contention that he is entitled to partial summary judgment on the issue of defendants' liability with respect to the Labor Law § 241 (6) claim. A violation of an Industrial Code provision 'does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant's negligence'...". Whether there was a violation of 12 NYCRR 23-9.5 (c) turned on whether plaintiff was a member of an "excavation crew." If he was not, then his proximity to the equipment which injured him violated the provision. If he was a member of an "excavation crew," the provision was not violated. The majority determined plaintiff was not a member of a "crew" because he was the only person there. The two dissenting judges disagreed and argued plaintiff was a member of an "excavation crew" within the meaning of the provision. Vanderwall v 1255 Portland Ave. LLC, 2015 NY Slip Op 03959, 4th Dept 5-8-15
Nothing in the Documentation Submitted to the Lender Raised Any Questions About the Applicant's Authority, as the Sole Member, to Enter the Mortgage on Behalf of Defendant Limited Liability Company---Therefore the Affirmative Defense Alleging the Mortgage Was Invalid Because there Were Undisclosed Members of the Limited Liability Company Was Properly Dismissed
In an action to foreclose a mortgage, the Second Department determined the defendants' affirmative defense claiming the mortgage was invalid was properly dismissed. The defendants alleged the member of defendant limited liability company who applied for the mortgage, Botticelli, did not have the authority to enter the mortgage on behalf of the limited liability company because he was not the sole member. However, there was nothing in the documents submitted to the lender by Botticelli which raised questions about the existence of undisclosed members. Therefore the mortgagee was not under any obligation to make inquiries to ensure Botticelli had the proper authority and the mortgagee was a bona fide encumbrancer:
The operating agreement of the defendant Jericho Plaza, LLC (hereinafter the LLC), which was formed to build and sell new homes, provided that Silvia Cerrone held a 50% interest, that her son-in-law Giuliano Botticelli held a 25% interest, and that his father, Anthony Botticelli, held a 25% interest in the LLC. The LLC obtained a $600,000 loan, secured by a mortgage on the only property it owned. At the closing, Giuliano Botticelli presented documents indicating that he was the sole member of the LLC, and was authorized to execute the mortgage on its behalf. Thereafter, the plaintiffs commenced this foreclosure action against the LLC and others. Silvia Cerrone successfully moved to intervene. The LLC and Silvia Cerrone (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them, contending that the mortgage was invalid by reason of Cerrone's undisclosed interest in the LLC, and the plaintiffs cross-moved for summary judgment dismissing the defendants' affirmative defenses which were based upon the alleged invalidity of the mortgage.
A mortgagee is not a bona fide encumbrancer where, despite being aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue, it fails to make such inquiries ... . However, mortgagees "do not have a duty of care to ascertain the validity of the documentation presented by an individual who claims to have the authority to act on behalf of a borrower corporation or entity" ... .
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendants' affirmative defenses which were based upon the alleged invalidity of the mortgage, by submitting evidence demonstrating that Giuliano Botticelli submitted documents at the closing which indicated that he was the sole member of the LLC, and had the authority to enter into the mortgage on its behalf. Moreover, the plaintiffs established, prima facie, that the circumstances presented would not lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue. 334 Corp. v Jericho Plaza, LLC,2015 NY Slip Op 03827, 2nd Dept 5-6-15
Plaintiff's Inability to Identify the Precise Sidewalk Defect Which Caused Her Fall (In a Photograph) Did Not Warrant Summary Judgment to the Defendant---Plaintiff Testified She Tripped on a Bump in the Sidewalk
The First Department determined that plaintiff's inability to identify the precise sidewalk defect over which she tripped did not warrant granting summary judgment to the defendant. Plaintiff testified her foot struck a bump in the sidewalk but she was unable to identify the defect in a photograph of the sidewalk. Under the circumstances the plaintiff was not required to identify the particular defect which caused her fall in order to avoid summary judgment. She was able to demonstrate a "nexus" between a defect and her fall:
At her deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff's inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible ... . Under the circumstances, plaintiff's testimony was sufficient to demonstrate a causal "nexus" between a defect in the sidewalk in front of [defendant's] property and her fall, and she was not required to prove "precisely which particular" defect in the sidewalk caused her to fall in order to avoid summary judgment ... . Kovach v PJA, LLC, 2015 NY Slip Op 03931, 1st Dept 5-7-15
Bar Patron Was Beaten to Death by Other Patrons---Defendants (Bar and Premises Owners) Were Unable to Demonstrate the Attack Was Not Foreseeable and their Negligence Was Not the Proximate Cause of the Attack---Defendants' Summary Judgment Motion Properly Denied
The Second Department determined there were questions of fact whether a bar patron could have been protected from harm. "The plaintiff's decedent was assaulted by other patrons of a lounge on premises leased by the defendant Bartini's Pierre, Inc., also known as Station Bar Corp., doing business as Bartini's Lounge, and owned by the defendant Reiner & Keiser Associates (hereinafter together the appellants)." The appellants were not able to demonstrate prima facie that the attack was not foreseeable, that the attack could not have been prevented, that the appellants' negligence was not the proximate cause of the attack, or that reasonable security measures to guard against criminal acts by third persons were taken:
"Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" ... .
Here, the appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them. In support of their motion, the appellants submitted the deposition testimony of a witness to the incident, who testified that, shortly before the incident, he noticed the decedent being restrained by a security guard, but was not aware of the events which led the security guard to restrain the decedent. The witness testified that the security guard then proceeded to escort the decedent out of the premises, during the course of which the decedent was severely beaten by other patrons, resulting in his death. This evidence failed to demonstrate, prima facie, that the attack upon the decedent was not foreseeable, that the appellants lacked the opportunity to prevent the attack, or that any negligence on the appellants' part was not a proximate cause of the incident ... . The appellants also failed to demonstrate, prima facie, that they took reasonable security measures against foreseeable criminal acts of third parties ... . Walfall v Bartini's Pierre, Inc., 2015 NY Slip Op 03830, 2nd Dept 5-6-15
Doctor Who Allegedly Wrongfully Prescribed Narcotics for a Drug Addict Who Shot Plaintiff's Decedent in an Attempt to Steal Narcotics from a Pharmacy Did Not Owe a Duty of Care to Plaintiff's Decedent
The Second Department determined the duty to protect persons from the criminal acts of others did not extend to plaintiff's decedent. Plaintiff sued a doctor who operated a pain management clinic, alleging that the doctor operated a "pill mill" and wrongfully provided drugs to a drug addict, The drug addict shot plaintiff's decedent during a robbery of a drug store in an attempt to steal narcotics. The court noted that there are situations in which a defendant exercises sufficient control to prevent harm to others. Here, however, in the absence of such control, the doctor owed no duty of care to plaintiff's decedent:
"The question of whether a defendant owes a duty of care to another person is a question of law for the courts" ... .
Generally, "[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm" ... . Further, "there is no duty to control the conduct of third persons to prevent them from causing injury to others,' even where, as a practical matter, the defendant could have exercised such control" ... .
... Courts have imposed a duty of care "where there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons" that courts have identified a duty to exercise such control ... . Thus, courts have imposed a duty to control the conduct of others "where there is a special relationship: a relationship between [the] defendant and [the] third person whose actions expose [the] plaintiff to harm such as would require [the] defendant to protect the plaintiff from the conduct of others" ... .
The Supreme Court erred in denying [the doctor's] motion to dismiss the complaint insofar as asserted against him for failure to state a cause of action. [The doctor] did not owe a duty to the decedent or to the general public because no special circumstances existed. The decedent was a stranger to [the shooter] and a member of the general public, not a member of "a determinate and identified class" ... . Malone v County of Suffolk, 2015 NY Slip Op 03811, 2nd Dept 5-6-15
Transit Authority Not Liable Under the Emergency Doctrine As a Matter of Law
The Second Department determined the defendant New York City Transit Authority was not liable to the plaintiff as a matter of law under the emergency doctrine. Plaintiff was a passenger in the Transit Authority's vehicle when defendant Franco allegedly backed out of a driveway at a high rate of speed (to get over a snow bank) into the path of the Transit Authority's vehicle. "The common-law emergency doctrine 'recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency' ... . 'Although the existence of an emergency and the reasonableness of the response to it generally present questions of fact, those issues may in appropriate circumstances be determined as a matter of law''...". Majid v New York City Tr. Auth., 2015 NY Slip Op 03809, 2nd Dept 5-6-15
Question of Fact Whether It Was Foreseeable Children Would "Ride" an Unsecured Gate Resulting in Injury
The Fourth Department determined there was a question of fact whether it was foreseeable that children would swing on an unsecured gate to a cemetery (open to the public). The seven-year-old plaintiff was injured while "riding the gate." Although there is nothing inherently dangerous about an unsecured gate, knowledge that children played in the cemetery raised a question of fact whether injury to a child was foreseeable:
"It is beyond dispute that landowners . . . have a duty to maintain their properties in [a] reasonably safe condition" ... . "Consistent with that duty, the degree of care to be exercised must take into account the known propensity' of children to roam and climb and play' " ... . Indeed, "New York State courts have recognized the special propensities of children and the prevailing social policy of protecting them from harm' . . . and have not deprived them of a right to compensation for injuries caused by the negligence of third parties . . . solely on account of their misuse of an instrument found on the defendant's premises" ... . "What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact" ... .
* * * "[A]t least once it is known that children commonly play around . . . an artificial structure [such as the gate], their well-known propensities . . . to climb about and play' . . . create a duty of care on the part of a landowner to prevent foreseeable risks of harm that might arise out of those activities" ... .
Given that, "as a matter of law, [ riding' a gate] is not such an extraordinary' form of play as to break the causal connection between the dangerous condition . . . and plaintiff's injuries," we conclude that there is a triable issue of fact whether "[i]t was a natural and foreseeable consequence of defendant's failure to effectively secure the [gate] against access that young children would play [on it]," thereby resulting in injury ... . Charles v Village of Mohawk, 2015 NY Slip Op 03975, 4th Dept 5-8-15
Landlord Failed to Eliminate Triable Issues of Fact Concerning Whether He Had Constructive Notice of the Presence of Lead Paint
In the context of a summary judgment motion, the Fourth Department determined the landlord did not meet his burden of demonstrating he did not have constructive notice of the presence of lead paint:
Where, as here, there is no evidence that the landlord had actual notice of the existence of a hazardous lead paint condition, plaintiff may establish that defendant had constructive notice of such condition by demonstrating that the landlord "(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" (Chapman v Silber, 97 NY2d 9, 15). Defendant conceded that he was aware that a young child lived in the subject premises, and we conclude that he failed to meet his burden on the four remaining Chapman factors... . Wood v Giordano, 2015 NY Slip Op 03984, 4th Dept 5-8-15
Jury's Finding that the Defendant Was Negligent but that the Negligence Was Not the Proximate Cause of the Accident Was Against the Weight of the Evidence---Motion to Set Aside the Verdict Should Have Been Granted---New Trial Ordered
The Third Department determined Supreme Court should have granted plaintiff's motion to set aside the verdict. Plaintiff was injured when her bicycle struck a recessed manhole cover. Defendant construction company had placed barrels in the roadway to create a pedestrian walkway. The placement of barrels served to direct users of the walkway toward the recessed manhole. The jury found the placement of the barrels negligent but further found that negligence was not the proximate cause of the accident. The verdict was against the weight of the evidence because the only reason the placement of the barrels would be deemed negligent is that the barrels diverted traffic toward the recessed manhole:
"A jury's finding that a party was at fault but that [such] fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" ... . Further, we view the evidence in the light most favorable to the nonmoving party, defendant, and afford deference to the jury's credibility determinations ... . A "plaintiff's own conduct may be a superceding cause which severs the causal connection between [the] defendant's negligence and the injury [when] a plaintiff's negligence [is] more than mere contributory negligence, which would be relevant in apportioning culpable conduct" ... .
* * * The only theory presented at trial as to why such placement was negligent, as indicated in the jury instructions, was that it diverted traffic toward a dangerous recessed manhole cover. Given that the uncontested evidence was that plaintiff was diverted in just such a manner, no fair interpretation of the evidence "would support the conclusion that [plaintiff's] conduct was so extraordinary or unforeseeable as to make it unreasonable to hold defendant responsible for the resulting damages" ... . Therefore, Supreme Court erred in denying plaintiff's motion to set aside the verdict. Durrans v Harrison & Burrowes Bridge Constructors, Inc., 2015 NY Slip Op 03896, 3rd Dept 5-7-15
Question of Fact Whether County Had Constructive Notice of Pothole Which Injured Bicyclist
The Second Department determined a question of fact had been raised about whether the county had constructive notice of a pothole. Plaintiff was injured when his bicycle struck the pothole. Although the county did not have written notice of the defect, the Highway Law (section 139) provides that a county may be liable for a defective highway condition if the county has constructive notice of it. Plaintiff's expert opined the pothole had existed for four months prior to the accident:
Notwithstanding the existence of a prior written notice statute, a County may be liable for an accident caused by a defective highway condition where the County has constructive notice of the condition (see Highway Law § 139...). Here, the County submitted the deposition testimony of a County employee who stated that he inspected the roadway where the fall is alleged to have occurred every Monday through Friday until the week before the accident, and did not observe any potholes. This was sufficient to establish, prima facie, that the County lacked constructive notice of the alleged defect ... . However, in opposition to the County's motion, the plaintiff submitted the affidavit of an expert who inspected the subject roadway and opined that the defect was in existence for at least four months prior to the accident. This affidavit was sufficient to raise a triable issue of fact as to whether the County had constructive notice of the alleged defect by virtue of the fact that it existed for so long a period that it should have been discovered and remedied in the exercise of reasonable care and diligence ... . Rauschenbach v County of Nassau, 2015 NY Slip Op 03818, 2nd Dept 5-6-15
NEGLIGENCE/EDUCATION-SCHOOL LAW/MUNICIPAL LAW/CIVIL PROCEDURE
Supervision, Even If Inadequate, Could Not Have Prevented Injury Caused by the Sudden, Unanticipated Act of Another Student---Summary Judgment to Defendant Properly Granted
The First Department determined that plaintiff's injury on the playground could not have been prevented by supervision. Therefore the alleged inadequate supervision was not a proximate cause of the injury. Plaintiff was injured when he hit a pole while running away from another student. The court noted that the board of education, not the city, is the proper party. The city is a separate legal entity not responsible for the torts of the board:
As to the claim against the Board, it is well settled that
"[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another. A teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances ... .
"Even if a breach of the duty of supervision is established, the inquiry is not ended; the question arises whether such negligence was the proximate cause of the injuries sustained" ... . " Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted'" ... . Thus, "[a]n injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act" ... .
Here, even assuming that plaintiff could demonstrate that the supervision during the gym class was inadequate, the Board established a prima facie case for summary judgment by demonstrating that the accident was the result of a series of sudden and spontaneous acts and that any lack of supervision was not the proximate cause of the infant plaintiff's injury ... . Jorge C. v City of New York, 2015 NY Slip Op 03772, 1st Dept 5-5-15
Res Ipsa Loquitur Doctrine Can Apply to an Elevator Maintenance Company Even Where there Is No Proof the Company Had Actual or Constructive Notice of Elevator Misleveling
The First Department, in a full-fledged opinion by Justice Gische, over a two-justice partial dissent, determined that an elevator maintenance company could be liable for a fall allegedly caused by misleveling of an elevator under the doctrine of res ipsa loquitur, even though there was no evidence the elevator maintenance company had actual or constructive notice of the problem. The plaintiff's allegations of the misleveling, coupled with the settled principle that elevator misleveling does not occur in the absence of negligence, raised a question of fact under the res ipsa loquitur criteria:
Res ipsa loquitur permits a fact finder to infer negligence based upon the sheer occurrence of an event where a plaintiff proffers sufficient evidence that (1) the occurrence is not one which ordinarily occurs in the absence of negligence; (2) it is caused by an instrumentality or agency within the defendant's exclusive control; and (3) it was not due to any voluntary action or contribution on the plaintiff's part ... . If a plaintiff establishes these elements, then the issue of negligence should be given to a jury to decide ... .
Res ipsa loquitur does not create a presumption of negligence; rather it is a rule of circumstantial evidence that allows the jury to infer negligence ... . A defendant is free to rebut the inference by presenting different facts or otherwise arguing that the jury should not apply the inference in a particular case ... . Notice of a defect is inferred when the doctrine applies and the plaintiff need not offer evidence of actual or constructive notice in order to proceed ... . Thus, while there is no proof of actual or constructive notice in this case, res ipsa loquitur can still support plaintiff's claim ... . Ezzard v One E. Riv. Place Realty Co., LLC, 2015 NY Slip Op 03791, 1st Dept 5-5-15
There Is No Blanket Prohibition Against Relying on the Doctrine of Res Ipsa Loquitur in a Medical Malpractice Case
In affirming the denial of summary judgment to the defendant in a medical malpractice case, the Third Department noted that plaintiff is not precluded from relying on the doctrine of res ipsa loquitur in a medical malpractice action. Here it is was alleged the improper insertion of an IV damaged a nerve: "While the proof adduced at trial ultimately may be insufficient to establish the required elements of res ipsa loquitur ..., thereby rendering the submission of such a charge to the jury unwarranted ..., there is no blanket prohibition upon invoking this doctrine in the context of a medical malpractice action ... . Weeks v St. Peter's Hosp., 2015 NY Slip Op 03909, 3rd Dept 5-7-15
Injury While Trying to Pick Up a Fallen 3000 Pound Roll of Paper Was a Foreseeable Consequence of an Alleged Equipment Defect Which Caused the Roll to Fall
The Fourth Department determined the summary judgment motion of the defendants---manufacturers and modifiers of a pallet truck---was properly denied. The complaint alleged the pallet truck and the roll cradle with which the pallet truck was modified were defective, causing a 3000 pound roll of paper to fall off the truck. Plaintiff was severely injured while trying to lift the fallen roll. The defendants' arguments that any defects in the pallet truck and roll cradle were not the proximate cause of the injury, and the attempt to pick up the fallen roll was the superseding cause of the injuries, were rejected. The court determined the cause of the injury was within the class of foreseeable hazards associated with a fallen roll and the risk of the intervening act (lifting the fallen roll) was the same risk that renders the actor negligent:
"As a general rule, the question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions" ... . Where the cause of an accident is "within the class of foreseeable hazards that [a] duty exists to prevent, the [defendant] may be held liable, even though the harm may have been brought about in an unexpected way" ... . We conclude that the hazard that caused plaintiff's injury, i.e., the movement of the roll while it was being placed back in an upright position, was "within the class of foreseeable hazards" associated with a roll falling off the allegedly defective pallet truck ..., and thus a jury "could rationally [find] that . . . there was a causal connection between [defendants' alleged] negligence and plaintiff's injuries" ... . We thus reject the contention of defendants that the falling roll merely "furnished the occasion" for plaintiff's accident.
We also reject the contention of defendants that the actions of plaintiff and his coworkers in attempting to upright the roll were a superseding cause of plaintiff's injuries. "An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act is the very same risk which renders the actor negligent" ... . As noted above, the risk of the roll falling while being uprighted is the same risk underlying plaintiffs' allegations of negligence, and we conclude that the actions of plaintiff and his coworkers were not "of such an extraordinary nature" as to relieve defendants of liability ... . Ard v Thompson & Johnson Equip. Co., Inc., 2015 NY Slip Op 03985, 4th Dept 5-8-15
1/2 to 3/4 Inch Defect in Sidewalk Not Trivial As a Matter of Law
In denying defendant's motion for summary judgment on the ground that the 1/2 to 3/4 defect in the sidewalk (which extended across two adjoining slabs) where plaintiff tripped and fell was trivial, the Fourth Department explained the relevant criteria: "[W]hether a dangerous or defective exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ... . "[T]here is no minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" ... . Although "in some instances . . . the trivial nature of the defect may loom larger than another element[,] . . . [a] mechanistic disposition of a case based exclusively on the dimension of the [pavement] defect" is inappropriate ... . Thus, a determination whether a particular defect is actionable requires examination of "the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" ... . Greco v City of Buffalo, 2015 NY Slip Op 03966, 4th Dept 5-8-15
REAL PROPERTY LAW/DEED/CIVIL PROCEDURE
Attorney-in-Fact Used His Power to Create a Gift (by Deed) to Himself and/or Third Parties---Deed Declared Null and Void
The Fourth Department determined the deed purporting to transfer a life estate to the attorney-in-fact was null and void. Essentially, the attorney-in-fact used his power to make a gift to himself and/or third parties, which created an unrebutted presumption of impropriety:
It is well settled that "[a] power of attorney . . . is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal" ... . "The relationship of an attorney-in-fact to his principal is that of agent and principal . . . and, thus, the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing' . . . Consistent with this duty, an agent may not make a gift to himself or a third party of the money or property which is the subject of the agency relationship" ... . "In the event such a gift is made, there is created a presumption of impropriety [that can] be rebutted [only] with a clear showing that the principal intended to make the gift" ..., or that the gift was in the principal's best interest ... . Borders v Borders, 2015 NY Slip Op 04022, 4th Dept 5-8-15
REAL PROPERTY LAW/UTILITIES
Owner of Land through Which Power Lines Pass Pursuant to a Utility Easement (Servient Owner) Does Not Have a Duty to Maintain the Easement---Servient Owner Not Liable for Damage to Abutting Property Stemming from a Vegetation Fire Started by Sparks from the Power Lines
The Second Department determined the easement which allowed the power company's lines to pass through the owner's property did not impose a duty to maintain the easement on property owner. Vegetation around the power lines caught fire causing damage to an abutting landowner's property. The plaintiff insurer paid the claim and sued the owner of the land through which the power lines passed (the servient owner). The Second Department explained that "a servient owner has no duty to maintain an easement to which its property is subject. Indeed, a servient owner has a passive duty to refrain from interfering with the rights of the dominant owner" ... . Encompass Ins. Co. of Am. v Long Is. Power Auth., 2015 NY Slip Op 03800, 2nd Dept 5-6-15
REAL PROPERTY LAW/CONTRACT LAW
"Agreement to Agree" Insufficient to Sever a Joint Tenancy
The Third Department noted that a joint tenancy with right of survivorship can be severed by written agreement, but determined the email correspondence, which evinced the parties' intent to sever the joint tenancy, did not accomplish the severance because material terms, including price, were not addressed: "Real Property Law § 240-c (3) (a) allows for the severance of a joint tenancy "pursuant to a written agreement of all joint tenants." However, "a contract must be definite in its material terms in order to be enforceable" ... . For this reason, an agreement to agree, where such terms are left to future negotiations, is unenforceable ...". Matter of Wyman (Riddle), 2015 NY Slip Op 03908, 3rd Dept 5-7-15
Nondomiciliary's Presence In New York State for Part of a Day Constitutes Presence for a "Day" for Income Tax Purposes
The Third Department determined presence in New York State for part of a day constitutes presence for a "day" when calculating the number of days a nondomiciliary resides in New York State for income tax purposes:
The Administrative Law Judge determined that, as per 20 NYCRR 105.20 (c), each of the 26 partial days constituted a day in New York under the statute, bringing Zanetti's total days in New York over 183 and, thus, resulting in petitioners being residents of this state for income tax purposes (see Tax Law § 605 [b]  [B]). ...
The residency classification can have significant consequences since New York residents pay income tax on their worldwide income whereas nonresidents are taxed only on their New York source income (see Tax Law §§ 612, 631...). A nondomiciliary may be considered a New York resident for income tax purposes if he or she maintains a permanent place of abode in this state and spends in excess of 183 days of the year here (see Tax Law § 605 [b]  [B]...). The permanent place of abode element is not at issue here. With regard to days in New York, the pertinent regulation of respondent Commissioner of Taxation and Finance provides that, with certain exceptions not relevant in this proceeding, "presence within New York State for any part of a calendar day constitutes a day spent within New York State" (20 NYCRR 105.20 [c]). Matter of Zanetti v New York State Tax Appeals Trib., 2015 NY Slip Op 03894, 3rd Dept 5-7-15
"Mystery Shopper" Not an Employee
The Third Department determined claimant, a mystery shopper, was not an employee entitled to unemployment benefits because the employer, Confero, exercised minimal control over claimant's work:
Here, claimant testified that, when a new mystery shopping event became available, he was notified via email by a scheduling company and then was able to view the assignment on Confero's website. Claimant had the liberty of choosing what assignments, if any, he wanted to perform and, after he accepted an assignment, Confero did not even require that claimant perform the assignment himself. Rather, claimant had the discretion to send a substitute in his place so long as he provided notification to the scheduling company to ensure that the substitute was not overexposed at a given location. Although each assignment came with certain tasks that claimant had to perform, the manner in which he performed those tasks was fully within his discretion. Significantly, Confero did not require that claimant perform any minimum number of assignments, request that he seek permission for time off or set forth a particular work schedule. According to Confero's president, claimant was free to work as little or as much as he wanted. For each assignment that he completed, claimant was paid a nonnegotiable fixed fee that was set by Confero's client. Further evidencing a lack of control, Confero did not provide claimant with any training, supply him with any equipment or require him to attend any meetings, and it fully permitted him to work for competing companies, which he did regularly. Matter of Chan (Confero Consulting Assoc., Inc.--Commissioner of Labor), 2015 NY Slip Op 03890, 3rd Dept 5-7-15
Instructor at a Not-for-Profit Theater Company Was an Employee, Not an Independent Contractor
The Third Department determined a playwrighting instructor at a not-for-profit theater company, Primary Stages Company, was an employee entitled to unemployment insurance benefits:
We note that, for purposes of our review, we consider instructors and teachers to be professionals ... . Accordingly, in deciding if such individuals are employees, the pertinent inquiry is "whether the purported employer retains control of important aspects of the services performed" ... .
Here, Primary Stages utilized an informal process in retaining claimant, as it was familiar with her through her affiliation with a writers' group and simply inquired if she was interested in teaching writing classes. Claimant responded in the affirmative and entered into a written agreement with Primary Stages under which she was paid a flat fee of $1,900 per class. Primary Stages furnished the classroom and also provided a teaching assistant. Although claimant retained the discretion to set the course curriculum, claimant and Primary Stages worked together to establish the class schedule that Primary Stages then distributed to prospective students. Primary Stages was responsible for providing all school facilities and a teaching assistant, finding students to fill the classes and collecting their tuition. The school cancelled classes if there was low enrollment, in which case the instructor would not be paid. If claimant could not teach a class, she needed to notify Primary Stages and, if she or other instructors were unable to complete a course assignment, Primary Stages would find a replacement whose selection was often based upon the recommendation of the instructor. Furthermore, Primary Stages circulated an evaluation form to students for feedback on the instructor at the end of the course and, if the evaluation was unsatisfactory, it would not rehire that instructor. Matter of Wilner (Primary Stages Co. Inc.--Commissioner of Labor), 2015 NY Slip Op 03902, 3rd Dept 5-7-15